- v. -
Appeal from a summary judgment in favor of defendant publicschool entered in the United States District Court for theNorthern District of New York (McAvoy, C.J.) in an action tocompel access to school premises, the court having found that theplaintiff Club had sought the use of the premises for religiousinstruction and prayer rather than the teaching of values from areligious viewpoint and that the defendant could thereforelawfully exclude plaintiff from its facilities because thedefendant had not opened its limited public forum for religiousinstruction or prayer.
Judge Jacobs dissents in a separate opinion.
THOMAS J. MARCELLE, Slingerlands,NY, for Plaintiffs-Appellants.
FRANK W. MILLER, Ferrera, Fiorenza,Larrison, Barrett & Reitz, EastSyracuse, NY for Defendant-Appellee.
(Jay Worona, New York State SchoolBoards Association, Inc., Albany,NY) for the New York State SchoolBoards Association, Inc., as amicuscuriae.
MINER, Circuit Judge:
Plaintiffs-appellants The Good News Club (the "Club"),Darleen Fournier, and her seven-year-old daughter Andrea,(1) appealfrom a summary judgment entered in the United States DistrictCourt for the Northern District of New York (McAvoy, C.J.) infavor of defendant-appellee Milford Central School ("Milford" or"the school"). The action was brought to secure access to schoolpremises for the purpose of conducting Club meetings, and thecomplaint contains demands for monetary as well as injunctiverelief. The Club's claims are bottomed, inter alia, on the rightto free speech under the First and Fourteenth Amendments. Thedistrict court found that the Club's activities were properlycharacterized as religious instruction and prayer and not theteaching of values or morals from a religious viewpoint. Accordingly, the court concluded that the school could properlyexclude the Club because it had not opened its facilities forreligious instruction or prayer.
For the reasons that follow, we affirm.
In August of 1992, the Milford Central School Districtadopted a policy (the "Community Use Policy" or the "Policy")pursuant to 414 of the New York State Education Law thatgoverns the conditions under which outside organizations mayutilize school facilities. The Community Use Policy providesthat district residents may use school facilities for "holdingsocial, civic and recreational meetings and entertainment eventsand other uses pertaining to the welfare of the community,provided that such uses shall be nonexclusive and shall be opento the general public," and otherwise consistent with state law. The Policy expressly forecloses use for religious purposes andrequires that applicants certify that their proposed use complieswith the Policy:
School premises shall not be used by anyindividual or organization for religiouspurposes. Those individuals and/ororganizations wishing to use schoolfacilities and/or grounds under this policyshall indicate on a Certificate Regarding Useof School Premises form provided by theDistrict that any intended use of schoolpremises is in accordance with this policy.
Under the Community Use Policy, the school has allowed a numberof organizations to use its facilities, including the Boy Scouts,the Girl Scouts, and the 4-H Club.
The Good News Club is a community-based Christian youthorganization open to children between the ages of six and twelve. The Club takes its name from the "good news" of Christ's gospeland the "good news" that salvation is available through belief inChrist. The purported purpose of the Club is to instructchildren in moral values from a Christian perspective. It isaffiliated with an organization known as Child EvangelismFellowship ("CEF"), a Christian missionary organization thatoversees and provides support to chapters of The Good News Clubthroughout the country. Among other things, the CEF providesteaching materials, prayer booklets for distribution called the"Daily Bread" and training to Club leaders.
A typical Club meeting begins when the participatingchildren, who range from kindergarten-age to sixth graders,arrive at the meeting site. If a child remembers the "memoryverse" from the previous week's meeting, she may recite it and isrewarded with a prize. The meeting officially opens with aprayer led by Reverend Stephen Douglas Fournier(2) that givesthanks and entreats God for His blessing on the meeting. Thegroup then sings the Good News Club theme song, the lyrics ofwhich refer to Jesus Christ and are generally "about . . . goodnews."
