Thomas, J., delivered the opinion of the Court, in which Rehnquist, C.J., and OConnor, Scalia, and Kennedy, JJ., joined, and in which Breyer, JJ., joined in part. Scalia, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in part. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined.
[June 11, 2001]
Justice Thomas delivered the opinion of the Court.
This case presents two questions. The first question is whether Milford Central School violated the free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school. The second question is whether any such violation is justified by Milfords concern that permitting the Clubs activities would violate the Establishment Clause. We conclude that Milfords restriction violates the Clubs free speech rights and that no Establishment Clause concern justifies that violation.
The State of New York authorizes local school boards to adopt regulations governing the use of their school facilities. In particular, N.Y. Educ. Law 414 (McKinney 2000) enumerates several purposes for which local boards may open their schools to public use. In 1992, respondent Milford Central School (Milford) enacted a community use policy adopting seven of 414s purposes for which its building could be used after school. App. to Pet. for Cert. D1D3. Two of the stated purposes are relevant here. First, district residents may use the school for instruction in any branch of education, learning or the arts. Id., at D1. Second, the school is available for social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public. Ibid.
Stephen and Darleen Fournier reside within Milfords district and therefore are eligible to use the schools facilities as long as their proposed use is approved by the school. Together they are sponsors of the local Good News Club, a private Christian organization for children ages 6 to 12. Pursuant to Milfords policy, in September 1996 the Fourniers submitted a request to Dr. Robert McGruder, interim superintendent of the district, in which they sought permission to hold the Clubs weekly afterschool meetings in the school cafeteria. App. in No.989494 (CA2), p.A81. The next month, McGruder formally denied the Fourniers request on the ground that the proposed useto have a fun time of singing songs, hearing a Bible lesson and memorizing scripture, ibid.was the equivalent of religious worship. App. H1H2. According to McGruder, the community use policy, which prohibits use by any individual or organization for religious purposes, foreclosed the Clubs activities. App. to Pet. for Cert.D2.
In response to a letter submitted by the Clubs counsel, Milfords attorney requested information to clarify the nature of the Clubs activities. The Club sent a set of materials used or distributed at the meetings and the following description of its meeting:
The Club opens its session with Ms.Fournier taking attendance. As she calls a childs name, if the child recites a Bible verse the child receives a treat. After attendance, the Club sings songs. Next Club members engage in games that involve, inter alia, learning Bible verses. Ms.Fournier then relates a Bible story and explains how it applies to Club members lives. The Club closes with prayer. Finally, Ms.Fournier distributes treats and the Bible verses for memorization. App. in No.989494 (CA2), atA30.
McGruder and Milfords attorney reviewed the materials and concluded that the kinds of activities proposed to be engaged in by the Good News Club were not a discussion of secular subjects such as child rearing, development of character and development of morals from a religious perspective, but were in fact the equivalent of religious instruction itself. Id., at A25. In February 1997, the Milford Board of Education adopted a resolution rejecting the Clubs request to use Milfords facilities for the purpose of conducting religious instruction and Bible study. Id., at A56.
In March 1997, petitioners, the Good News Club, Ms. Fournier, and her daughter Andrea Fournier (collectively, the Club), filed an action under 42 U.S.C. 1983 against Milford in the United States District Court for the Northern District of New York. The Club alleged that Milfords denial of its application violated its free speech rights under the First and Fourteenth Amendments, its right to equal protection under the Fourteenth Amendment, and its right to religious freedom under the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. 2000bb etseq.1
The Club moved for a preliminary injunction to prevent the school from enforcing its religious exclusion policy against the Club and thereby to permit the Clubs use of the school facilities. On April 14, 1997, the District Court granted the injunction. The Club then held its weekly afterschool meetings from April 1997 until June 1998 in a high school resource and middle school special education room. App.N12.
In August 1998, the District Court vacated the preliminary injunction and granted Milfords motion for summary judgment. 21 F.Supp. 2d 147 (NDNY 1998). The court found that the Clubs subject matter is decidedly religious in nature, and not merely a discussion of secular matters from a religious perspective that is otherwise permitted under [Milfords] use policies. Id., at 154. Because the school had not permitted other groups that provided religious instruction to use its limited public forum, the court held that the school could deny access to the Club without engaging in unconstitutional viewpoint discrimination. The court also rejected the Clubs equal protection claim.
