LDFA02_0999_2

    No. 99-2036

In The

Supreme Court of the United States
---------------- ♦ - — — ------- -

THE GOOD NEWS CLUB, ANDREA FOURNIER,
AND DARLEEN FOURNIER,

Petitioners,
v.

MILFORD CENTRAL SCHOOL,
Respondent.

----- -— - — - ♦ -------------—

On Writ O f Certiorari 
To The United States Court O f Appeals 

For The Second Circuit 
-----------------♦ -----------------

BRIEF OF A M ICI CURIAE  ANTI-DEFAM ATION LEAGUE; 
HADASSAH, THE W O M EN 'S Z IO N IST ORGANIZATION 

OF AM ERICA, INC.; NATIONAL COALITION  FOR 
PUBLIC EDUCATION AND RELIG IO U S LIBERTY; AND 

NATIONAL COUNCIL OF JEW ISH  WOMEN, IN 
SUPPORT OF RESPO N D EN T 

— ♦ -----------------

J effrey R. B abbin 
Counsel o f Record 

A lan G. S chwartz 
W iggin  & D ana 
One Century Tower 
P.O. Box 1832
New Haven, CT 06508-1832 
(203) 498-4400 
Counsel fo r

Anti-Defamation League

D avid B . Isbell 
Faith  D. K asparian 
G erard N. M agliocca 
C ovington  & B urling 
1201 Pennsylvania Avenue, N.W. 
Washington, D.C. 20004-2401 
(202) 662-6000 
Counsel fo r  National PEARL

M artin E. K arlinsky 
S teven M . F reeman 
E rica M . B roido  
A nti-D efamation L eague 
823 United Nations Plaza 
New York, NY 10017 
(212) 490-2525

R achel Z enner 
H adassah

50 West 58th Street 
New York, NY 10019 
(212) 355-7900

J an  S chneiderman 
N ational C ouncil of 

J ewish W omen 
53 West 23nd Street 
6th Floor
New York, NY 10010 
(212) 645-4048

Dated: January 12, 2001

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF AUTHORITIES............................................... ii

INTEREST OF AMICI CURIAE.......................................  1

SUMMARY OF ARGUMENT........................................... 2

ARGUMENT........................................................................ 4

I. RESPONDENT DID NOT VIOLATE PETI­
TIONERS' FREE SPEECH RIGHTS.......................  4

A. Respondent's Policy Is Reasonable................ 5

B. Respondent's Policy Is Viewpoint Neutral. . 9

II. THE ESTA BLISH M EN T CLAUSE BARS
RESPONDENT FROM ALLOWING PETI­
TIO N ERS' PROPOSED USE OF PUBLIC
SCHOOL FACILITIES..................................    17

A. A Reasonable Elementary School Student
Would Not Understand the Distinction 
Between Government Speech and Private 
Speech .....................      19

B. The Good News Club's Meetings Would
Have the Appearance of a School-Spon­
sored, After-School Program...........................  24

C. The Good News Club Would Be One of Only
a Few Private Groups Meeting on Public 
School Premises.....................................    27

D. To Allow the Good News Club to Meet at
the Milford Central School Would Consti­
tute an Unprecedented Erosion of Establish­
ment Clause Values........................................... 29

CONCLUSION.................................................................... 30

TABLE OF CONTENTS
Page



11

C a se s

Ambach v. Norwick, 441 U.S. 68 (1979)...............  2, 11, 30

Bell v. Little Axe Indep. Sch. Dist. No. 70, 766 F.2d
1391 (10th Cir. 1985).................................................. 21, 22

Board of Educ. of the Westside Community Schs.
(Dist. 66) v. Mergens, 496 U.S. 226 (1990)..........passim

Bronx Household of Faith v. Community Sch. Dist.
No. 10, 127 F.3d 207 (2d Cir. 1997)^..................... 10, 11

Brown v. Board of Educ., 347 U.S. 483 (1954)................. 2

Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d
1373 (9th Cir. 1994)..........................................................  22

Campbell v. St. Tammany's Sch. Bd., 206 F.3d 482 
(5th Cir. 2000), reh'g denied, 231 F.3d 937 (5th 
Cir. 2 0 0 0 )...................................... ............................. 11

Capitol Square Review & Advisory Bd. v. Pinette, 515
U.S. 753 (1995)............................... 18, 19, 21, 22, 24, 28

Cornelius v. NAACP Legal Defense & Educ. Fund,
Inc., 473 U.S. 788 (1985).............................  5, 6, 7, 9, 14

County of Allegheny v. ACLU Greater Pittsburgh
Chapter, 492 U.S. 573 (1989).............................  12, 18, 19

Edwards v. Aguillard, 482 U.S. 578 (1987) 
................................................................ 6, 11, 19, 20, 22, 25

Engel v. Vitale, 370 U.S. 421 (1962).................................  10

Good News/Good Sports Club v. School Dist. of Ladue,
28 F.3d 1501 (8th Cir. 1994)...................................

TABLE OF AUTHORITIES
Page

22



Ill

TABLE OF AUTHORITIES -  Continued
Page

Illinois ex rel. McCollum v. Board of Educ., 333 U.S.
203 (1948)....................................................6, 8, 11, 25, 27

Lamb's Chapel v. Center Moriches Union Free Sch.
Dist., 508 U.S. 384 (1993).......................................passim

Lamb's Chapel v. Center Moriches Union Free Sch.
Dist., 959 F.2d 381 (2d Cir. 1992). . ........................20, 26

Lee v. Weisman, 505 U.S. 577 (1992) .. 10, 11, 19, 25, 26, 29

Lubbock Civil Liberties Union v. Lubbock Indep. Sch.
Dist., 669 F.2d 1038 (5th Cir. 1982)................. ...........  26

Lynch v. Donnelly, 465 U.S. 668 (1984) ......................12, 18

Marsh v. Chambers, 463 U.S. 783 (1983)......................... 19

Peck v. Upshur County Bd. of Educ., 155 F.3d 274
(4th Cir. 1998)...................................................................  22

Perry Education Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. 37 (1983)................................................. .6

Quappe v. Endry, 772 F. Supp. 1004 (S.D. Ohio
1991), aff'd, 979 F.2d 851 (6th Cir. 1992)...................  28

Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819 (1995)........................................................... passim

Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266
(2000).................................................................... 18, 26, 29

School Dist. of Abington Township v. Schempp, 374
U.S. 203 (1963).................................................... 11, 20, 25

School Dist. of Grand Rapids v. Ball, 473 U.S. 373 
(1985), overruled in part on other grounds by 
Agostini v. Felton, 521 U.S. 203 (1997)............... passim



IV

TABLE OF AUTHORITIES -  Continued
Page

Stone v. Graham, 449 U.S. 39 (1980)................................ 12

Tilton v. Richardson, 403 U.S. 672 (1971).......................  20

Wallace v. Jaffree, 472 U.S. 38 (1985).................  10, 19, 25

Widmar v. Vincent, 454 U.S. 263 (1981)
12, 15, 18, 20, 23, 28

S ta tu tes

20 U.S.C. § 1011k(c)............................................................ 12

20 U.S.C. § 1062(c)(1).......................................................... 12

20 U.S.C. § 1066c(c)............................................................ 12

20 U.S.C. § 1068e..................................................................12

20 U.S.C. § 1103e..................................................................12

20 U.S.C. §§ 4071-4074........................................................ 22

20 U.S.C. § 8897.................................................................  12

25 U.S.C. § 1803(b)............................................................. 12

25 U.S.C. § 1813(e)............................................................. 12

25 U.S.C. § 2503(b)(2)......................................................... 12

25 U.S.C. § 3306(a)............................................................. 12

29 U.S.C. § 2938(a)(3)..........................................................12

42 U.S.C. § 604a(j)............................................................... 13

42 U.S.C. § 2753(b)(1)(C)....................................................13

42 U.S.C. § 3027(a)(14)(A)(iv).......................................... 13

42 U.S.C. § 5001(a)(2).........................  13



V

42 U.S.C. § 9807(a)(9).......................................................... .13

42 U.S.C. § 9858k(a).............................................................. 13

42 U.S.C. § 9920(c).....................................  13

42 U.S.C. § 13791(b)(B)(iv)................................................... 13

L eg isla tiv e  H ist o r y

130 Cong. Rec. S19231 (daily ed. June 27, 1984)........  23

130 Cong. Rec. H20934 (daily ed. July 25, 1984)........ 23

S. Rep. No. 98-357 (1984), reprinted in 1984
U.S.C.C.A.N. 2348 ...........................................................  23

M isc e l l a n e o u s

Patricia A. Adler & Peter Adler, Peer Power: Pre­
adolescent Culture and Identity (1998)..........................  21

Allisonville Christian Church Website (visited Jan­
uary 8, 2001) <http://home.att.net/~allisoncc/ 
children.htm>....................................... ..........................10

First Union Methodist Church Website (visited 
January 8, 2001) <http://www.gbgm-umc.org/ 
Schenectady/Children%20and%20 Worship. 
htm> ..............................................   10

Fowler V. Harper, Fleming James, Jr. & Oscar S.
Gray, The Law of Torts (2d ed. 1986)..........................  22

Wayne R. LaFave & Austin W. Scott, Jr., Criminal 
Law (2d ed. 1986)....................................................

