Good News/Good Sports Club v. School District

28 F.3d 1501, 1994 WL 328572

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 12, 1994
• Docket: No. 93-2148
• Status: Published

Opinions

MAGILL, Circuit Judge.

The Good News/Good Sports Club (the Club) and individuals affiliated with the Club¹ appeal the district court’s judgment denying their challenge to the use-of-premises policy (Amended Use Policy) of the School District of the City of Ladue, Missouri (School District) that closes the School District’s facilities between 3 and 6 p.m. on school days to all community groups except for the Scouts² and athletic groups. The Amended Use Policy also contains a proviso that prohibits the Scouts from engaging in any religious speech from 3 to 6 p.m. Because the Amended Use Policy results in viewpoint discrimination that does not serve a compelling governmental interest, we reverse the judgment of the district court.

I. BACKGROUND

The Club is a community-based, non-affiliated group that seeks to foster the moral development of junior high school students from the perspective of Christian religious values. Club advertisements state that the Club is not sponsored by the School District. Parent volunteers run the Club meetings. The Club is open to junior high school students regardless of their race, creed, denomination, or sex. The Club does require, however, parental consent before a student may attend a meeting. Club activities include skits, singing (including Christian songs), role playing, Bible reading, prayer, and speeches by community role models. The Club is religious, but non-denominational.

The Club first met at the Ladue Junior High School in late 1988 and continued to meet through Spring 1992. During the 1991-92 school year, the Club’s meetings took place on the first Monday of each month from 3 to 3:55 p.m. The timing of the meetings was convenient to Club members and their parents because the students could take the late bus home. In total, the Club met eight times during the 1991-92 school year.

In February 1992, several residents of the School District attended a school board meeting and complained about the religious content of the Club’s meetings. The school board asked its attorney to evaluate the present use policy (1986 Use Policy) in response to the complaints against the Club. In late March, the school board passed a resolution allowing the Club to continue meeting for the remainder of the year. In July, the school board adopted the Amended Use Policy that closed the School District to all community groups, except the Scouts and athletic groups, between 3 and 6 p.m. on school days. The policy stated that:

Permission for use of school facilities after instructional time ends on school days will be granted to Community Groups: (1) for use of District’s athletic facilities, provided that the use is limited exclusively to athletic activities; and (2) for meetings of Scouts (Girl, Boy, Cub, Tiger Cub, and Brownies), provided that such meetings shall be limited exclusively to the scout program and shall not include any speech or activity involving religion or religious beliefs.

Dist.Ct.Op., at 6. The exemption for the Scouts was based on the School District’s “long-standing tradition of cooperation with scout programs.” Id. at 10-11. The Amended Use Policy excluded the Club from meeting at its regularly scheduled time, but allowed the Club access to school facilities after 6 p.m. on school days, and after 8 a.m. on weekends. The Club filed suit in district court, seeking injunctive and declaratory relief based on its First Amendment rights.

After a bench trial, the district court returned a judgment in favor of the School District. The district court found that the School District’s facilities constituted a nonpublic forum between 3 and 6 p.m. on school days. The district court also concluded that the long-standing relationship between the Scouts and the School District was a reasonable basis upon which to allow the Scouts to meet between 3 and 6 p.m. on school days and that the school board’s concern over the possibility of an Establishment Clause violation was a reasonable consideration for excluding the Club under the Amended Use Policy. Finally, the district court determined that the Amended Use Policy did not discriminate on the basis of viewpoint.³

II. DISCUSSION

The Club raises numerous grounds for reversal; we need consider only one: whether the Amended Use Policy results in impermissible viewpoint discrimination as described in Lamb’s Chapel v. Center Moriches Union Free School District, — U.S. -, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). We hold that the Amended Use Policy results in viewpoint discrimination against the Club that does not serve a compelling governmental interest, and therefore, we reverse.

The School District’s argument in opposition to the Club’s viewpoint discrimination claim is three-fold. First, the School District argues that the Club waived the issue of viewpoint discrimination on appeal because it did not raise it at trial. Second, the School District argues that the district court properly held that its reason for adoption of the Amended Use Policy was reasonable and did not constitute viewpoint discrimination. Finally, the School District argues that if the Amended Use Policy results in viewpoint discrimination, that discrimination serves the compelling governmental interest of not violating the Establishment Clause.