The next segment of a Club meeting involves a "moral orvalue" lesson centered around a verse from either the Old or theNew Testament and its teaching. To learn the "memory verse" forthe lesson, the Club members play games that focus on repetitionof the verse. Next, the children are told a Bible story thatemphasizes the same moral value that is represented in the day'smemory verse. The story concludes with a "challenge andinvitation" segment, which challenges the children to live by thevalue taught in the day's lesson through trust in God and JesusChrist. Depending on the elapsed time, when the story isconcluded, the group leader may ask the children questions aboutthe story or play a game that emphasizes the teaching in thestory. The group may also sing a song that relates to the story.
The record includes a number of specific lesson plansprovided by CEF for conducting Club meetings.(3) One such lesson,taught by Darleen Fournier according to the lesson plan, isentitled "Israel Demands a King" from the series "David: A Manafter God's Heart." The teaching of the lesson is centered arounda verse from Ephesians 5:17, "[w]herefore be ye not unwise, butunderstanding what the will of the Lord is." According to thematerials, the "teaching objective" is that "[t]he saved childwill desire God's best, allowing God to have first place in hislife" and the "main teaching" is to "[g]ive God first place inyour life."
The lesson plan distinguishes in the application of thememory verse between those children who are "saved" and those whoare "unsaved." The lesson applies to the saved in that "[i]f youhave believed on the Lord Jesus as your Savior, one of the wisestdecisions you can make is to give God first place in your life. Do and say those things that will please Him." As for theunsaved, "[i]f you have never believed on Jesus to save you fromsin, you can be sure this is the wisest and most importantdecision you will ever make. You will be given an opportunitylater in class today to believe on Jesus."(4)
The story in "Israel Demands a King" centers around eventsrecounted in I Samuel 8-10, wherein the elders of Israelrequested that Samuel appoint a king over them, contrary to God'swill. Notwithstanding Samuel's warning of dire consequences, thepeople insisted that a king be appointed, and Samuel was directedby God to anoint Saul as the new king. Though Saul accepted therole as king, Samuel "felt sad for his people who had rejectedGod as their King. He knew this was not the best way. It couldonly lead to sorrow and trouble for them."
"Israel Demands a King" includes the following "Challenge andInvitation" segment:
If you have believed on the Lord Jesus,trusting Him to save you, will you remember thisweek that God's best for you is to give Him firstplace in your life? When you are tempted to allowother things to take over that special place, willyou stop and think about all God has done for you? Remember what our memory verse says. (SayEphesians 5:17 together.) Don't be foolish likethe people of Israel, but understand that God'swill for you is that you be a person after His ownheart, giving Him first place in your life. Ifyou have been allowing other things to have firstplace, confess that sin to God. Ask Him to helpyou keep Him first.
I have a slip of paper with a number oneprinted on it that says, "Keep God first thisweek!" You could put this paper on your mirror,by your bed or on your locker door at school. Letit be a reminder to you all week long to give Godfirst place in your life.
God cannot be first in your life until youbelieve on Him as your Savior from sin. If youare willing to admit to God that you have sinned,and you believe that the Lord Jesus suffered anddied to take the punishment for your sin and camealive again, you can be saved today. The Biblesays, "Believe on the Lord Jesus Christ, and thoushalt be saved" (Acts 16:31). Will you believe onHim, trusting Him to save you? You can talk tothe Lord right now. Say something like this:"Dear Lord Jesus, I do believe You died for me. I'm sorry for the wrong things I've done. Pleasetake away my sin and help me obey You. Thank Youfor saving me today." (Ask those who prayed thisprayer to meet you in a designated place afterclass so you can answer any questions they mayhave. Remind the children that if they did notpray now, they can talk to the Lord even afterthey leave.)
