Cite as: 533 U. S. 98 (2001)
Breyer, J., concurring in part
summary judgment, either in respect to the Free Speech or the Establishment Clause issue. Our holding must mean that, viewing the disputed facts (including facts about the children's perceptions) favorably to the Club (the nonmoving party), the school has not shown an Establishment Clause violation.
To deny one party's motion for summary judgment, however, is not to grant summary judgment for the other side. There may be disputed "genuine issue[s]" of "material fact," Fed. Rule Civ. Proc. 56(c), particularly about how a reasonable child participant would understand the school's role, cf. post, at 140 (Souter, J., dissenting). Indeed, the Court itself points to facts not in evidence, ante, at 117 ("There is no evidence that young children are permitted to loiter outside classrooms after the schoolday has ended"), ante, at 118 ("There may be as many, if not more, upperclassmen as elementary school children who occupy the school after hours"), identifies facts in evidence which may, depending on other facts not in evidence, be of legal significance, ibid. (discussing the type of room in which the meetings were held and noting that the Club's participants "are not all the same age as in the normal classroom setting"), and makes assumptions about other facts, ante, at 117-118 ("Surely even young children are aware of events for which their parents must sign permission forms"), ante, at 118 ("Any bystander could conceivably be aware of the school's use policy and its exclusion of the Good News Club, and could suffer as much from viewpoint discrimination as elementary school children could suffer from perceived endorsement"). The Court's invocation of what is missing from the record and its assumptions about what is present in the record only confirm that both parties, if they so desire, should have a fair opportunity to fill the evidentiary gap in light of today's opinion. Cf. Fed. Rules Civ. Proc. 56(c) (summary judgment appropriate only where there is "no genuine issue as to any material fact" and movant "is entitled to a judgment as a
129
Page: Index Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: October 4, 2007