The Club appealed, and a divided panel of the United States Court of Appeals for the Second Circuit affirmed. 202 F.3d 502 (2000). First, the court rejected the Clubs contention that Milfords restriction against allowing religious instruction in its facilities is unreasonable. Second, it held that, because the subject matter of the Clubs activities is quintessentially religious, id., at 510, and the activities fall outside the bounds of pure moral and character development, id., at 511, Milfords policy of excluding the Clubs meetings was constitutional subject discrimination, not unconstitutional viewpoint discrimination. Judge Jacobs filed a dissenting opinion in which he concluded that the schools restriction did constitute viewpoint discrimination under Lambs Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993).
There is a conflict among the Courts of Appeals on the question whether speech can be excluded from a limited public forum on the basis of the religious nature of the speech. Compare Gentala v. Tucson, 244 F.3d 1065 (CA9 2001) (enbanc) (holding that a city properly refused National Day of Prayer organizers application to the citys civic events fund for coverage of costs for city services); Campbell v. St.Tammanys School Bd., 206 F.3d 482 (CA5 2000) (holding that a schools policy against permitting religious instruction in its limited public forum did not constitute viewpoint discrimination), cert. pending, No. 001194; Bronx Household of Faith v. Community School Dist. No.10, 127 F.3d 207 (CA2 1997) (concluding that a ban on religious services and instruction in the limited public forum was constitutional), with Church on the Rock v. Albuquerque, 84 F.3d 1273 (CA10 1996) (holding that a citys denial of permission to show the film Jesus in a senior center was unconstitutional viewpoint discrimination); and Good News/Good Sports Club v. School Dist. of Ladue, 28 F.3d 1501 (CA8 1994) (holding unconstitutional a school use policy that prohibited Good News Club from meeting during times when the Boy Scouts could meet). We granted certiorari to resolve this conflict. 531 U.S. 923 (2000).
The standards that we apply to determine whether a State has unconstitutionally excluded a private speaker from use of a public forum depend on the nature of the forum. See Perry Ed. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 44 (1983). If the forum is a traditional or open public forum, the States restrictions on speech are subject to stricter scrutiny than are restrictions in a limited public forum. Id., at 4546. We have previously declined to decide whether a school districts opening of its facilities pursuant to N.Y. Educ. Law 414 creates a limited or a traditional public forum. See Lambs Chapel, supra, at 391392. Because the parties have agreed that Milford created a limited public forum when it opened its facilities in 1992, see Brief for Petitioners 1517; Brief for Respondent 26, we need not resolve the issue here. Instead, we simply will assume that Milford operates a limited public forum.
When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); see also Lambs Chapel, supra, at 392393. The States power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, Rosenberger, supra, at 829, and the restriction must be reasonable in light of the purpose served by the forum, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985).
Applying this test, we first address whether the exclusion constituted viewpoint discrimination. We are guided in our analysis by two of our prior opinions, Lambs Chapel and Rosenberger. In Lambs Chapel, we held that a school district violated the Free Speech Clause of the First Amendment when it excluded a private group from presenting films at the school based solely on the films discussions of family values from a religious perspective. Likewise, in Rosenberger, we held that a universitys refusal to fund a student publication because the publication addressed issues from a religious perspective violated the Free Speech Clause. Concluding that Milfords exclusion of the Good News Club based on its religious nature is indistinguishable from the exclusions in these cases, we hold that the exclusion constitutes viewpoint discrimination. Because the restriction is viewpoint discriminatory, we need not decide whether it is unreasonable in light of the purposes served by the forum.2
Milford has opened its limited public forum to activities that serve a variety of purposes, including events pertaining to the welfare of the community. App. to Pet. for Cert.D1. Milford interprets its policy to permit discussions of subjects such as child rearing, and of the development of character and morals from a religious perspective. Brief for Appellee in No.989494 (CA2), p.6. For example, this policy would allow someone to use Aesops Fables to teach children moral values. App.N11. Additionally, a group could sponsor a debate on whether there should be a constitutional amendment to permit prayer in public schools, id., at N6, and the Boy Scouts could meet to influence a boys character, development and spiritual growth, id., at N10N11. In short, any group that promote[s] the moral and character development of children is eligible to use the school building. Brief for Appellee in No.989494 (CA2), at9.
Just as there is no question that teaching morals and character development to children is a permissible purpose under Milfords policy, it is clear that the Club teaches morals and character development to children. For example, no one disputes that the Club instructs children to overcome feelings of jealousy, to treat others well regardless of how they treat the children, and to be obedient, even if it does so in a nonsecular way. Nonetheless, because Milford found the Clubs activities to be religious in naturethe equivalent of religious instruction itself, 202 F.3d, at 507it excluded the Club from use of its facilities.