After the story, if time permits, the group leader shares a"missionary story" with the children, which is described byReverend Fournier as a "fictitious stor[y] that deal[s] with somepart of the world where missionary activity is going on."(5) Afterthe missionary segment, the group leader may play another gamewith the children and may award prizes based on recitation of thememory verse and on their performance in the games. If timeallows, the group may sing another song. At various timesthroughout the meeting, the group may pray for "CEF missionaries"and to "receive Jesus as [a child's] personal Savior." Themeetings adjourn after approximately one hour. In the course ofthe meeting, children are invited to meet with Darleen Fournierprivately after the meeting for individual discussion and prayer. During the 1995-96 school year and into the fall of 1996,the Good News Club held its meetings at the Milford CenterCommunity Church. During that time, the school provided bustransportation for some of the children and parents providedtransportation for other children. In September of 1996,however, the school ceased providing bus service from the schoolto the church, which meant that some children were unable toattend Club meetings.
Consequently, in September of 1996, Darleen Fournier, onbehalf of the Good News Club, submitted a standard District Useof Facilities Request Form (the "Form") to Dr. Robert C.McGruder, Interim Superintendent of Schools in the Milford SchoolDistrict. The Form stated that the proposed use of the school'sfacilities was to have "a fun time of singing songs, hearing [a]Bible lesson and memorizing scripture." A few days after therequest, Superintendent McGruder received a second request onbehalf of the Good News Club from Reverend Fournier. On October3, 1996, McGruder denied the requests in a letter, articulatingthat he understood the Good News Club's proposed use of thefacilities to be "the equivalent of religious worship . . .rather than the expression of religious views or values on asecular subject matter."
On January 7, 1997, counsel for the Good News Club wrote toMcGruder, asserting that McGruder's denial of access was inviolation of the Club's "right to free speech, its right to equalprotection of the law, and its rights under the Restoration ofReligious Freedom Act," and noting that the school had previouslyallowed "other groups such as the Girl Scouts to use schoolfacilities." The Club's attorney promised to bring suit if theschool did not reverse its position and allow the Good News Clubto use school facilities. Three days later, Milford's counselrequested materials to further clarify the nature of theinstruction and activities that would take place at a Clubmeeting. The Club's counsel responded in a letter dated January17, 1997, which contained the following description:
The Club opens its session with Ms. Fourniertaking attendance. As she calls a child'sname, if the child recites a Bible verse thechild receives a treat. After attendance,the Club sings songs. Next[,] Club membersengage in games that involve, inter alia,learning Bible verses. Ms. Fournier thenrelates a Bible story and explains how itapplies to Club members' lives. The Clubcloses with prayer. Finally, Ms. Fournierdistributes treats and the Bible verses formemorization.
The following week, the Good News Club's counsel forwarded aset of materials used or distributed by the Club. Among thematerials submitted were a Good News Club invitation printed onan index card, a parental permission slip, a sample puzzle, and acopy of the "Daily Bread." This issue of the Daily Breadcontained stories that refer to the second coming of Christ,accepting the Lord Jesus as the Savior, and believing in theResurrection and in the descent of the Lord Jesus from Heaven.
After a review of the materials, Superintendent McGruder andcounsel determined that "the kinds of activities proposed to beengaged in by the Good News Club [a]re not a discussion ofsecular subjects such as child rearing, development of characterand development of morals from a religious perspective, but werein fact the equivalent of religious instruction itself." OnFebruary 26, 1997, the Milford Board of Education adopted aresolution denying the Good News Club's request to use itsfacilities during the pendency of Bronx Household of Faith v.Community School District No. 10, 127 F.3d 207 (2d Cir. 1997). The substance of this resolution was transmitted to the Good NewsClub by letters dated February 28, 1997 and March 3, 1997. TheGood News Club filed a complaint in the United States DistrictCourt for the Northern District of New York on March 7, 1997,alleging claims under 42 U.S.C. 1983 for deprivation of itsrights to free speech under the First and Fourteenth Amendments,its right to equal protection under the Fourteenth Amendment, andits right to religious freedom secured by the Religious FreedomRestoration Act of 1993 ("RFRA"), 42 U.S.C. 2000bb et seq. TheGood News Club sought injunctive relief, damages and attorneys'fees.
