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When the Milford public school bus became too crowded to carry children to extracurricular activities nearly five years ago, the school in upstate New York didn’t ask the Boy Scouts or the 4-H clubbers to get off. “They just picked us, the Good News Club,” says the Rev. Stephen Fournier, pastor of the Milford Center Community Bible Church. “Rather than approaching us and trying to work out another day to bring the children, they just picked us. And that’s when we started thinking about meeting at the school.” And so Steve and Darleen Fournier began their particular journey to the U.S. Supreme Court in the fall of 1996. Their case arrived this term, another variation on the seemingly endless battle over church and state. The Good News Club v. Milford Central School, No. 99-2036. The Rev. Fournier has been pastor of the Milford Center Community Bible Church for 7 1/2 years. It is a “Bible-believing, evangelical” church, he says. But he’s no chest-thumping preacher. A slight young man, he has a gentle demeanor and seems simultaneously embarrassed and fascinated by the attention that the case has generated. There’s a greater sense of steel about his wife. And, after all, it is really her case because Mrs. Fournier, the mother of three girls, started the Good News Club in 1995. “I just thought it would be something the children would enjoy,” she says. MISSED BY THE ’90S About 80 miles southwest of Albany, Milford looks like a community that the boom of the 1990s missed. Victorian-style homes have fallen into disrepair. The town’s center is deserted by late morning on a weekday. Dairy farms dot the surrounding rural area, and a few antique shops are scattered in between. Milford’s single school building houses about 530 students in grades K-12. The school is a clear source of community pride. After Mrs. Fournier launched the Good News Club, it became one of about 2,000 nationwide. The clubs are sponsored by the Child Evangelism Fellowship, a worldwide Christian ministry, which provides materials and aids but doesn’t supervise the activities. The club fosters moral values by using Bible stories, games, scripture and songs in a fun setting, according to the Fourniers. The school bus took club members to the church every Tuesday. After getting the bad news about the bus, the Fourniers tried to transport the children themselves but finally decided to seek permission to meet in the school after classes. A CONSTITUTIONAL QUESTION The then-school superintendent told them that it would violate the Constitution to have club meetings on school grounds. The school’s position is that the club engages in religious indoctrination and worship, unlike any group that meets in the school. They twice asked for a meeting with the superintendent, but he refused to meet, they say. A few weeks later, they decided to get legal help. “It wasn’t like it was going well talking to the superintendent,” says the Rev. Fournier dryly. “We also spoke with the school board president. He made a comment like, ‘Where will you get the funds to bring this to court?’ It was kind of like, ‘We’re big; you’re little.’ “ The Rev. Fournier subscribed to a magazine published by the Rutherford Institute, a Virginia-based, conservative legal group. It has done church-state cases for more than two decades. Its greatest notoriety came when it agreed to pay the legal costs of Paula Jones’ sexual harassment suit against President Clinton. “I just called them up blindly and explained the situation,” says the Rev. Fournier. “They said they felt the school was discriminating and usually it just takes a letter to straighten things out.” But the institute’s letter “didn’t impress [the school] one bit,” recalls Mrs. Fournier. Rutherford then assigned an attorney to the Fourniers — Thomas Marcelle of Slingerlands, N.Y., a sole practitioner who primarily handles post-conviction litigation and civil rights suits. After sending a series of unsuccessful demand letters to the school, he sued. “The Fourniers wouldn’t have been able to afford an attorney,” says Marcelle, who argued their Supreme Court case on Feb. 28. “Just the cost of the litigation alone would have been out of their reach.” At the district court level, the Fourniers won a temporary injunction that allowed them to meet in the school for about a year. Attendance increased from about eight students to more than 20. But the district court subsequently granted summary judgment for the school district. A divided panel of the 2nd U.S. Circuit Court of Appeals affirmed, finding that the club’s activities crossed the line into impermissible religious instruction and prayer. The Rutherford Institute has invested at least $100,000 in the litigation, says John Whitehead, its president. “We held three moot courts, and those can get expensive, flying people in and paying for their meals and hotel rooms,” he says. “We had one attorney essentially full time preparing briefs and helping Mr. Marcelle prepare for the argument. In our cases, if there are attorney’s fees, the lawyers will get them.” The Fourniers’ key concern about going to the Supreme Court — and it was a big one — was that if their personal quest for justice resulted in a loss, it would cost other Good News Clubs their right to meet in other schools. HIGH COST IN TIME Freed by the Rutherford Institute of the burden of financing the litigation, the Fourniers have paid for this legal struggle mostly with their time — a lot of it. They have traveled for depositions (“I will never forget my first one — the grilling I got,” recalls Mrs. Fournier) and court hearings. They have read the many briefs in their case several times, as well as the Constitution, and can recite the key church-state precedents. But one of their worries about pressing their case proved misplaced. The Fourniers knew that this kind of litigation often triggers hostility within a community, a product of prejudice and fear. But that hasn’t happened in Milford, and much of the credit goes to a new school superintendent, Peter N. Livshin, and the district’s lawyer, Frank W. Miller of Ferrara, Fiorenza, Larrison, Barrett & Reitz in East Syracuse, N.Y. “I made a conscious decision to keep this thing as civil as possible,” Livshin says. “I met with Stephen and Darleen early, and it was almost like an instant liking and mutual respect.” (The Rev. Fournier calls Livshin “a great guy” and a “good friend.”) During a daylong deposition session in Cooperstown, N.Y., Livshin says, he and the minister had a long talk. “We realized a lot of this was out of our hands now,” he says. “We would try to make the best of the situation until the courts solved the problem, and we would let the chips fall where they may.” The Milford scene could have gotten “quite nasty,” Livshin says, if either side had taken a really hard line. “He has quite a few parishioners with children in school here. It could have gotten to be an ugly scene, especially as more and more media attention came here.” But the worst didn’t happen, and Livshin has even had the Fourniers’ case discussed in the school’s American history classes. Although their journey has been long and they have been on the losing end from the outset, the Fourniers think they will win in the high court, possibly 9-0. “If I lose, I will still be grateful for this system,” says Mr. Fournier. “If the Constitution states we can’t meet, then we’ll abide by that. The club will go on. We’ll go on.” Return to Part II: Rhode Islander’s 40-Year Fight for Property Rights Return to Part I: The Hidden Costs of Litigation

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