School Religion Club Is Constitutional, Court Rules

By Mark Walsh — June 13, 1990 9 min read

Washington--Public high schools that accept federal aid must treat student religious groups on the same basis as other extracurricular clubs, the U.S. Supreme Court ruled last week.

By a vote of 8 to 1, the High Court held that the 1984 federal Equal Access Act--which was crafted primarily to open public high schools to student prayer groups--does not violate the First Amendment’s prohibition against government establishment of religion.

Excerpts on Pages 12-14

If a school sanctions even one student group that is not directly tied to coursework, the Court ruled, the law comes into play and the school cannot discriminate against other student organizations based on the religious, philosophical, or political views of their members.

The majority said its broad definition of the attributes of an extracurricular group “is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.”

“There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” wrote Justice Sandra Day O’Connor in a portion of the Court’s ruling that was backed by only three other Justices. “We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.”

Although a majority of Justices voted to uphold the act, that bloc splintered on two key issues: the legal standard by which to judge the law, and whether schools must take steps beyond those specified by the law to ensure that their recognition of a student religious group is not interpreted as an endorsement.

The decision in Board of Education of the Westside Community Schools v. Mergens (Case No. 88-1597) was hailed last week by conservative groups, who said it would go a long way toward eliminating “bigoted” attitudes toward Christian student groups in public high schools.

Education groups and advocates of strict separation of church and state worried, however, that it would create a host of new problems for the schools.

That view was apparently shared by the sole dissenter in the case, Justice John Paul Stevens, who wrote that the majority’s ruling produced “a patently bizarre result.”

School officials “might reasonably have difficulty figuring out whether a cheerleading squad or a pep club might trigger the Act’s application,” he contended.

Any legal test for making such a determination “will produce some hard cases,” he said, “but the Court’s test seems to produce nothing but hard cases.”

Case Background

The Mergens dispute began in January 1985, when students at an Omaha high school were denied permission to form a Christian group devoted to fellowship and Bible study. (See Education Week, April 18, 1990.)

The students filed suit arguing that their rights under the Equal Access Act had been violated. The law bars federally funded public high schools that have created a “limited open forum” for student expression by allowing “noncurriculum related” groups to meet before or after school hours from discriminating against “any students who wish to conduct a meeting ... on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”

The students contended that their school was covered by the law because it had sanctioned several extracurricular clubs on topics ranging from chess to scuba diving.

School officials countered that all their clubs were related in some way to the broad goals of the school curriculum. In addition, they maintained, the law itself violated the First Amendment.

A federal district judge ruled in favor of the Westside school district. The U.S. Court of Appeals for the Eighth Circuit reversed that decision last year, holding that the school had indeed created a limited open forum, triggering the Equal Access Act.

High Court’s Ruling

The Supreme Court affirmed the Eighth Circuit’s decision, but on an assortment of legal bases scattered among three separate opinions.

At its heart, the Mergens decision extended the High Court’s 1981 ruling in Widmar v. Vincent to high-school students. In Widmar, the Court ruled that public colleges must grant student religious groups the same access to facilities that is provided to other student organizations.

The crucial question in the Mergens case was how to define what kinds of clubs are related to the curriculum, and thus which clubs trigger the federal law.

Eight of the nine Justices rejected the Westside district’s argument for a broad definition of what constitutes a curriculum-related club.

“To the extent that petitioners contend that ‘curriculum related’ means anything remotely related to abstract educational goals, we reject that argument,” Justice O’Connor wrote. Instead, she said the term ‘“noncurriculum related student group’ is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school.”

“In our view,” Justice O’Connor wrote, “a student group directly relates to a school’s curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit.”

Justice O’Connor cited the example of a French club, which would be considered curriculum-related if the school offered a French course. A student government, she continued, would generally relate to the curriculum because it “addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school.’'

Groups organized around such topics as chess, stamp collecting, or community service, however, would most likely be considered noncurriculum-related, and thus their existence would create a limited open forum at the school requiring the accommodation of religious groups.

