Supreme Court considers public school use
By ROBERT F. DRINAN
On Feb. 28, the United States Supreme Court heard oral arguments on a case from upstate New York involving the question of whether a Christian Evangelical church has a constitutional right to use a room in a public school for religious instruction and prayer after the regular school program has concluded for the day.
A federal court and the Second Circuit Court of Appeals in New York have sustained the denial of the right by school officials to the Good News Club.
The Good News Club in Milford, N.Y., is a unit of the National Christian Youth Organization, which seeks to bring the gospel to children between the ages of 6 and 12. Darleen Fournier, the wife of the pastor of the Milford Center Community Bible Church, asked permission to use the premises of the one school building after classes. She argued that since the Boy Scouts, the Girl Scouts and the 4-H Club were able to use classrooms in Milford, her Bible class should have the same privilege. The school board denied the request of the Good News Club.
A lawsuit brought by Fournier on behalf of her 7-year-old daughter, Andrea, was rejected by federal Judge Thomas McAvoy. In his opinion he denied that the group simply advocates the development of character as the Boy Scouts do. The hour-long meetings for children in the first to the fifth grades of school were described by the judge as clearly religious, sometimes leading to the children declaring themselves saved. McAvoy also denied the claim that the free speech privileges of the church were curbed.
The appeals court sustained the ruling of the lower court, with one dissent. The decision said that federal and New York law give no right to religious groups to use a public school building to conduct their services. The minority view reasoned from certain decisions of the U.S. Supreme Court that the right to free speech and assembly favor the Good News Club.
The dissenting judge referred to a Supreme Court decision in 1990 that ruled unanimously that religious groups have the right to use public schools after hours if other community groups have been granted access. Americans United for the Separation of Church and State supported that unanimous ruling but say that the ruling does not apply to the current case because the Good News Club wants to use the public school immediately after classes and seeks to proselytize very young grade-school children.
A similar Good News Club did win a decision from the Eighth Circuit Court of Appeals in a 2-1 split that allowed the religious group to use the schools in the city of Ladue, Mo. The court in this case said that the city had created an open forum and that consequently viewpoint discrimination is not permitted.
Religious instruction in the public school has occupied the Supreme Court since 1948. In that year the Supreme Court ruled 8-1 in the McCollum decision that release time religious instruction could not be held on the premises of public schools. There were some 3 million children receiving such instruction in public schools at that time. The ruling was validated 6-3 in 1952 in the Zorach decision.
The Bible and prayers in public schools were outlawed by the Supreme Court in the early 1960s. Even moments of silent prayer were disapproved.
In 1983 Congress passed the Equal Access Act, which allows high school students to meet to read the Bible during hours designated for extracurricular activities. The Supreme Court sustained the Equal Access Act.
The case advanced by the Good News Club has been used for years by several groups that claim the public school has become too secular and even antireligious because there is no place for instruction in religion.
The claim has a superficial appeal but it is not based in facts. When the Supreme Court forbade the Bible in 1961, the court made it clear, in the opinion of Justice Thomas Clark, that public schools have a right and indeed an educational duty to teach about religion. Courses that teach religion objectively are not prohibited and indeed are encouraged. The scarcity of such courses is attributable both to the nervousness of school superintendents and the lack of teachers qualified to give objective courses.
It is likely in the Good News case that there are five votes to reverse the lower court and allow religious groups to use the premises of public schools after hours. If the Supreme Court allows a religious organization to use public schools for instruction in religion and devotional exercises, the consequences will be significant. Such a decision will reverse the thrust of the 1948 McCollum decision, which made it clear that students in public schools are not to be divided along the lines of their religious affiliation or the lack of any connection with religion. The court warned then that religion cannot constitutionally be advanced by the government and that separating students on the basis of their faith or lack of it can be divisive.
If religious groups, contrary to the spirit and even the letter of the McCollum decision, are allowed to use classrooms after the school day ends, certain problematic situations will arise. In the South and Southwest, Baptists and other denominations can put subtle pressure on parents and students to sign up. The sponsoring groups will be able to use loudspeaker systems to remind children of very young ages to attend the activities. This can divide a school along religious lines. More practically, the attendance of a large number of students at sectarian classes after the school day ends can disrupt the schedule of buses and sports.
If the Supreme Court denies the request of the Good News Club to use the facilities of public school premises, Congress might consider legislation to extend the Equal Access Act to students younger than those in high school. A careful and deliberate decision was made by Congress to limit the privileges made available by the act to high schools. But even if Congress follows such a course, the result would not fit the practices of the Good News Club. The act is restricted to students only; under the statute a minister of religion may join the group only occasionally.
A reversal of the lower courts in Good News Club vs. Milford Central School is being sought by the Rutherford Institute and by religious broadcaster Pat Robertson. The American Civil Liberties Union and its allies will be arguing that the federal courts in New York got it right.
Devout believers will be on both sides of the case. Some will argue with Thomas Jefferson that the separation of religion and government should be firm. Others will take the position that the Supreme Court has taken too separationist a view of the place of religion in the public schools.
The decision in Milford will probably divide Americans like the more than 40 other decisions of the Supreme Court on religion. The decision will deserve the close attention of everyone concerned with the orientation of Americas public schools.
Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center. His e-mail address is email@example.com
National Catholic Reporter, April 13, 2001