Jacoby

concurring:

I join the court’s opinion in its entirety and write separately merely to respond to the dissent’s argument that the Establishment Clause bars equal treatment of the World Changers and ASB clubs during studenf/staff time.

First, although the dissent sees no reason why Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist. No. 71, Champaign County, 333 U.S. 203 , 68 S.Ct. 461 , 92 L.Ed. 649 (1948) does not control the question, the reason follows directly from first principles. “We must in each case inquire *1095 first into the purpose and object of the governmental action in question.” Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 838-39 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995); see also Mitchell v. Helms, 530 U.S. 793, 807 , 120 S.Ct. 2530 , 147 L.Ed.2d 660 (2000). “A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.” Rosenberger, 515 U.S. at 839 , 115 S.Ct. 2510 .

In McCollum, the purpose and object of the school was to promote religion, not to administer a student speech forum. 333 U.S. at 210 , 68 S.Ct. 461…

concurring in part and dissenting in part:

I join the court’s opinion with the exception of Part IV(B). I do not join Part IV(B) for two reasons: First, requiring the Spanaway Lake High School (“the High School”) to permit religious activity 1 during student/staff time (“SS Time”) violates the Establishment Clause. SS Time is a period integral to the school day at which attendance is mandatory. The distinction between activities that occur during mandatory attendance periods and those that take place during time periods when attendance is voluntary is a critical one.

Second, I cannot agree with Part IV(B) of the majority’s opinion to the extent that it holds that the Establishment Clause permits the provision for religious purposes of school vehicles, school supplies, and school audio and visual equipment, all paid for by public funds. In so holding, the majority goes beyond Mitchell v. Helms, 530 U.S. 793 , 120 S.Ct. 2530 , 147 L.Ed.2d 660 (2000), by sanctioning governmental use of tax funded supplies and services for religious activities in public schools.

I. STUDENT STAFF TIME

The period that Spanaway Lake High School sets aside for SS Time cannot fairly be characterized as…

Opinion by Judge WARDLAW; Concurrence by Judge HALL; Partial Concurrence and Partial Dissent by Judge Berzon.

OPINION

In this private right of action under the Equal Access Act (the “Act”) and the First Amendment, Tausha Prince, an eleventh grade student at a Bethel School District (“School District”) public high school, challenges the school’s refusal to allow her Bible club to meet as an Associated Student Body (“ASB”) club, entitled to the same benefits as other student clubs. Instead, Prince’s club was recognized only as a “Policy 5525 club,” which limited her club’s access to benefits offered by the high school. Prince appeals from the district court’s grant of summary judgment in favor of the School District, in which the district court found that the Equal Access Act and the Establishment Clause forbid offering a religious club the various advantages offered to other student clubs.

We consider each of Prince’s access claims separately, first under the Act, and then the First Amendment, to the extent we find them outside the scope of the Act. Having done so, we hold that the School District violated either the Act or Prince’s First Amendment rights by denying her Bible…