TABLE OF AUTHORITIES -  Continued
Page

22

http://www.gbgm-umc.org/Schenectady/Children%20and%20_Worship.htm
http://www.gbgm-umc.org/Schenectady/Children%20and%20_Worship.htm
http://www.gbgm-umc.org/Schenectady/Children%20and%20_Worship.htm


VI

TABLE OF AUTHORITIES -  Continued
Page

National Center for Education Statistics, Schools 
Serving Family Needs: Extended-Day Programs in 
Public and Private Schools (U.S. Dep't of Educ.
Feb. 1997)..................................................................... 26, 27

Jean Piaget & Barbel Inhelder, The Psychology of the
Child (1969).................................................................   20

Jean Piaget, The Stages of the Intellectual Develop­
ment of the Child, in Readings in Child Develop­
ment and Personality 291 (Paul Henery Mussen 
et al. eds., 4th ed. 1997)................................................  20

Restatement (Second) of Torts § 464 (1965).....................  22

Patricia S. Seppanen et al., National Study of Before 
and After School Programs (U.S. Dep't of Educ.
1993)....................................................................................  26

Williston on Contracts (4th ed. 1993)....................   22



1

INTEREST OF AM ICI CURIAE1

The Anti-Defamation League ("ADL") was organized 
in 1913 to advance good will and mutual understanding 
among Americans of all creeds and races and to combat 
racial and religious prejudice in the United States. ADL 
has always adhered to the principle that these goals and 
the general stability of our democracy are best served 
through the separation of church and state and the right 
to free exercise of religion. To that end, ADL has filed 
amicus curiae briefs in many cases before this Court. ADL 
is able to bring to the issues raised in this case the 
perspective of a national organization dedicated to safe­
guarding all persons' religious freedoms.

Hadassah, the Women's Zionist Organization of 
America, Inc. ("Hadassah"), is the largest women's and 
the largest Jewish membership organization in the United 
States with over 300,000 members nationwide. Founded 
in 1912, Hadassah is known for funding and maintaining 
health care institutions in Israel and has a proud history 
of protecting the rights of the Jewish community in the 
United States. Hadassah has long been committed to the 
principle of strict separation between church and state 
that has served as a guarantee for religious freedom and 
diversity. In an effort to uphold this fundamental princi­
ple, Hadassah has participated as amicus curiae in many 
cases before this Court.

The National Coalition for Public Education and Reli­
gious Liberty ("National PEARL") is a diverse coalition of 
grassroots and national religious, educational and civic 
organizations that seeks to preserve religious freedom 
and the separation of church and state in public educa­
tion. National PEARL has participated in an amicus capac­
ity in many cases before this Court.

1 No counsel for any party authored this brief in whole or 
in part. No person or entity, other than amici curiae, their 
members or their counsel made a monetary contribution to the 
preparation and submission of this brief.



2

The National Council of Jewish Women, Inc. 
("NCJW") is a volunteer organization, inspired by Jewish 
values, that works to improve the quality of life for 
women, children and families and strives to ensure indi­
vidual rights and freedoms for all. Founded in 1893, the 
NCJW has long adhered to the view that religious liberty 
and separation of church and state are constitutional 
principles that must be protected and preserved in our 
democratic society. The NCJW has 90,000 members in 
over 500 communities nationwide.

SUMMARY OF ARGUMENT

1. This Court has long recognized "[t]he importance 
of public schools in the preparation of individuals for 
participation as citizens, and in the preservation of the 
values on which our society rests." Ambach v. Norwick, 441 
U.S. 68, 76 (1979); see Brown v. Board of Educ., 347 U.S. 483, 
493 (1954). Petitioners question whether a public elemen­
tary school may open itself as a forum to certain specified 
types of speech and still exclude from that limited forum 
religious worship, instruction and indoctrination targeted 
at the school's children.2 Amici support respondent's cate­
gorical exclusion of that speech as both a reasonable, 
viewpoint-neutral limitation, consistent with the Free 
Speech Clause of the First Amendment, and as a limita­
tion mandated by the Establishment Clause of the First 
Amendment.

2. a. Respondent's policy is a reasonable limitation 
on use of a public school. Just as the government may

2 Although respondent's policy provides broadly that 
school premises may not be used by any organization for 
"religious purposes," school officials have interpreted the 
policy to exclude only religious worship, instruction and 
indoctrination. See J.A. at N4 ("I would interpret [the policy to 
exclude] conducting religious services, providing religious 
instruction or to an extreme, religious indoctrination into a 
philosophy or a belief.").



3

exclude potentially divisive political speech from the 
workplace to avoid controversy and the appearance of 
political favoritism, a public school may choose to open 
itself only to those categories of speech that will further 
the interests of the community and the school and to 
exclude those categories of speech -  whether religious, 
political, commercial or other -  that may divide the com­
munity. While the public school is designed to promote 
cohesion among a heterogeneous democratic people, the 
Good News Club is designed to do quite the opposite: to 
label people as "saved" or "unsaved" and, thus, to pro­
mote religious belief in general and Christian belief in 
particular.

b. In addition to being reasonable, respondent's 
policy is viewpoint neutral because it excludes an entire 
category of speech -  namely, religion as it is expressed 
through religious worship, instruction and indoctrination 
-  from a limited public forum. The Good News Club's 
speech in its evangelizing meetings is distinct from the 
kinds of speech permitted under the school's policy. The 
Club's meetings are overt religious exercises, equivalent 
in all but name and locale to conventional children's 
services at churches and synagogues across the country. 
The distinction between religion as supplying an editorial 
viewpoint and religious worship, instruction and indoc­
trination as a subject matter is well recognized in both 
case law and federal statutory law. While excluding this 
subject matter may in some instances also exclude a point 
of view, this Court's precedents are clear that the First 
Amendment is violated only if speech is excluded from 
the limited public forum solely to suppress the point of 
view.

3. The Establishment Clause stands as an indepen­
dent bar to the Good News Club's proposed after-school 
program for elementary school students because it pro­
hibits the public school from appearing to take a position 
on questions of religious belief. Here, in light of (1) the 
young age and cognitive limitations of the Good News 
Club's target audience; (2) the Club's proposed use of a



4

classroom setting immediately after school, very likely 
side by side with school-sponsored programs that extend 
the day for so many of the nation's elementary school 
students; and (3) the nature of the elementary school 
forum and the relatively small number of other private 
groups meeting there, it would have appeared to a rea­
sonable observer that the public school was "sponsoring" 
or "endorsing" the Good News Club's meetings.

4. To affirm the Court of Appeals' judgment, this 
Court need only agree with -  and address -  one of these 
two propositions, either that the Free Speech Clause per­
mits respondent's limitation on outside use of the school 
or that the Establishment Clause mandates the limitation. 
On the other hand, to reject both, and thereby reverse the 
Court of Appeals' judgment, would undermine the ability 
of a public school to determine for itself what subjects are 
appropriate for inclusion in the educational forum and 
would weaken the well-recognized distinction, central to 
the concept of public education, between secular learning 
on the one hand and religious worship, instruction and 
indoctrination on the other. Petitioners' constitutional 
views, if adopted by the Court, would thus constitute an 
unprecedented erosion of Establishment Clause values 
that -  because of the age of the students involved here 
and the role of public schools in imparting democratic 
values to young students -  would reverberate well 
beyond this particular case. A new generation of children 
would grow to maturity associating public schools with 
religious worship and religious learning. This should not 
be a price that public schools, or the children they edu­
cate, must pay for simply accommodating secular groups 
like the Girl Scouts and the 4-H Club.

