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 activity1 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 anything but an integral part of the instructional school day. The SS Time period falls right in the middle of the student’s daily schedule every Tuesday and Friday, as a regular class period from 10:10 a.m. to 10:40 a.m. Attendance at SS Time is mandatory, not *1098voluntary. Students can receive an “F” grade for not attending, and must engage in “school-related” activities, such as school-affiliated club meetings, school assemblies, career surveys, work on homework, or one-on-one instruction from teachers. To the young people at Spana-way Lake High School, SS Time may be a brief respite from mathematics, chemistry, and Spanish, but it is still school, not free time.
The majority concludes, correctly, that Congress in devising the Equal Access Act saw a fundamental difference between periods of time when school attendance is mandatory and periods when it is not, requiring equal access only during the latter. Congress’ decision to exclude from the Act’s coverage class periods such as SS Time that form an integral part of the school day mirrors Establishment Clause jurisprudence. A long line of Supreme Court cases recognizes a heightened risk of unconstitutional entanglement and actual or perceived endorsement when public schools’ mandatory attendance laws and religious instruction intertwine in public school classrooms.
In 1948, the Supreme Court in 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), held unconstitutional under the Establishment Clause a public school program in which students were released from class to attend religious classes taught in the regular classrooms of the public school by nonpublic school teachers who volunteered at no cost to the school. The Court explained the school’s system this way:
Students who did not choose to take the religious instruction were not released from public school duties; they were required to leave their classrooms and go to some other place in the school building for pursuit of their, secular studies. On the other hand, students who were released from secular study for the religious instructions were required to be present at the religious classes. Reports of their presence or absence were to be made to their secular teachers.
Id. at 209, 68 S.Ct. 461. Thus, as in this case, the school in McCollum did not require any student to attend religious classes, but instead gave students the option of doing so in lieu of attending nonreligious activities.
The Court in McCollum nonetheless focused on the school’s mandatory attendance policy in finding an Establishment Clause violation:
Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.
Id. at 209-210, 68 S.Ct. 461. And, further:
Here not only are the State’s tax supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State’s compulsory public school machinery. This is not separation of Church and State.
Id. at 212, 68 S.Ct. 461.
I see no reason why McCollum does not control the question whether the Spana-way Lake High School may absolve students from engaging in one or another of the secular activities that they must otherwise engage in during SS Time to participate on public school premises in a religious meeting of the World Changers. Much time has passed since McCollum, it is true. But despite the well-noted vagaries of the Supreme Court’s Establishment Clause jurisprudence, see Jesse H. Choper, *1099A Century of Religious Freedom, 88 Cal. L.Rev. 1709, 1741 (2000), the Court has never departed from the premise that the Establishment Clause forbids student religious activities in the public school building during periods when students are compelled by law to attend school in that building.
For example, the Court recently held, in Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), that the Establishment Clause did not preclude a school from allowing a religious group to meet in a classroom after the school day. In so holding, the Court distinguished McCollum precisely on the ground that the Good News Club’s “activities take place after the time when the children are compelled by state law to be at the school.” Id. at 116 n. 6, 68 S.Ct. 461 (emphasis in original); see also id. at 115— 16, 68 S.Ct. 461 (distinguishing Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), because in Lee the Court “concluded that attendance at the graduation exercise was obligatory,” and explaining that in Good Neios, “where the school facilities are being used for a non-school function and there is no government sponsorship of the Club’s activities, Lee is inapposite.”); id. at 117, 112 S.Ct. 2649 (distinguishing Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), on the ground that “Edwards involved the content of the curriculum taught by state teachers during the school-day to children required to attend.”) (first emphasis in original); cf. id. at 117 n. 7, 107 S.Ct. 2573 (School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), “is inap-posite because this case does not involve activity by the school during the school-day.”). Compare Zorach v. Clauson, 343 U.S. 306, 311 n. 6, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (upholding release time program where religious classes were not held on school property and there was no “indication that the public schools enforce[d] attendance at religious schools by punishing absentees from the released time programs for truancy”).
