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High Court Hears Oral ArgumentsIn 'Access' Case

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Washington--The U.S. Supreme Court should ban meetings of student-initiated religious clubs in public schools because some pupils would equate "sponsorship of the meetings and sponsorship of religion," the Justices were told last week.

But lawyers arguing for the right of such clubs to meet said high-school students are sufficiently mature to understand the difference between government support of and neutrality toward religion.

Lawyers made these claims during oral arguments Oct. 15 in Bender v. Williamsport Area School District (Case No. 84-773). The case has been closely watched by school officials because it could effectively decide the constitutionality of the federal Equal Access Act, which guarantees the right of student-initiated religious and political groups to meet in schools if the schools receive federal funds and have created a "limited open forum."

In Bender, the Justices will decide whether meetings of student religious clubs during periods set aside for extracurricular activities violate the First Amendment's establishment clause.

The Court last year decided three cases that affirmed the idea of a ''wall of separation" between religion and public education. This term, it has also scheduled arguments for Witters v. Washington Department of Services for the Blind (No. 84-1070)--a case in which a blind student was denied state student aid because he was studying for the ministry.

Appeals Court's Rationale

A divided three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled last year that the meetings at issue in Bender breached the wall of separation between church and state because, the majority said, they had a primary effect of advancing religion and fostered excessive entanglement between government and religion.

The majority opinion drew upon a three-part test for deciding church-state cases first articulated by the Supreme Court in 1971. The test asks whether a state-sponsored program has the intent of advancing religion, has the primary effect of advancing religion, or causes excessive entanglement between religion and government. The High Court has held in subsequent cases that a program need fail only one of the three parts of the test to be found unconstitutional.

The Third Circuit panel's majority said the need to keep religion and public education separate overrides high-school students' free-speech rights.

Origin of Case

The conflict in Bender began in 1981 when Williamsport, Pa., public-school officials prohibited Pet-ros--a student Bible-study and prayer group--from meeting on school grounds out of concern that their gatherings were unconstitutional.

The students sued in federal district court, and their claim that their free-speech rights had been violated was upheld in 1983. The school board decided to drop the issue, but one board member, John C. Youngman Jr., chose to continue the appeal. His position was upheld by the circuit court in the summer of 1984, a day before the Congress passed the Equal Access Act.

During oral arguments last week, Associate Justices Sandra Day O'Connor and John Paul Stevens questioned procedural problems involved with the case since Mr. Youngman is arguing on his own behalf, not that of the school board.

Administration Joins Appeal

The Reagan Administration joined in Petros's appeal to the Supreme Court, maintaining that if the appeals-court verdict is affirmed the constitutionality of the Equal Access Act would be in jeopardy.

The Solicitor General-designate, Charles Fried, sharply criticized the notion that "high-school students are unable to discern the difference between neutrality" toward and "endorsement" of religion. The Congress, in passing the Equal Access Act, found that high-school students were indeed mature enough to make such a distinction, Mr. Fried noted.

And the Congressional interpretation is "entitled to the highest de-gree of deference," he claimed.

The circuit-court majority cited what it said was precollegiate students' intellectual immaturity as grounds for distinguishing between religious-club meetings in high schools, which it proscribed, and similar meetings on public-college campuses, which are permitted.

Mr. Youngman, who presented his own case before the High Court, said that not only students' impressionability but also the "very nature" of a public school, where faculty members supervise student meetings, should provide sufficient grounds to bar meetings of religious clubs.

The presence of a faculty adviser, as required under Pennsylvania law, "objectively is sponsoring or advancing religion," Mr. Youngman argued.

But James M. Smart Jr., who represented the Petros members, countered that the mere presence of a faculty adviser does not threaten constitutional standards.

"The crucial constitutional distinction," said Mr. Smart, "is between state action and individual action."

"All the state has done is require these people to go to school," said Mr. Smart, adding that it is students "who are doing all the religious activity."

He contended that students' religious speech is protected under the First Amendment. "All we're asking," he added, "is that you don't exclude religious students from that right" of free speech exercised by other pupils.

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