Applying Lambs Chapel,3 we find it quite clear that Milford engaged in viewpoint discrimination when it excluded the Club from the afterschool forum. In Lambs Chapel, the local New York school district similarly had adopted 414s social, civic or recreational use category as a permitted use in its limited public forum. The district also prohibited use by any group for religious purposes. 508 U.S., at 387 . Citing this prohibition, the school district excluded a church that wanted to present films teaching family values from a Christian perspective. We held that, because the films no doubt dealt with a subject otherwise permissible under the rule, the teaching of family values, the districts exclusion of the church was unconstitutional viewpoint discrimination. Id., at394.
Like the church in Lambs Chapel, the Club seeks to address a subject otherwise permitted under the rule, the teaching of morals and character, from a religious standpoint. Certainly, one could have characterized the film presentations in Lambs Chapel as a religious use, as the Court of Appeals did, Lambs Chapel v. Center Moriches Union Free School Dist., 959 F.2d 381, 388389 (CA2 1992). And one easily could conclude that the films purpose to instruct that societys slide toward humanism can only be counterbalanced by a loving home where Christian values are instilled from an early age, id., at 384, was quintessentially religious, 202 F.3d, at 510. The only apparent difference between the activity of Lambs Chapel and the activities of the Good News Club is that the Club chooses to teach moral lessons from a Christian perspective through live storytelling and prayer, whereas Lambs Chapel taught lessons through films. This distinction is inconsequential. Both modes of speech use a religious viewpoint. Thus, the exclusion of the Good News Clubs activities, like the exclusion of Lambs Chapels films, constitutes unconstitutional viewpoint discrimination.
Our opinion in Rosenberger also is dispositive. In Rosenberger, a student organization at the University of Virginia was denied funding for printing expenses because its publication, Wide Awake, offered a Christian viewpoint. Just as the Club emphasizes the role of Christianity in students morals and character, Wide Awake challenge[d] Christians to live, in word and deed, according to the faith they proclaim and encourage[d] students to consider what a personal relationship with Jesus Christ means. 515 U.S., at 826 . Because the university select[ed] for disfavored treatment those student journalistic efforts with religious editorial viewpoints, we held that the denial of funding was unconstitutional. Id., at 831. Although in Rosenberger there was no prohibition on religion as a subject matter, our holding did not rely on this factor. Instead, we concluded simply that the universitys denial of funding to print Wide Awake was viewpoint discrimination, just as the school districts refusal to allow Lambs Chapel to show its films was viewpoint discrimination. Ibid. Given the obvious religious content of Wide Awake, we cannot say that the Clubs activities are any more religious or deserve any less First Amendment protection than did the publication of Wide Awake in Rosenberger.
Despite our holdings in Lambs Chapel and Rosenberger, the Court of Appeals, like Milford, believed that its characterization of the Clubs activities as religious in nature warranted treating the Clubs activities as different in kind from the other activities permitted by the school. See 202 F.3d, at 510 (the Club is doing something other than simply teaching moral values). The Christian viewpoint is unique, according to the court, because it contains an additional layer that other kinds of viewpoints do not. Id., at 509. That is, the Club is focused on teaching children how to cultivate their relationship with God through Jesus Christ, which it characterized as quintessentially religious. Id., at 510. With these observations, the court concluded that, because the Clubs activities fall outside the bounds of pure moral and character development, the exclusion did not constitute viewpoint discrimination. Id., at511.
We disagree that something that is quintessentially religious or decidedly religious in nature cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. See 202 F.3d, at 512 (Jacobs,J., dissenting) ([W]hen the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters). What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons. It is apparent that the unstated principle of the Court of Appeals reasoning is its conclusion that any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a pure discussion of those issues. According to the Court of Appeals, reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not. We, however, have never reached such a conclusion. Instead, we reaffirm our holdings in Lambs Chapel and Rosenberger that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint. Thus, we conclude that Milfords exclusion of the Club from use of the school, pursuant to its community use policy, constitutes impermissible viewpoint discrimination.4
Milford argues that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the Establishment Clause outweighs the Clubs interest in gaining equal access to the schools facilities. In other words, according to Milford, its restriction was required to avoid violating the Establishment Clause. We disagree.
We have said that a state interest in avoiding an Establishment Clause violation may be characterized as compelling, and therefore may justify content-based discrimination. Widmar v. Vincent, 454 U.S. 263, 271 (1981). However, it is not clear whether a States interest in avoiding an Establishment Clause violation would justify viewpoint discrimination. See Lambs Chapel, 508 U.S., at 394395 (noting the suggestion in Widmar but ultimately not finding an Establishment Clause problem). We need not, however, confront the issue in this case, because we conclude that the school has no valid Establishment Clause interest.