Not surprisingly, this concern with religious instruction as part of the mandatory school day came up the first time the Supreme Court considered the Equal Access Act. Critically, in holding that the Act does not on its face violate the Establishment Clause, the Supreme Court in Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 251, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), expressly relied on the fact that because the Act applies only to “noninstructional time” it “avoids the problems of ... mandatory attendance requirements.” Id. (opinion of O’Connor, J.) (citing Edwards, 482 U.S. at 584, 107 S.Ct. 2573; also citing McCollum, 333 U.S. at 209-10, 68 S.Ct. 461, for the proposition that: “release time program invalid where students were ‘released in part from their legal duty to attend school upon the condition that they attend the religious classes’ ”); see also id. at 261, 110 S.Ct. 2356 (Kennedy, J., concurring) (finding no Establishment Clause violation in part because “the meetings take place while school is not in session.”).2
*1100Ceniceros v. Bd. of Trustees of the San Diego Unified Sch. Dist., 106 F.3d 878, 880 (9th Cir.1997) is fully consistent with this line of Supreme Court cases. Ceniceros held that a public school’s lunchtime qualified as noninstructional time under the Equal Access Act. In so holding, the court described the factual context this way:
At [the school], classroom instruction begins at 7:25 a.m. and ends at 11:30 a.m.; it resumes at 12:15 p.m. and continues until 2:10 p.m. The parties specifically stipulated that no classroom instruction occurs during the school’s lunch hour. In fact, students are not even required to remain on campus during this time.
Id. (emphasis added). Ceniceros further pointed to the Establishment Clause concerns discussed in Mergens:
The only timing issue with which the Court concerned itself in Mergens is the Act’s restriction of meetings to “nonin-structional time.” The Court found this limitation significant because it avoids the problems of mandatory attendance requirements, which the Court had previously struck down. Since the lunchtime meetings proposed by Ceniceros would resemble in every significant respect the[after school] meetings approved by the Court in Mergens, permitting Ceniceros’ group to meet during lunchtime would not violate the Establishment Clause.
Ceniceros, 106 F.3d at 882 (citations omitted) (emphasis added). The majority does not cite any case in this court or any other appellate court holding religious activity on school premises during a period when attendance is mandatory permissible under the Establishment Clause, and I am not aware of any such case.3
Although neither the Supreme Court nor this court has had an opportunity to explain in doctrinal terms why religious activities during periods when school attendance is required, recorded, and graded violates the First Amendment, recent Establishment Clause jurisprudence suggests two compelling reasons:
First, ensconcing a religious meeting in a public school classroom during the school day will be seen as — and will actually be— an endorsement of religion. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307-08, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 841-42, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). As the School’s Vice Principal reported, SS Time is a time for students to “do school-related sorts of things.” Students who must choose from one of a set of school-related activities during a mid-school-day period are only in a limited sense “voluntarily” attending the World Changers meeting. They do not have the option to go home and “hang out” with friends, play baseball, practice piano, skateboard around the neighborhood, or do a wide range of other activities that children engage in during truly free time. Instead, they are required to attend one of the activities the School District has chosen to allow them to attend during a certain time period, because the School District has determined that the activities have some school-related value. The likely perception that the School District is “endorsing” *1101the activities that students are permitted to engage in during the mandatory school day is an accurate one.
Second, the mandatory attendance factor dictates entanglement of school employees in religious activity. See Mitchell, 530 U.S. at 845, 120 S.Ct. 2530 (O’Connor, J., concurring); Mergens, 496 U.S. at 252-53, 110 S.Ct. 2356 (opinion of O’Connor, J.). According to the Vice Principal, SS Time “is considered a scheduled class and it’s on the student’s schedule as such ... and ... roll is taken.” Teacher involvement necessarily becomes more than custodial when the teacher is supervising a scheduled class.
If, for example, the World Changers met during SS Time, but instead of engaging in activities pertaining to the club such as prayer and religious singing chose to spend the time discussing non-club related issues — movies or sports, for instance — -the students would not be participating in the “school-related” activities for which the School District designed SS Time and mandates attendance. Presumably, to fulfill the purposes of SS Time the assigned teacher would be required to redirect the discussion to the religious purpose of the meeting. After school, in contrast, the teacher-supervisor’s concerns would relate not to the content of the meeting but only to safety, decorum, and other “custodial” matters.
To avoid precisely such impermissible endorsement and entanglement, Congress chose to extend the reach of the Act only to the limited open forum created by public schools before and after actual classroom instruction takes place, not to instructional periods during the school day. The majority so recognizes, but then concludes that the free speech provisions require otherwise and that there is in fact no Establishment Clause violation created. Because the majority holds that religious activity at a public school site during a regularly scheduled class period, when students are required to be on the premises, does not violate the Establishment Clause, I respectfully dissent.
