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U.S.
Supreme Court
WESTSIDE
COMMUNITY BD. OF ED. v. MERGENS, 496 U.S. 226 (1990)
496 U.S. 226 BOARD
OF EDUCATION OF THE WESTSIDE COMMUNITY SCHOOLS (DIST. 66) ET AL. Westside
High School, a public secondary school that receives federal financial
assistance, permits its students to join, on a voluntary basis, a number of
recognized groups and clubs, all of which meet after school hours on school
premises. Citing the Establishment Clause and a School Board policy requiring
clubs to have faculty sponsorship, petitioner school officials denied the
request of respondent Mergens for permission to form a Christian club that would
have the same privileges and meet on the same terms and conditions as other
Westside student groups, except that it would have no faculty sponsor. After the
Board voted to uphold the denial, respondents, current and former Westside
students, brought suit seeking declaratory and injunctive relief. They alleged,
inter alia, that the refusal to permit the proposed club to meet at Westside
violated the Equal Access Act, which prohibits public secondary schools that
receive federal assistance and that maintain a "limited open forum" from
denying "equal access" to students who wish to meet within the forum on the
basis of the "religious, political, philosophical, or other content" of the
speech at such meetings. In reversing the District Court's entry of judgment
for petitioners, the Court of Appeals held that the Act applied to forbid
discrimination against respondents' proposed club on the basis of its
religious content, and that the Act did not violate the Establishment Clause. Held:
The
judgment is affirmed. 867
F.2d 1076, affirmed. JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that petitioners violated the Equal Access Act by denying official recognition to respondents' proposed club. Pp. 234-247. JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE BLACKMUN, concluded in Part III that the Equal Access Act does not, on its face and as applied to Westside, contravene the Establishment Clause. The logic of Widmar v. Vincent, 454 U.S. 263, 271 -275 - which applied the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612 -613, to hold that an "equal access" policy, at the state university level, does not violate the Clause - applies with equal force to the Act. Pp. 247-253. [496 U.S. 226, 228] (a) Because the Act on its face grants equal access to both secular and religious speech, it meets the secular purpose prong of the test. P. 248-249. (b) The Act does not have the primary effect of advancing religion. There is a crucial difference between government and private speech endorsing religion, and, as Congress recognized in passing the Act, high 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. Moreover, the Act expressly limits participation by school officials at student religious group meetings and requires that such meetings be held during "non-instructional time," and thereby avoids the problems of the students' emulation of teachers as role models and mandatory attendance requirements that might otherwise indicate official endorsement or coercion. Although the possibility of student peer pressure remains, there is little if any risk of government endorsement or coercion where no formal classroom activities are involved and no school officials actively participate. Pp. 249-252. (c) Westside does not risk excessive entanglement between government and religion by complying with the Act, since the Act's provisions prohibit faculty monitors from participating in, non-school persons from directing, controlling, or regularly attending, and school "sponsorship" of, religious meetings. Indeed, a denial of equal access might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which it might occur. Pp. 252-253. JUSTICE
O'CONNOR delivered the opinion of the Court, except as to Part III. This
case requires us to decide whether the Equal Access Act, 98 Stat. 1302, 20 U.S.C.
4071-4074, prohibits Westside High School from denying a student religious group
permission to meet on school premises during non-instructional time, and if so,
whether the Act, so construed, violates the Establishment Clause of the First
Amendment. . . . II,
A
In
Widmar v. Vincent, supra, we invalidated, on free speech grounds, a state
university regulation that prohibited [496 U.S. 226, 235]
student use
of school facilities "`for purposes of religious worship or religious
teaching.'" Id., at 265. In doing so, we held that an "equal access"
policy would not violate the Establishment Clause under our decision in Lemon v.
Kurtzman, 403
U.S. 602, 612 -613 (1971). In particular, we held that such a policy would
have a secular purpose, would not have the primary effect of advancing religion,
and would not result in excessive entanglement between government and religion.
Widmar, 454
U.S., at 271 -274. We noted, however, that "[u]niversity students are, of
course, young adults. They are less impressionable than younger students and
should be able to appreciate that the University's policy is one of neutrality
toward religion." Id., at 274, n. 14. In
1984, Congress extended the reasoning of Widmar to public secondary schools.
Under the Equal Access Act, a public secondary school with a "limited open
forum" is prohibited from discriminating against students who wish to conduct
a meeting within that forum on the basis of the "religious, political,
philosophical, or other content of the speech at such meetings." 20 U.S.C.
