Column 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
drinan@law.georgetown.edu
National Catholic Reporter, April 13,
2001
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