Effects of Decision On Extracurriculars Raise Thorny Issues

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Educators throughout the country will likely spend some of their summer re-examining their schools' extracurricular activities in the wake of the U.S. Supreme Court ruling on the issue of equal access, school officials said last week.

Under the ruling, a school cannot discriminate against student organizations based on the religious, philosophical, or political views of their members if the school sanctions any student group not directly linked to coursework.

School officials acknowledged in interviews last week that the decision poses a host of potentially troubling questions, including:

Do such groups as drama clubs or cheerleading squads have to be eliminated to avoid the requirement that a Bible study group be allowed to meet?

Would the existence of a football team or other interscholastic sports squad be sufficient to create a "limited open forum" under the definition outlined by the High Court?

What happens when anti-abortion, neo-Nazi, gay rights, or other controversial groups seek access to school facilities along with students who wish to study the Bible?

"It is altogether possible this ruling will have a chilling effect on the openness you find in school systems," said Gary Marx, associate executive director of the American Association of School Administrators. "You may find school districts becoming much more cautious about their willingness to allow groups to meet in school."

"This decision has, to some extent, muscled community control of the schools from local administrators," he added.

While many school officials were dismayed by the Court's ruling in the case, Board of Education of the Westside Community Schools v. Mergens, conservative advocacy groups expressed elation.

"I think it is one of the most important freedom-of-religion cases in decades because some schools have been very adamant, even bigoted, against Bible clubs," said Robert K. Skolrood, executive director of the National Legal Foundation.

The Virginia-based organization provided the legal backing for the group of students at Omaha's Westside High School whose request in 1985 to form a Bible study group was denied by school officials, sparking the case decided by the Court last week.

Added Jay Alan Sekulow, general counsel of the Atlanta-based legal advocacy group Christian Advocates Serving Evangelism who argued the students' case before the High Court, "I think this sends a message to administrators that student free speech of a religious nature cannot be circumvented."

Impact on Pending Cases

The ruling will likely have an impact on a number of pending court cases, including ones in Dallas, Buffalo, N.Y., and Renton, Wash.

In the Dallas case, a federal judge ruled in 1987 against a high-school religious group whose meetings grew into revivals in which other students were proselytized.

In the New York case, a judge granted temporary permission to a student Bible group to meet at a high school after school officials had rejected the group's request to use school space.

And in the Washington case, the Supreme Court has agreed to hear the appeal of a student prayer group rebuffed at the federal district and appeals-court levels.

In light of the Mergens decision, Steven T. McFarland, a lawyer representing students in the Renton case, said he expects that the High Court will most likely vacate the ruling by the U.S. Court of Appeals for the Ninth Circuit and return it to the lower court.

"If there was any doubt before to the rights of religious speech of public high-school students," Mr. McFarland said, "there shouldn't be any doubt anymore."

Marc Stern, the legal director of the American Jewish Congress and a co-counsel to the Westside school board, said the Court's opinion "was a clear signal to lower courts that they want these cases decided in favor of students."

Officials for several conservative groups predicted last week that the ruling will lead to a dramatic increase in the number of student Bible groups at secondary schools.

In Omaha, classes at Westside High have ended for the year, so administrators and board members there will spend the summer evaluating the decision, Westside's principal, James Findley, said.

Bridget Mergens (now Mayhew), a senior in 1985 when she requested permission to establish a Bible study group with the same school recognition as other clubs, said she was pleased by the decision.

"But it's been so long and drawn out," she said, "it feels like a part of my life is gone."

She added that she hopes school officials are not "so anti-religious freedom that they close clubs" to avoid triggering the Equal Access Act.

Indeed, several educators predicted last week that many school officials will now try to figure out what they need to do to maintain a closed forum under the Supreme Court's decision.

"There is a very large middle ground" between what clubs would be considered curriculum-related and which ones would not, said Allen E. Daubman, a lawyer for the Westside district.

"There are going to be a lot of clubs on the borderline," he said. "To avoid the uncertainty, schools will either have to allow the forum to be open, or make the forum very narrow."

'Tough Decisions'

August W. Steinhilber, general counsel for the National School Boards Association, said that, under the Supreme Court ruling, high schools that do not currently allow student religious groups have three options.

At one extreme, he said, school officials can drop all extracurricular programs to ensure a closed forum. At the other extreme, they can open their doors to any student group.

"More likely," Mr. Steinhilber said, "is for a school board to say, 'We want to maintain a school system that is conducive to harmony and school spirit, and we do not want to encourage controversy, so we are only going to permit those groups which are directly related to the curriculum."'

"Then," he added, "they are going to have to make some tough decisions on what to include and not include."

While the Court's majority opinion provides a broad definition of what is curriculum-related--it even cites examples--the answers to many questions are left unclear, educators and legal experts said.

The Supreme Court said a chess club could not be considered curriculum-related just because it advances logic and critical-thinking skills involved in mathematics.

"But what if you spend one day talking about chess in class, does that make it curriculum-related?" asked Elliot M. Mincberg, the legal director for People for the American Way who has written extensively about the equal-access issue. "This decision is not going to resolve the issues about what is and isn't a limited open forum."

The area of interscholastic sports is potentially troublesome, Mr. Steinhilber said.

A school that started a soccer club as the forerunner of a full-fledged varsity soccer program would almost certainly trigger the Equal Access Act, he said.

Would a varsity football team or other interscholastic sports squad fail the Court's test of being curriculum-related? he asked. "It's very vague," he concluded.

Mr. Daubman, the lawyer for the Westside district, said, "I don't believe that, given the legislative history of the act, very many courts would hold that, just because you have a football team, you have a limited open forum under the act."

An Open Invitation?

Many educators fear that the ruling will serve as an open invitation for controversial groups to establish a presence on high-school campuses.

"When the Court says this is okay, people get ideas," said Mr. Stern of the American Jewish Congress. "This offers an opportunity to every nutty extremist group in the nation right now to come into the schools."

However, at least one education leader expressed optimism last week that the ruling would not have a disruptive impact on schools.

"I don't anticipate a lot of difficulty," said Ivan B. Gluckman, general counsel for the National Association of Secondary School Principals. "We hope school districts and their counsels do not overreact to this decision."

Besides the equal-access question, many educators and legal experts were reading last week's decision for clues to the Supreme Court's latest thinking on the First Amendment's ban on state establishment of religion and how it affects public schools.

"Many school administrators were looking to Mergens not just for the narrow issue of equal access, but for how the Establishment Clause would be applied," said Perry Zirkel, a professor of law and education at Lehigh University. "The lower courts are currently strictly applying the Establishment Clause."

However, he said, the diversity of opinions in the Mergens case appears to leave the issue ambiguous.

Nonetheless, some experts viewed the Mergens case as leading the Supreme Court toward a less strict view of the requirements of the Establishment Clause.

"It is obvious that the Rehnquist Court cares very little for the separation of church and state," said Robert L. Maddox, executive director of the Washington-based advocacy group Americans United for the Separation of Church and State.

Mr. Stern said he was concerned about the concurring opinion by Justice Anthony M. Kennedy, joined by Justice Antonin Scalia, which suggests a less stringent standard than currently used by the Court for evaluating state action respecting religion.

"That is plainly Scalia's view that the Establishment Clause doesn't mean as much as the Court has said in the past," Mr. Stern said. "There is no conservative majority yet with a unified vision of the Establishment Clause."

Vol. 09, Issue 38

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