Marshall’s Concurrence

June 13, 1990 7 min read

Justice Marshall, with whom Justice Brennan joins, concurring in the judgment.

... The Act’s low threshold for triggering equal access ... raises serious Establishment Clause concerns where secondary schools with fora that differ substantially from the forum in Widmar are required to grant access to student religious groups. Indeed, as applied in the present case, the Act mandates a religious group’s access to a forum that is dedicated to promoting fundamental values and citizenship as defined by the school. The Establishment Clause does not forbid the operation of the Act in such circumstances, but it does require schools to change their relationship to their fora so as to disassociate themselves effectively from religious clubs’ speech. Thus, although I agree with the plurality that the Act as applied to Westside could withstand Establishment Clause scrutiny, I write separately to emphasize the steps Westside must take to avoid appearing to endorse the Christian club’s goals. The plurality’s Establishment Clause analysis pays inadequate attention to the differences between this case and Widmar and dismisses too lightly the distinctive pressures created by Westside’s highly structured environment.


This case involves the intersection of two First Amendment guarantees--the Free Speech Clause and the Establishment Clause. We have long regarded free and open debate over matters of controversy as necessary to the functioning of our constitutional system. ...

But the Constitution also demands that the state not take action that has the primary effect of advancing religion. The introduction of religious speech into the public schools reveals the tension between these two constitutional commitments, because the failure of a school to stand apart from religious speech can convey a message that the school endorses rather than merely tolerates that speech. Recognizing the potential dangers of school-endorsed religious practice, we have shown particular “vigilan[ce] in monitoring compliance with the Establishment Clause in elementary and secondary schools.” This vigilance must extend to our monitoring of the actual effects of an “equal access” policy. If public schools are perceived as conferring the imprimatur of the state on religious doctrine or practice as a result of such a policy, the nominally “neutral” character of the policy will not save it from running afoul of the Establishment Clause.


... The plurality suggests that our conclusion in Widmar controls this case. But the plurality fails to recognize that the wide-open and independent character of the student forum in Widmar differs substantially from the forum at Westside.

Westside currently does not recognize any student club that advocates a controversial viewpoint. ... As a matter of school policy, Westside encourages student participation in clubs based on a broad conception of its educational mission. ... Given the nature and function of student clubs at Westside, the school makes no effort to disassociate itself from the activities and goals of its student clubs.

The entry of religious clubs into such a realm poses a real danger that those clubs will be viewed as part of the school’s effort to inculcate fundamental values. The school’s message with respect to its existing clubs is not one of toleration but one of endorsement. ... But although a school may permissibly encourage its students to become well-rounded as student-athletes, student-musicians, and student-tutors, the Constitution forbids schools to encourage students to become well-rounded as student-worshippers. ...

... [T]he crucial question is how the Act affects each school. If a school already houses numerous ideological organizations, then the addition of a religion club will most likely not violate the Establishment Clause because the risk that students will erroneously attribute the views of the religion club to the school is minimal. ... But if the religion club is the sole advocacy-oriented group in the forum, or one of a very limited number, and the school continues to promote its student-club program as instrumental to citizenship, then the school’s failure to disassociate itself from the religious activity will reasonably be understood as an endorsement of that activity. ...

Thus, the underlying difference between this case and Widmar is not that college and high school students have varying capacities to perceive the subtle differences between toleration and endorsement, but rather that the University of Missouri and Westside actually choose to define their respective missions in different ways. That high schools tend to emphasize student autonomy less than universities may suggest that high school administrators tend to perceive a difference in the maturity of secondary and university students. But the school’s behavior, not the purported immaturity of high school students, is dispositive. If Westside stood apart from its club program and expressed the view ... that high school students are capable of engaging in wide-ranging discussion of sensitive and controversial speech, the inclusion of religious groups in Westside’s forum would confirm the school’s commitment to nondiscrimination. Here, though, the Act requires the school to permit religious speech in a forum explicitly designed to advance the school’s interest in shaping the character of its students.

... If a school has a variety of ideological clubs, as in Widmar, I agree with the plurality that a student is likely to understand that “a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” When a school has a religion club but no other political or ideological organizations, however, that relatively fine distinction may be lost.

Moreover, in the absence of a truly robust forum that includes the participation of more than one advocacy-oriented group, the presence of a religious club could provide a fertile ground for peer pressure, especially if the club commanded support from a substantial portion of the student body. Indeed, it is precisely in a school without such a forum that intolerance for different religious and other views would be most dangerous and that a student who does not share the religious beliefs of his classmates would perceive “that religion or a particular religious belief is favored or preferred.”

... When the government, through mandatory attendance laws, brings students together in a highly controlled environment every day for the better part of their waking hours and regulates virtually every aspect of their existence during that time, we should not be so quick to dismiss the problem of peer pressure as if the school environment had nothing to do with creating and fostering it. The state has structured an environment in which students holding mainstream views may be able to coerce adherents of minority religions to attend club meetings or to adhere to club beliefs. Thus, the state cannot disclaim its responsibility for those resulting pressures.


Given these substantial risks posed by the inclusion of the proposed Christian club within Westside’s present forum, Westside must redefine its relationship to its club program. ...

Westside thus must do more than merely prohibit faculty members from actively participating in the Christian club’s meetings. It must fully disassociate itself from the club’s religious speech and avoid appearing to sponsor or endorse the club’s goals. It could, for example, entirely discontinue encouraging student participation in clubs and clarify that the clubs are not instrumentally related to the school’s overall mission. Or, if the school sought to continue its general endorsement of those student clubs that did not engage in controversial speech, it could do so if it also affirmatively disclaimed any endorsement of the Christian club.


The inclusion of the Christian club in the type of forum presently established at Westside, without more, will not assure government neutrality toward religion. Rather, because the school endorses the extracurricular program as part of its educational mission, the inclusion of the Christian club in that program will convey to students the school-sanctioned message that involvement in religion develops “citizenship, wholesome attitudes, good human relations, knowledge and skills.” We need not question the value of that message to affirm that it is not the place of schools to issue it. Accordingly, schools such as Westside must be responsive not only to the broad terms of the Act’s coverage, but also to this Court’s mandate that they effectively disassociate themselves from the religious speech that now may become commonplace in their facilities.

A version of this article appeared in the June 13, 1990 edition of Education Week as Marshall’s Concurrence