On April 14, 1997, the district court preliminarily enjoinedthe school from enforcing its ban on the Club's use of schoolfacilities. The court reasoned that there were sufficientlyserious questions regarding the parties' understanding of thecontent of the Club's meetings to justify the injunction. OnAugust 3, 1998, the parties cross-moved for summary judgment and,on September 25, 1998, stipulated to the facts of the case. In aMemorandum-Decision and Order dated October 23, 1998, thedistrict court addressed the parties' cross-motions. The courtbegan its analysis by noting that the First Amendment does notguarantee unbridled access to public property but that access tosuch property depends on the character of the property at issueand the nature of the proposed use. Given the dictates of NewYork Education Law 414 and our previous decisions on thesubject, the court concluded that the Milford school was alimited public forum. The court next considered whether therestrictions in the limited public forum passed constitutionalmuster, i.e., whether they were reasonable and viewpoint neutral. After an extensive review of the purposes of and activitiesassociated with the Good News Club, the court concluded that theClub's activities constituted religious instruction and prayer. The court determined that the school had not previously allowed agroup to use its facilities for religious instruction or prayerand that the Club's attempted comparisons to the Boy Scouts, theGirl Scouts, and the 4-H Club were unpersuasive. In this regard,the court noted that, although the Boy Scouts "teach reverenceand a duty to God," this was "only a part of its overallpurpose[,] which is . . . personal growth and development ofleadership skills." Because the court found that the Club is areligious youth organization that proposed religious instructionand prayer and not an organization seeking to teach morals from areligious perspective, it dismissed the Club's free speech claim. The court thereafter dismissed the Club's equal protection claimunder the authority of Bronx Household of Faith, 127 F.3d at 217 and entered judgment on October 23, 1998.(6) This appeal followed.
We review the district court's grant of summary judgment denovo. See Johnson v. Wing, 178 F.3d 611, 614 (2d Cir. 1999).
On appeal, the Good News Club presses as its sole contentionthat the First Amendment dictates that the Club cannotconstitutionally be excluded from use of the Milford CentralSchool facilities.(7) It argues that it seeks to use thefacilities to teach morals and values, just as otherorganizations have done in school facilities. Thus, it asserts,to exclude the Club because it teaches morals and values from aChristian perspective constitutes unconstitutional viewpointdiscrimination.
The nature of permissible limitations on speech is based on"the nature of the forum in which the speech is delivered." Bronx Household of Faith, 127 F.3d at 211. There are threegeneral types of forums in this regard: (1) traditional publicforums, (2) designated or limited public forums, and (3) non-public forums. See Cornelius v. NAACP Legal Defense & Educ.Fund, Inc., 473 U.S. 788, 802 (1985). Limited public forums arethose that the government has designated as a "place . . . ofcommunication for use by the public at large for assembly andspeech, for use by certain speakers, or for the discussion ofcertain subjects." Bronx Household of Faith, 127 F.3d at 211(quotation omitted). We have previously held on a number ofoccasions that N.Y. Education Law 414 and policies promulgatedthereunder create limited public forums. See, e.g., Full GospelTabernacle v. Community Sch. Dist. 27, 164 F.3d 829, 829 (2d Cir.1999) (per curiam), aff'g 979 F. Supp. 214, 220 (S.D.N.Y. 1997);Bronx Household of Faith, 127 F.3d at 215; Deeper Life ChristianFellowship, Inc. v. Board of Educ., ("Deeper Life I") 852 F.2d676, 680 (2d Cir. 1988). Milford's Community Use Policyspecifies who may use school facilities, when, and for whatpurposes. The parties agree, as they did in the court below,that the Milford school has created a limited public forum. Inlight of our precedent, the district court's conclusion, and theparties' agreement, we think it clear that the Community UsePolicy has created a limited public forum in the Milford schoolfacilities.