A. Waiver of Viewpoint Discrimination

The School District first argues that the Club never raised the viewpoint discrimination argument; rather, the School District characterizes the Club’s argument as limited to a “limited public forum” argument in which the Club and the Scouts were similarly situated. The School District argues that the Club cannot raise this new argument on appeal. We disagree.

First, the Club did present the viewpoint discrimination argument to the district court. After the bench trial, in its post-trial brief, the Club reiterated its four theories of recovery. The Club’s third theory, based solely on the Free Speech Clause, claimed that the School District

acted with unconstitutional motive so as to frustrate or make more difficult the meetings of religious organizations (in particular, the Club). The law does not require that the Defendants’ motives have been malicious or hateful to be unconstitutional, only that they intended to cause the meetings of religious groups to be excluded from access between 3 and 6 p.m.

Club’s Post-Trial Br., Doc. 60, at 2-3. Ami-cus for the Club added further specificity to the Club’s free speech claim by arguing the issue of viewpoint discrimination to the district court. Amicus Br., Doc. 46, at 13 & n. 11 (“Amicus believes that the school district has created a designated forum_ However, we will focus on the protections that the First Amendment affords speech, even in a nonpublic forum.”). To be sure, the Club’s principal argument stressed that the School District had created a limited public forum, and that the Club and the Scouts were similarly situated. The Club’s arguments, however, were not limited to that sole basis. See Club’s Post-Trial Br., Doe. 60, at 10 n. 16 (stating that the Club has standing to raise its own rights with respect to viewpoint discrimination); Club’s Br. in Support of Preliminary Injunctive Relief, Doc. 12, at 7 (“View-point [sic] discrimination has never been permitted in any of the three fora.”). The Club raised the issue that adoption of the Amended Use Policy was based on an unconstitutional motive that violated the Free Speech Clause, ie., viewpoint discrimination.

Second, the School District’s defense to the Club’s free speech claim was that the Amended Use Policy created a non-public forum, not a limited public forum. An analysis of a governmental policy that limits speech in a non-public forum requires an inquiry into whether the policy is reasonable and viewpoint neutral. See Lamb’s Chapel, — U.S. at -, 113 S.Ct. at 2147; Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985) (remanding to district court for a determination of whether nonpublic forum policy was viewpoint neutral); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49, 103 S.Ct. 948, 957, 74 L.Ed.2d 794 (1983). The School District was aware that the Constitution places restrictions on government exclusion of speech even in a non-public forum. In particular, the School District alerted the district court to the then-current standard in its post-trial brief by stating: “ ‘Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.’” School Dist.’s Post-Trial Br., Doc. 58, at 17 (quoting Cornelius, 473 U.S. at 807, 105 S.Ct. at 3451-52) (emphasis added). Thus, the School District’s defense also put viewpoint discrimination into issue.⁴

Finally, the district court recognized that viewpoint discrimination was an issue in this case. Dist.Ct.Op. at 11 (citing Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 959 F.2d 381, 386 (2d Cir.1992), rev’d, - U.S. -, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993)).⁵ In its memorandum opinion, the district court spent substantial effort determining whether the Amended Use Policy was reasonable and whether it constituted viewpoint discrimination. Id. at 17-18. Thus, the district court recognized that viewpoint discrimination was an issue before it, and the district court decided that issue. Id.; cf. Struempler v. Bowen, 822 F.2d 40, 42 (8th Cir.1987) (“When an issue was actually decided in the trial court, even though not expressly raised by the parties, the rule against consideration of the question on appeal loses a good deal of its force.”); Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir.1986) (construing factual allegations in complaint to hold that claim of hostile work environment was before district court).

We conclude that (1) the Club raised the issue of viewpoint discrimination, (2) the School District’s defense required a determination regarding viewpoint discrimination, and (3) the district court both recognized that viewpoint discrimination was an issue and made determinations on that issue. Therefore, we conclude that the Club has not waived the viewpoint discrimination claim.

B. Viewpoint Discrimination

“Control over access to a non-public forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451 (citing Perry, 460 U.S. at 49, 103 5.Ct. at 957) (emphasis added); see also Lamb’s Chapel, — U.S. at -, 113 S.Ct. at 2147.⁶ We turn to whether the Amended Use Policy results in viewpoint discrimination.