4071(a) and (b). Specifically, the Act provides: "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." 4071(a). A "limited open forum" exists whenever a public secondary school "grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." 4071(b). "Meeting" is defined to include "those activities of student groups which are permitted under a school's limited open forum and are not directly related to the school curriculum." 4072(3). [496 U.S. 226, 236] "Noninstructional time" is defined to mean "time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends." 4072(4). Thus, even if a public secondary school allows only one "noncurriculum related student group" to meet, the Act's obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time. . . . III
Petitioners
contend that even if Westside has created a limited open forum within the
meaning of the Act, its denial of official recognition to the proposed Christian
club must nevertheless stand because the Act violates the Establishment Clause
of the First Amendment, as applied to the States through the Fourteenth
Amendment. Specifically, petitioners maintain that because the school's
recognized student activities are an integral part of its educational mission,
official recognition of respondents' proposed club would effectively
incorporate religious activities into the school's official program, endorse
participation in the religious club, and provide [496 U.S. 226,
248] the
club with an official platform to proselytize other students. We
disagree. In Widmar, we applied the three-part Lemon test to hold that an "equal access" policy, at the university level, does not violate the
Establishment Clause. See 454
U.S., at 271 -275 (applying Lemon, 403
U.S., at 612 -613). We concluded that "an open-forum policy, including
nondiscrimination against religious speech, would have a secular purpose," 454
U.S., at 271 (footnotes omitted), and would in fact avoid entanglement with
religion. See id., at 272, n. 11 ("[T]he University would risk greater
`entanglement' by attempting to enforce its exclusion of `religious worship'
and `religious speech'"). We also found that although incidental benefits
accrued to religious groups who used university facilities, this result did not
amount to an establishment of religion. First, we stated that a university's
forum does not "confer any imprimatur of state approval on religious sects or
practices." Id., at 274. Indeed, the message is one of neutrality rather than
endorsement; if a State refused to let religious groups use facilities open to
others, then it would demonstrate not neutrality but hostility toward religion. "The Establishment Clause does not license government to treat religion and
those who teach or practice it, simply by virtue of their status as such, as
subversive of American ideals and therefore subject to unique disabilities."
McDaniel v. Paty, 435
U.S. 618, 641 (1978) (BRENNAN, J., concurring in judgment). Second, we noted
that "[t]he [University's] provision of benefits to [a] broad . . . spectrum
of groups" - both nonreligious and religious speakers - was "an important
index of secular effect." 454
U.S., at 274 . We
think the logic of Widmar applies with equal force to the Equal Access Act. As
an initial matter, the Act's prohibition of discrimination on the basis of "political, philosophical, or other" speech as well as religious speech is a
sufficient basis for meeting the secular purpose prong of the Lemon test. See
Edwards v. Aguillard, 482
U.S. 578, 586 (1987) [496 U.S. 226, 249] (Court
"is normally deferential to a [legislative] articulation of a secular
purpose"); Mueller v. Allen, 463
U.S. 388, 394 -395 (1983) (Court is "reluctan[t] to attribute
unconstitutional motives to the States, particularly when a plausible secular
purpose for the State's program may be discerned from the face of the
statute"). Congress' avowed purpose - to prevent discrimination against
religious and other types of speech - is undeniably secular. See Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483
U.S. 327, 335 -336 (1987); Committee for Public Education & Religious
Liberty v. Nyquist, 413
U.S. 756, 773 (1973). Cf. 42 U.S.C. 2000e-2(a) (prohibiting employment
discrimination on grounds of race, color, religion, sex, or national origin).
Even if some legislators were motivated by a conviction that religious speech in
particular was valuable and worthy of protection, that alone would not
invalidate the Act, because what is relevant is the legislative purpose of the
statute, not the possibly religious motives of the legislators who enacted the
law. Because the Act on its face grants equal access to both secular and
religious speech, we think it clear that the Act's purpose was not to "`endorse or disapprove of religion,'" Wallace v. Jaffree, 472
U.S. 38, 56 (1985) (quoting Lynch v. Donnelly, 465
U.S. 668, 690 (1984) (O'CONNOR, J., concurring)). Petitioners'
principal contention is that the Act has the primary effect of advancing
religion. Specifically, petitioners urge that, because the student religious
meetings are held under school aegis, and because the State's compulsory
attendance laws bring the students together (and thereby provide a ready-made
audience for student evangelists), an objective observer in the position of a
secondary school student will perceive official school support for such
religious meetings. See County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492
U.S. 573, 593 (1989) (Establishment Clause inquiry is whether the government
"`convey[s] or attempt[s] to convey a message that religion or [496
U.S. 226, 250] a
particular religious belief is favored or preferred'") (quoting Wallace v.
Jaffree, supra, at 70 (O'CONNOR, J., concurring in part and concurring in
judgment)). We
disagree. First, although we have invalidated the use of public funds to pay for
teaching state-required subjects at parochial schools, in part because of the
risk of creating "a crucial symbolic link between government and religion,
thereby enlisting - at least in the eyes of impressionable youngsters - the
powers of government to the support of the religious denomination operating the
school," School Dist. of Grand Rapids v. Ball, 473
U.S. 373, 385 (1985), 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. 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. Cf. Tinker v. Des Moines
Independent Community School Dist., 393
U.S. 503 (1969) (no danger that high school students' symbolic speech
implied school endorsement); West Virginia State Bd. of Ed. v. Barnette, 319
U.S. 624 (1943) (same). See generally Note, 92 Yale. L. J. 499, 507-509
(1983) (summarizing research in adolescent psychology). The proposition that
schools do not endorse everything they fail to censor is not complicated. "[P]articularly in this age of massive media information . . . the few years
difference in age between high school and college students [does not] justif[y]
departing from Widmar." Bender v. Williamsport Area School Dist., 475
U.S. 534, 556 (1986) (Powell, J., dissenting). Indeed,
we note that Congress specifically rejected the argument that high school
students are likely to confuse an equal access policy with state sponsorship of
religion. See S. Rep. No. 98-357, p. 8 (1984); id., at 35 ("[S]tudents below
the college level are capable of distinguishing between State-initiated, school
sponsored, or teacher-led religious [496 U.S. 226, 251]
speech on
the one hand and student-initiated, student-led religious speech on the
other"). Given the deference due "the duly enacted and carefully considered
decision of a coequal and representative branch of our Government," Walters v.
