Social Education 66(1), pp.46-50
©2002 National Council for the Social Studies

The Road to The Court

Lee Arbetman

Textbook coverage of U.S. Supreme Court decisions tends to focus almost exclusively on the decision in specific cases. There is seldom consideration of the factual settings in which those cases arose or the lower court decisions that led to the High Court. In addition, how the Court decides which cases to hear receives little attention. Using Good News Club v. Milford Central School, a case involving religion in the public schools from the Court’s 2000-01 term, this article will map out the road to the Supreme Court.


The Place

Just over one hour west of Albany, New York, in a rural farming area, lies the tiny village of Milford. The town is so small that its students attend a single K-12 school: an unlikely place, one would think, to spawn a major church-state conflict that reached the U.S. Supreme Court during the 2000-01 term.


The Club

More than 3,200 Good News Clubs exist throughout the country. One of them is in Milford. These clubs are nondenominational organizations open to children six to twelve years of age. Good News Clubs provide instruction in morals and family values from a Christian perspective. The clubs are affiliated with the Child Evangelical Fellowship, a missionary organization.1

Milford’s club, which had about twenty members, met weekly for an hour. The typical meeting included an opening prayer, the singing of Christian songs, memorization and recitation of passages from the Bible, and a closing prayer. Since 1995, the club had met after school at the Milford Center Community Bible Church. Milford’s K-12 school initially provided bus transportation for some of the students who attended the club’s meetings. In fall 1996, the school stopped providing transportation, which meant that some students could not attend meetings. After attendance dropped, the club submitted a formal request to use the schoo#146;s cafeteria from 3:00 to 4:00 p.m. to conduct its weekly meetings.


The Schoo#146;s Policy

New York State’s education law provides for the public use of schools and school grounds and also authorizes local school boards to adopt reasonable regulations for the use of school facilities.2 Milford’s Community Use of Facilities Policy, adopted by the school board in August 1992, allowed the use of the school building for instruction in education and arts and for civic, social, and recreational meetings for the general welfare of the community. The policy prohibited school use for religious purposes, such as holding worship services, to avoid the appearance of, and possible divisiveness caused by, the government’s sponsorship of religious activity.


The Law

This tension caused by the conflict between a religious group’s request to use a government facility (raising a possible violation of the Establishment Clause) and the government’s decision not to allow the group to use it (raising a possible violation of the Free Speech Clause) has been at the heart of other court cases.

Prior U.S. Supreme Court decisions recognize that public property can be characterized for First Amendment purposes in one of three ways: as public forums, as limited public forums, and as nonpublic forums. A public forum is a place, such as a park or street, traditionally open to or designated for public expression. When the government tries to regulate speech in a public forum, the regulation must serve an important governmental interest (e.g., limiting noise in a hospital zone). Regulations of speech in nonpublic forums are upheld by the courts as long as they are reasonable (this standard is easier to meet in court than proving an important government interest). Sometimes the government will take a nonpublic forum and open it up for limited use. This creates a limited public forum. Regulations, once again, must be reasonable. Regulations for public, nonpublic, and limited public forums must be viewpoint neutral. This means that the government cannot promote or censor particular points of view.

Milford created a limited public forum at the school when it passed its Community Use Policy. It opened a forum (in this instance, the school) for use by certain speakers and for discussion of certain topics. But the Court has required that the government decide what is and is not allowed in a way that is reasonable in light of the purpose served by the forum (i.e., the school). As noted, the government—while able to exclude certain content—cannot censor viewpoints in the presentation of content that is permitted. In other words, content discrimination (within limits) is allowed; viewpoint discrimination is not. The distinction between the two is sometimes elusive.


The School and the Club: Opening Salvos

The school responded two weeks after the Good News Club submitted its request. Superintendent Robert McGruder’s letter of October 3, 1996, stated,

Your group’s request to use the school facilities indicated such use would be for the purpose of “hearing a Bible lesson and memorizing scripture.” I understand such proposed use to be the equivalent of religious worship, which is prohibited under [our] policy, rather than the expression of religious views or values on a secular subject matter. To my knowledge, our facilities have not been used in the past by any organization for the purpose of religious worship.


An exchange of letters between the attorneys of the school and the club followed but failed to resolve the impasse. The schoo#146;s position was that state law and its own regulation allowed it to open the school facility to limited content, that religious content was appropriately excluded, and that the club’s proposed meeting was religious. The club argued that the Free Speech Clause of the First Amendment required equal access to public property. Specifically, the club’s position was that if the 4-H and the Scouts were allowed to meet to teach moral and family values, then the club’s exclusion was a case of unconstitutional viewpoint discrimination.