We rejected Establishment Clause defenses similar to Milfords in two previous free speech cases, Lambs Chapel and Widmar. In particular, in Lambs Chapel, we explained that [t]he showing of th[e] film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. 508 U.S., at 395 . Accordingly, we found that there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed. Ibid. Likewise, in Widmar, where the universitys forum was already available to other groups, this Court concluded that there was no Establishment Clause problem. 454 U.S., at 272273 , and n.13.
The Establishment Clause defense fares no better in this case. As in Lambs Chapel, the Clubs meetings were held after school hours, not sponsored by the school, and open to any student who obtained parental consent, not just to Club members. As in Widmar, Milford made its forum available to other organizations. The Clubs activities are materially indistiguishable from those in Lambs Chapel and Widmar. Thus, Milfords reliance on the Establishment Clause is unavailing.
Milford attempts to distinguish Lambs Chapel and Widmar by emphasizing that Milfords policy involves elementary school children. According to Milford,
children will perceive that the school is endorsing the Club and will feel coercive pressure to participate, because the Clubs activities take place on school
grounds, even though
they occur during nonschool hours.5 This argument is unpersuasive.
First, we have held that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion. Rosenberger, 515 U.S., at 839 (emphasis added). See also Mitchell v. Helms, 530 U.S. 793 , (2000) (slip op., at10) (plurality opinion) (In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, [the Court has] consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion (emphasis added)); id., at ___ (slip op., at3) (OConnor, J., concurring in judgment) ([N]eutrality is an important reason for upholding government-aid programs against Establishment Clause challenges). Milfords implication that granting access to the Club would do damage to the neutrality principle defies logic. For the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse. Rosenberger, supra, at 839. The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups. Because allowing the Club to speak on school grounds would ensure neutrality, not threaten it, Milford faces an uphill battle in arguing that the Establishment Clause compels it to exclude the Good News Club.
Second, to the extent we consider whether the community would feel coercive pressure to engage in the Clubs activities, cf. Lee v. Weisman, 505 U.S. 577, 592593 (1992), the relevant community would be the parents, not the elementary school children. It is the parents who choose whether their children will attend the Good News Club meetings. Because the children cannot attend without their parents permission, they cannot be coerced into engaging in the Good News Clubs religious activities. Milford does not suggest that the parents of elementary school children would be confused about whether the school was endorsing religion. Nor do we believe that such an argument could be reasonably advanced.
Third, whatever significance we may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, cf., e.g., Lee, supra, at 592; School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985) (stating that symbolism of a union between church and state is most likely to influence 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), we have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present.
None of the cases discussed by Milford persuades us that our Establishment Clause jurisprudence has gone this far. For example, Milford cites Lee v. Weisman for the proposition that there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools, 505 U.S., at 592 . In Lee, however, we concluded that attendance at the graduation exercise was obligatory. Id., at 586. See also SantaFe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (holding the schools policy of permitting prayer at football games unconstitutional where the activity took place during a school-sponsored event and not in a public forum). We did not place independent significance on the fact that the graduation exercise might take place on school premises, Lee, supra, at 583. Here, where the school facilities are being used for a nonschool function and there is no government sponsorship of the Clubs activities, Lee is inapposite.
Equally unsupportive is Edwards v. Aguillard, 482 U.S. 578 (1987), in which we held that a Louisiana law that proscribed the teaching of evolution as part of
the public school curriculum, unless accompanied by a lesson on creationism, violated the Establishment Clause. In Edwards, we mentioned that students are
susceptible to pressure in the classroom, particularly given their possible reliance on teachers as role models. See id., at 584. But we did not discuss this concern
in our application of the law to the facts. Moreover, we did note that mandatory attendance requirements meant that State advancement of religion in a school
would be particularly harshly felt by impressionable students.6 But we did not suggest that, when the school was not actually advancing religion, the
impressionability of students would be relevant to the Establishment Clause issue. Even if Edwards had articulated the principle Milford believes it did, the facts
in Edwards are simply too remote from those here to give the principle any weight. Edwards involved the content of the curriculum taught by state teachers
during the schoolday to children required to attend. Obviously, when individuals who are not schoolteachers are giving lessons after school to children permitted
to attend only with parental consent, the concerns expressed in Edwards are not
present.7
Fourth, even if we were to consider the possible misperceptions by schoolchildren in deciding whether Milfords permitting the Clubs activities would violate the Establishment Clause, the facts of this case simply do not support Milfords conclusion. There is no evidence that young children are permitted to loiter outside classrooms after the schoolday has ended. Surely even young children are aware of events for which their parents must sign permission forms. The meetings were held in a combined high school resource room and middle school special education room, not in an elementary school classroom. The instructors are not schoolteachers. And the children in the group are not all the same age as in the normal classroom setting; their ages range from 6 to 12.8 In sum, these circumstances simply do not support the theory that small children would perceive endorsement here.
