MICHAEL BENDER, ET AL., PETITIONERS V. WILLIAMSPORT AREA SCHOOL
DISTRICT, ET AL.

   No. 84-773

   In the Supreme Court of the United States

   October Term, 1984

   On writ of certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the United States as amicus curiae supporting petitioners

           TABLE OF CONTENTS
   Interest of the United States
   Statement
   Introduction and summary of argument
   Argument:
      The Establishment Clause does not require public
      school authorities to exclude a voluntary, student-initiated
      and student-run religious club from an activities period
      during which other student groups are permitted to meet
      A. The Establishment Clause does not authorize the
         government to single out religious speech and
         association for direct discriminatory prohibition
      B. The presumed greater impressionability of high
         school students is not a basis for permitting
         discrimination against religious speech
      C. There is no other basis for distinguishing this
         Court's decision in Widmar v. Vincent
         1. Compulsory attendance laws
         2. Location of the meetings
         3. Presence of adult monitor
         4. Excessive entanglement
   Conclusion

                          QUESTION PRESENTED

   Whether a public high school violates the Establishment Clause if
it permits a voluntary student religious club to meet on school
property during a student activities period in which all other
voluntary student groups are permitted to meet.

                     INTEREST OF THE UNITED STATES

   The question in this case is whether the First Amendment requires a
public high school to exclude a voluntary student religious club from
meeting on school property during a student activities period in which
all other voluntary student groups are permitted to meet.  The
interest of the United States arises from recent congressional
legislation addressing this issue.

   After extensive hearings and debate, the Equal Access Act (Pub. L.
No. 98-377, Tit. VIII, 98 Stat. 1302 et seq.) (set forth in full at
Pet. App. 113a-115a) was passed by the Congress and signed by the
President on August 11, 1984.  The Act makes it unlawful for any
public secondary school receiving federal aid and having a "limited
open forum" to deny access to students who wish to conduct a meeting,
on the basis of the "religious, political, philosophical, or other
content of the speech at such meetings." See pages 6-7, infra.  The
court of appeals, in contrast, held that for a public high school to
allow a voluntary religious club to meet on school premises during a
student activities period would violate the Establishment Clause.  If
allowed to stand, the decision of the court of appeals would thus cast
doubt on the constitutionality of the Equal Access Act.  /1/ While the
constitutional holding of the court of appeals might be limited to
meetings conducted during the hours of compulsory school attendance
(see Pet. App. 28a, 43a), the reasoning of the court on the central
question -- whether high school students are capable of distinguishing
between a neutral forum and official endorsement of religion -- would
be difficult so to confine.  /2/ Thus, although this case was brought
(and the decision below rendered) before the Equal Access Act was
enacted, /3/ the court of appeals' reasoning would suggest that
implementation of the Act in most situations would be unconstitutional

                               STATEMENT

   1. Williamsport Area High School is located on a 147-acre campus,
more than a mile from the nearest residence (J.A. 70).  Most students
are bused to the school (J.A. 68-69).  The school day starts at 7:45
a.m., with a 12-minute homeroom period, during which attendance is
taken and announcements made (J.A. 102).

   On Tuesdays and Thursdays, the opening homeroom period is followed
by a 30-minute period for extracurricular student activities (Pet.
App. 69a n.5).  During this time, students may attend student club
meetings, study in the library, visit the computer station, examine
career or college placement materials, or stay in their homerooms (id.
at 7a-8a).  The student clubs that meet during this activities period
are entirely voluntary (id. at 8a).  There is no written policy
concerning what type of club may be allowed to meet.  However, the
principal stated that he would permit any lawful club that would
"contribute to the intellectual, physical or social development of the
students" (id. at 9a;  J.A. 104).  This principal has served since
1974;  in his memory, no student club had ever been denied permission
to meet, until this case (Pet. App. 8a;  J.A. 102-104).

   This case arose out of a request by students at the school to form
a club for the purpose of meeting to read and discuss the Bible and to
pray.  The club (called "Petros") agreed not to publicize its meetings
through the school's public address system, bulletin board, or
newspaper.  Pet. App. 33a.  The club initially was allowed to meet
during the activities period.  The first meeting was attended by 45
students (out of a student body of 2,500).  Id. at 4a-6a, 68a-71a;
J.A. 53.  In accordance with school policy, a teacher was present
during the meeting, took attendance, and thereafter sat in the room
grading papers (Pet. App. 9a-10a, 69a-70a).  After the first meeting,
the school superintendent obtained an opinion of counsel to the effect
that allowing the club to meet on school property would violate the
Establishment Clause.  On this basis, the superintendent denied the
club further permission to meet during the activities period.  J.A.
39-40, 92-93.  The students were offered the alternative of released
time during which they could conduct their meetings away from school
property.  Pet. App. 71a-72a.  While the record does not show why they
declined this alternative, it was obviously impractical in view of the
location of the school (over a mile from the nearest residence) and
the brief duration of the activities period (30 minutes).

