Stuart J. Roth
Brett Kavanaugh, Counsel of Record
Introduction and Summary of Argument
Under the Community Use policy for the Milford Central School District,
members of the public may use public school facilities for (I) "instructions
in any branch of education, learning, or the arts," (ii)"holding
social, civic, and recreational meetings and entertainment events,"
or (iii) "other uses pertaining to the welfare of the community."
Milfords expansive public access policy contains one
and only one express exception: "School premises shall
not be used by any individual or organization for religious purposes."
Pursuant to this policy, the Milford Board of Education denied the
request of the Good News Club (a community-based youth organization
that provides moral instructions from a Christian perspective) to
use its facilities. See 202 F.3d 502 (2d Cir. 2000).
The discriminatory policy enacted by Milford Central School District
targets religious speech for a distinctive burden. Milfords
discrimination against private religious speech in general, and
against the Good News Club in particular, is unconstitutional. As
the Court has concluded in several virtually identical cases, the
Constitution demands that private religious speech, religious people,
and religious organizations receive at least the same treatment
as their secular counterparts in gaining access to public facilities
and public property. See Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U.S. 819 (1995); Lambs Chapel v.
Center Moriches Union Free School Dist., 508 U.S. 384 (1993);
Widmar v. Vincent, 454 U.S. 263 (1981). Indeed, with respect
to the precise issue of access to public school facilities that
is raised in this case, the Court has repeatedly (and often unanimously)
held that "schools may not discriminate against religious groups
by denying them equal access to facilities that the schools made
available to all." Rosenberger, 515 U.S. at 846 (OConnor,
J., concurring). In so ruling, the Court has emphasized time and
again that the Free Speech and Free Exercise Clauses protect "private
speech endorsing religion." Id. At 841 (majority opinion).
Because the Court has already ruled decisively on the two central
issues raised here, this case requires the Court to break no new
ground, but merely reaffirm its prior holdings. First, the
Establishment Clause does not require the government to exclude
private religious speech, because it is religious, from an open
and neutrally available public facility. Second, the Free
Speech, Free Exercise, and Equal Protection Clauses do not permit
the government to exclude private religious speech, because it is
religious, from an open and neutrally available private facility.