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High Court Hears Case Examining Equal Access Act

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Washington--Public high schools that have sanctioned student clubs that are not directly related to a scholastic course must provide meeting space to all other such clubs, unless the groups are illegal or disruptive, a lawyer representing Nebraska students seeking the right to form a Bible club told the U.S. Supreme Court last week.

If such clubs advocate controversial political views, including separation of the races or the legalization of drugs, "that's the price of freedom," said the lawyer, Jay Allen Sekulow, acknowledging the consequences of his interpretation of the federal Equal Access Act of 1984.

During oral arguments in the most closely watched education case of the High Court's current term, Board of Education of the Westside Community Schools v. Mergens (Case No. 88-1597), the Justices seemed more intent on determining the conditions that trigger the provisions of the Equal Access Act, rather than the constitutionality of the law itself, which is also at issue.

Associate Justice Byron R. White, who led much of the questioning, may have telegraphed the direction in which the Court is leaning when he said, "It looks like we have to or might need to establish some definition of 'curriculum related."'

The Equal Access Act specifies that districts must allow students to form religious and political groups if they have created a "limited open forum" in their high schools, which it defines as allowing other groups that are not curriculum-related to meet.

The act was designed to clarify the rights of student groups to gather on high-school campuses, but has sparked numerous legal challenges leading to various federal court interpretations of its provisions.

Key is 'Curriculum Related'

In the Mergens case, the U.S. Court of Appeals for the Eighth Circuit ruled last year that officials at Westside High School in Omaha had created a limited open forum by allowing other groups, such as a chess club, to meet. (See Education Week, Feb. 22, 1989.)

The appellate court overturned a district court's ruling that the clubs in question--including scuba, civic, and the chess club--were curriculum related because they furthered the school's "mission and goals."

Allen E. Daubman, the lawyer for the Westside district, told the Justices that the Eighth Circuit Court's ruling should be overturned to protect "school officials' autonomy and discretion to make decisions."

The Court needs to balance three concerns, he said: the free-speech rights of students, the prohibition on government establishment of religion, and deference to school officials.

District officials exercised their discretion properly in permitting a chess club to meet, he said, because "they have chosen to treat it as part of the educational program of the school." Math teachers, he added, believe that chess is useful in helping students to develop the logical thinking skills needed to understand mathematical concepts.

"Your construction would enable any school district to avoid the act," Chief Justice William Rehnquist remarked.

"If a district were to blatantly" abuse this discretion, Mr. Daubman responded, "our trial courts are well able to see a sham when it exists."

Solicitor General Kenneth W. Starr, arguing on behalf of the federal government, said the district's "approach is inconsistent within the ordinary meaning of 'curriculum related,"' which he described as "the sum total of classes" offered by a district.

During Congressional debate on the Equal Access Act, he noted, "a chess club was considered quintessentially noncurricular."

Hypothetical Questions

Throughout the hour of argument, the Justices repeatedly raised questions about hypothetical clubs whose existence in a school might trigger the provisions of the Equal Access Act: Would a football team trigger the act if a school did not have an athletic curriculum? Would a French club trigger the act if no French courses were taught, or the school did not have a language department?

The Justices also raised hypothetical situations that might occur if the act is upheld.

Lawyers for both the students and the district acknowledged that the act would allow students in schools with limited open forums to form clubs advocating views ranging from communism to racial purity and satanism.

The Justices raised few questions related to the constitutionality of the act, and avoided exploring whether the potential for undue religious influence is greater in a high-school setting than it is at the college level, where students are older and not compelled to attend.

"I'm very pleased that the questions raised focused on implementation rather than the constitutionality of the act," said Mr. Sekulow after the arguments had ended.

But he also said he hoped the Court would find that students also have a right to meet and discuss religion under their basic constitutional freedoms of speech and association, to guard against the possibility that schools will eliminate all clubs found to trigger the provisions of the act.

A decision in the case is expected by July.

Other Action

In other action last week, the High Court granted the federal government the right to subpoena confidential documents used in making tenure decisions at colleges and universities when investigating claims of employment discrimination.

Several prominent universities and the American Association of University Professors had argued that allowing federal investigators access to the records would compromise academic freedom and discourage candid evaluations of tenure candidates.

But in a unanimous ruling in the case, University of Pennsylvania v. Equal Employment Opportunity Commission, (No. 88-493), the Court said educational institutions are not substantially different from other employers accused of employment discrimination, and are not entitled to any special protections.

The Justices also heard arguments in a case, Fort Stewart Schools v. Federal Labor Relations Authority, (No. 89-65), that questions whether employees at schools run by the Defense Department have the right to bargain collectively on salary issues.

The Federal Labor Relations Board interprets the Federal Service Labor Management Relations Act of 1978 to allow certain federal employees, including teachers, to include wages among the "working conditions" that such employees are permitted to negotiate.

But the Defense Department maintains that salaries and other money-related fringe benefits are not negotiable because another clause of the law allows federal agencies to retain the right to set their own budgets.

The High Court also declined to review several education-related cases, including Loftis v. Los Angeles Unified School District, (No. 89-667) in which the U.S. Court of Appeals for the Ninth Circuit held that the school district's informal affirmative-action policy did not benefit black males at the expense of white females.

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