   The superindendent's decision was affirmed by respondent School
Board (Pet. App. 72a).  The Board's action was based solely on advice
of counsel that "(p)resent law simply does not permit public schools
to authorize or support religious activities on school property" (id.
at 6a;  J.A. 48-49).  The Board has never suggested any programmatic,
disciplinary, or educational reason for excluding the group.  The
school principal specifically stated that he did not think the group
would be disruptive.  J.A. 84.

   2. The students then brought this action for declaratory and
injunctive relief against the School Board and its members, in both
their individual and official capacities (J.A. 13).  Relying on Widmar
v. Vincent, 454 U.S. 263 (1981), the district court held that the high
school had created a "limited public forum" by establishing an
activities period open to any legitimate student activity, and
rejected the Board's argument that allowing Petros to meet would
violate the Establishment Clause.  Since this was the only rationale
for the exclusion, the district court concluded that under the First
Amendment this "content-based decision to exclude subject matter"
could not stand.  Pet. App. 81a-82a.  /4/

   After the district court decision, respondent School Board decided
to comply with the decision and not to appeal.  Respondent John C.
Youngman, Jr., a member of the Board and parent of children attending
Williamsport High School, appealed.  /5/ A divided panel of the court
of appeals reversed.  While agreeing that the school had created a
limited public forum in its activities period, and thus that the
students had a "valid first amendment interest to engage in their
proposed activity" (Pet. App. 20a-21a), the court "balanc(ed) the
respective constitutional interests (free speech and nonestablishment)
which would be lost and gained if Petros were granted access to the
activity period" (id. at 42a), and concluded that "there is a greater
vindication of the protections of the Constitution of the
Establishment Clause prevailed in this instance" (id. at 43a).

   As a result of the court of appeals' decision, the School Board has
reverted to its former policy of denying the students the right to
participate in the activities period (Pet. App. 109a-110a).

   3. Within a few weeks after the court of appeals' decision,
Congress passed the Equal Access Act, Pub. L. No. 98-377, Tit. VIII,
98 Stat. 1302 et seq. (see Pet. App. 113a-115a).  The purpose of the
Act was to "clarify and confirm" the First Amendment rights of high
school students in this context, and thereby "resolve the dilemma"
school administrators believed they faced in reconciling the
assertedly conflicting demands of free speech and nonestablishment.
S. Rep. 98-357, 98th Cong., 2d Sess. 3, 21 (1984).  Supporters of the
Act in Congress relied heavily on the district court decision in the
instant case (id. at 7;  H.R. Rep. 98-710, 98th Cong., 2d Sess. 3, 5
(1984)), /6/ and the factual circumstances of this case were used as
an example of the need for legislation (see, e.g., id. at 5).

   The Act prohibits public schools receiving federal financial
assistance from "deny(ing) equal access or a fair opportunity to, or
discriminat(ing) against, any students who wish to conduct a meeting"
with a "limited open forum" established by the school, on the basis of
"the religious, political, philosophical, or other content of the
speech at such meetings." "Limited open forum" is defined as granting
access for noncurriculum-related student groups to meet on school
premises "during noninstructional time," which is defined as "time set
aside by the school before actual classroom instruction begins or
after actual classroom instruction ends." The school is "deemed to
offer a fair opportunity to students" if it provides, on a uniform
basis, that meetings be "voluntary and student-initiated";  that there
be "no sponsorship of the meeting by the school";  that "employees or
agents of the school or government (may be) present at religious
meetings only in a nonparticipatory capacity";  and that "nonschool
persons may not direct, conduct, control, or regularly attend" such
meetings.  Sections 802, 803, 98 Stat. 1302, 1303.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The premise of the decision below is that the various component
freedoms protected by the First Amendment -- free speech and
nonestablishment most particularly, free exercise and free association
by implication -- are in conflict and require judicial "balancing."
The court determined that petitioners' free speech rights are
outweighed by the Establishment Clause.  We submit that, properly
viewed, these components of the First Amendment do not generate the
conflict that so troubled the court below.  If the scope and meaning
of the clauses of the First Amendment are more precisely conceived,
there is no need to "balance" the "competing interests protected by
each constitutional provision" (Pet. App. 40a).