The School District argues that the district court properly concluded that adoption of the Amended Use Policy did not constitute viewpoint discrimination. The School District argues the Club failed to demonstrate that “(1) the forum ... inelude[s] the subject matter of the [Club’s] viewpoint; (2) the [Club] ... ha[s] a particular viewpoint regarding the subject matter; and (3) the [School District] oppose[d] that viewpoint.” School Dist.’s Br. at 32-33 (footnotes omitted; citing Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451, and Perry, 460 U.S. at 49, 103 S.Ct. at 957). To the extent that these factors reflect current viewpoint discrimination law, we examine them in turn.

First, the subject matter for which the Club sought access to the School District facilities already was included in the forum as evidenced by the Scouts’ speech. See Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451 (“[T]he- government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” (emphasis added)). When the district court analyzed whether the Scouts and Club were similarly situated, it determined that

[although both the Club and the Scouting program are concerned with the moral development of youth, the Club is fundamentally a Christian organization, the primary purpose of which is to instill and reinforce Christian faith and values in its members. The Scouts, by contrast, are a secular organization, the primary purpose of which is to develop skills and moral character not related to any religious faith.

Dist.Ct.Op. at 21 (emphasis added). The district court also found that “[t]he purpose of Scout meetings is for the young persons involved to have fun, to support the ideals of Scouting, education, and reinforcement of moral values.” Id. at 20 (emphases added). The ideals of Scouting are set out in the Scouting handbooks, which the School District provided to the district court, under the heading “Scout Law”: “A Scout is TRUSTWORTHY ... A Scout is LOYAL ... A Scout is HELPFUL ... A Scout is FRIENDLY ... A Scout is COURTEOUS ... A Scout is KIND ... A Scout is OBEDIENT ... A Scout is CHEERFUL ... A Scout is THRIFTY ... A Scout is BRAVE ... A Scout is CLEAN ... A Scout is REVERENT.” School Dist.’s Ex. PP, at 7-8 (emphasis in original); see also id. at.9 (“The Scout slogan is DO A GOOD TURN DAILY. Good Turns are helpful acts of kindness done quietly, without boasting, and without expecting reward or pay. Doing at least one Good Turn every day is a normal part of a Scout’s life.”). See generally School Dist.’s Exs. QQ, RR, SS, TT, UU, W (Scout manuals describing ideals of Scouting).⁷ Thus, the “ideals of Scouting,” which Scout meetings seek to support, involve exactly the same category of speech for which the Club seeks access: moral and character development.

Further, the Amended Use Policy defines the scope of permissible speech from 3 to 6 p.m. by reference to the speech which may occur during the Scout meetings. The Scouts may engage, with the School District’s blessing, in any speech relating to moral character and youth development. Id. at 6; cf. Lamb’s Chapel, — U.S. at -, 113 S.Ct. at 2147. Because both the Club and the Scouts discuss issues relating to moral character and youth development, the subject matter for which the Club seeks access already is included under the Amended Use Policy.⁸

Second, the Club has demonstrated that it has a viewpoint, ie., a religious viewpoint, regarding moral character and youth development. See id. In Lamb’s Chapel, the Supreme Court held that denial of access to a religious group to show films regarding child-rearing and family values from a religious perspective constituted impermissible viewpoint discrimination. Id. The Lamb’s Chapel Court held that the religious group had demonstrated its particular viewpoint because its proposed First Amendment expression, on otherwise includible subject matter, had a religious perspective. Id. — U.S. at - - -, 113 S.Ct. at 2147-48. “Viewpoint” is not limited to whether a speaker supports or opposes a particular resolution of an issue; rather, viewpoint is synonymous with perspective. Id. — U.S. at -, 113 S.Ct. at 2147 (stating that religious film was excluded because “presentation would have been from a religious perspective”). The Lamb’s Chapel Court stated:

That all religions and all uses for religious purposes are treated alike under Rule 7, however, does not answer the critical question whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious standpoint.

Id.9 Further, the Lamb’s Chapel Court refused to cabin religious speech into a separate excludible speech category; rather, the Court adopted a more expansive view, recognizing that a religious perspective can constitute a separate viewpoint on a wide variety of seemingly secular subject matter. Id. The Club has demonstrated, and the district court found, that the Club has a religious viewpoint on moral issues and youth development. See Dist.Ct.Op. at 20-21 (holding that Scouts and the Club are not similarly situated because the Scouts are secular and the Club is religious). The district court’s determination is unquestionably correct.