A R G U M E N T

I. R E S P O N D E N T  D ID  N O T  V IO L A T E  P E T IT IO N E R S '
FR E E  SP E E C H  R IG H T S

It is well established that "[t]he necessities of confin­
ing a forum to the limited and legitimate purposes for



5

which it was created may justify the State in reserving it 
for certain groups or for the discussion of certain topics." 
Rosenberger v. Rector & Visitors ofUniv. ofVa., 515 U.S. 819, 
829 (1995). Where the State has reserved a forum for 
discussion of only certain topics -  as even petitioners 
acknowledge is the case here, see Pet. Br. 15-17; see also 
Pet. App. C12 (District Court opinion) -  a restriction on 
speech is permissible so long as it is "reasonable in light 
of the purpose served by the forum" and viewpoint neu­
tral. Rosenberger, 515 U.S. at 829 (internal quotation marks 
omitted); accord Lamb's Chapel v. Center Moriches Union 
Free Sch. Dist., 508 U.S. 384, 392-93 (1993); Cornelius v. 
NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 
(1985).

A . R e s p o n d e n t's  P o licy  Is  R e a s o n a b le

Respondent's exclusion of religious worship, instruc­
tion and indoctrination,3 both in general and as applied 
to the Good News Club specifically, is plainly reasonable. 
In Cornelius, this Court held that a federal policy exclud­
ing legal defense and political advocacy organizations 
from participating in a charity drive aimed at federal 
employees was reasonable in light of the forum's purpose 
and the surrounding circumstances. See 473 U.S. at 
808-10. Observing that a government's decision to restrict 
access to a limited public forum need only be reasonable -  
not "the most reasonable or the only reasonable limita­
tion," id. at 808 -  the Court ruled that "avoiding the 
appearance of political favoritism" and "avoiding contro­
versy" were reasonable bases to exclude such organiza­
tions from participation in the drive, id. at 809. As the 
Court concluded, "The First Amendment does not forbid 
a viewpoint-neutral exclusion of speakers who would 
disrupt a [limited public] forum and hinder its effective­
ness for its intended purpose." Id. at 811.

3 See supra note 2.



6

Excluding religious worship, instruction and indoc­
trination from public school premises similarly avoids 
unwarranted controversy and the appearance of favori­
tism. Just as the government may exclude categories of 
speech so as to " 'insure[ ] peace' in the federal work­
place," id. at 810, a public school is surely entitled to open 
itself only to those categories of speech that will further 
the interests of the school and the community in cohe­
siveness and to exclude those categories of speech -  
whether religious, political, commercial or other -  that 
may divide that community. See Perry Education Ass'n v. 
Perry Local Educators' Ass'n, 460 U.S. 37, 52 (1983) 
("[Exclusion of the rival union may reasonably be con­
sidered a means of insuring labor-peace within the 
schools."); see also Cornelius, 473 U.S. at 810 ("[T]he Gov­
ernment need not wait until havoc is wreaked to restrict 
access to a [limited public] forum." (emphasis added)).

That this case involves a forum created by, and iden­
tified with, a public school makes the policy of excluding 
religious worship, instruction and indoctrination all the 
more reasonable. First, state and local school boards are 
"afforded considerable discretion" in the operation of 
public schools. Edwards v. Aguillard, 482 U.S. 578, 583 
(1987). Second, religion is a particularly divisive matter in 
the public school context. In the oft-quoted words of 
Justice Frankfurter, "[t]he public school is at once the 
symbol of our democracy and the most pervasive means 
for promoting our common destiny. In no activity of the 
State is it more vital to keep out divisive forces than in its 
schools . " Illinois ex rel. McCollum v. Board of Educ., 333
U.S. 203, 231 (1948) (opinion of Frankfurter, J.) (emphasis 
added); see id. at 216-17 ("[T]he public school must keep 
scrupulously free from entanglement in the strife of 
sects."). "[J]ust as religion throughout history has pro­
vided spiritual comfort, guidance, and inspiration to 
many, it can also serve powerfully to divide societies and 
to exclude those whose beliefs are not in accord with 
particular religions or sects . . . .  " School Dist. of Grand



7

Rapids v. Ball, 473 U.S. 373, 382 (1985), overruled in part on 
other grounds by Agostini v. Felton, 521 U.S. 203 (1997).4

Respondent had good reason to believe that the Good 
News Club's activities in particular would be contrary to 
the mission of a public elementary school, and therefore 
would "disrupt [the] forum and hinder its effectiveness." 
Cornelius, 473 U.S. at 811. The core purpose of the Good 
News Club is to persuade impressionable elementary 
school children -  that is, "children of tender years, whose 
experience is limited and whose beliefs consequently are 
the function of environment as much as of free and 
voluntary choice," Ball, 473 U.S. at 390 -  to follow "the 
Word of God" and to accept Jesus Christ as their "per­
sonal Savior." E.g., Lodging at BB4 ("How to Lead a Child 
to Christ").5 To this end, the Good News Club teaches 
that some children are "saved" (those who accept Jesus 
Christ as their Savior) and others "unsaved" (those who 
do not); and that some children -  the "saved" -  are going 
to go to Heaven while the rest are not. See, e.g., J.A. at 
P25, P64-65; Lodging at S12, S17, BB5, BB8, BB10.

Thus, for example, the Good News Club's teacher 
"challenges" the "saved" children to "[s]top and ask God

4 There is a particular risk of appearance of favoritism if 
only members of a locally dominant faith have the numbers and 
resources to maintain an after-school religion club. If there were 
only one or two Jewish, Hindu, or Buddhist children in a school, 
they could not realistically join clubs analogous to the Good 
News Club. These children would feel isolated from their 
classmates -  and feel less welcome on school property -  solely 
because of their religions.

5 The Good News Club is one of the "prim ary m inistries" of 
the Child Evangelism  Fellow ship, Inc. That organization 's 
statement of interest in its amicus curiae brief here, at App. 1, 
makes clear that its "w hole purpose is to evangelize boys and 
girls with the Gospel of the Lord Jesus Christ and to establish 
(discipline) them in the local church for Christian living." See 
also Lodging at DD1 (advocating "H elping You Evangelize 
Children").



8

for the strength and the 'want' . . .  to obey Him" and 
"invites" the "unsaved" children "to trust the Lord Jesus 
to be your Savior from sin" and to "receive Him as your 
Savior." Lodging at BB18, BB24; see also J.A. at P64-65, 
P67-68, P70-71, P75. Club materials teach young and 
impressionable children that while believers in Jesus 
Christ "will also be raised [to Heaven], . . . [i]f a person 
does not receive the Lord Jesus as Saviour, he will not be 
able to go to Heaven." Lodging at S12, S17. And during 
meetings, the children pray to "receive Jesus as their 
personal Savior"; listen to "missionary stories" that 
"spread[ ] the gospel" and encourage acceptance of Jesus 
Christ as the Savior; and sing songs with references to 
God and Jesus Christ. E.g., J.A. at P16-17, P22-23, P25, 
P28, P66-67, P109; Lodging at BB11, BB47.

In short, while the public school is "[d]esigned to 
serve as perhaps the most powerful agency for promoting 
cohesion among a heterogeneous democratic people," 
McCollum, 333 U.S. at 216 (opinion of Frankfurter, J.), the 
Good News Club is designed to do quite the opposite: to 
label children as either "saved" or "unsaved" and, thus, 
to promote religious belief in general and Christian belief 
in particular. Indeed, the Good News Club expressly 
teaches that adherence to a particular faith is essential to 
one's standing in the community -  that those who "have 
received the Lord Jesus as [their] Savior from sin 
. . . belong to God's special group -  His family." Lodging 
at S6. Thus, whether or not the Good News Club is 
nominally open to anyone, see J.A. at C2, and whether or 
not the Club teaches or promotes "any particular Chris­
tian sect's doctrine or theology," id. (emphasis added), 
respondent's officials were well justified in believing that 
the Good News Club's meetings would be inconsistent 
with the purpose of the public school forum. Respon­
dent's limitation on the use of its school building was



9

reasonable, and so long as that limitation was also view­
point neutral, the Constitution requires no more.6

B. Respondent's Policy Is Viewpoint Neutral

In addition to being reasonable, respondent's policy 
is viewpoint neutral because it excludes a distinct cate­
gory of speech from a limited public forum. An exclusion 
of speech on the basis of content is permissible in a limited 
public forum. See Lamb's Chapel, 508 U.S. at 392-93. Lamb's 
Chapel simply does not hold that any and all bans on 
religious activities in a limited public forum violate the 
First Amendment. Respondent's limitation on use of its 
forum is an exclusion of content -  of an entire subject 
matter -  and not an exclusion solely of particular view­
points bearing on a secular subject matter. The exclusion 
is not arbitrary, as shown in the discussion of "rea­
sonableness," above. It is also not discriminatory, as it 
applies to all speech -  that is, to all viewpoints (including 
differing sectarian viewpoints) -  on the excluded subject 
matter of religion as it is expressed through religious 
worship, instruction and indoctrination.

