[ Thomas ]
[ Scalia ]
[ Breyer ]
[ Stevens ]
[ Souter ]
GOOD NEWS CLUB, et al., PETITIONERS v.
MILFORD CENTRAL SCHOOL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 11, 2001]
Justice Breyer, concurring in part.
I agree with the Courts conclusion and join its opinion to the extent that
they are consistent with the following three observations. First, the governments neutrality in respect to religion is one, but only one, of the considerations relevant to deciding whether a public schools policy violates the Establishment Clause. See, e.g., Mitchell v. Helms, 530 U.S. 793, 839 (2000) (OConnor, J., concurring in judgment); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 774, 777 (1995) (OConnor, J., concurring in part and concurring in
judgment). As this Court previously has indicated, a childs perception that the school has endorsed a particular religion or religion in general may also prove critically important. See School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 389390 (1985); see also Lambs Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 395 (1993); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592594 (1989). Todays opinion does not purport to change that legal principle.
Second, the critical Establishment Clause question here may well prove to be whether a child, participating in the Good News Clubs activities, could reasonably perceive the schools permission for the club to use its facilities as an endorsement of religion. See Ball, supra, at 390 ([A]n important concern of the effects test is whether the challenged government action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices). The time of day, the age of the children, the nature of the meetings, and other specific circumstances are relevant in helping to determine whether, in fact, the Club so dominate[s] the forum that, in the childrens minds, a formal policy of equal access is transformed into a demonstration of approval. Capitol Square Review and Advisory Bd., supra, at 777 (OConnor, J., concurring in part and concurring in
Third, the Court
cannot fully answer the Establishment Clause question this case raises, given its procedural posture. The specific legal action that brought this case to the Court of Appeals was the District Courts decision to grant
Milford Central Schools motion for summary judgment. The Court of Appeals affirmed the grant of summary judgment. We now hold that the school was not entitled to summary judgment, either in respect to the Free Speech or the Establishment Clause issue. Our holding must mean that, viewing the disputed facts (including facts about the childrens perceptions) favorably to the Club (the non
moving party), the s
chool has not shown an Establishment Clause violation.
To deny one partys motion for summary judgment, however, is not to grant summary judgment for the other side. There may be disputed genuine issue[s] of material fact, Fed. Rule Civ. Proc. 56(c), particularly about how a reasonable child participant would understand the schools role, cf.
post, at 7 (Souter, J., dissenting). Indeed, the Court itself points to facts not in evidence, ante, at 17 (There is no evidence that young children are permitted to loiter outside classrooms after the schoolday has ended), ante, at 18 (There may be as many, if not more, upperclassmen than elementary school children who occupy the school after hours), identifies facts in evidence which may, depending on other facts not in evidence, be of legal significance, ante, at 17 (discussing the type of room in which the meetings were held and noting that the Clubs participants are not all the same age as in the normal classroom setting), and makes assumptions about other facts, ibid. (Surely even young children are aware of events for which their parents must sign permission forms), ante, at 18 (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). The Courts invocation of what is missing from the record and its assumptions about what is present in the record only confirm that both parties, if they so desire, should have a fair opportunity to fill the evidentiary gap in light of todays opinion. Cf. Fed.
Rules Civ. Proc. 56(c) (summary judgment appropriate only where there is no genuine issue as to any material fact and movant is entitled to a judgment as a matter of law), 56(f) (permitting supplementation of record for summary judgment purposes where