Amdt1.1.2.1.1.2.4 Access of Religious Groups to Public Property

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes its facilities available to nonreligious student groups. In Widmar v. Vincent, ¹ the Court held that allowing student religious groups equal access to a public college’s facilities would further a secular purpose, would not constitute an impermissible benefit to religion, and would pose little hazard of entanglement. Subsequently, the Court held that these principles apply to public secondary schools as well as to institutions of higher learning. In 1990, in Westside Community Board of Education v. Mergens, ² the Court upheld application of the Equal Access Act ³ to prevent a secondary school from denying access to school premises to a student religious club while granting access to such other noncurriculum related student groups as a scuba diving club, a chess club, and a service club. ⁴ Justice O’Connor stated in a plurality opinion that there is a crucial difference between government speech endorsing religion and private speech endorsing religion. 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. ⁵

Similarly, public schools may not rely on the Establishment Clause as grounds to discriminate against religious groups in after-hours use of school property otherwise available for non-religious social, civic, and recreational purposes. In Lamb’s Chapel v. Center Moriches School District, ⁶ the Court held that a school district could not, consistent with the free speech clause, refuse to allow a religious group to use school facilities to show a film series on family life when the facilities were otherwise available for community use. It discriminates on the basis of viewpoint, the Court ruled, to 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 viewpoint. In response to the school district’s claim that the Establishment Clause required it to deny use of its facilities to a religious group, the Court said that there was no realistic danger in this instance that the community would think that the District was endorsing religion or any particular creed and that such permission would satisfy the requirements of the Lemon test. ⁷ Similarly, in Good News Club v. Milford Central School, ⁸ the Court held the free speech clause to be violated by a school policy that barred a religious children’s club from meeting on school premises after school. Given that other groups teaching morals and character development to young children were allowed to use the school’s facilities, the exclusion, the Court said, constitutes unconstitutional viewpoint discrimination. Moreover, it said, the school had no valid Establishment Clause interest because permitting the religious club to meet would not show any favoritism toward religion but would simply ensure neutrality.

Finally, the Court has made clear that public colleges may not exclude student religious organizations from benefits otherwise provided to a full spectrum of student news, information, opinion, entertainment, or academic communications media groups. In Rosenberger v. Board of Visitors of the University of Virginia, ⁹ the Court struck down a university policy that afforded a school subsidy to all student publications except religious ones. Once again, the Court held the denial of the subsidy to constitute viewpoint discrimination in violation of the free speech clause of the First Amendment. In response to the University’s argument that the Establishment Clause required it not to subsidize an enterprise that promotes religion, the Court emphasized that the forum created by the University’s subsidy policy had neither the purpose nor the effect of advancing religion and, because it was open to a variety of viewpoints, was neutral toward religion.

These cases make clear that the Establishment Clause does not necessarily trump the First Amendment’s protection of freedom of speech. In regulating private speech in a public forum, government may not justify discrimination against religious viewpoints as necessary to avoid creating an establishment of religion.