Petitioners self-servingly characterize their speech as 
"instruction of morals from a religious perspective." E.g., 
Pet. Br. 22. Notwithstanding this effort, however, the 
record clearly demonstrates that the Good News Club's 
speech at its meetings is different in kind from the speech 
permitted under the Milford Central School policy -  
including, for example, meetings of the Boy Scouts, the

6 Respondent's policy is of course animated by some of the 
considerations underlying the Establishment Clause. See infra 
P a rt II (a rg u in g  th a t re sp o n d e n t w as req u ir ed  by  the 
E stab lishm en t C lause to exclu d e the Good N ew s C lu b 's 
activities from school premises). Nevertheless, for purposes of 
the reasonableness inquiry, the school need only show that its 
policy is reasonable  in light of the forum 's purposes, see 
Cornelius, 473 U.S. at 809, without regard to Establishm ent 
Clause principles.



10

Girl Scouts and the 4-H Club. The Good News Club's 
meetings include vocal group prayers, memorization and 
recital of Bible verses and Scripture, religious songs and 
discussions based on Bible readings. See, e.g., J.A. at 
P16-18, P22-23, P25-26. These are "overt religious exer­
cise^]." Lee v. Weisman, 505 U.S. 577, 588 (1992); see 
Wallace v. Jaffree, 472 U.S. 38, 72 (1985) (O'Connor, }., 
concurring in the judgment) (calling group vocal prayer 
and Bible readings "manifestly religious exercisers]"); 
Engel v. Vitale, 370 U.S. 421, 424-25 (1962) (discussing the 
"religious activity" of prayer). They are equivalent in all 
but name and locale to conventional church or synagogue 
services. Cf. Bronx Household of Faith v. Community Sch. 
Dist. No. 10, 127 F.3d 207, 215 (2d Cir. 1997) (describing 
"church worship services" as "including] hymn singing, 
communion, Bible reading, Bible preaching and teaching" 
(internal quotation marks omitted)).

To the extent the Good News Club's meetings differ 
from conventional religious services -  the meetings 
involve, for example, prizes, candy and games -  this is 
simply because the Club tailors its evangelizing meetings 
to its young and impressionable audience. Indeed, the 
Good News Club's meetings are virtually indistinguish­
able from children's services commonly held at churches 
and synagogues across the country, which often involve 
singing, puzzles, art, stories and prayer.7

Nor does it matter that the Good News Club's meet­
ings contain an "instructional" element. First, that ele­
ment of petitioners' meetings does nothing to change the

7 See, e.g., First Union Methodist Church Website (visited 
January 8, 2001) <h ttp ://w w w .gbgm -u m c.org /sch en ectad y/ 
Children%20and%20W orship.htm> (describing "Children and 
W orship," a "service that is designed for [children] to be age 
appropriate scripture (story telling) and w orship"); Allisonville 
Christian Church Website (visited January 8, 2001) <h ttp :/ /  
hom e.att.net/~allisoncc/children.htm > (describing "Children's 
Worship: Godly Play," a service for children including singing, 
story telling, art and food).

http://www.gbgm-umc.org/schenectady/Children%20and%20Worship.htm
http://www.gbgm-umc.org/schenectady/Children%20and%20Worship.htm
http://home.att.net/~allisoncc/children.htm
http://home.att.net/~allisoncc/children.htm


11

essential or overall nature of their speech. Second, the 
distinction between religious instruction and secular 
instruction is not one merely of perspective. To the con­
trary, religious and secular instruction serve fundamen­
tally different purposes. See, e.g., School Dist. of Abington 
Township v. Schempp, 374 U.S. 203, 223-25 (1963) (distin­
guishing religious instruction from "nonreligious moral 
inspiration" and "teaching of secular subjects"); 
McCollum, 333 U.S. at 226 (opinion of Frankfurter, J.) 
(distinguishing between "secular instruction in subjects 
concerning religion" and "sectarian teaching"). Religious 
instruction is designed first and foremost to train adher­
ents of a particular religion in the tenets of that religion's 
faith and practice. It is not designed, as secular education 
is, to "prepar[e] . . . individuals for participation as 
citizens." Ambach v. Norwich, 441 U.S. 68, 76 (1979).

Petitioners' suggestion that no line can be drawn 
between religion as a viewpoint and religious worship, 
instruction and indoctrination as a subject matter is with­
out merit. First, although the distinction between content 
and viewpoint is not always a precise one, see Rosenberger, 
515 U.S. at 831, there is no reason to believe that officials 
would not usually be able to draw the requisite distinc­
tions, see, e.g., Campbell v. St. Tammany's Sch. Bd., 206 F.3d 
482, 487 (5th Cir. 2000), reh'g denied, 231 F.3d 937 (5th Cir. 
2000) (per curiam); Bronx Household, 127 F.3d at 215. In 
fact, in the present case -  as in Campbell and Bronx House­
hold -  public officials were able to determine from the 
face of petitioners' application that their proposed use 
was for an excluded subject matter.

Moreover, the task of distinguishing between "overt 
religious exercise[s]," Lee, 505 U.S. at 588, and other 
forms of speech is hardly foreign to the law. Indeed, the 
lines that respondent's officials must draw in implement­
ing their policy are no different from, or more difficult to 
draw than, the lines that courts and public officials are 
required to draw under current law -  for example, 
between teaching the Bible as a religious text and teach­
ing it as literature, see, e.g., Edwards, 482 U.S. at 606-08



12

(Powell, ]., concurring); Stone v. Graham, 449 U.S. 39, 42 
(1980) (per curiam), or between "religious" Christmas 
displays and "secular" Christmas displays, see, e.g., 
County of Allegheny v. ACLU Greater Pittsburgh Chapter, 
492 U.S. 573, 611-13 (1989); Lynch v. Donnelly, 465 U.S. 
668, 679-86 (1984). See generally Widmar v. Vincent, 454 
U.S. 263, 271 n.9 (1981) (noting that "the Establishment 
Clause requires the State to distinguish between 'religious' 
speech . . . and 'nonreligious' speech" (emphasis added)). 
Any number of federal statutes contemplate the same sort 
of line-drawing without constitutional infirmity.8

8 See, e.g., 20 U.S.C. § 1011k(c) ("[N ]o project assisted with 
funds under subchapter VII of this chapter . . . shall ever be used 
for religious worship or a sectarian activity  . . . .  "); 20 U.S.C. 
§ 1062(c)(1) ("N o grant may be made under this chapter for any 
educational program, activity, or service related to sectarian  
instruction  or religious worship, or provided by a school or 
department of divinity."); 20 U.S.C. § 1066c(c) ("No loan may be 
made under this part for any educational program, activity or 
service related to sectarian instruction or religious worship . . . .  "); 
20 U.S.C. § 1068e ("The funds appropriated under section 1069f 
of this title may not be used . . . for . . . any religious worship or 
sectarian activity  . . . .  " ) ; 20 U .S.C. § 1103e ("The funds 
appropriated under section 1103g of this title may not be 
used . . . for . . . any religious worship or sectarian activity  . . . .  "); 
20 U.S.C. § 8897 ("N othing contained in this chapter shall be 
construed to authorize the making of any payment under this 
chapter for religious worship or instruction."); 25 U.S.C. § 1803(b) 
("Funds provided pursuant to this subchapter shall not be used 
in connection with religious worship or sectarian instruction.”); 25 
U.S.C. § 1813(e) ("No construction assisted with funds under 
this section shall be used for religious zoorship or a sectarian 
activity . . . .  "); 25 U.S.C. § 2503(b)(2) ("Funds provided under 
any grant made under this chapter m ay not be used in 
connection with religious zoorship or sectarian instruction."); 25 
U.S.C. § 3306(a) ("None of the funds made available under this 
subchapter may be used . . . for any religious zoorship or sectarian  
activity."); 29 U.S.C. § 2938(a)(3) ("Participants shall not be 
employed under this chapter to carry out the construction,