Justice O’Connor noted that the Equal Access Act does not limit the school’s authority to prohibit meetings that would interfere with the ''orderly conduct of educational activities” at school. She added that a district could escape the obligations of the act by tailoring its course offerings and extracurricular programs to fit the Court’s definition of what is curriculum related, or it could forego federal funding.

Justice O’Connor was joined in that part of the opinion by Chief Justice William H. Rehnquist and Justices Byron R. White, Harry A. Blackmun, Anthony M. Kennedy, and Antonin Scalia.

Marshall’s Concurrence

Justice Thurgood Marshall, in a concurring opinion joined by Justice William J. Brennan Jr., agreed that schools may not discriminate against student religious clubs if they have created a limited open forum. But he warned that they must take special care to avoid appearing to endorse the goals of such a club.

Westside High School makes “no effort to disassociate itself from the activities and goals of its student clubs,” Justice Marshall said. “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.”

Justice Marshall also noted that the high school, unlike the college setting in Widmar, lacked a “truly robust forum that includes the participation of more than one advocacy-oriented group.”

Thus, he said, the presence of a Christian Bible club “could provide a fertile ground for peer pressure.”

Justice Marshall suggested that to avoid the appearance of endorsing the religious club’s views, Westside school officials could stop encouraging student participation in clubs and “clarify that the clubs are not instrumentally related to the school’s overall mission.”

Another option, he said, would be to “affirmatively [disclaim] any endorsement of the Christian club.”

Stevens’ Dissent

In his dissenting opinion, Justice Stevens argued that said the majority’s interpretation of the Equal Access Act “leads to a sweeping intrusion by the federal government into the operation of our public schools” in the absence of Congressional intent “to divest local school districts of their power to shape the educational environment.”

Justice Stevens warned that if a school district wants to bar groups such as “the Ku Klux Klan and perhaps gay rights advocacy groups from its facilities,” it now must close its doors to groups that “are no more controversial than a grilled cheese sandwich.”

He even suggested that the majority opinion “makes every high school football program a borderline case, for while many schools teach football in physical education classes, they usually teach touch football or flag football, and the varsity team usually plays tackle football.’'

Constitutional Issue

Although a majority of the Court found common ground on the question of whether the Westside district had violated the Equal Access Act, it divided on the issue of which legal standard to use to determine whether the law itself was constitutional.

Justice O’Connor, joined by Justices Rehnquist, White, and Blackmun, found that the law passed the three-part test set by the Court in the 1971 case Lemon v. Kurtzman.

Under that rule, state action respecting religion must have a secular purpose, must not have the primary effect of advancing religion, and must not result in excessive government entanglement with religion.

Justice O’Connor wrote that although there is the possibility of peer pressure to join a student religious group, “there is little if any risk of official state endorsement or coercion where no formal classroom activities are involved and no school officials actively participate.”

In their concurring opinion, Justices Marshall and Brennan said they agreed with the plurality “that the Act as applied to Westside could withstand” the Lemon test.

But, they added, the plurality’s analysis “dismisses too lightly the distinctive pressures created by Westside’s highly structured environment.”

In a third concurring opinion, Justices Kennedy and Scalia abandoned the Lemon test in favor of a far less stringent standard.

Justice Kennedy found that the act withstood constitutional muster by passing either of two tests: It does not “give direct benefits to religion in such a degree that it in fact establishes a state religion or religious faith, or tends to do so,” and it does not “coerce any student to participate in any religious activity.”

“No constitutional violation occurs if the school’s action is based upon a recognition of the fact that membership in a religious club is one of many permissible ways for a student to further his or her own personal enrichment,” he wrote.

Justice Kennedy’s analysis stems from a line of cases in which the Court has upheld, under certain circumstances, the hiring of chaplains by state legislatures and the display of Nativity scenes on public property.

A version of this article appeared in the June 13, 1990 edition of Education Week as School Religion Club Is Constitutional, Court Rules