Going to Federal Court

On March 7, 1997, the club members filed a complaint in the U.S. District Court seeking a preliminary injunction (i.e., a court order) to prevent the school from enforcing the Community Use Policy against them. Five weeks later, the court granted the club’s motion, allowing the club to meet at the school.

On October 23, 1998, the school returned to the district court, asking to have the club’s complaint dismissed. Five days later, the court handed down its opinion, vacating the preliminary injunction, granting the schoo#146;s motion for summary judgment, and dismissing the club’s complaint. The court found that the school board’s policy was consistent with New York education law, recognizing that a limited forum had been created which could lawfully exclude clubs with a religious purpose. The court also found that the club had a religious purpose and conducted religious instruction and was therefore different from the clubs that had previously used the school facility. Although the club did not promote a specific Christian denomination, its activities were still religious in nature and excludable from the limited forum. The court found the school to have made a reasonable claim that groups like the 4-H and Scouts were “substantially dissimilar in nature” from the Good News Club.3

The club appealed the decision to the U.S. Court of Appeals for the Second Circuit. The case was argued before a three-judge panel on June 23, 1999, and was decided on February 3, 2000. With one judge dissenting, the appellate court affirmed the decision of the trial court, finding that the schoo#146;s exclusion of the club from its facilities was based on content, not on viewpoint.4 The Second Circuit found the subject matter of the club’s meetings to be “quintessentially religious” and thus outside the bounds of solely moral and character development.5


Getting to the U.S. Supreme Court

The appellate decision set the stage for an appeal to the High Court. With the exception of those very few cases that invoke the original jurisdiction of the Supreme Court,6 most cases come to the Court after a trial and at least one appeal. Although the Court has issued full opinions in about eighty cases per term in recent years, review is sought in more than eight thousand cases each year.

The process by which the Court decides which cases to accept for review is not widely understood. Many people think that the Court simply takes “the most important cases”–whatever that means. Others believe that the Court reviews and corrects errors made by lower courts to ensure justice. But neither of these views is accurate. “Importance” would be an impossibly subjective standard to apply, and error correction is not the Court’s function. The Supreme Court selects cases for its docket in an attempt to create greater uniformity in the law. Therefore, a party that succeeds in convincing the Court to hear its case will almost always emphasize an existing conflict among lower courts, usually federal courts of appeal.7

In this way, the Court carves out its own agenda from the thousands of cases for which review is sought. In recent years, nearly 80 percent of the cases accepted for review have come from the federal, rather than the state, courts. (For illustration, see the Supreme Court Statistics on page 47). In a typical year, cases are accepted from each circuit court as well as from the court of military appeals. There has been a strong tendency to review and reverse more cases from the Ninth Circuit, however, than from any other federal court of appeals, suggesting that some of the Ninth Circuit’s judges may be out of step with the current thinking on the Supreme Court.8

The party seeking review files legal papers asking the Court to issue a writ of certiorari.9 Surprisingly, perhaps, what the party seeking review does not argue at this stage is that the case was wrongly decided and that the Court needs to reverse the decision of the federal court of appeals or the state supreme court (although this is what it ultimately hopes). Instead, this legal brief makes the case that the lower courts are in disarray on the issue presented in the case and that the Supreme Court has to take the proposed case to clarify the law. The other side, the one that won at the appellate level and does not want the Court to grant review, explains that this case is not like the cases about which the courts are split or that the split is among only a few courts and is likely to work itself out as more convincing court of appeals rationales become accepted by the lower courts.

The Supreme Court justices have law clerks, usually top-notch recent law school graduates who have already clerked for a year in a lower federal court, who work together in a pool to review the petitions for certiorari–or cert petitions as they are called–and make recommendations to the justices.10 The justices meet in conference and decide which cases to accept for review. They need four votes for a grant of certiorari to be made. This part of the process–who votes to grant and why–is not public.11 If there are not four votes to grant certiorari, the parties receive a one-sentence letter from the Court’s clerk telling them that review has not been granted, the end point of the journey to the Court for 99 percent of the parties seeking review. If the justices vote to hear the case, the parties are informed, and a schedule for briefing and oral argument is set.12 In addition, other groups can weigh in as amicus curae (friend of the court) briefs are filed.13


The Court’s Decision

Happily for the Good News Club, issues similar to the one in Milford had been decided differently in different parts of the country.14 Although the case in Milford had an impact on only a small number of people and was therefore relatively unimportant, this is exactly the kind of case that the Court decides to review because of the split among the federal circuit courts. The Supreme Court decided to grant review on October 10, 2000, almost four years to the day after Superintendent McGruder explained to the club why it could not use the schoo#146;s facilities.