13

Petitioners seek to blur the line between subject mat­
ter and viewpoint by trying to place themselves simul­
taneously on both sides of it. They propose a seemingly 
simple truth: religion is both the subject matter and the 
viewpoint of their speech. See Pet. Br. 22-24. But even 
accepting this premise, the conclusion does not follow

operation, or maintenance of any part of any facility that is used 
or to be used for sectarian instruction or as a place for religious 
worship . . . .  "); 42 U.S.C. § 604a(j) (''No funds provided directly 
to in stitu tio n s or organ ization s to provid e serv ices and 
administer programs under subsection (a)(1)(A) of this section 
sh a ll be exp en d ed  for sectarian worship, instruction, or 
proselytization."); 42 U.S.C. § 2753(b)(1)(C) (allow ing federal 
grants to be used for student work-study that "does not involve 
the construction, operation, or maintenance of so much of any 
facility as is used or is to be used for sectarian instruction or as a 
place for religious worship"); 42 U .S.C. § 3027(a)(14)(A )(iv) 
(requiring a state seeking federal aid for construction of a center 
for the elderly to promise that "the facility will not be used and 
is not intended to be used for sectarian instruction or as a place 
for religious zoorship"); 42 U.S.C. § 5001(a)(2) (providing federal 
grants to support volunteer pro jects for the elderly, but 
excluding "projects involving the construction, operation, or 
maintenance of so much of any facility used or to be used for 
sectarian instruction or as a place for religious zoorship"); 42 U.S.C. 
§ 9807(a)(9) ("[N ]o participant will be employed on projects 
involving . . . the construction, operation, or maintenance of so 
much of any facility  as is used or to be used for sectarian 
instruction or as a place for religious worship."); 42 U .S.C . 
§ 9858k(a) ("N o financial assistance provided under this 
subchapter . . . shall be expended for any sectarian purpose or 
activity, including sectarian worship or instruction.''); 42 U.S.C. 
§ 9 9 2 0 (c ) ("N o  fund s p ro v id ed  d ire c tly  to a re lig io u s  
o rg an iza tio n  to p ro v id e a ss is ta n ce  u nd er any p rogram  
described in subsection (a) shall be expended for sectarian 
zoorship, instruction, or proselytization."); 42  U .S .C .
§ 13791(b)(B)(iv) ("Religious organizations . . . shall not provide 
any sectarian instruction or sectarian zoorship in connection with 
an activity funded under this subchapter . . . . " )  (emphases 
added to all).



14

that respondent's exclusion of their meetings violates the 
Constitution. This Court has made clear that the Free 
Speech Clause is violated only if the government 
excludes speech from a limited public forum "solely 
because [it deals] with [an otherwise includible] subject 
from a religious standpoint." Lamb's Chapel, 508 U.S. at 
394 (emphasis added); accord Cornelius, 473 U.S. at 806 
("[T]he government violates the First Amendment when 
it denies access to a speaker solely to suppress the point of 
view he espouses . " (emphasis added)). Thus, where
-  as here -  there is evidence that the government has 
excluded speech at least in part for a reason "other 
than . . . that the presentation would have been from a 
religious perspective," Lamb's Chapel, 508 U.S. at 393-94, 
the mere fact that a religious perspective is also excluded 
does not give rise to a constitutional violation.9

Were the test otherwise, the government's authority 
to limit the use of a limited public forum to certain 
subject matters would become meaningless, because pri­
vate speakers could always evade the limitations by com­
bining speech on an excluded subject matter with a 
modicum of speech on an otherwise included subject 
matter. On petitioners' view of the law, for example, a 
religious group could require a public school to open 
itself to religious worship merely by including in the 
religious service a sermon on a secular subject like child 
rearing. This cannot be the law, for the government 
would then have lost its ability to "confin[e] a forum to 
the limited and legitimate purposes for which it was 
created." Rosenberger, 515 U.S. at 829.

9 By referring to the Good News Club's speech as having an 
"ad d itio n al lay er," the C ourt of A ppeals recognized  that 
religion can be both a subject m atter and a viewpoint -  and that 
the Constitution is violated only when religion is excluded solely  
on the basis of viewpoint. Pet. App. A15; see also id. at A16 ("We 
conclude . . . that the Good News Club is doing something other 
than simply teaching moral values." (emphasis added)).



15

Petitioners incorrectly rely on Rosenberger to argue 
that the First Amendment does not distinguish between a 
religious subject matter and a religious perspective. See 
Pet. Br. 20-21.10 The speech in Rosenberger was a news­
paper -  what the Court called "a pure forum for the 
expression of ideas," 515 U.S. at 844 -  and its exclusion 
by the public university from a Student Activities Fund 
("SAF") was based on "editorial viewpoint ]," Id. at 831; 
see also id. at 844 ("[T]he student publication is not a 
religious institution, at least in the usual sense of that 
term as used in our case law . . . .  "). Here, by contrast, 
the Good News Club did not seek meeting space for a 
journalistic venture, but rather meeting space in which to 
engage in an evangelizing religious activity involving 
religious worship, instruction and indoctrination. 
Respondent's limitation on its forum excluded speech 
that was inherently part of the religious activity, and not 
an editorial viewpoint in an exchange of ideas.

Nothing in Rosenberger precludes the drawing of an 
intelligible distinction between religion as a viewpoint 
and religious worship, instruction and indoctrination as a 
subject matter, and then constitutionally excluding the 
latter from a limited public forum. To the contrary, the 
Rosenberger Court merely held that the university had not 
drawn this distinction in excluding the student news­
paper from the SAF:

10 Reliance on Widmar for this point is even more plainly 
misplaced. See, e.g., Amicus Curiae Brief of Douglas Laycock 
15-16. Widmar held that a state university's prohibition on use of 
its buildings "for purposes of religious worship or religious 
teaching" was an impermissible content-based restriction. 454 
U.S. at 267-75. The forum in Widmar, however, was an open 
public forum. Accordingly, the Court did not consider a subject- 
based exclusion of religious worship and teaching in a more 
limited public forum, and the Court did not conduct a limited 
public forum analysis.



16
[T]he University does not exclude religion as a 
subject matter but selects for disfavored treat­
ment those student journalistic efforts with reli­
gious editorial viewpoints. Religion may be a 
vast area of inquiry, but it also provides, as it did 
here, a specific premise, a perspective, a stand­
point from which a variety of subjects may be 
discussed and considered. The prohibited per­
spective, not the general subject matter, resulted in 
the refusal [to fund the student newspaper], for 
the subjects discussed were otherwise within the 
approved category of publications.

Id. at 831 (emphasis added); see id. at 832 ("[T]he Univer­
sity justifies its denial of SAF participation to [the student 
newspaper] on the ground that the contents . . . reveal an 
avowed religious perspective.").11 In the present case, 
however, Milford Central School did not exclude the 
Good News Club's speech because -  let alone "solely 
because," Lamb's Chapel, 508 U.S. at 394 -  religion pro­
vided its "specific premise," "perspective," or "stand­
point"; instead, the school excluded the Good News 
Club's speech because religious worship, instruction and 
indoctrination constituted its subject matter.

Finally, petitioners raise the specter of excessive 
entanglement between church and state, apparently argu­
ing that allowing a school to make the distinction

11 In arguing that Rosenberger rejected any legal distinction 
between religion as a subject matter and religion as a viewpoint, 
petitioners rely heavily on the fact that the dissent in Rosenberger 
characterized the university 's guidelines as excluding "the 
entire subject matter of religious apologetics." 515 U.S. at 896 
(Souter, d issen tin g ); see  Pet. Br. 20-21. H ow ever, the 
d isag reem en t b etw een  the m a jo rity  and th e  d isse n t in 
R osen berger  w as not over w hether the govern m en t m ay 
constitutionally exclude speech from a limited public forum on 
the ground that religion constitutes its subject matter, but rather 
over whether the university had done so. See 515 U.S. at 896 
(Souter, J ., d issenting) ("T h e C ourt, of cou rse, reads the 
Guidelines differently . . . .  ").



17

between religious worship, instruction and indoctrination 
and speech from a religious perspective is itself constitu­
tionally impermissible. See Pet. Br, 24-26. This argument 
is without merit. Indeed, petitioners' supposed concern is 
contrary to their own stated position that one cannot 
draw a subject matter distinction between their speech 
and that of others. That is, petitioners' entanglement 
argument presupposes that the school district can legit­
imately distinguish between the subject matter of peti­
tioners' religious speech and the subject matters of other 
groups' secular speech. Moreover, a broad and categorical 
exclusion of religious worship, instruction and indoc­
trination -  even when such speech includes a sermon or 
other expression of religious views on an otherwise 
includible subject -  minimizes the entanglement between 
church and state, because then the state need not monitor 
each individual service or lesson plan.

In sum, unlike the school in Lamb's Chapel and the 
university in Rosenberger, respondent did not exclude 
speech on the basis of a religious viewpoint. To the con­
trary, private individuals and groups were expressly per­
mitted to discuss those subjects otherwise permitted 
under the school's policy from a religious perspective. 
See, e.g., J.A. at G6, N14-15. Instead, respondent excluded 
an entire category of speech from school premises. This 
limitation was reasonable and was applied without dis­
crimination against any particular viewpoint. Nothing in 
the Constitution, or in this Court's jurisprudence, forbids 
that policy. II.