Restrictions on speech in a limited public forum willwithstand First Amendment challenge if they are reasonable andviewpoint neutral.(8) See Rosenberger v. Rector & Visitors ofUniv. of Virginia, 515 U.S. 819, 829-30 (1995); Bronx Householdof Faith, 127 F.3d at 214. On appeal, the Good News Clubchallenges the application of both of these criteria. Takingfirst the reasonableness criterion, the Club argues that therestriction is unreasonable because Milford's articulated purposefor the restriction -- "ensuring that students in its charge arenot left with the impression that [it] endorses religiousinstruction in its school, or that it advances the beliefs of aparticular religion or group thereof" -- is unpersuasive. Itargues that there is little risk that children would confuse theClub's use of school facilities with the school's endorsement ofthe religious teachings.
This argument is foreclosed by precedent. In BronxHousehold of Faith, we stated that "it is a proper state functionto decide the extent to which church and school should beseparated in the context of the use of school premises." 127F.3d at 214. Furthermore, "it is reasonable for statelegislators and school authorities to avoid the identification ofa . . . school with a particular church." Id. Although we madethis pronouncement in the context of an organization requestingto conduct church services in a school, we believe it is equallyapplicable to the case now before us. The Club argues that it isnot a "particular church," but rather a nondenominationalChristian organization. This difference, however, is immaterial. The activities of the Club clearly and intentionally communicateChristian beliefs by teaching and by prayer, and we think iteminently reasonable that the Milford school would not want tocommunicate to students of other faiths that they were lesswelcome than students who adhere to the Club's teachings. Thisis especially so in view of the fact that those who attend theschool are young and impressionable.
The crux of the Good News Club's argument is that theMilford school's application of the Community Use Policy toexclude the Club from its facilities is not viewpoint neutral. In this regard, the Club posits that it is teaching moral values,just as the Boy Scouts, Girl Scouts, and the 4-H Club do. TheClub contends that, unlike those organizations, it has beenexcluded because it seeks to teach these moral values from aChristian viewpoint. Though such teachings may involve secularvalues such as obedience or resisting jealousy, the Christianviewpoint, as espoused by Reverend Fournier, contains anadditional layer:
[T]hese morals or these values are senselesswithout Christ, that's to the children whoknow Christ as Savior, we would say, you knowyou cannot be jealous because you know youhave the strength of God. To the childrenwho do not know Christ, we would say, youneed Christ as your Lord and Savior so thatyou might overcome these, you know, feelingsof jealousy.(9)
We conclude, as did the district court, that the Good NewsClub is doing something other than simply teaching moral values. As we stated in Bronx Household of Faith, it "is not difficultfor school authorities to make" the distinction between thediscussion of secular subjects from a religious viewpoint and thediscussion of religious material through religious instructionand prayer. 127 F.3d at 215. Although other cases may presentdifficult questions of line-drawing, we believe that the schoolauthorities, after thorough inquiry and deliberation, correctlydetermined that the activities of the Club fall clearly on theside of religious instruction and prayer.
The activities of the Good News Club do not involve merely areligious perspective on the secular subject of morality. TheClub meetings offer children the opportunity to pray with adults,to recite biblical verse, and to declare themselves "saved." TheClub argues that these practices are necessary because itsviewpoint is that a relationship with God is necessary to makemoral values meaningful. Even accepting that this precept is aviewpoint on morality and not a religious principle, it is clearfrom the conduct of the meetings that the Good News Club goes farbeyond merely stating its viewpoint. The Club is focused onteaching children how to cultivate their relationship with Godthrough Jesus Christ. Under even the most restrictive andarchaic definitions of religion, such subject matter isquintessentially religious. See Davis v. Beason, 133 U.S. 333,342 (1890) ("The term 'religion' has reference to one's views ofhis relations to his Creator, and to the obligations they imposeof reverence for his being and character, and of obedience to hiswill.")