Argued on February 28, 2001, the case was decided on June 11, 2001, just two weeks before the end of the 2000–01 term. Justice Thomas’s decision for a divided court rewarded the club. Thomas found that the school had engaged in unconstitutional viewpoint discrimination by excluding the club, and that this exclusion could not be justified by the schoo#146;s concerns about appearing to endorse religion (what would be a violation of the Establishment Clause). Alongside Thomas, the five justices in the majority were Rehnquist, Scalia, Kennedy, O’Connor, and Breyer. Justices Scalia and Breyer wrote separate concurring decisions.

In dissent, Justice Stevens found it reasonable to exclude proselytizing religious speech because of its potential for divisiveness in the community. Justice Souter’s dissent agreed with the analysis of lower courts that the club’s activities were completely different from those of the Scouts or 4-H. He characterized the club’s activities as “an evangelical service of worship calling children to commit themselves in an act of Christian conversion.”15

Church-state cases are complex and tend to highlight some of the philosophical divisions on the Court. In many of these cases, the deciding vote comes from one of the “swing” justices (either Justice O’Connor or Kennedy–see the chart on the Court’s splits on page 47). In this case, both swing justices joined the more conservative block of justices, and Justice Breyer, to the surprise of some court-watchers, joined them. Justice Ginsburg joined Justices Souter and Stevens in dissent.


Looking Back

Procedurally, Good News had characteristics of many cases that have come before the Court: It made its way through the federal, as opposed to the state, court system, and federal courts of appeal had been divided on how to resolve the legal issue presented in the case. Although the Court hears a remarkably wide range of issues, there are some–like religion in the public schools–that appear on the docket on a more or less regular basis. One reason that these cases are so difficult to decide is that they represent a clash between cherished First Amendment values. How can courts protect against the establishment of religion (breaching the wall of separation between church and state) while protecting freedom of speech and the free exercise of religion? Resolving the tensions between these conflicting values is particularly difficult in the setting of the public schools, where a diverse group of young people learn civic values.

When the U.S. Supreme Court decides a case, its decision has a dual impact: It resolves the dispute between the parties, and it announces a precedent that binds all lower courts facing the same legal issue. Whether or not this precedent clarifies the contentious area of religious speech in public schools remains to be seen.



1. For additional information, click on to visit the national Good News Club website.

2. New York State’s Education Law—N.Y. Educ. Law section 414 (McKinney, 2000).

3. Good News Club et. al. v Milford Central School, 21 F.Supp 2d 149, 167 (N.D.N.Y. 1998).

4. Good News Club et. al. v. Milford Central School, 202 F.3d 502, 504 (2nd Cir. 2000).

5. Good News Club et. al. v. Milford Central School, 202 F.3d 502, 515 (2nd Cir. 2000).

6. Article III, Section 2, U.S. Constitution.

7. This is a brief overview of this process. An excellent book on this topic is H.W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, Mass.: Harvard University Press, 1992).

8. Federal cases from district courts in the following states are appealed to the U.S. Court of Appeals for the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

9. Certiorari (pronounced sersh-oh-rare-ee) is an order from a higher court to a lower court to send all the documents in a case to it for review.

10. Justice Stevens’s clerks do not participate in the pool. Presumably, his office reviews all the petitions.

11. Scholars have developed some insights from the papers of justices who have left the Court, particularly Justice Thurgood Marshall.

12. The Court’s rules for scheduling a briefing and oral argument can be found at

13. The amici for the petitioners included the National Council of Churches et al. and the National Jewish Commission on Law and Public Affairs (COLPA). Amici for the respondent included Americans United for Separation of Church and State and the National School Board Association. For a complete list of the amicus petitioners, go to and scroll down to Wednesday, February 28th.

14. In the Court’s majority opinion, Justice Thomas says that “there is a conflict among the Courts of appeals on the question of whether speech can be excluded from a limited forum on the basis of the religious nature of the speech,” citing opinions from the second, fifth, eighth, ninth, and tenth circuits. 121 S.Ct. 2093, 2099 (2001).