I I . T H E  E S T A B L IS H M E N T  C L A U SE  B A R S  R E S P O N ­
D E N T  F R O M  A L L O W IN G  P E T IT IO N E R S ' P R O ­
P O S E D  U S E  O F P U B L IC  S C H O O L  F A C IL IT IE S

Had the Milford Central School embraced the Good 
News Club as an after-school program for its elementary 
school students, it would have violated the Establishment 
Clause. Stated otherwise, the Establishment Clause 
stands as an independent bar to petitioners' proposed 
activities on school premises, regardless of the presence



18

or absence of valid limitations on the use of the forum 
under the Free Speech Clause. Indeed, the Milford Cen­
tral School could have justified its exclusion of the Good 
News Club's meetings solely by reference to the compel­
ling state interest in complying with the Establishment 
Clause. See, e.g., Capitol Square Review & Advisory Bd. v. 
Pinette, 515 U.S. 753, 761-62 (1995) ("There is no doubt 
that compliance with the Establishment Clause is a state 
interest sufficiently compelling to justify content-based 
restrictions on speech."); accord Lamb's Chapel, 508 U.S. at 
394-95; Widmar, 454 U.S. at 271.

Whatever else it may mean, the Establishment 
Clause, "at the very least, prohibits government from 
appearing to take a position on questions of religious 
belief or from 'making adherence to a religion relevant in 
any way to a person's standing in the political commu­
nity.' " County of Allegheny, 492 U.S. at 594 (quoting Lynch, 
465 U.S. at 687 (O'Connor, J., concurring)) (emphasis 
added). Allowing impressionable elementary school stu­
dents to join with petitioners for religious worship, 
instruction and indoctrination in a school classroom, 
immediately after school, would violate these prohibi­
tions.

In arguing to the contrary, petitioners emphasize 
their view that the Good News Club would be meeting on 
public school premises pursuant to a formally neutral 
access policy. See Pet. Br. 30-39. However, this Court 
stated only last Term that "the Establishment Clause for­
bids a State to hide behind the application of formally 
neutral criteria and remain studiously oblivious to the 
effects of its actions." Santa Fe Indep. Sch. Dist. v. Doe, 120
S. Ct. 2266, 2278 n.21 (2000) (internal quotation marks 
omitted). In Justice O'Connor's words, "[N]ot all state 
policies are permissible under the Religion Clauses sim­
ply because they are neutral in form." Capitol Square, 515 
U.S. at 777 (O'Connor, J., concurring in part and concur­
ring in the judgment).

Thus, the crucial question for Establishment Clause 
purposes is whether, notwithstanding Milford Central



19

School's formally neutral access policy, a reasonable 
observer would conclude from the Good News Club's 
meeting on school premises that the government was 
"lending its support to the communication of a religious 
organization's religious message." County of Allegheny, 
492 U.S. at 601; see also Capitol Square, 515 U.S. at 777 
(O'Connor, concurring in part and concurring in the 
judgment) ("[Wjhen the reasonable observer would view 
a government practice as endorsing religion, . . . it is our 
duty to hold the practice invalid."). In light of (1) the 
young age and cognitive limitations of the Good News 
Club's targeted audience; (2) the fact that the Good News 
Club's meetings would take place in a classroom setting 
immediately after school, when many students attend 
school-sponsored, after-school programs; and (3) the 
small number of other outside groups meeting on school 
premises at the same time, amici submit that the answer 
to this question is plainly yes.

A. A Reasonable Elementary School Student 
Would Not U nderstand the D istin ctio n  
Between Government Speech and Private 
Speech

First and foremost, the age of the students involved 
in this case -  six to twelve year olds -  compels the 
conclusion that the Milford Central School was required 
to deny the Good News Club's application to conduct 
religious worship, instruction and indoctrination on 
school premises. Indeed, to hold otherwise would repre­
sent a marked departure from existing law.

In analyzing whether government action would be 
perceived as an endorsement of religion, this Court has 
long placed great emphasis on the age and cognitive 
maturity of the likely audience. See, e.g., Lee, 505 U.S. at 
593-94; Board of Educ. of the Westside Community Schs. 
(Dist. 66) v. Mergens, 496 U.S. 226, 250-51 (1990) (plurality 
opinion); Edwards, 482 U.S. at 583-84; Ball, 473 U.S. at 390; 
Wallace, 472 U.S. at 81 (O'Connor, concurring in the 
judgment); Marsh v. Chambers, 463 U.S. 783, 792 (1983);



20

Widmar, 454 U.S. at 274 n.14; Tilton v. Richardson, 403 U.S. 
672, 685-86 (1971); Schempp, 374 U.S. at 252-53 (Brennan, 
J., concurring). In Widmar, for example, the Court explic­
itly relied on the cognitive maturity of university stu­
dents in concluding that they would be able to 
distinguish between private speech and government 
speech. See 454 U.S. at 274 n.14. And in Mergens, a plu­
rality of the Court extended the reasoning of Widmar to 
high school students: "We think that secondary school 
students are mature enough and are likely to understand 
that a school does not endorse or support student speech 
that it merely permits on a nondiscriminatory basis . . . . 
[Tjhe few years difference in age between high school 
and college students [does not] justif[y] departing from 
Widmar." 496 U.S. at 250 (plurality opinion) (internal 
quotation marks omitted).12

The many years of difference in age between elemen­
tary school students and college students, however, do 
justify departing from Widmar in this case. See, e.g., 
Edwards, 482 U.S. at 584 n.5 (acknowledging the distinc­
tion between university students and younger students 
and stating that " '[t]his distinction warrants a difference 
in constitutional results' " (quoting Schempp, 374 U.S. at 
252-53 (Brennan, J., concurring)). Research in psychology 
indicates that six- to twelve-year-old children are sub­
stantially less cognitively mature than adolescents, and 
less likely to understand abstract concepts like justice or 
diversity. See, e.g., Jean Piaget & Barbel Inhelder, The 
Psychology of the Child passim (1969); Jean Piaget, The 
Stages of the Intellectual Development of the Child, in Read­
ings in Child Development and Personality 291 (Paul Henry

12 Lamb's Chapel, like Mergens, involved a high school. See 
Lamb's Chapel v. Center M oriches Union Free School Dist., 959 F.2d 
381, 383-84 (2d Cir. 1992). Moreover, student age was not an 
issue in that case because the film series on child rearing was 
directed toward an adult audience. See id. at 384.



21

Mussert et al. eds., 4th ed. 1997).13 Similarly, psychologi­
cal research reveals that elementary school students are 
highly susceptible to peer pressure. See, e.g., Patricia A. 
Adler & Peter Adler, Peer Power: Preadolescent Culture and 
Identity passim (1998).

This research supports the common-sense assump­
tion that, in the context of programs held immediately 
after the "formal" school day on school premises, a rea­
sonable elementary school student would not understand 
the "crucial difference between government speech 
endorsing religion, which the Establishment Clause for­
bids, and private speech endorsing religion, which the 
Free Speech and Free Exercise Clauses protect." Mergens, 
496 U.S. at 250 (plurality opinion). Instead, the objective 
observer in the position of an elementary school student 
at the Milford Central School would mistakenly believe 
that the Good News Club's meetings were sponsored or 
endorsed by his or her school.14 Similarly, an elementary

13 See also Bell v. Little Axe Indep. Sch. Dist. No. 70, 766 F.2d 
1391, 1404 & n . l l  (10th Cir. 1985) (discussing expert testimony 
that "a  child between the ages of 6 and 11 does not have the 
cognitive ability to 'appreciate the difference between his point 
of view  and that of som ebody else. It 's  as if  he sim ply 
assim ilates and takes, unthinkingly, what other people have 
taught to him ' ").

14 The fact that there is no evidence in the record that 
students were confused during the time the Good News Club 
met on school prem ises pursuant to the D istrict C ourt's 
preliminary injunction is immaterial. See Pet. Br. 38. As Justice 
O'Connor explained in Capitol Square, the endorsem ent test does 
not focus "on the actual perception of individual observers, who 
naturally have differing degrees of know ledge," but on "the 
perspective of a hypothetical observer." 515 U.S. at 779-80 
(O 'C onnor, ]., con cu rrin g  in part and con cu rrin g  in the 
judgment).



22

school student faced with his or her peers attending the 
Good News Club's meetings would very well feel coerced 
by peer pressure to attend and to "receive [Jesus Christ] 
as [his or her] Savior." Lodging at BB24. Those students 
forbidden to attend by their parents would correspon­
dingly feel excluded, different and diminished within 
their own school.