Particularly illuminating in this regard is a comparison tothe plaintiffs' activities in Full Gospel Tabernacle, 164 F.3d at829, aff'g 979 F. Supp. 214. Plaintiffs in Full GospelTabernacle were denied access to a school auditorium in whichthey wished to conduct "religious worship" services. See 979 F.Supp. at 217. The district court described the services in thatcase as follows:
"We would come in and have what's called agroup prayer, congregational prayer. Then wewould go into praise and worship, singdifferent praise and worship songsaccompanied by music. From there, [theReverend] would get up and deliver themessage, the service for that evening." Following [the Reverend's] sermon, theReverends . . . engage in an "altar call,"where they would "invite someone to receivethe Lord as their Savior." The service wouldthen conclude with a closing prayer.
Id. (internal citations to record omitted). It is difficult tosee how the Club's activities differ materially from the"religious worship" described in Full Gospel Tabernacle: each hasprayers and devotional songs; each has a central sermon or storywith a message; each has a portion in which attendees are calledupon to be "saved." Applying a different label to the sameactivities does not change their nature or import.
In a limited public forum, "constitutional protection isafforded only to expressive activity of a genre similar to thosethat government has admitted to the limited forum." Travis v.Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 1991). Stated differently, for those who seek to speak on a topic or ina manner not contemplated by the public entity in opening thelimited public forum "there is no fundamental right of freedom ofspeech." Bronx Household of Faith, 127 F.3d at 217. The Clubattempts to liken its activities to "moral instruction" providedby groups such as the Boy Scouts, the Girl Scouts, and the 4-HClub. Thus, it argues, because the Milford school has permittedthese organizations to use its facilities, the school may notexclude the Good News Club. We do not find this argumentpersuasive. While the Boy Scouts teach reverence and a duty toGod generally,(10) this teaching is incidental to the main purposeof the organization, which is personal growth and development ofleadership skills. Moreover, there is nothing in the record toindicate that the Boy Scouts require any particular means ofdemonstrating reverence and duty to God. Similarly, the GirlScouts vow to "try . . . [t]o serve God and [their] country." Even further afield is the attempted comparison to the 4-H Club,which seeks "to enable youth to develop knowledge, skills,abilities, attitudes, and behaviors to be competent, caringadults." Each of these organizations focuses on the developmentof youth in various ways; however, the record includes nothing toindicate that any of these clubs' activities remotely approachthe type of religious instruction and prayer provided by theClub. Accordingly, the Milford school's decision to exclude theGood News Club from its facilities was based on content, notviewpoint. See, e.g., Rosenberger, 515 U.S. at 829-30; BronxHousehold of Faith, 127 F.3d at 214-15 (distinguishing betweenpermissible content-based distinctions and impermissibleviewpoint-based distinctions in a limited public forum).
The Good News Club leans heavily on the Eighth Circuit'sholding in Good News/Good Sports Club v. School Dist., 28 F.3d1501 (8th Cir. 1994). In Good News/Good Sports, the EighthCircuit, over a dissent by Senior Circuit Judge Bright, ruledthat the school district's exclusion of a Good News Club/GoodSports Club from its facilities constituted impermissibleviewpoint discrimination. See id. at 1507. The policy at issuein Good News/Good Sports allowed use of school facilities outsideof school hours only for "athletic activities" and Scout groupmeetings. See id. at 1503. The Eighth Circuit found that thepolicy's inclusion of the Scouts opened the forum to the subjectof "moral and character development," the very same purpose forwhich the Good News/Good Sports Club sought access. Id. at 1506. Because it found that the only relevant difference between theScouts and the Good News/Good Sports Club was viewpoint, theEighth Circuit ruled that the Good News/Good Sports Club couldnot constitutionally be excluded from school facilities. See id.at 1507.
