formal neutrality

The University of Virginia, an instrumentality of the Commonwealth of Virginia, maintains a Student Activities Fund financed by a mandatory $14 per semester fee assessed to each full-time student. The fund supports extracurricular student activities related to the University's educational purpose through payments to third-party contractors for approved groups that qualify as Contracted Independent Organizations. To obtain CIO status, a student group must be composed primarily of University students, file its constitution, pledge nondiscrimination, and agree to a disclaimer stating that it is independent of the University. CIO publications are eligible for printing-cost reimbursement if their content is related to the University's educational purpose, but the Guidelines expressly exclude funding for any activity that primarily promotes or manifests a particular belief in or about a deity or an ultimate reality. In 1990, University of Virginia undergraduates formed Wide Awake Productions as a CIO and began publishing Wide Awake: A Christian Perspective at the University of Virginia. The first issue contained articles on racism, crisis pregnancy, prayer, C. S. Lewis, and reviews of religious music, each marked by a cross; subsequent issues addressed homosexuality, missionary work, eating disorders, and Christian theology, with advertisements from churches and Christian bookstores. In 1991, Wide Awake Productions requested $5,862 from the Student Activities Fund to cover printing costs for one issue. The Appropriations Committee of the Student Council denied the request on the ground that the publication constituted a religious activity under the Guidelines. Wide Awake Productions appealed the denial through the Student Council and the Student Activities Committee, which upheld the decision. The group and three of its student editors and members then filed suit in the United States District Court for the Western District of Virginia under 42 U.S.C. § 1983, alleging that the refusal to pay printing costs violated their rights under the First Amendment Speech, Press, and Free Exercise Clauses and the Equal Protection Clause. On cross-motions for summary judgment, the District Court ruled for the University. The United States Court of Appeals for the Fourth Circuit affirmed, and the Supreme Court granted certiorari.

In 1965, Congress enacted Title I of the Elementary and Secondary Education Act to provide remedial education services to disadvantaged children. The Board of Education of the City of New York first applied for Title I funds in 1966 and initially arranged to transport eligible private school students to public schools for after-school instruction. When that approach proved unsuccessful due to poor attendance and safety concerns, the Board implemented an on-site program in 1978 that sent public school teachers into parochial schools during regular school hours. In 1978, respondents, who are parents of parochial school children and federal taxpayers, sued the Board in the District Court for the Eastern District of New York challenging the on-site program as violating the Establishment Clause. The District Court enjoined the on-site services in 1981, and the Court of Appeals for the Second Circuit affirmed the following year. While the appeal was pending, the Board developed an off-premises program that required transporting students to neutral sites at an estimated additional cost of $6 million per year. In 1983, the parties entered into a consent decree requiring the Board to provide Title I services off the premises of sectarian schools and to establish a monitoring system. Following the Supreme Court's 1985 decision in Aguilar v. Felton, which invalidated a similar program, the parties entered a second consent decree that required the Board to pay for the additional costs of the off-premises program. The Board complied with both decrees, spending over $100 million on computer-aided instruction, leased sites, and transportation between the 1986-1987 and 1993-1994 school years. In 1995, the Board and a group of parents of parochial school students moved in the District Court for relief from the consent decrees under Federal Rule of Civil Procedure 60(b)(5), citing subsequent decisions including Zobrest v. Catalina Foothills School District and Witters v. Washington Department of Services for the Blind. The District Court denied the motion, concluding that Aguilar remained good law and that no significant change in factual conditions had been shown. The Court of Appeals affirmed, and the Supreme Court granted certiorari in 1997.