These conclusions are further reinforced by the near 
uniform judgments of courts -  including this Court -  and 
of Congress. In the Establishment Clause context alone, 
courts have routinely taken note of the cognitive limita­
tions of young children. See, e.g., Edwards, 482 U.S. at 
583-84; Ball, 473 U.S. at 390; Peck v. Upshur County Bd. of 
Educ., 155 F.3d 274, 287 n * (4th Cir. 1998); Good News/ 
Good Sports Club v. School Dist. ofLadue, 28 F.3d 1501, 1509 
& n.18 (8th Cir. 1994); Brown v. Woodland Joint Unified Sch. 
Dist., 27 F.3d 1373, 1378-79 (9th Cir. 1994); Bell, 766 F.2d at 
1404-05 & n .ll. Courts have noted the same cognitive 
limitations in other legal contexts as well. See, e.g., 3 
Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The 
Law of Torts § 16.8 & n.18 (2d ed. 1986) (discussing courts' 
treatment of children in the tort law context); Wayne R. 
LaFave & Austin W. Scott, Jr., Criminal Law § 4.11 (2d ed. 
1986) (same in the criminal law context); 5 Williston on 
Contracts ch. 9 (4th ed. 1993) (same in the contract law 
context).15

Similarly, Congress specifically dropped elementary 
schools from coverage under the Equal Access Act, 20 
U.S.C. §§ 4071-4074, in the wake of vociferous objections

15 This case law undermines the argument of some amici 
that the "reasonable child" is "a creature unknown to the law." 
Amicus Curiae Brief of Child Evangelism Fellowship, Inc. et al. at 
9. Indeed, the "reasonable child" is a creature well known in tort 
law. See, e.g., Restatement (Second) o f  Torts § 464, at 507 (1965); see 
also Capitol Square, 515 U.S. at 779-80 (O'Connor, J., concurring 
in part and concurring in the judgm ent) (noting that "the 
applicable observer [for Establishm ent Clause purposes] is 
similar to the 'reasonable person' in tort law ").



23

from legislators that elementary school students would be 
unable to distinguish private speech from school-spon­
sored speech. See, e.g., S. Rep. No. 98-357, at 43-49 (1984), 
reprinted in 1984 U.S.C.C.A.N. 2348, 2389-94; see also 130 
Cong. Rec. S19231 (daily ed. June 27, 1984) (statements of 
Sen. Metzenbaum and Sen. Hatfield); id. at H20934 (daily 
ed. July 25, 1984) (statement of Rep. Schumer); cf. Mergens, 
496 U.S. at 251 (plurality opinion) (noting that the Court 
does "not lightly second-guess such legislative judgments, 
particularly where the judgments are based in part on 
empirical determinations"). A failure to recognize a dis­
tinction between this case and Widmar and Mergens would 
mark a significant retreat from these considered judgments 
about the cognitive limitations of young children.

Petitioners' assertion that elementary school students' 
impressionability is a "two way street" is wholly without 
merit. See Pet. Br. 35; see also Laycock Br. 26-27. First and 
foremost, it finds no support in the jurisprudence of this 
Court. To the contrary, as the cases cited above demon­
strate, this Court has long recognized that the "union 
between church and state is most likely to influence chil­
dren of tender years, whose experience is limited and 
whose beliefs consequently are the function of environ­
ment as much as of free and voluntary choice." Ball, 473 
U.S. at 390. Second, it simply defies common sense to 
argue that elementary school children would infer from 
the fact that the Good News Club meets away from school 
-  as the Club once did, in a local church, see Pet. App. H2, 
1 12 -  that the Milford Central School is hostile toward 
religion. To draw this conclusion, a student would have to 
be aware, at a minimum, that the Good News Club sought 
to meet at the school; that the school did not permit the 
Good News Club to do so; that this decision was made 
because the Good News Club is religious; and that the 
school allows other, nonreligious groups and groups 
merely with a religious perspective to meet at school. Only 
a truly remarkable elementary school student -  not the 
benchmark reasonable student -  would be aware of these 
facts, let alone draw the insupportable inference from



24

these facts that the Milford Central School is hostile 
toward religion. Such a remarkable student would no 
doubt also be aware that the Establishment Clause manda­
ted the school's decision, and thus that any such inference 
was without foundation.

The age of the students in this case also undermines 
petitioners' argument that the Milford Central School 
could counteract any misimpression of endorsement 
through some sort of disclaimer. See Pet. Br, 35-36. To be 
sure, a plurality of this Court reasoned in Mergens that the 
school board's "fear of a mistaken inference of endorse­
ment is largely self-imposed, because the school itself has 
control over any impressions it gives its students." 496 
U.S. at 251 (plurality opinion). However, the plurality's 
reasoning explicitly rested on the assumption that students 
would "reasonably understand" a statement from the 
school that its official recognition of the club "evinces 
neutrality toward, rather than endorsement of, religious 
speech." Id..; see also Capitol Square, 515 U.S. at 782 (O'Con­
nor, J., concurring in part and concurring in the judgment) 
(noting that "the reasonable observer . . . would certainly 
be able to read and understand an adequate disclaimer" 
(emphasis added)). Where, as here, the audience is incapa­
ble even of reasonably understanding such a statement -  
indeed, where such a statement would likely cause addi­
tional confusion among the young children targeted -  the 
"fear of a mistaken inference of endorsement" is not self- 
imposed, but rather unavoidable.

B. The Good News Club's Meetings Would Have 
the Appearance of a School-Sponsored, After- 
School Program

The probability that a reasonable elementary school 
student would believe that the Good News Club meetings 
were sponsored by the Milford Central School would be 
greatly enhanced by the fact that those meetings would 
take place in a classroom setting immediately after the end 
of the formal school day. This factor is particularly salient 
in today's world because many elementary school students



25

are effectively, if not actually, required to "attend" school 
immediately after the "formal" school day. Accordingly, 
allowing the Good News Club to meet at that time and in 
that setting would be, for Establishment Clause purposes, 
tantamount to allowing a religious group to conduct reli­
gious worship, instruction and indoctrination during school 
hours.

This Court has long been "particularly vigilant in 
monitoring compliance with the Establishment Clause in 
elementary and secondary schools." Edwards, 482 U.S. at 
583-84; see id. at 584-85 (citing cases in which the Court has 
invalidated statutes "which advance religion in public ele­
mentary and secondary schools"); see also Lee, 505 U.S. at 
592. Public schools hold a unique place among govern­
ment institutions in Establishment Clause jurisprudence. 
"Families entrust public schools with the education of 
their children, but condition their trust on the understand­
ing that the classroom will not purposely be used to 
advance religious views that may conflict with the private 
beliefs of the student and his or her family. Students in 
such institutions are impressionable and their attendance 
is involuntary." Edwards, 482 U.S. at 584.

The Court's vigilance has been particularly pro­
nounced with respect to religious activities that take place 
during the school day because such activities raise two 
related, but distinct, concerns. First, as a result of manda­
tory attendance requirements, the emulation of teachers 
and peer pressure, such activities pose a high "risk of 
compulsion." Lee, 505 U.S. at 596; see Edwards, 482 U.S. at 
584; Wallace, 472 U.S. at 60 n.51; Schempp, 374 U.S. at 252-53 
(Brennan, J., concurring); McCollum, 333 U.S. at 209-10. 
Second, because such activities blur the line between pub­
licly sponsored school activities and privately sponsored 
religious activities, they heighten the probability that a 
reasonable observer in the position of a student will 
believe that the government is endorsing religion. As the 
Court explained in Ball, "In this environment, the students 
would be unlikely to discern the crucial difference 
between the religious school classes and the 'public school'



26

classes, even if the latter were successfully kept free of 
religious indoctrination." Ball, 473 U.S. at 391.

This case implicates both of these important concerns. 
The Good News Club proposes to meet in a public school 
classroom immediately after the end of the formal school 
day, when students remain on school grounds by virtue of 
the state's "compulsory education machinery." Lubbock 
Civil Liberties Union v. Lubbock Indep. Sch. Dist., 669 F.2d 
1038, 1046 (5th Cir. 1982). Thus, this case is a far cry from 
Lamb's Chapel, in which a religious group sought to use a 
public school auditorium or gymnasium between the 
hours of 7 p.m. and 10 p.m. for the purpose of showing a 
film series to adults. See Lamb's Chapel, 959 F.2d at 384; see 
also Lamb's Chapel, 508 U.S. at 395 (relying in part on the 
fact that the film series would not have been shown "dur­
ing school hours" in concluding that the Establishment 
Clause was not violated). Flere, unlike in Lamb's Chapel, an 
objective elementary school student would have felt peer 
pressure to attend the religious group's meetings -  to join 
his or her classmates as one of the "saved" by receiving 
Jesus Christ as the Savior, not to mention also wanting to 
receive candy and prizes -  and would reasonably have 
believed that the meetings were sponsored by the school 
in which they were held.