II. SUPPLIES, VEHICLES, & AUDIO / VISUAL EQUIPMENT
The majority holds that Spanaway Lake High School must provide ’ the World Changers religious club access to the School District’s supplies (e.g., markers, paper), vehicles, and audio and visual equipment, utilizing the same standards as apply to non-religious student groups’ access to such supplies and services. I disagree. The Establishment Clause prohibits the School District from giving or lending to the World Changers for direct use in religious activities supplies and services paid for by public tax funds. This crucial prohibition on the use of public tax funds for supplies to be used for religious purposes is set forth in Justice O’Connor’s concurring — and controlling — opinion in Mitchell, 530 U.S. at 836, 120 S.Ct. 2530, which the majority here does not address.4
The Mitchell Court upheld against an Establishment Clause challenge a program under which the federal government distributes funds to state and local agencies, which in turn use those funds to provide public and private schools, including religious schools, with educational materials and équipment similar to those at issue *1102here. A majority of the Court in Mitchell reaffirmed that neutrality, although an important consideration in an Establishment Clause analysis, does not alone permit the conclusion that public aid used for religious purposes is constitutional. Id. at 840, 120 S.Ct. 2530 (O’Connor, J., concurring); id. at 883-84, 120 S.Ct. 2530 (Souter, J., dissenting). Rather, Mitchell turned upon the consideration that the public aid at issue in that case supported secular functions of religious schools, not avowedly religious classes or services.
Of critical importance here, Justice O’Connor “disagree[d] with the plurality’s conclusion that actual diversion of government aid to religious indoctrination is consistent with the Establishment Clause.” Id. at 840, 120 S.Ct. 2530 (O’Connor, J., concurring); see also id. (O’Connor, J., concurring) (“[A]ctual diversion is constitutionally impermissible.”); id. at 857, 120 S.Ct. 2530 (O’Connor, J., concurring) (“To establish a First Amendment violation, plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes.”). Justice O’Connor relied upon the following “constitutionally sufficient” statutory and agency safeguards that, among others, prevented diversion of public aid to religious purposes: the aid included only secular materials and equipment; use of the aid for “religious worship or instruction” was prohibited; non-public schools signed assurances that the aid would be used only for secular purposes; and agencies conducted monitoring to detect impermissible uses. Id. at 861-63, 120 S.Ct. 2530 (O’Connor, J., concurring).
Without addressing the import for this case of Justice’s O’Connor’s opinion in Mitchell, the majority here, relying largely on the Court’s decision in Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700, allows actual diversion for religious purposes of the School District’s supplies, AV equipment, and vehicles. The cost of purchasing and maintaining the School District’s supplies and services, however, comes not from the ASB student fund, but from the School District’s general, tax-derived public funding. For this reason, Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700, is inapposite. See id. at 841, 115 S.Ct. 2510 (“[T]he $14 paid each semester by the students is not a general tax designed to raise revenue for the University .... Our decision, then, cannot be read as addressing an expenditure from a general tax fund.”); id. at 847, 851-52, 115 S.Ct. 2510 (O’Connor, J., concurring) (“Our eases have permitted some government funding of secular functions performed by sectarian organizations.... These decisions, however, provide no precedent for the use of public funds to finance religious activities.... The Student Activities Fund ... represents not government resources, whether derived from tax revenue, sales of assets, or otherwise, but a fund that simply belongs to the students.”).5
The majority also attempts to characterize the School District’s policy of giving or lending supplies, AV equipment, and transportation to student groups as one of “private choice,” in order to bring this case within the Supreme Court’s recent decision in Zelman v. Simmons-Harris, — U.S.—, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), upholding an educational program that provides tuition aid “vouchers” for students to use to pay to attend public or *1103private, including religious, schools. See id., slip op. at 10-14 (discussing the importance of the fact that the voucher program involves individual private choice, rather than government distribution of financial aid to religious organizations). This is not, however, a “private choice” case. The School District, not private choice, decides whether a student club will receive access to the School’s supplies, AV equipment, and transportation for field trips.
