In light of these teachings of the Supreme Court, I conclude that the District's exclusion of religious instruction in the instant case is not viewpoint neutral. SOP 5.6.1 sweepingly authorizes use of school premises after hours “[f]or the purpose of instruction in any branch of education, learning or the arts.” SOP 5.9, however, while allowing “discuss[ion][of] religious material or material which contains a religious viewpoint,” bans “religious instruction on school premises after school.” The net effect is to require schools to put a halt to any after-school instruction that “contain[s] too great a religious content,”
Rosenberger, 515 U.S. at 844, 115 S.Ct. at 2524. Where secular viewpoints on a subject are concerned, the District's policy allows private groups not only to discuss the subject, but to instruct others from their secular perspective without hindrance by public authorities. Where religious viewpoints on the same subject are detected, private groups may “discuss” but they may not “instruct.” Far from properly treading the delicate line between discrimination based on subject matter or content and discrimination based on viewpoint, as the majority contends,
see ante, at 213, the District's policy banning religious instruction, while at the same time allowing instruction on any subject of learning from a secular viewpoint, is an impermissible form of viewpoint discrimination. Indeed, the distinction that the District attempts to draw between instruction and discussion is akin to the distinction drawn by the dissent in
Rosenberger, but rejected by the Court, between “evangelism” and speech “that merely happens to express views that a given religion might approve,”
id. at 896, 115 S.Ct. at 2550 (Souter,
J., dissenting).
See id. at 843–45, 115 S.Ct. at 2524 (majority opinion).