Finally, the School District claims that before this court can hold that the Amended Use Policy resulted in viewpoint discrimination, this court must determine that the School District was hostile or opposed to the Club’s viewpoint.¹⁰ The School District cites to statements in Perry and Cornelius to support this argument; Lamb’s Chapel requires us to reject it.

The Club need not establish that the School District opposed the Club’s viewpoint; rather, the Club need only demonstrate that the Amended Use Policy allowed the Scouts to express their viewpoint on moral and character development but prohibited the Club’s religious viewpoint. In Lamb’s Chapel, the Supreme Court determined that the school access policy constituted impermissible viewpoint discrimination without any determination that the school officials opposed or disagreed with the religious perspective proposed. See — U.S. at - - -, 113 S.Ct. at 2147-48. The relevant inquiry was whether the Lamb’s Chapel group was excluded because of its religious viewpoint, irrespective of whether the school district opposed that viewpoint. Id.

In this case, the district court found that “the citizen comments and complaints about the Club were the primary factor leading to the School Board’s examination of the 1986 Use Policy and eventual adoption of the Amended Use Policy.” Dist.Ct.Op. at 17-18 (emphases added). The only complaints registered against the Club were in reference to the religious content of the Club’s meetings. Id. at 17 (“[The Club] presented evidence, as did [the School District], that criticism from some members of the community about the religious nature of the Club was the catalyst for amending the Policy.” (emphasis added)).¹¹ We cannot say that the district court’s finding that the primary reason that the School District adopted the Amended Use Policy was to exclude the Club from its premises from 3 to 6 p.m. on school days was clearly erroneous.

Even if we were to reject this finding as clearly erroneous, which we do not, the School District’s viewpoint discrimination appears on the face of the Amended Use Policy. Specifically, the Amended Use Policy allows the Scouts access to the facilities so long as “such meetings shall be limited exclusively to the scout program and shall not include any speech or activity involving religion or religious beliefs.” Id. at 6. Thus, like the utilization policy in Lamb’s Chapel, the Amended Use Policy restricts access to the facilities based on religious viewpoint. See — U.S. at -, 113 S.Ct. at 2144.¹²

Thus, we conclude that the Amended Use Policy results in viewpoint discrimination because it denies the Club access based on the Club’s religious perspective on otherwise in-cludible subject matter.

C. Compelling Governmental Interest

The School District argues, in the alternative, that viewpoint discrimination is justified because it serves the compelling governmental interest of avoiding an Establishment Clause violation. School Dist.’s Br. at 41.¹³ An abridgment of free speech otherwise protected by the First Amendment must be justified by a compelling governmental interest. Lamb’s Chapel, — U.S. at -, 113 S.Ct. at 2148. Further, “the interest of the State in avoiding an Establishment Clause violation ‘may be [a] compelling’ one justifying an abridgment of free speech otherwise protected by the First Amendment.” Id. (quoting Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 275, 70 L.Ed.2d 440 (1981)) (alteration by Lamb’s Chapel).

The School District frames the issue as follows: “[T]he Court must determine whether an adult initiated and led community group holding religious meetings in an elementary school from 3:00 to 4:00 p.m. on school days, while elementary students remain at school engaged in school sponsored activities, would be a violation of the Establishment Clause.” School Dist.’s Br. at 41. The School District’s argument is, in a nutshell, that adoption of the Amended Use Policy was necessary to prevent an establishment of religion resulting from the 1986 Use Policy. Thus, we must determine whether the 1986 Use Policy created an impermissible establishment of religion.

Although much maligned, the Lemon test controls this court’s analysis of whether governmental activity results in an impermissible establishment of religion.¹⁴ See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); see also Mergens v. Board of Educ., 867 F.2d 1076, 1079 (8th Cir.1989), aff'd, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 2356 (1990); Chess v. Widmar, 635 F.2d 1310, 1317 (8th Cir.1980), aff'd sub nom. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). In order to satisfy the Lemon test, a challenged governmental action must (1) have a secular purpose, (2) not have the primary or principal effect of advancing religion,¹⁵ and (3) not foster an excessive entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111-12. We examine whether the 1986 Use Policy violates Lemon.