To hold that the school day's ending bell alone makes 
a difference for Establishment Clause purposes would, in 
today's world, be "formalistic in the extreme." Lee, 505 
U.S. at 595; see id. ("Law reaches past formalism."); see also 
Santa Fe, 120 S. Ct. at 2280. Recent studies reveal that 
almost 30% of public elementary schools and combined 
primary-secondary schools now sponsor school-based, 
extended-day programs. See, e.g., National Center for Edu­
cation Statistics, Schools Serving Family Needs: Extended-Day 
Programs in Public and Private Schools (U.S. Dep't of Educ. 
Feb. 1997). See generally Patricia S. Seppanen et al., National 
Study of Before & After School Programs (U.S. Dep't of Educ. 
1993). Moreover, with the increasing labor force participa­
tion of mothers with young children and the increasing 
numbers of single-parent families, the need for -  and,



27

consequently, the availability of -  such programs is only 
likely to grow. See, e.g., National Center for Education 
Statistics, supra. Since the elementary school students who 
attend these programs are incapable of leaving the school 
premises on their own, many public school students are 
effectively -  if not actually -  required to "attend" school 
following the end of the "formal" school day.16 The Good 
News Club in all likelihood wants to meet immediately 
after the final bell sounds in order to include as many of 
these young students as possible in its evangelical meet­
ings. For these students, the Good News Club meetings in 
public school classrooms would be no different than reli­
gious classes in public school classrooms during (i.e., in 
the final period of) the "formal" school day. Just as this 
Court held the latter unconstitutional in 1948, see 
McCollum, 333 U.S. at 209-10, it should leave no doubt that 
the Good News Club meetings would be unconstitutional 
today.

C. The Good News Club Would Be One of Only a 
Few Private Groups Meeting on Public School 
Premises

The presence or absence of a broad spectrum of pri­
vate groups in a government forum is another important 
factor in measuring a religious group's access to the forum 
against the principles of the Establishment Clause. Thus, 
for example, in Rosenberger, the religious student 
newspaper "compete[dJ with 15 other magazines and

16 In M erg en s , the p lu ra lity  fou nd  c o n s titu tio n a lly  
significant the Equal Access A ct's application only to student 
meetings during what is clearly "noninstructional tim e." 496 
U.S. at 251 (plurality opinion) (citing 20 U.S.C. § 4071(b)). For 
high school students, who not only can organize their own 
meetings but also are always able on their own accord to leave 
sch o o l p re m ises a fte r  sch o o l, the d is tin c tio n  b e tw een  
" in s tr u c t io n a l tim e "  and "n o n in s tru c tio n a l tim e "  is a 
meaningful one. The same cannot be said for elementary school 
students.



28

newspapers for advertising and readership/' 515 U.S. at 
850 (O'Connor, J., concurring); in Capitol Square, the public 
square was a "space in which a multiplicity of groups, 
both secular and religious, engage[d] in expressive con­
duct," 515 U.S. at 782 (O'Connor, J., concurring in part and 
concurring in the judgment); in Lamb's Chapel, the school 
property at issue was "heavily used by a wide variety of 
private organizations," 508 U.S. at 392; in Mergens, there 
was a "broad spectrum of officially recognized student 
clubs" and "students [were] free to initiate and organize 
additional student clubs," 496 U.S. at 252 (plurality opin­
ion); and in Widmar, "the forum [was] available to a broad 
class of nonreligious as well as religious speakers" -  over 
100 recognized student groups in all, 454 U.S. at 274.

In each of these cases, the vibrant nature of the gov­
ernment forum weighed heavily against any appearance of 
government endorsement. As justice O'Connor explained 
in Rosenberger, "The widely divergent viewpoints of these 
many purveyors of opinion, all supported on an equal 
basis by the University, significantly diminishes the dan­
ger that the message of any one publication is perceived as 
endorsed by the University. . . . Given this wide array 
of . . . viewpoints . . . , any perception that the University 
endorses one particular viewpoint would be illogical." 515 
U.S. at 850 (O'Connor, J., concurring); see Mergens, 496 U.S. 
at 252 (plurality opinion) ("To the extent that a religious 
club is merely one of many different student-initiated 
voluntary clubs, students should perceive no message of 
government endorsement of religion."); Widmar, 454 U.S. 
at 274 ("The provision of benefits to so broad a spectrum 
of groups is an important index of secular effect.").

In the present case, by contrast, any perception that 
respondent endorses one particular group meeting on 
school premises after school would be not only logical, but 
well-nigh inescapable. An elementary school is not, like a 
university or a public square, a forum designed for robust 
intellectual debate and inquiry. Rather, it is "by . . . nature 
and historical mandate a protected enclave for the regu­
lated nurture of its students." Quappe v. Endry, 772 F. Supp.



29

1004, 1011 (S.D. Ohio 1991), aff’d, 979 F.2d 851 (6th Cir. 
1992) (table). Consistent with this, only three private groups 
apart from the Good News Club have met on respondent's 
premises. See Pet. App. E4, % 21; Lodging at Yl-2, Zl, 
AA3-4.17 Thus, there is no "broad spectrum" of officially 
sanctioned private groups meeting at the Milford Central 
School immediately after the end of the "formal" school 
day. Mergens, 496 U.S. at 252 (plurality opinion). Instead, 
the Good News Club would be one of only a few such 
groups, and the danger that its message would be per­
ceived as sponsored or endorsed by the school would be 
grave indeed.

D. To Allow the Good News Club to Meet at the 
Milford Central School Would Constitute an 
Unprecedented Erosion of Establishment Clause 
Values

This Court has repeatedly emphasized, in both word 
and example, that "[e]very government practice must be 
judged in its unique circumstances" to determine whether 
it constitutes an endorsement of religion. Santa Fe, 120 
S. Ct. at 2282 (internal quotation marks omitted); accord 
Lee, 505 U.S. at 597. Only last Term, the Court cautioned 
that in making such determinations, it is important to 
"keep in mind the myriad, subtle ways in which Establish­
ment Clause values can be eroded." Santa Fe, 120 S. Ct. at 
2281 (internal quotation marks omitted). In light of the

17 Moreover, it is not clear from the record when these other 
private groups meet on school grounds -  that is, whether they 
m eet im m ed iate ly  after sch ool, as the Good N ew s Club 
proposes to do, or whether they meet in the evening or on 
weekends. Thus, it may be that the Good News Club would be 
the only outside group meeting on school grounds immediately 
after the "form al" school day. Cf. M ergens, 496 U.S. at 252 
(plurality opinion) ("To the extent that a religious club is merely 
one o f  many different . . . clubs, students should perceive no 
message of government endorsement of religion." (emphasis 
added)).



30

unique circumstances discussed above, and the fundamen­
tal role that public schools play "in the preparation of 
individuals for participation as citizens, and in the preser­
vation of the values on which our society rests," Ambach, 
441 U.S. at 76, allowing the Good News Club to extend the 
school day for elementary school children by offering reli­
gious worship, instruction and indoctrination on public 
school grounds would result in an unprecedented erosion 
of Establishment Clause values that would reverberate 
well beyond this particular case.

CONCLUSION

The judgment of the Court of Appeals should be 
affirmed.

Respectfully submitted,
M a r t in  E . K a r l in sk y  
S t e v e n  M . F r eem a n  
E r ic a  M . B r o id o  
A n t i-D efa m a tio n  L ea g u e  
823 United Nations Plaza 
New York, NY 10017 
(212) 490-2525

R a c h e l  Z en n er  
H a d a ssa h

50 West 58th Street 
New York, NY 10019 
(212) 355-7900

J a n  S c h n e id e r m a n  
N a tio n a l  C o u n c il  o f  

J e w ish  W o m en  
53 West 23nd Street 
6th Floor
New York, NY 10010 
(212) 645-4048

J e ff r e y  R . B a b b in  
Counsel of Record 

A l a n  G . S c h w a r tz  
W ig g in  &  D a n a  
One Century Tower 
P.O. Box 1832
New Haven, CT 06508-1832 
(203) 498-4400 
Counsel for

Anti-Defamation League
D a vid  B . I sb e l l  
F a ith  D . K a spa r ia n  
G e r a r d  N. M a g l io c c a  
C o v in g t o n  &  B u r l in g  
1201 Pennsylvania Avenue, 

N.W.
Washington, D.C. 20004-2401 
(202) 662-6000 
Counsel for National PEARL

Dated: January 12, 2001