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Court Rulings Split Over Students' 'Equal Access'

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School officials in Omaha, Neb., violated the federal Equal Access Act by denying students permission to hold Bible-study meetings on school grounds, a federal appeals court has ruled.

The unanimous decision on Feb. 8 by a three-judge panel in the case, Mergens v. Westside Community Schools, came just three weeks after another federal appellate court reached the opposite conclusion in a similar dispute involving students in Renton, Wash.

The split between the appellate panels on students' rights under the 1984 law improves the chances that the U.S. Supreme Court will be persuaded to issue a definitive ruling on the matter, school-law experts said last week.

"We will probably see one of these cases before the Supreme Court in the not too distant future," said Richard E. Shevitz, a lawyer with the Anti-Defamation League of B'nai B'rith, which filed a friend-of-the-court in both cases on behalf of the school districts.

Four years ago, the High Court heard arguments in a case involving attempts by a Williamsport, Pa., student group to hold prayer sessions before the start of the school day, but dismissed the suit on a technicality.

The recent decisions in the Nebraska and Washington State cases are believed to be the first in which appeals courts have ruled on the church-state aspects of the Equal Access Act. A third case, Clark v. Dallas Independent School District, is pending before the U.S. Court of Appeals for the Fifth Circuit.

The law forbids public schools that receive federal aid and allow noncurriculum-related groups to use school facilities to deny access to other student groups due to their religious, philosophical, or political nature.

Other federal district and appeals courts have upheld politically oriented student groups' right under the statute to use school facilities.

Nebraska Suit

In its decision in the Mergens case, the U.S. Court of Appeals for the Eighth Circuit overturned a district court's judgment that the administrators of Westside High School in Omaha did not have to accommodate the Bible-study group because they had not created a "limited open forum" for other noncurriculum-related organizations.

Lawyers for the student group argued that the school had in fact created such a forum by sanctioning student chess, community-service, and scuba-diving clubs.

The district's lawyers countered that those groups were curriculum-related, contending, for example, that the chess club fostered critical thinking and logic, and that the scuba club was related to the goals of physical education.

Writing for the court, Judge Theodore McMillian held that "allowing such a broad interpretation of 'curriculum-related' would make the Equal Access Act meaningless."

"A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group," Judge McMillian wrote.

The court also rejected the district's argument that the federal law violates the First Amendment's prohibition against state establishment of religion.

Stance on Constitutional Issue

The district's position relied primarily on the Supreme Court's 1981 ruling in Widmar v. Vincent, which held that the First Amendment requires colleges to allow their students to hold voluntary prayer meetings on campus. The school system contended that in that case, the High Court drew a distinction between the religious rights of college-aged adults and those of younger, more impressionable high-school students.

In its ruling, the Eighth Circuit Court held that the Congress broadened high-school students' rights by passing the Equal Access Act.

"Any constitutional attack on the Equal Access Act must ... be predicated on the difference between secondary-school students and university students," the court held. "We reject this notion because Congress considered the difference in the maturity level of secondary students and university students before passing the Equal Access Act."

Students To Seek Session

The Omaha students plan to ask school administrators shortly for permission to hold a Bible-study session, said Douglas W. Davis, general counsel of the National Legal Foundation, a Virginia-based advocacy group that argued their case.

He said that in the wake of the ruling, "administrators will have a little easier time" in deciding when to allow such groups to meet on school property.

The Westside Community Schools board, meanwhile, decided last week either to seek a rehearing before the full Eighth Circuit Court or to appeal directly to the Supreme Court.

James A. Tangdall, superintendent of the Westside district, said the ruling disappointed officials. "It's another erosion of local control of the school district," he said.

Mr. Tangdall added that although many in the community believe Christian groups should be allowed to meet on school property, "most people would feel differently if it was the Moonies or an offshoot of the Ku Klux Klan."

The decision in the Mergens case differed markedly from that of the U.S. Court of Appeals for the Ninth Circuit in the Washington State suit, Garnett v. Renton School District No. 403.

In the Garnett case, the Ninth Circuit Court ruled that students' rights were not violated under the Equal Access Act because their school had not created an open forum. It then held that allowing the student group to meet on school property would violate the establishment clause.

In reaching the decision, the Ninth Circuit Court differed with the Eighth Circuit on the applicability of the Widmar case to high-school students.

It noted that in other First Amendment cases, the Supreme Court held that the potential for "undue" religious influence is a greater threat in a high-school setting than it is at the college level, where students are older and are not compelled to attend.

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