   The guarantees of freedom of speech and free exercise of religion,
though obviously not identical, fit together in an altogether coherent
way.  Much religious expression is also protected as free speech:
religious discussion, teaching, and persuasion are protected both as
speech and as exercise of religion.  To hold otherwise would invite an
inadmissible distinction in terms of the contents of the expression.
It would be strange indeed if because religious expression is double
protected by the constitutional text it should therefore be less
protected in practice.  Prayer, whether individual or group prayer, is
no less speech merely because the speakers may speak together, and
surely not because those praying may believe that as they speak
together they speak also to God.  /7/ Even religious ceremonials -- so
long as they are confined to speech, song, or gesture -- must be
indistinguishable in the eyes of the state from other forms of
protected expression.  As speech, religious expression is as protected
as -- and has no need to be more protected than -- other forms of
expression.

   It is when religious practice travels beyond speech to action that
the additional protections of the Free Exercise Clause come into play.
 While that travelling beyond speech opens the door for government
regulation (United States v. OBrien, 391 U.S. 367 (1968);  Cantwell v.
Connecticut, 310 U.S. 296, 303-304 (1940)), it is likewise in that
context that the Free Exercise Clause offers special and additional
protection to religious action.  See, e.g., Thomas v. Review Board,
450 U.S. 707 (1981);  Murdock v. Pennsylvania, 319 U.S. 105 (1943).

   The Establishment Clause is a consistent and harmonious element in
this scheme.  The Establishment Clause forbids governmental
endorsement of any or all religions and forbids as well the exercise
of government authority to implicate unwilling citizens in religious
practice.  It thus helps to preserve free exercise and free speech by
guaranteeing to the individual the choice of the religious faith (if
any) he will observe and to which he will lend his voice.  Insofar as
the Free Exercise Clause and legislative religious accomodations go
beyond mere neutral protection of speech to provide special protection
for the liberty of religious exercise, the Establishment Clause serves
to ensure that the government does not go beyond accommodation to
endorsement, religious favoritism, or subtle coercion.  Even in cases
of accommodation, however, there is no necessary conflict or
inconsistency between the two Religion Clauses.  An inherent conflict
between the two Religion Clauses exists only on the extreme and
unnecessary premise that to leave an extra measure of freedom to
religious exercise constitutes an endorsement of religion or that to
relieve burdens on religious exercise implicates other citizens in its
exercise.

   The instant case, far from presenting the agonizing dilemma felt by
the court below, does not even approach the boundaries of the
constitutional categories we have set out.  This is not a case where
government is being asked to accommodate religion to the point that
unwilling citizens are in danger of being implicated in the practices
of others.  It is not even a case where the special solicitude for
religion mandated by the Free Exercise Clause is brought into play.
In this case, exactly, as in Widmar v. Vincent, 454 U.S. 263 (1981),
the exercise of religion is no more than the exercise of the freedom
of speech:  it requires no special protection beyond that accorded all
legitimate expression, and certainly warrants no less.

   Widmar v. Vincent, supra, thus provides the appropriate
precedential backdrop for this case.  In Widmar, this Court held that
a state university could not, consistent with the First Amendment,
deny permission for a voluntary student group to use university
facilities for its meetings solely on the basis of their religious
content, where those facilities were made available to other student
groups.  The decision below distinguishes Widmar on the ground that
high school students are less capable than college students of
understanding that permission for a religious group to meet would not
constitute state endorsement of religion.  There is no basis for this
distinction.  Congress has found, on detailed inquiry of student,
educators, and psychologists, that high school students are capable of
understanding that neutral treatment of religious groups does not
imply state endorsement.  Moreover, decisions of this Court and lower
courts holding that secondary school students have a First Amendment
right to engage in speech on controversial topics presuppose that
students are capable of learning from exposure to diverse viewpoints,
without believing that all viewpoints expressed represent official
orthodoxy.  Finally, if students were to assume that allowing
religious meetings would imply official endorsement of religion, then
they would just as easily assume that prohibiting religious meetings
(while allowing meetings with a secular content) implies official
disapproval of religion -- a result that is equally at variance with
the Establishment Clause.

   There is no other basis for distinguishing Widmar v. Vincent,
supra.  So long as attendance at the student meetings is completely
voluntary, the fact that compulsory attendance laws require students
to be on the school property does not mean that they are compelled to
undergo religious exposure.  Nor is there any evidence that a
voluntary group in this high school (which has some 2,500 students) is
any more conspicious than a similar group in a college of comparable
size.  Finally, the presence of adult monitors at the group's
meetings, solely for the purpose of maintaining order, no more implies
state approval of religion than does the provision of police or fire
protection for church functions.

