Courts Provide Schools With Little Guidance on 'Outsider Access'

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Schools seeking guidance in dealing with "outsider access"--the question of whether individuals from religious organizations may come onto public-school campuses during school hours to promote their faiths--will find little help in the law.

Two bills that would give outside religious groups the right to meet in public schools have been introduced in the Congress, but neither has yet come to the floor for a vote. No state, apparently, has enacted or even seriously considered legislation aimed at clarifying the issue. And while federal courts have addressed some related questions, they have yet to rule directly on the rights of schools, students, and religious-group representatives in this context.

"We're still waiting for the definitive case on this issue," said James C. Smart, a consultant to the Christian Legal Society, a national evangelical organization that monitors religious-rights issues. "I expect it will come up soon."

Outsider access differs from other, more widely publicized issues concerning religion in public schools in that it involves individuals--not groups--who have no formal meetings scheduled but simply want the chance to talk informally about their religion with students in places like hallways or lunchrooms. It also often involves the issue of using school facilities, such as public-address systems and bulletin boards, for publicity purposes.

Traditionally, school officials have reserved the right to decide who could come in. Most schools require visitors to obtain the principal's permission to visit individual students.

Nonetheless, court decisions on separate but related issues--such as the right of outside religious groups to hold meetings on school property and the right of student-run religious clubs to meet during school hours--bear indirectly on the issue, lawyers say. The most basic of these are:

The 1947 U.S. Supreme Court decision in Everson v. Board of Education, which interpreted the First Amendment to pertain to "local government entities" such as school boards;

The School District of Abington Township v. Schempp decision of 1963, in which the Court delved further into the application of the First Amendment and defined a three-part test for judging whether a religion is being promoted or restricted in a school. The three guidelines ask: What is the purpose of the activity? Is it a secular one?; What is the primary effect of the activity? Does the activity either advance or inhibit religion?; and, Does the activity involve excessive entanglement with a religion, a religious group, or between the schools and a religious organization?

These guidelines form the basis of new school-board policies on this issue now being drawn up in Colorado and Minnesota.

The recent appearance of fundamentalist religious visitors on public-school campuses can in part be traced to the Everson case and McCollum v. Board of Education, a similar case decided by the Court in 1948 that specifically said that public-school employees may not take part in religious instruction, according to Samuel Ericsson, a lawyer with the Christian Legal Society.

As a result, he said, evangelical groups began looking for ways to carry out their mission without involving school employees.

"People felt there had to be some way to support the faith in the schools," Mr. Ericsson explained. Groups such as Billy Graham's Youth for Christ held mass rallies for high-school-age students, and Bible clubs multiplied, he said.

The Schempp decision also fundamentally affected the youth ministries, Mr. Ericsson continued. The groups redesigned their approach to students and sent in trained youth ministers who sought informal one-on-one visits with students in cafeterias and locker rooms; they also increased evening sessions off campus.

Court decisions on the related issue of students' right to free speech have also influenced--and muddied--the outsider-access issue, says Mr. Smart of the Christian Legal Society.

In Tinker v. Des Moines Independent School District (1969), the U.S. Supreme Court ruled that students had the right to wear armbands protesting the Vietnam War so long as the practice did not disrupt the educational process. Some argue that this ruling extends to students' discussions of religious subjects during the school day as long as regular school programs are not disrupted and the rights of others are not curtailed.

A subsequent series of lower-court decisions held that the right of free speech also includes the right to hear, said Mr. Smart. He predicted this line of cases may influence the outcome of the "outsider" debate.

Lawyers on the side of evangelical groups also hope that another line of free-speech cases, concerning the right of religious groups to meet on school premises, will be interpreted as authorizing the presence of youth ministers in schools.

In one such recent case, Bender v. Williamsport Area School District, a federal district judge supported the right of students to hold meetings of student-sponsored religious clubs in high schools during school hours. If the ruling is upheld on appeal, outsiders' access to students to talk informally about religion on campus may be more firmly established, said Mr. Ericsson.

The 1981 case, Widmar v. Vincent, may take the issue in a different direction, however. In that case, which involved a campus prayer group at the University of Missouri, the Supreme Court upheld the students' right to hold a prayer meeting on campus grounds.

But a footnote to the decision said that "university students are, of course, young adults." That language has been interpreted by many to mean that the Court would apply a different standard for high-school students.--ha

Vol. 03, Issue 08

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