Westside Community Board v. Mergens
496 US 226 (Decided June 4, 1990)
Bill Long
In the wake of the 1981 Widmar decision, permitting use of campus facilities by religious groups in public universities under an "equal access" rationale, Congress passed the Equal Access Act in 1984 to apply the results of Widmar also to public secondary schools. At issue in this case were two things: (1) whether the action of the Westside (NE) School Board in denying a student religious group permission to meet on school premises during noninstructional time violated the Act and (2) whether the Act violated the Establishment Clause. The Court, in an 8-1 decision, upheld the Act and held also that it did not violate the First Amendment.
Relevant Provisions of the Act
In relevant part, the Act provided:
"It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings."
The Act further provided that such a "limited open forum" existed when a public school granted an opportunity for one or more "noncurriculum related students groups" to meet on school premises during noninstructional time (the Act further defined noninstructional only to mean before or after school) . Thus, if the public school allows even one "noncurriculum related student group" to meet, the Act requires it to allow other clubs to do the same and may not discriminate based on the content of their speech.
Applying the Act
A Christian student group was denied official school recognition as a school-approved group to meet after school hours at a public high school. The District Court upheld the denial because it examined the extracurricular clubs available to students at the school and concluded they were all curriculum-related, thus not triggering the provisions of the Act. The Eight Circuit Court reversed, holding that several existing student clubs were noncurriculum related, and that therefore the Christian club should have been allowed to organize and receive official school recognition. In addition, it rejected the claim that the Act violated the Establishment Clause.
With the issues so defined, Justice O'Connor, writing for the majority, needed to take a stab at defining the difference between a curriculum and noncurriculum related meeting. The Court concluded that if the activity "does not directly relate to the body of courses offered by the school," it is noncurricular. For example, the Court concluded that the school's scuba club and chess club were noncurricular activities. Thus, a Christian club had to be recognized as a student organization if students desired to organize one.
Then, with respect to the Establishment Clause issue, the Court held that the Act merely tried to extend the holding of Widmar to secondary school students. "We think the logic of Widmar applies with equal force to the Equal Access Act." After reviewing the three-fold Lemon test as refracted through Justice O'Connor's own "endorsement" test, the Court concluded that the Act had was a secular purpose and effect, and that it would not create excessive government entanglement with religion. Of importance to the Court was the observation that the school need not endorse everything that it does not censor; that is, to collapse the middle ground between endorsement and censorship did not comport with logic or experience.
Concurring and Dissenting
Two concurring and one dissenting opinion were filed. Justices Scalia and Kennedy, in concurrence, wanted to recast the test for compliance with the Establishment Clause from Lemon into their own two-pronged test: (1) whether the Act or action gives direct benefits to religion in such a degree that it in fact establishes or tends to establish a state religion, and (2) whether goverment coercion of students to participate is in view. Justices Marshall and Brennan, also concurring in the judgment, wanted to raise some orange (if not red) flags for the Westside District on the issue of apparent endorsement of religion when there was only one religious club at the school. That is, since the purpose of extracurricular activities was to further the mission of the school district, care had to be taken by the school to distance itself from the Club lest the impression be given that the school approved this particular brand of religion.
Finally, Justice Stevens penned a long dissent that focused on a potentially unintended effect of the statute. Since the Act forbade any kind of content discrmination of student speech as long as there was any other approved noncurricular student group, this would mean that school districts were powerless to prevent groups from forming whose message was antithetical to the basic message of American education today. That is, nothing in the Court's interpretation would forbid Ku Klux Klan student groups or Young Communists from meeting under the official auspices of the district.
Copyright © 2004-2007 William R. Long |