National Assn. of Radiation Survivors, 473
U.S. 305, 319 (1985); see also Rostker v. Goldberg, 453
U.S. 57, 64 (1981), we do not lightly second-guess such legislative
judgments, particularly where the judgments are based in part on empirical
determinations. Second,
we note that the Act expressly limits participation by school officials at
meetings of student religious groups, 4071(c)(2) and (3), and that any such
meetings must be held during "noninstructional time," 4071(b). The Act
therefore avoids the problems of "the students' emulation of teachers as
role models" and "mandatory attendance requirements," Edwards v. Aguillard,
482
U.S., at 584 ; see also Illinois ex rel. McCollum v. Board of Ed. of School
Dist. No. 71, Champaign County, 333
U.S. 203, 209 -210 (1948) (release time program invalid where students were "released in part from their legal duty [to attend school] upon the condition
that they attend the religious classes"). To be sure, the possibility of
student peer pressure remains, but 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. Moreover, petitioners' fear of a
mistaken inference of endorsement is largely self-imposed, because the school
itself has control over any impressions it gives its students. To the extent a
school makes clear that its recognition of respondents' proposed club is not
an endorsement of the views of the club's participants, see Widmar, 454
U.S., at 274 , n. 14 (noting that university student handbook states that
the university's name will not be identified with the aims, policies, or
opinions of any student organization or its members), students will reasonably
understand that the school's official recognition of the club evinces
neutrality toward, rather than endorsement of, religious speech. [496
U.S. 226, 252] Third,
the broad spectrum of officially recognized student clubs at Westside, and the
fact that Westside students are free to initiate and organize additional student
clubs, see App. 221-222, counteract any possible message of official endorsement
of or preference for religion or a particular religious belief. See Widmar, 454
U.S., at 274 ("The provision of benefits to so broad a spectrum of groups
is an important index of secular effect"). Although a school may not itself
lead or direct a religious club, a school that permits a student-initiated and
student-led religious club to meet after school, just as it permits any other
student group to do, does not convey a message of state approval or endorsement
of the particular religion. Under the Act, a school with a limited open forum
may not lawfully deny access to a Jewish students' club, a Young Democrats
club, or a philosophy club devoted to the study of Nietzsche. To the extent that
a religious club is merely one of many different student-initiated voluntary
clubs, students should perceive no message of government endorsement of
religion. Thus, we conclude that the Act does not, at least on its face and as
applied to Westside, have the primary effect of advancing religion. See id., at
275 ("At least in the absence of empirical evidence that religious groups will
dominate [the university's] open forum, . . . the advancement of religion
would not be the forum's `primary effect'"). Petitioners'
final argument is that by complying with the Act's requirements, the school
risks excessive entanglement between government and religion. The proposed club,
petitioners urge, would be required to have a faculty sponsor who would be
charged with actively directing the activities of the group, guiding its
leaders, and ensuring balance in the presentation of controversial ideas.
Petitioners claim that this influence over the club's religious program would
entangle the government in day-to-day surveillance of religion of the type
forbidden by the Establishment Clause. [496 U.S. 226, 253]
Under
the Act, however, faculty monitors may not participate in any religious
meetings, and nonschool persons may not direct, control, or regularly attend
activities of student groups. 4071(c)(3) and (5). Moreover, the Act prohibits
school "sponsorship" of any religious meetings, 4071(c)(2), which means that
school officials may not promote, lead, or participate in any such meeting,
4072(2). Although the Act permits "[t]he assignment of a teacher,
administrator, or other school employee to a meeting for custodial purposes,"
ibid., such custodial oversight of the student-initiated religious group, merely
to ensure order and good behavior, does not impermissibly entangle government in
the day-to-day surveillance or administration of religious activities. See Tony
and Susan Alamo Foundation v. Secretary of Labor, 471
U.S. 290, 305 -306 (1985). Indeed, as the Court noted in Widmar, a denial of
equal access to religious speech might well create greater entanglement problems
in the form of invasive monitoring to prevent religious speech at meetings at
which such speech might occur. See 454
U.S., at 272 , n. 11. Accordingly,
we hold that the Equal Access Act does not on its face contravene the
Establishment Clause. Because we hold that petitioners have violated the Act, we
do not decide respondents' claims under the Free Speech and Free Exercise
Clauses. For the foregoing reasons, the judgment of the Court of Appeals is
affirmed. |