1. Secular Purpose

We first examine whether the 1986 Use Policy had a secular purpose. “The 1986 Use Policy allowed access to any community or student organization upon application for a permit and depending on availability of space.” Dist.Ct.Op. at 5. We have little trouble concluding that opening the schools for expressive conduct to community and student groups serves the secular purpose of providing a forum for an exchange of ideas and social intercourse. Thus, the 1986 Use Policy satisfies the secular-purpose prong of Lemon.

2. Primary or Principal Effect

The primary effect of the 1986 Use Policy is not the advancement of religion. See Chess, 635 F.2d at 1317 (holding that open access policy at University would serve secular purpose of developing students’ “ ‘social and cultural awareness’ ”). Rather, any incidental benefits to religion are secondary to the primary secular , effect of providing a neutral forum for the exchange of ideas. The 1986 Use Policy does not “confer any imprimatur of state approval on religious sects or practices,” Widmar, 454 U.S. at 274, 102 S.Ct. at 276, because that policy opens the school district facilities to any and all community and student groups. The empirical evidence demonstrates that the Club’s uses under the 1986 Use Policy were dwarfed by the non-religious uses of the Scouts and other groups. During the 1991-92 school year the Club met 8 times, the Scouts met 193 times, and athletic activities met 778 times. The Club’s meetings comprised 8 of 993 total uses. We cannot say that the School District facilities were so overrun by the Club that the primary effect of the 1986 Use Policy was the advancement of religion.¹⁶

Some of the cases cited by the School District emphasize factors that may inform the primary-purpose prong analysis of the Lemon test. Those factors include (1) the age of the students — from eleven to fifteen years old; (2) the timing of the meetings— immediately after instructional time; and (3) the involvement in the Club by Jane Cunningham, a former school board member.

We conclude that the age of the junior high school students does not create an Establishment Clause violation. In Mergens, Justice O’Connor, speaking for a four-justice plurality, stated that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” 496 U.S. at 259-60, 110 S.Ct. at 2372 (plurality opinion); see also id. 496 U.S. at 250, 110 S.Ct. at 2377 (Kennedy, J., concurring) (abandoning Lemon analysis for coercion analysis). Justice O’Connor further explained that secondary school students — in that case, high school students— were mature enough to make this distinction between private speech and public speech because “[t]he proposition that schools do not endorse everything they fail to censor is not complicated.” Id. (plurality opinion) (adopting congressional fact-finding in the Equal Access Act that rejected likelihood of confusion by “secondary school” students with respect to difference between public and private speech).

The Seventh Circuit in Hedges v. Wauconda, 9 F.3d 1295, 1298-300 (7th Cir.1993), recently extended this analysis to junior high school students. In Wauconda, the school district sought to prohibit junior high school students from passing out religious literature immediately before and after classes. Id. at 1298. The Seventh Circuit rejected the school’s argument that the suppression of speech was justified to avoid the appearance of religious sponsorship. Id. at 1298-99. In doing so, the Wauconda court held that students could appreciate the difference between public and private speech because it was not a difficult concept. Id. at 1300 (“If pupils do not comprehend so simple a lesson, then one wonders whether the Wauconda schools can teach anything at all.”).¹⁷ We agree with the Seventh Circuit that junior high school students can appreciate the difference between public and private speech, and therefore the 1986 Use Policy did not result in an Establishment Clause violation.¹⁸

Second, the timing of the meetings, immediately after school, does not result in an establishment of religion. The basis behind the timing argument is that state law compels student attendance at school. This argument loses much of its force because the Club meetings are held after instructional hours when student attendance is no longer compelled. See Mergens, 496 U.S. at 250, 110 S.Ct. at 2372; see also Hedges, 9 F.3d at 1298 (“[N]othing in the first amendment postpones the right of religious speech until high school, or draws a line between daylight and evening hours.”). Thus, we conclude that the timing of the meetings did not render the 1986 Use Policy unconstitutional.

Finally, the School District relies on the fact that a former school board member, Jane Cunningham, was involved with the Club. The School District attempts to analogize Cunningham’s involvement with the Club to the involvement of the classroom teacher in Quappe whose actions created a state endorsement of religion. 772 F.Supp. at 1014-15. In Quappe, the teacher “used her classroom as a forum for dissemination of her religious view”; “[s]he used her classroom to recruit members for the Club”; and “[h]er participation in the Club, therefore, created a substantial danger that Club members would view the Club as an officially endorsed extension of the regular school day.” Id. at 1014.