15. 121 S.Ct. 2093, 2117.


Lee Arbetman is director of U.S. Programs at Street Law, Inc. He is coauthor of the high school practical law textbook Street Law: A Course in Practical Law, sixth edition (New York: Glencoe, 1999) and codirector with Diana Hess of the U.S. Supreme Court Summer Institute for Teachers.

Handout for Students

Good News Club v. Milford Central Schoonbsp;

Tammy Nguyen

The Issues

Did the Milford Central School discriminate against the Good News Club on the basis of viewpoint in violation of the Free Speech Clause of the Constitution when it refused to allow the club to use its school facilities? Or was the school following a lawful policy that allowed use of the school for some purposes but not for others (i.e., content rather than viewpoint discrimination)?

If a public school had allowed the club to meet directly after school, would this have violated the Establishment Clause (which requires separation of church and state)?



The following precedents can help students argue in a moot court.


Precedents in Favor of the Good News Club

Lambs Chapel v. Center Moriches School District. The U.S. Supreme Court held that it was unconstitutional to exclude a group from access to school facilities after school hours on the basis of the group’s religious viewpoints. In this case, the school district refused to grant the group access because it used a film that directed parents to return to Christian values in developing family values. The Court reasoned that the film did not have a religious purpose, but was instead a religious viewpoint that the school could not discriminate against. The film was shown as part of a family values program, content that was permitted in this limited public forum.

Rosenberger v. Rector and Visitors of the University of Virginia. The Supreme Court held that a college student organization could not be denied funding for its Christian publication Wide Awake. The Court found that Wide Awake presented a Christian perspective on how to overcome racism and eating disorders and that censorship of that perspective was unconstitutional.


Precedents in Favor of Milford Central School

Lee v. Weisman. The Supreme Court found that a middle school principa#146;s invitation to a religious leader (a rabbi) to offer an invocation and benediction at graduation had a coercive effect on students and violated the Establishment Clause.

Widmar v. Vincent. The Supreme Court held that refusing to allow religious groups to have access to the university’s facilities, but allowing other groups, was a violation of the students’ free speech rights. The Court, however, reiterated its distinction between university students and elementary students. “University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward religion.”


Supreme Court Opinions


Thomas delivered the opinion of the Court, in which Rehnquist, O’Connor, Scalia, and Kennedy joined, and in which Breyer joined in part.


• Milford violated the club’s free speech rights when it excluded the club from meeting after hours at the school. Both parties agree and this Court assumes that Milford operates a limited public forum. As a result, restrictions against certain groups using their facilities must not discriminate against speech on the basis of viewpoint and must be reasonable in the light of the forum’s purpose.

• By denying the club access to the schoo#146;s limited public forum on the grounds that the club was religious in nature, Milford discriminated against the club because of its religious viewpoint. That is a violation of the Free Speech Clause. This exclusion is indistinguishable from the exclusions that were not accepted in Lambs Chapel.

• The only apparent difference between the activities in Lambs Chapel and the club is an insignificant distinction: that the club teaches moral lessons from a Christian perspective through live storytelling and prayer, whereas in Lambs Chapel, lessons were taught through films.

• Permitting the club to meet on the schoo#146;s premises would not have violated the Establishment Clause. This is because the club’s activities are materially indistinguishable from those permitted in Lambs Chapel and Widmar.

• Because Milford has not raised a valid Establishment Clause claim, this Court does not address whether such a claim could excuse Milford’s viewpoint discrimination.



Stevens filed a dissenting opinion. Souter filed a dissenting opinion, in which Ginsburg joined.


• The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for religious purposes. School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose a risk.

• Just as a school may allow meetings to discuss current events from a political perspective without allowing organized political recruitment, a school can also allow a discussion of topics, such as moral development, from a religious (or nonreligious) perspective without opening its forum to religious evangelizing or worship.

• The particular limitation of the forum at issue in this case is one that prohibits the use of the schoo#146;s facilities for religious purposes. The school would allow speech about a particular topic from a religious point of view, but not religious speech that amounts to worship and religious speech aimed principally at persuading belief in a particular religious faith.


Souter, joined by Ginsburg.


• 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.

• The Court should remand the issue of deciding Milford’s claim that allowing the club to meet at the school was a violation of the Establishment Clause. A good case can be made that Good News’ activities blur the line between public classroom rights and private religious indoctrination.


Tammy Nguyen is an intern for Street Law, Inc.