Capitol Square is a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio. For over a century the square has been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. Ohio Admin. Code Ann. § 128-4-02(A) (1994) makes the square available for use by the public for free discussion of public questions or for activities of a broad public purpose, and Ohio Rev. Code Ann. § 105.41 (1994) gives the Capitol Square Review and Advisory Board responsibility for regulating public access. To use the square, a group must simply fill out an official application form and meet several criteria, which concern primarily safety, sanitation, and noninterference with other uses of the square, and which are neutral as to the speech content of the proposed event. In November 1993, after authorizing a state Christmas tree and granting a rabbi's application for a menorah, the Board received an application from respondent Donnie Carr of the Ohio Ku Klux Klan to place a cross on the square from December 8 to December 24, 1993. The Board denied that application on December 3, informing the Klan by letter that the decision to deny was made upon the advice of counsel in a good faith attempt to comply with the Ohio and United States Constitutions. Two weeks later, the Ohio Klan, through its leader Vincent Pinette, filed suit in the United States District Court for the Southern District of Ohio seeking an injunction requiring the Board to issue the requested permit. The District Court determined that Capitol Square was a traditional public forum open to all without any policy against freestanding displays, that the Klan's cross was entirely private expression entitled to full First Amendment protection, and that the Board had failed to show that the display of the cross could reasonably be construed as endorsement of Christianity by the State. The District Court issued the injunction, after which the Board permitted the Klan to erect its cross, and later entered summary judgment in the Klan's favor. On appeal by the Board, the United States Court of Appeals for the Sixth Circuit affirmed the District Court's judgment. The Supreme Court granted certiorari to consider whether the State’s denial of the Klan’s application to display its cross on Capitol Square was a denial of equal access in violation of the First Amendment and whether the State’s asserted justification for the denial—that it had a compelling interest in avoiding an appearance of endorsement of religion under the Establishment Clause—could be sustained.

In 1918, residents of Prince George’s County, Maryland, formed a committee to erect a memorial for the county’s soldiers who fell in World War I. The committee chose a Latin cross design for the memorial, which was to stand at the terminus of the National Defense Highway connecting Washington to Annapolis. When the committee ran out of funds, the local American Legion post took over the project and completed the 32-foot concrete cross in 1925. The finished memorial displayed the American Legion emblem at its center and rested on a large pedestal bearing a bronze plaque that listed the names of 49 local soldiers who died in the war, along with the words Valor, Endurance, Courage, and Devotion. At the dedication ceremony, a Catholic priest offered an invocation and a Baptist pastor delivered a benediction. Since its dedication, the Bladensburg Cross has served as the site of patriotic events honoring veterans on Veterans Day, Memorial Day, and Independence Day. Over the following decades, additional monuments honoring veterans of later wars were added in the surrounding area, which became known as Veterans Memorial Park. As the area around the cross developed, the monument came to stand at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission acquired the cross and the land on which it sits to preserve the monument and address traffic-safety concerns, and the Commission has since spent public funds to maintain the memorial. In 2014, the American Humanist Association and several individual plaintiffs filed suit in the United States District Court for the District of Maryland against the Commission. The plaintiffs alleged that the cross’s presence on public land and the Commission’s maintenance of the memorial violated the Establishment Clause of the First Amendment. The American Legion intervened to defend the cross. The District Court granted summary judgment for the Commission and the American Legion. The United States Court of Appeals for the Fourth Circuit reversed the District Court’s decision. The Supreme Court granted certiorari, heard argument on February 27, 2019, and issued its decision on June 20, 2019.

In 1959 the Commonwealth of Pennsylvania enacted a statute requiring that at least ten verses from the Holy Bible be read without comment at the opening of each public school on each school day. The statute included a provision allowing any child to be excused upon the written request of a parent or guardian. The Schempp family, Unitarian parents residing in Abington Township whose children attended Abington Senior High School, filed suit in federal district court seeking to enjoin enforcement of the statute. The exercises at the school involved selected students reading ten verses over the intercom system between 8:15 and 8:30 a.m., followed by recitation of the Lord's Prayer in unison by students in classrooms. The exercises were conducted daily under teacher supervision with no prefatory statements or comments. A three-judge district court held the statute unconstitutional after hearing testimony from the Schempps and expert witnesses regarding the religious character of the exercises and potential psychological effects on children. In 1905 the Board of School Commissioners of Baltimore City adopted a rule pursuant to Art. 77, § 202 of the Annotated Code of Maryland requiring opening exercises consisting of reading a chapter from the Holy Bible and/or recitation of the Lord's Prayer. Madalyn Murray and her son William, professed atheists living in Baltimore, filed suit in state court to compel rescission of the rule after unsuccessful attempts to have it rescinded. The Maryland Court of Appeals upheld the rule. The two cases were consolidated for argument before the Supreme Court because of the similarity of the issues presented. In both cases the Bible readings were conducted without comment using versions such as the King James, Douay, or Revised Standard. Students could select passages or be excused upon parental request, though the Schempps chose not to seek excusal for their children due to concerns about social stigma. Expert testimony was introduced concerning differences between Jewish and Christian scriptures and the potential for harm or divisiveness from reading certain passages without explanation. The district court in Schempp made findings that the exercises possessed a devotional and religious character and that the statute preferred the Christian religion. The Supreme Court noted probable jurisdiction in both cases following appeals from the respective lower court decisions.