Child Evangelism Fellowship, sponsor of the Good News Clubs, which are religious, after-school clubs for elementary school children, filed a federal lawsuit against the San Diego City Schools, arguing that the District’s discriminatory fees charged to the Good News Clubs but not to similar secular clubs are unconstitutional.
In July 1999, Child Evangelism Fellowship of Greater San Diego requested to use District facilities to hold a Good News Club after school hours. According to District Procedure 9205, “community organizations whose primary purpose is service to district youth or the general welfare of the community,” including Boy Scouts, are entitled to use District facilities without charge. However, when CEF applied for use of school facilities, District officials insisted that CEF pay “fair rental value” because, the District claimed, CEF is a “church conducting religious services.” From 1999 to the present, CEF has been charged fees to use the school facilities when other similar secular groups have not. Even after CEF provided District officials with U.S. Supreme Court cases which stated that Good News Clubs must be provided access to school facilities on the same terms and conditions as groups such as Boy Scouts, District officials refused to grant a fee waiver to the Good News Club. The District claimed that it was required to charge the Good News Club a fee under California law because the Good News Club is a religious organization.
Liberty Counsel has successfully represented Child Evangelism Fellowship in California and elsewhere regarding the right to use public school facilities on equal terms and conditions as other similar secular groups.
According to the Liberty Counsel, “Imposing a financial barrier based on the religious viewpoint of groups seeking access to public property violates the First Amendment. A policy that excludes persons or groups from using school facilities or that imposes discriminatory fees, solely because of the group’s religious viewpoint, is unconstitutional. Every public elementary school in the country ought to have a Good News Club.”
Kindergarten and State
After threat of a lawsuit and pressure from parents, Tammy Honore’s kindergarten class sang, “I Can’t Give Up Now, ” a song which the principal had banned.
Tammy Honore is a kindergarten teacher at Terrytown Elementary School in Terrytown, Louisiana. On May 27, her kindergarten class participated in an end-of-the-year ceremony conducted off the school premises in a gymnasium in a public park. Each kindergarten class sang songs, performed skits or plays, or engaged in other kinds of activity as part of the end-of-the-year celebration.
Ms. Honore and her kindergarten class had been practicing to sing the song, “I Can’t Give Up Now,” written by Mary Mary. Although the song does not mention God, Principal Mary Ellen Heating objected to it because she construed the word “he” to refer to God, and therefore considered the song to be religious, and thus inappropriate. The song talks about overcoming adversity with the recurring theme, “I just can’t give up now.” At one point, the song states, “I don’t believe he brought me this far to leave me.” Believing this sentence referred to God, the principal banned the singing of the song.
Liberty Counsel wrote a legal opinion at the request of Ms. Honore, stating that not only was the song appropriate, it would be unconstitutional to censor this message, especially when the other kindergarten classes were permitted to engage in their activities. In the legal opinion, Liberty Counsel wrote, “Not only is the song permissible, censoring the song would be impermissible. It appears that the principal has chosen to single out this song for viewpoint censorship solely because of the principal’s perception that the song is religious. Allowing other secular songs, plays, skits or presentations, while censoring this song for its alleged religious viewpoint, is unconstitutional, viewpoint-based discrimination.” After receiving the letter and being pressured by parents of the kindergarten class, the principal agreed to allow the song to be performed.
Banning “I Can’t Give Up Now” because of its religious theme would have sent a terrible message to these kindergarten students—religious speech is not an orphan to the First Amendment.
Mathew D. Staver is President and General Counsel of the Liberty Counsel.