Although the distribution of the type of supplies and services at issue would not perhaps as readily lend itself to a private choice program as does the payment of tuition aid, a private choice program could operate to distribute the School’s supplies and services for purposes of extracurricular activities. For instance, the School District could provide each student with a certain number of markers and sheets of construction paper for that student to use for any student group activity in which the student chose to participate. Or the school could provide each student with a $10 “voucher” to go toward the expenses of a field trip selected by the student.
No such private choices, however, are made by individual students at Spanaway Lake High School. The distribution of supplies and services to the various student groups instead resembles the distribution of similar supplies and services to the various schools in Mitchell, which Justice O’Connor made clear did not qualify as a private choice program. See 530 U.S. at 841, 120 S.Ct. 2530 (O’Connor, J., concurring); see also id. at 842-43, 120 S.Ct. 2530 (O’Connor, J., concurring) (rejecting the notion that a per capita endorsement program equates with a private choice program for Establishment Clause analysis).
Finally, were it sufficient for Establishment Clause purposes that “[providing ... school supplies and bus transportation is not a direct payment to the World Changer’s coffers,” as the majority asserts, see ante at 1092, Justice O’Connor would have had little reason to write her separate opinion in Mitchell. The supplies lent by the government to the religious schools in that case likewise did not constitute a “direct payment” to a religious organization’s “coffers.”
As I see it, Mitchell controls, and under Mitchell, the School District must allow the World Changers equal access to the School District’s supplies and services for non-religious uses but must, as did the aid program in Mitchell, also prevent the club from using the supplies and services for religious purposes, including “religious worship or instruction.” 530 U.S. at 861, 120 S.Ct. 2530 (O’Connor, J., concurring). For instance, the World Changers should have access (assuming other noncurricular groups do) to School District supplies to announce meetings or for other secular purposes, but using School District supplies to create a proselytizing poster cannot be permitted. Likewise, the School District could transport the World Changers in a School District vehicle to a homeless shelter for the students to perform community service work, but not to a church meeting or service.
The School District should, I believe, have the first opportunity to decide what safeguards it will employ to ensure that publicly-funded supplies and services are not put to religious uses. Mitchell requires, at a minimum, - however, that the supplies and services consist only of secular services, materials, and equipment, and that the School District establish a policy limiting the use of its tax-funded property and services to only secular purposes. Id. at 861-62, 120 S.Ct. 2530 (O’Connor, J., concurring).
The majority opinion does not acknowledge the necessity of such limitations under the Establishment Clause jurispru*1104dence as clarified in Mitchell. I therefore respectfully dissent.
. The section of Justice O'Connor's opinion in Mergens discussing the Establishment Clause issue commanded only four votes, but because it relied on narrower grounds than did Justice Kennedy's opinion for two Justices, which reached the same result, Justice O'Con-nor's opinion controls. See Smith v. Univ. of Washington, Law Sch., 233 F.3d 1188, 1199 (9th Cir.2000) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)).
. As far as I have been able to determine, there has been exactly one published decision adopting a view similar to that of the majority with regard to religious activities during the mandatory public school day on public school premises. Bender v. Williamsport Area Sch. Dist., 563 F.Supp. 697 (M.D.Pa.1983). Bender was reversed by the Third Circuit, for reasons similar to those expressed in this dissent, but the Supreme Court vacated the Third Circuit's decision with instructions to dismiss the appeal because the appellant lacked standing to bring it. Bender v. Williamsport Area Sch. Dist., 741 F.2d 538 (3d Cir.1984), vacated 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).
. Justice O'Connor’s concurring opinion in Mitchell controls the outcome of any case that, as here, turns on a distinction between her opinion and the plurality opinion in that case. No opinion in Mitchell commanded a majority vote. Justice O’Connor's concurring opinion rested on narrower grounds than did the plurality’s opinion, and is therefore the governing precedent. See Smith, 233 F.3d at 1199 (quoting Marks, 430 U.S. at 193, 97 S.Ct. 990).
. Justice O'Connor's concurring opinion in Rosenberger is of particular importance because her vote was necessary to the majority and she joined the opinion of the majority "[s]ubject to these comments” in her separate opinion, which relied on narrower grounds than did the majority opinion. Id. at 852, 115 S.Ct. 2510. Likewise, to the extent broad statements made in Rosenberger are narrowed by Justice O'Connor’s opinion in Mitchell, the Mitchell opinion, more recently issued, controls.