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Court Counters Lawmakers on Legality of Religious Student Clubs

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The day before the Congress approved a bill guaranteeing the right of student religious groups to meet in schools, a federal appeals court upheld the Williamsport, Pa., school district's policy of prohibiting such meetings during school hours.

A three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled, 2 to 1, that the district did not violate students' free-speech rights by banning such meetings. In doing so, it reversed a ruling by the U.S. District Court for the Middle District of Pennsylvania.

The "equal-access" measure, which was sent by the Congress on July 25 to President Reagan for his signature, would require school districts to permit all student groups, religious and secular, to meet on3school grounds before and after school hours.

In Bender v. Williamsport Area School District, the appeals court ruled that the school's duty to guard against state entanglement with religion outweighed the students' limited free-speech rights.

The court acknowledged the First Amendment conflict between the free-speech and establishment clauses and was "cautious not to overstate the breadth of our decision."

The judges, however, reached "the inexorable conclusion that the constitutional balance of interests tilts against permitting" the student groups to conduct activities in the schools.

Citing the three-part test used as a guideline by the U.S. Supreme Court in church-state cases, the pan-el argued both that the "primary effect" of the proposed Williamsport policy would be to advance religion and that it would also involve the schools in an "excessive entanglement" with religion.

The students filed a motion on Aug. 7 seeking a rehearing by all nine judges on the panel. According to James Smart, a lawyer for the students, one part of the motion contends that the appeals court's decision is in conflict with the bill awaiting the President's signature.

Interviews with lawyers, Congressional staff members, and representatives of interest groups familiar with the equal-access legislation, however, suggest that it is unclear what effect, if any, the bill's enactment would have on the court's decision.

According to Barry Lynn of the American Civil Liberties Union, the Williamsport students "cannot claim protection" under the equal-access measure because they met during school hours. The only meetings protected by the legislation are those held before or after classes, he contended.

But according to Mr. Smart, "the actual wording [of the bill] is not to that effect." To emphasize his point he cited the bill's definition of "noninstructional time" as "time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends."

In Williamsport High School, the student group met during the first school period of the day, which is set aside for student activities. Students gathered in their homerooms for attendance at 7:45 A.M. and began the activity period at 7:57 A.M., according to Mr. Smart.

Referring to this interval before the group met, Mr. Smart asked, "Has there been any actual classroom instruction?"

Karl Moor, a Republican staff member of the Senate Family and Human Services Subcommittee, said language in the bill referring to instructional time "was left ambiguous" because of problems over how to define when a school day begins and ends.

According to Mr. Lynn, the equal-access issue is far from settled.

Three years ago, in Widmar v.3Vincent, the U.S. Supreme Court ruled that a public university could not ban meetings by a student prayer group on university property.

'Truly Open' Forums

The majority in the Bender decision held that universities are "truly open" forums and that high schools, by contrast, are not.

Williamsport students have free-speech rights in the "limited forum'' of a public high school and exercise them at the discretion of the school, the court ruled.

"Because of the inherent nature of a secondary school, any forum created has purposes which are narrower, and uses more exclusive than a [college] or one generally open to all forms of communication by the public," the majority wrote.

In his dissent, Judge Arlin M. Adams said "there is no clear constitutional distinction based on the apparent intellectual capacities of 14- to 18-year-olds as opposed to 18- to 22-year-olds."

"Particularly in this case," he continued, "where the school authorities have previously determined that Williamsport students are sufficiently independent to make good use of a period open to student-initiated activities, it seems improvident for a court to forge a constitutional principle, with all the rigidity which it invariably creates, from vague im-pressions of the emotional sophistication of high-school students."

The Williamsport student religious group, which called itself Petros, was barred from meeting in fall of 1981 by school administrators, who were concerned that such student prayer meetings were unconstitutional. The students subsequently brought suit against the district, and U.S. District Judge William J. Nealon upheld their right to meet in a May 1983 ruling.

Several religious and civil-rights groups joined the suit as friends of the court on opposite sides.

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