Finally, even if we were to inquire into the minds of schoolchildren in this case, we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum. This concern is particularly acute given the reality that Milfords building is not used only for elementary school children. Students, from kindergarten through the 12th grade, all attend school in the same building. There may be as many, if not more, upperclassmen than elementary school children who occupy the school after hours. For that matter, members of the public writ large are permitted in the school after hours pursuant to the community use policy. Any bystander could conceivably be aware of the schools use policy and its exclusion of the Good News Club, and could suffer as much from viewpoint discrimination as elementary school children could suffer from perceived endorsement. Cf. Rosenberger, 515 U.S., at 835836 (expressing the concern that viewpoint discrimination can chill individual thought and expression).
We cannot operate, as Milford would have us do, under the assumption that any risk that small children would perceive endorsement should counsel in favor of excluding the Clubs religious activity. We decline to employ Establishment Clause jurisprudence using a modified hecklers veto, in which a groups religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive. Cf. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 779780 (1995) (OConnor, J., concurring in part and concurring in judgment) ([B]ecause our concern is with the political community writ large, the endorsement inquiry is not about the perceptions of particular individuals or saving isolated nonadherents from discomfort . It is for this reason that the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious [speech takes place] (emphasis added)). There are countervailing constitutional concerns related to rights of other individuals in the community. In this case, those countervailing concerns are the free speech rights of the Club and its members. Cf. Rosenberger, supra, at 835 (Vital First Amendment speech principles are at stake here). And, we have already found that those rights have been violated, not merely perceived to have been violated, by the schools actions toward the Club.
We are not convinced that there is any significance in this case to the possibility that elementary school children may witness the Good News Clubs activities on school premises, and therefore we can find no reason to depart from our holdings in Lambs Chapel and Widmar. Accordingly, we conclude that permitting the Club to meet on the schools premises would not have violated the Establishment Clause.9
When Milford denied the Good News Club access to the schools limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment. Because Milford has not raised a valid Establishment Clause claim, we do not address the question whether such a claim could excuse Milfords viewpoint discrimination.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
[June 11, 2001]
The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for religious purposes. Speech for religious purposes may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lambs Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993), illustrates this category. See id., at 388 (observing that the film series at issue in that case would discuss Dr. [James] Dobsons views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U.S. 263 (1981), concerned such speech. See id., at 264265 (describing the speech in question as involving religious worship). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.
A public entity may not generally exclude even religious worship from an open public forum. Id., at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lambs Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lambs Chapel, 508 U.S., at 393394 .
But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to preserve the property under its control for the use to which it is lawfully dedicated. Greer v. Spock, 424 U.S. 828, 836 (1976); see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 275 , n. 6 (1990) (Stevens, J., dissenting) (A schools extracurricular activities constitute a part of the schools teaching mission, and the school accordingly must make decisions concerning the content of those activities (quoting Widmar, 454 U.S., at 278 (Stevens, J., concurring in judgment)). Accordingly, control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985). The novel question that this case presents concerns the constitutionality of a public schools attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.
Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groupsfor example, the Democratic Party, the Libertarian Party, or the Ku Klux Klanto hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the schools educational mission. Cf. Lehman v. Shaker Heights, 418 U.S. 298 (1974) (upholding a citys refusal to allow political advertising on public transportation).
School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g., Campbell v. St. Tammany Parish School Board, 231 F.3d 937, 942 (CA5 2000) (Under the Supreme Courts jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality). Moreover, any doubt on a question such as this should be resolved in a way that minimizes intrusion by the Federal Government into the operation of our public schools, Mergens, 496 U.S., at 290 (Stevens, J., dissenting); see also Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. By and large, public education in our Nation is committed to the control of state and local authorities).
The particular limitation of the forum at issue in this case is one that prohibits the use of the schools facilities for religious purposes. It is clear that, by religious purposes, the school district did not intend to exclude all speech from a religious point of view. See App. N13N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach that man was created by God as described in the Book of Genesis and that crime was caused by societys lack of faith in God). Instead, it sought only to exclude religious speech whose principal goal is to promote the gospel. App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort.1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them.2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U.S. 203, 231 (1948) (Frankfurter, J., concurring) (In no activity of the State is it more vital to keep out divisive forces than in its schools ).