The Eighth Circuit apparently took for granted that the GoodNews/Good Sports Club's activities amounted only to speaking onmoral and character development. The opinion contains only abrief recitation of the types of activities that take place at aclub meeting, but no examination of their import. See id. at1502 ("The Club is a community-based, non-affiliated group thatseeks to foster the moral development of junior high schoolstudents from the perspective of Christian religious values. . .. Club activities include skits, singing (including Christiansongs), role playing, Bible reading, prayer, and speeches bycommunity role models.")
Based on the record before us and this Circuit's precedent,we are constrained to find that the Club's activities falloutside the bounds of pure "moral and character development."
We have examined the Club's other contentions and find themto be without merit. For the foregoing reasons, the judgment ofthe district court is affirmed.
1. 1 For convenience, except where necessary for clarity,plaintiffs are collectively designated as "the Club" throughoutthis opinion.
2. 2 Reverend Fournier is the husband of plaintiff-appellantDarleen Fournier, the father of plaintiff-appellant AndreaFournier, and the pastor of Milford Center Community BibleChurch. He is not a party to this action but describes himselfas a "teacher" for the Club.
3. 3 The materials from CEF contain, in their introduction,a list entitled "How to Lead a Child to Christ," which includesthe following directives:
1. Show him his NEED of salvation; that allpersons are not going to Heaven; that noone in himself is good enough to go andthe result of sin is forever separationfrom God (Romans 3:23; Revelation 21:27;John 8:21, 24).
2. Show him the WAY of salvation. Salvation is a free gift because theLord Jesus took our place on the cross,was buried and rose again from the dead(John 3:16; Ephesians 2:8; 1 Corinthians15:3-4).
3. Lead him to RECEIVE the gift ofsalvation, even Jesus Christ, bytrusting Him as his personal Savior(John 1:12; Revelation 3:20).
4. From the Word of God, help him findASSURANCE of his salvation (John 3:36;Revelation 3:20; Hebrews 13:5).
5. Lead him to CONFESS Christ (Matthew10:32). This confession should be madeto you, other workers, later to hisfriends and as circumstances permit, ina public church service.
4. 4 The emphasis for "unsaved" children is the same in eachlesson plan: to accept Jesus Christ as their savior.
5. 5 The missionary stories "have to do with spreading thegospel." Reverend Fournier described one such story as follows:
The missionary story for this quarter was oftwo young Haitian boys, one boy . . . goes toa Bible study and he invites the other boy tothat Bible study, and that boy ends up goingand the conflict that it causes with hisfather . . . in the end the father ends upgoing as well.
6. 6 The court dismissed the Club's RFRA claim as moot inlight of City of Boerne v. Flores, 521 U.S. 507, 536 (1997).
7. 7 The Club has abandoned its equal protection and RFRAclaims on appeal.
8. 8 Milford argues that our inquiry should end with theobservations that (1) the denial of permission to use schoolfacilities was pursuant to the Community Use Policy and N.Y.Education Law 414, and (2) 414 has always been upheld asconstitutional. In this regard, Milford presumes what it needsto prove: by their terms, 414 and the Community Use Policy donot allow use of school facilities for religious purposes. See,e.g., Deeper Life Christian Fellowship, Inc. v. Sobol, ("DeeperLife II") 948 F.2d 79, 84 (2d Cir. 1991). If the Club's use isnot a "religious use" but merely the teaching of morals from areligious viewpoint, however, Milford's exclusion of the Clubwould not comply with 414 and its Community Use Policy andwould be unconstitutional viewpoint discrimination.
9. 9 Reverend Fournier also stated in deposition testimonythat the values require a relationship with Christ for them to bemeaningful to God.
10. 10 The Scout Law requires that "[a] Scout is reverenttoward God. He is faithful in his religious duties. He respectsthe beliefs of others."
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