The circumstances here are distinguishable. Cunningham’s position as a former school board member does not create the same problems of “ ‘the students’ emulation of teachers as role models’ ” perceived in Quappe. Cunningham had no classroom from which to recruit; nor would her appearance after instructional hours create the same danger of an appearance of a continuation of the school day as if she were a teacher present throughout the day. More to the point, Cunningham was no longer involved with the Club when the School District adopted the Amended Use Policy. Cf. id. at 1006 (stating that teacher “has continued to play a significant role in the Club’s existence”). Thus, Cunningham’s former involvement with the Club does not create the danger of a perception of an establishment of religion.

In summary, the primary or principal effect of the 1986 Use Policy was not the advancement of religion; rather, the primary effect was to establish a neutral forum for community and student groups to engage in the exchange of ideas.

3. Excessive Governmental Entanglement with Religion

Finally, we turn to whether the 1986 Use Policy resulted in excessive entanglement with religion. The 1986 Use Policy results in no entanglement with religion because the School District need not distinguish among groups or monitor the community groups that utilize its facilities. Chess, 635 F.2d at 1317 (“[S]ince [an open-access] policy would make no distinction between groups or their purposes, entanglement with religion would be completely avoided.” (internal quotes omitted)). Further, the Club’s requirement that students obtain written parental consent before they can attend would dispel any need for a school monitor to determine that attendance was voluntary. Cf. Brandon v. Board of Educ., 635 F.2d 971, 979 (2d Cir.1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981).¹⁹

We conclude that the 1986 Use Policy had a secular purpose, did not have the primary effect of advancing religion, and did not result in impermissible entanglement with religion. Thus, the 1986 Use Policy did not result in an establishment of religion.

Adoption of the viewpoint discriminatory Amended Use Policy, therefore, did not serve a compelling governmental interest. Therefore, we hold that the Amended Use Policy violates the free speech clause of the First Amendment because it results in impermissible viewpoint discrimination.

III. CONCLUSION

Accordingly, we reverse the judgment of the district court and remand to the district court for a determination of a remedy consistent with this opinion.

1 . For convenience, we will refer to the Club, its members, and the parents of its members as "the Club.”

2 . The Scouts include: Girl Scouts, Boy Scouts, Cub Scouts, Tiger Cub Scouts, and Brownies. Good News/Good Sports Club v. School Dist., No. 92-CV1813, slip op. at 6, 1993 WL 719555 (E.D.Mo. Mar. 2, 1993) (hereinafter, "Dist.Ct. Op.”).

3 . Because we need not analyze the Club’s religion clause claims, we express no opinion as to the district court's resolution of those claims.

4 . The School District proffered evidence to establish that it had satisfied the reasonableness prong of the non-public forum analysis. School Dist.’s Br. at 41-42 n. 30 ("[The School District], nevertheless, briefed [the Establishment Clause issue] below to show that their concerns were reasonable and the Court so found." (emphasis added)).

5 . The district court relied, and the dissent now relies, in part, on the Second Circuit’s legal analysis in Lamb’s Chapel, 959 F.2d 381 (2d Cir.1992), rev'd, -U.S. -, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). The district court, however, did not have the benefit of the Supreme Court's decision that reversed the Second Circuit and rejected its legal analysis.

6 . We assume, without deciding, that the district court properly found that (1) the Amended Use Policy did not create a limited public forum from 3 to 6 p.m. on school days, and (2) the Amended Use Policy’s favoritism to the Scouts based on the Scouts' long-standing relationship with the School District is reasonable. But see R.A.V. v. City of St. Paul, - U.S. -, -, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ("[Gjovernment may not regulate use based on hostility — or favoritism — towards the underlying message expressed.”).

7 . Thus, the dissent’s contention that "Scout meetings [did not] include[ ] 'speech' on the subject of moral development as an integral part of their programs," post, at 1518, fails because of the same factual findings that the dissent characterizes as "unquestionably correct,” id. at 1518. Like the Club, the Scouts use their meetings as a forum for the purpose of developing moral and character development through skits, songs, and activities. The only difference is that the Club employs a religious perspective.

8 . To the extent that the School District argues that the subject matter of the Club’s speech is not already included in the forum because religious speech is a separate speech category, the Supreme Court already has rejected that argument. Cf. Lamb's Chapel, — U.S. at -, 113 S.Ct. at 2147 (stating that lecture or film about child-rearing and family values from religious perspective was not "subject matter ... that the District has placed off limits to any and all speakers," when other speakers could discuss same topics from non-religious perspective).