This case is undoubtedly close. Nonetheless, regardless of whether the Good News Clubs activities amount to worship, it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the schools limited public forum.3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.
Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.
[June 11, 2001]
The majority rules on two issues. First, it decides that the Court of Appeals failed to apply the rule in Lambs Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993), which held that the government may not discriminate on the basis of viewpoint in operating a limited public forum. The majority applies that rule and concludes that Milford violated Lambs Chapel in denying Good News the use of the school. The majority then goes on to determine that it would not violate the Establishment Clause of the First Amendment for the Milford School District to allow the Good News Club to hold its intended gatherings of public school children in Milfords elementary school. The majority is mistaken on both points. The Court of Appeals unmistakably distinguished this case from Lambs Chapel, though not by name, and accordingly affirmed the application of a policy, unchallenged in the District Court, that Milfords public schools may not be used for religious purposes. As for the applicability of the Establishment Clause to the Good News Clubs intended use of Milfords school, the majority commits error even in reaching the issue, which was addressed neither by the Court of Appeals nor by the District Court. I respectfully dissent.
Lambs Chapel, a case that arose (as this one does) from application of N.Y. Educ. Law 414 (McKinney 2000) and local policy implementing it, built on the accepted rule that a government body may designate a public forum subject to a reasonable limitation on the scope of permitted subject matter and activity, so long as the government does not use the forum-defining restrictions to deny expression to a particular viewpoint on subjects open to discussion. Specifically, Lambs Chapel held that the government could not permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint. 508 U.S., at 393394 .
This case, like Lambs Chapel, properly raises no issue about the reasonableness of Milfords criteria for restricting the scope of its designated public forum. Milford has opened school property for, among other things, instruction in any branch of education, learning or the arts and for social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public. App. to Pet. for Cert. D1D3. But Milford has done this subject to the restriction that [s]chool premises shall not be used for religious purposes. Id., at D2. As the District Court stated, Good News did not object to the reasonableness of [Milford]s policy that prohibits the use of [its] facilities for religious purposes. Id., at C14.
The sole question before the District Court was, therefore, whether, in refusing to allow Good Newss intended use, Milford was misapplying its unchallenged restriction in a way that amounted to imposing a viewpoint-based restriction on what could be said or done by a group entitled to use the forum for an educational, civic, or other permitted purpose. The question was whether Good News was being disqualified when it merely sought to use the school property the same way that the Milford Boy and Girl Scouts and the 4H Club did. The District Court held on the basis of undisputed facts that Good Newss activity was essentially unlike the presentation of views on secular issues from a religious standpoint held to be protected in Lambs Chapel, see App. to Pet. for Cert. C29C31, and was instead activity precluded by Milfords unchallenged policy against religious use, even under the narrowest definition of that term.
The Court of Appeals understood the issue the same way. See 202 F.3d 502, 508 (CA2 2000) (Good News argues that to exclude the Club because it teaches morals and values from a Christian perspective constitutes unconstitutional viewpoint discrimination); id., at 509 (The crux of the Good News Clubs argument is that the Milford schools application of the Community Use Policy to exclude the Club from its facilities is not viewpoint neutral).1 The Court of Appeals also realized that the Lambs Chapel criterion was the appropriate measure: The activities of the Good News Club do not involve merely a religious perspective on the secular subject of morality. 202 F. 3d, at 510. Cf. Lambs Chapel, supra, at 393 (district could not exclude religious standpoint in discussion on childrearing and family values, an undisputed use for social or civic purposes otherwise permitted under the use policy).2 The appeals court agreed with the District Court that the undisputed facts in this case differ from those in Lambs Chapel, as night from day. A sampling of those facts shows why both courts were correct.
Good Newss classes open and close with prayer. In a sample lesson considered by the District Court, children are instructed that [t]he Bible tells us how we can have our sins forgiven by receiving the Lord Jesus Christ. It tells us how to live to please Him. If you have received the Lord Jesus as your Saviour from sin, you belong to Gods special groupHis family. App. to Pet. for Cert. C17C18 (ellipsis in original). The lesson plan instructs the teacher to lead a child to Christ, and, when reading a Bible verse, to [e]mphasize that this verse is from the Bible, Gods Word and is importantand truebecause God said it. The lesson further exhorts the teacher to [b]e sure to give an opportunity for the unsaved children in your class to respond to the Gospel and cautions against neglect[ing] this responsibility. Id., at C20.
While Good Newss program utilizes songs and games, the heart of the meeting is the challenge and invitation, which are repeated at various times throughout the lesson. During the challenge, saved children who already believe in the Lord Jesus as their Savior are challenged to stop and ask God for the strength and the want . . . to obey Him. Ibid. They are instructed that
[i]f you know Jesus as your Savior, you need to place God first in your life. And if you dont know Jesus as Savior and if you would like to, then we willwe will pray with you separately, individually. And the challenge would be, those of you who know Jesus as Savior, you can rely on Gods strength to obey Him. Ibid.
During the invitation, the teacher invites the unsaved children to trust the Lord Jesus to be your Savior from sin, and receiv[e] [him] as your Savior from sin. Id., at C21. The children are then instructed that
[i]f you believe what Gods Word says about your sin and how Jesus died and rose again for you, you can have His forever life today. Please bow your heads and close your eyes. If you have never believed on the Lord Jesus as your Savior and would like to do that, please show me by raising your hand. If you raised your hand to show me you want to believe on the Lord Jesus, please meet me so I can show you from Gods Word how you can receive His everlasting life. Ibid.
It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion.3 The majority avoids this reality only by resorting to the bland and general characterization of Good Newss activity as teaching of morals and character, from a religious standpoint. See ante, at 9. If the majoritys statement ignores reality, as it surely does, then todays holding may be understood only in equally generic terms. Otherwise, indeed, this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque.
I also respectfully dissent from the majoritys refusal to remand on all other issues, insisting instead on acting as a court of first instance in reviewing Milfords claim that it would violate the Establishment Clause to grant Good Newss application. Milford raised this claim to demonstrate a compelling interest for saying no to Good News, even on the erroneous assumption that Lambs Chapels public forum analysis would otherwise require Milford to say yes. Whereas the District Court and Court of Appeals resolved this case entirely on the ground that Milfords actions did not offend the First Amendments Speech Clause, the majority now sees fit to rule on the application of the Establishment Clause, in derogation of this Courts proper role as a court of review. E.g., National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999) ([W]e do not decide in the first instance issues not decided below).
The Courts usual insistence on resisting temptations to convert itself into a trial court and on remaining a court of review is not any mere procedural nicety, and my objection to turning us into a district court here does not hinge on a preference for immutable procedural rules. Respect for our role as a reviewing court rests, rather, on recognizing that this Court can often learn a good deal from considering how a district court and a court of appeals have worked their way through a difficult issue. It rests on recognizing that an issue as first conceived may come to be seen differently as a case moves through trial and appeal; we are most likely to contribute something of value if we act with the benefit of whatever refinement may come in the course of litigation. And our customary refusal to become a trial court reflects the simple fact that this Court cannot develop a record as well as a trial court can. If I were a trial judge, for example, I would balk at deciding on summary judgment whether an Establishment Clause violation would occur here without having statements of undisputed facts or uncontradicted affidavits showing, for example, whether Good News conducts its instruction at the same time as school-sponsored extracurricular and athletic activities conducted by school staff and volunteers, see Brief for Respondent 6; whether any other community groups use school facilities immediately after classes end and how many students participate in those groups; and the extent to which Good News, with 28 students in its membership, may dominate the forum in a way that heightens the perception of official endorsement, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 851 (1995) (OConnor, J., concurring); see also Widmar v. Vincent, 454 U.S. 263, 274 (1981). We will never know these facts.
Of course, I am in no better position than the majority to perform an Establishment Clause analysis in the first instance. Like the majority, I lack the benefit that development in the District Court and Court of Appeals might provide, and like the majority I cannot say for sure how complete the record may be. I can, however, speak to the doubtful underpinnings of the majoritys conclusion.
This Court has accepted the independent obligation to obey the Establishment Clause as sufficiently compelling to satisfy strict scrutiny under the First Amendment. See id., at 271 ([T]he interest of the [government] in complying with its constitutional obligations may be characterized as compelling); Lambs Chapel, 508 U.S., at 394 . Milfords actions would offend the Establishment Clause if they carried the message of endorsing religion under the circumstances, as viewed by a reasonable observer. See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 777 (1995) (OConnor, J., concurring). The majority concludes that such an endorsement effect is out of the question in Milfords case, because the context here is materially indistinguishable from the facts in Lambs Chapel and Widmar. Ante, at 13. In fact, the majority is in no position to say that, for the principal grounds on which we based our Establishment Clause holdings in those cases are clearly absent here.