9 .The dissent seeks to create an additional requirement for establishing that a policy is viewpoint discriminatory; namely, the group challenging the policy must be similar to groups already allowed into the forum. Post, at 1517-18. This inquiry is both misleading and irrelevant. The Lamb's Chapel Court conducted no inquiry into whether the Lamb’s Chapel group was similar to groups already within the forum when it determined that the Center Moriches school district had discriminated against the Lamb's Chapel group based on religious viewpoint. - U.S. at - - -, 113 S.Ct. at 2146-47. The relevant inquiry on this point is whether the Club seeks access to the forum to express a point of view on subject matter already includible in the forum. See id. ("That subject matter is not one that the School District has placed off limits to any and all speakers."). The Club seeks to express ideals on moral and character development already included in the forum by the Scouts.

10 . The dissent argues that there is no evidence that the School District sought to "destroy” the Club. The Club never argued that the School District acted to destroy the Club, Club’s Br. at 15 n. 15; thus, far from abandoning this claim on appeal, the Club never raised it.

11 . The School District’s defense in this case was that allowing the Club to continue to meet between 3 and 6 p.m. on school days would result in an Establishment Clause violation. Dist.Ct. Op. at 12, - F.Supp. at -.

12 .Amici for the School District argue that the breadth of the excluded speech belies the Club’s viewpoint discrimination claim. The Amended Use Policy excludes only one viewpoint expressly: the religious viewpoint. Thus, the Scouts can approach moral character and youth development from any perspective they wish except one: a religious perspective. Like Lamb’s Chapel, the only perspective expressly excluded is the religious perspective.

13 . The dissent erroneously argues that this section of the majority opinion involves resolution of a "non-issue.” Post, at 1514 n. 4. Because we have determined that the Amended Use Policy is viewpoint discriminatory, the School District only can justify that discrimination if it serves a compelling government interest. This section analyzes whether adoption of the Amended Use Policy by the School District served the compelling governmental interest of avoiding an Establishment Clause violation.

14 . Our task is made more difficult because neither the School District nor any of its amici has cited Lemon or applied the Lemon test to the establishment of religion issue.

15 .Justice O’Connor has adopted an approach that refines the effect prong of Lemon to determine whether the governmental action has endorsed religion. Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 1368, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring) ("The effect prong asks whether, irrespective of the government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.”). A majority of the Supreme Court has not yet adopted Justice O’Connor's endorsement test.

16 . To the extent that the Club receives a benefit because its members can utilize the school late bus, this benefit does not violate the Establishment Clause. See Everson v. Board of Educ., 330 U.S. 1, 18, 67 S.Ct. 504, 512-13, 91 L.Ed. 711 (1947) (upholding a state statute that reimbursed parents of parochial school students for bus transportation expenses).

17 . Students are not permitted to attend Club meetings until their parents complete a parental consent form. Club's Br. at Add. E-l ("Parental Notice and Consent Form"). In addition, announcements for the Club stated that the Club was not sponsored by the School District. Id. at Add. C-l ("The Club is not a Ladue School sponsored activity.”).

18 . Quappe v. Endry, 772 F.Supp. 1004, 1011-12 (S.D.Ohio 1991), aff'd mem., 979 F.2d 851 (6th Cir.1992), does not compel a different result. In Quappe, the district court determined that grade school children from 5 to 10 years old would not be able to distinguish between government and private speech. Id. The students at issue here are 11 to 15 years old. We disagree, however, with the Quappe court that one needs "Solomonic wisdom" to distinguish between private and public speech.

19 . Ironically, the Amended Use Policy adopted by the School District creates substantial entanglement problems. To enforce its no-religion proviso, the School District first must determine what speech constitutes religious speech, and then needs to monitor Scout meetings to ensure compliance with the religion proviso. See Chess, 635 F.2d at 1318. Thus, the Amended Use Policy adopted by the School District creates more pressing establishment problems than the 1986 Use Policy it replaced. See Widmar, 454 U.S. at 272 n. 11, 102 S.Ct. at 276 n. 11 (citing Chess v. Widmar, 635 F.2d at 1318); see also Mergens, 496 U.S. at 246-47, 110 S.Ct. at 2370 (plurality opinion) (stating that open use policy would “avoid entanglement with religion”).