In Widmar, we held that the Establishment Clause did not bar a religious student group from using a public universitys meeting space for worship as well as discussion. As for the reasonable observers who might perceive government endorsement of religion, we pointed out that the forum was used by university students, who are, of course, young adults, and, as such, are less impressionable than younger students and should be able to appreciate that the Universitys policy is one of neutrality toward religion. 454 U.S., at 274 , n.14. To the same effect, we remarked that the large number of groups meeting on campus negated any reasonable inference of University support from the mere fact of a campus meeting place. Ibid. Not only was the forum available to a broad class of nonreligious as well as religious speakers, but there were, in fact, over 100 recognized student groups at the University, and an absence of empirical evidence that religious groups [would] dominate [the Universitys] open forum. Id., at 274275; see also id., at 274 (The provision of benefits to so broad a spectrum of groups is an important index of secular effect). And if all that had not been enough to show that the university-student use would probably create no impression of religious endorsement, we pointed out that the university in that case had issued a student handbook with the explicit disclaimer that the Universitys name will not be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members. Id., at 274, n.14.
Lambs Chapel involved an evening film series on child-rearing open to the general public (and, given the subject matter, directed at an adult audience). See 508 U.S., at 387 , 395. There, school property had repeatedly been used by a wide variety of private organizations, and we could say with some assurance that [u]nder these circumstances there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed . Id., at 395.
What we know about this case looks very little like Widmar or Lambs Chapel. The cohort addressed by Good News is not university students with relative maturity, or even high school pupils, but elementary school children as young as six.4 The Establishment Clause cases have consistently recognized the particular impressionability of schoolchildren, see Edwards v. Aguillard, 482 U.S. 578, 583584 (1987), and the special protection required for those in the elementary grades in the school forum, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 620 , n.69 (1989). We have held the difference between college students and grade school pupils to be a distinction [that] warrants a difference in constitutional results, Edwards v. Aguillard, supra, at 584, n.5 (internal quotation marks and citation omitted).
Nor is Milfords limited forum anything like the sites for wide-ranging intellectual exchange that were home to the challenged activities in Widmar and Lambs Chapel. See also Rosenberger, 515 U.S., at 850 , 836837. In Widmar, the nature of the university campus and the sheer number of activities offered precluded the reasonable college observer from seeing government endorsement in any one of them, and so did the time and variety of community use in the Lambs Chapel case. See also Rosenberger, 515 U.S., at 850 (Given this wide array of nonreligious, antireligious and competing religious viewpoints in the forum supported by the University, any perception that the University endorses one particular viewpoint would be illogical); id., at 836837, 850 (emphasizing the array of university-funded magazines containing widely divergent viewpoints and the fact that believers in Christian evangelism competed on equal footing in the University forum with aficionados of Plato, Spinoza, and Descartes, as well as Karl Marx, Bertrand Russell, and Jean-Paul Sartre); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 252 (1990) (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).
The timing and format of Good Newss gatherings, on the other hand, may well affirmatively suggest the imprimatur of officialdom in the minds of the young children. The club is open solely to elementary students (not the entire community, as in Lambs Chapel), only four outside groups have been identified as meeting in the school, and Good News is, seemingly, the only one whose instruction follows immediately on the conclusion of the official school day. See Brief for National School Boards Association etal. as Amici Curiae 6. Although school is out at 2:56 p.m., Good News apparently requested use of the school beginning at 2:30 on Tuesdays during the school year, so that instruction could begin promptly at 3:00, see Lodging, Exh. W1, at which time children who are compelled by law to attend school surely remain in the building. Good Newss religious meeting follows regular school activities so closely that the Good News instructor must wait to begin until the room is clear, and people are out of the room, App. P29, before starting proceedings in the classroom located next to the regular third- and fourth-grade rooms, id., at N12. In fact, the temporal and physical continuity of Good Newss meetings with the regular school routine seems to be the whole point of using the school. When meetings were held in a community church, 8 or 10 children attended; after the school became the site, the number went up three-fold. Id., at P12; Lodging, Exh. AA2.
Even on the summary judgment record, then, a record lacking whatever supplementation the trial process might have led to, and devoid of such insight as the trial and appellate judges might have contributed in addressing the Establishment Clause, we can say this: there is a good case that Good Newss exercises blur the line between public classroom instruction and private religious indoctrination, leaving a reasonable elementary school pupil unable to appreciate that the former instruction is the business of the school while the latter evangelism is not. Thus, the facts we know (or think we know) point away from the majoritys conclusion, and while the consolation may be that nothing really gets resolved when the judicial process is so truncated, that is not much to recommend todays result.