   The students in this case are not asking for affirmative
accommodation of religion;  they ask only that student religious
groups be treated in the same manner as any other student group.
Their only request is that the state be neutral toward religion -- a
request fully in accord with the basic values of the First Amendment.

                               ARGUMENT

 THE ESTABLISHMENT CLAUSE DOES NOT REQUIRE PUBLIC SCHOOL AUTHORITIES
TO EXCLUDE A VOLUNTARY, STUDENT-INITIATED AND STUDENT-RUN RELIGIOUS
CLUB FROM AN ACTIVITIES PERIOD DURING WHICH OTHER STUDENT GROUPS ARE
PERMITTED TO MEET

   This case raises what has become one of the most hotly contested
issues in the area of free speech and religion:  whether high school
students wishing to meet for purposes of voluntary, student-initiated,
and student-directed religious discussions must be excluded from
forums within the high school otherwise available to all.  The
question is whether the students must be excluded -- not whether they
may be excluded -- because the only reason respondent School Board has
offered for excluding the students is their lawyers' advice that the
Establishment Clause so commands.  There is no issue regarding the
propriety of school authorities limiting the school forum to
curriculum-related discussions and activities, and thus no issue of
the school authorities' control over the content of the curriculum.
Rather, here as elsewhere, high school authorities have determined
that the students would benefit from the opportunity to meet together
for student-initiated, student-directed activities of their choice.
J.A. 67, 90.  Only because of the advice of their attorneys have they
decided that they must restrict the subjects of their students'
discussions.  Pet. App. 66a /8/

   This case is therefore typical of so-called "equal access" cases
elsewhere, in that the actual conflict is not between the students and
the high school authorities.  The conflict is between students and a
view of the law -- a view that equal treatment of religious speech in
the high school setting would somehow violate the Establishment Clause
of the First Amendment.  As Congress found in its recent investigation
into the issue, "many school administrators across the country are
prohibiing voluntary, student-initiated religious speech as an
extracurricular activity." S. Rep. 98-357, 98th Cong., 2d Sess. 6
(1984);  accord, H.R. Rep. 98-710, 98th Cong., 2d Sess. 3 (1984).  The
reason, Congress found, is not "malevolence toward religion" but the
administrators' "erroneous() belie(f) that the Establishment Clause
prohibits students from engaging in such speech at all, even when
other types of extracurricular student speech are permitted." S. Rep.
98-357, supra, at 6;  accord, H.R. Rep. 98-710, supra, at 3,4.

 A. The Establishment Clause Does Not Authorize The Government To
Single Out Religious Speech And Association For Direct Discriminatory
Prohibition

   The court below concluded unequivocally that "the students of
Petros enjoy a free speech right to engage in religious activity" in
this context (Pet. App. 36a;  see id. at 11a-21a), but held also that
"allowing such religious activity would violate the mandate of the
Establishment Clause" (id, at 36a).  In order to resolve this
perceived "constitutional conflict of the highest order" (ibid.), the
court of appeals engaged in an unprecedented constitutional
cost-benefit analysis, "weighing the competing interests protected by
each constitutional provision, given the specific facts of the case,
in order to determine under what circumstances the net benefit which
accrues to one of these interests outweighs the net harm done to the
other" (id. at 40a (emphasis in original)).  The court acknowledged
that under this approach" some constitutional protections must
unavoidably be abridged," but deemed its "role" as being to "maximize,
as best as possible, the overall measure of the fundamental rights
created by the Framers" (ibid.).

   If there need be any "balancing" of interests at all (Pet. App.
11a), we submit that the court incorrectly balanced the constitutional
interests involved in this case, elevating a highly speculative
possibility of Establishment Clause injury over a concrete, selective
injury to petitioners' rights of free speech, association, and
religious expression.  We believe that the resolution reached by the
district court (and by Congress) is plainly more neutral,
administratively less entangling, and more protective of liberty than
the courts of appeals' alternative.  More to the point, if, as the
court of appeals held, constitutional provisions applicable to this
case are in "unavoidable tension" (Pet. App. 38a) and 'present a close
question' (id. at 41a), there is no warrant for judicial intervention.
 See Valley Forge Christian College v. Americans United for Separation
of Church & State, Inc., 454 U.S. 464, 484 (1982) ("we know of no
principled basis on which to create a hierarchy of constitutional
values";  a court cannot say that another provision of the
Constitution is "in some way less 'fundamental' than the Establishment
Clause").  If the court below is correct in its analysis of the
problem, the proper conclusion is that there is no clear
constitutional impediment to implementing the decisions of the elected
government officials involved -- Congress and the School Board.

   More fundamentally, however, we submit that the court of appeals
misperceived the relationship between the Establishment Clause and
other provisions of the First Amendment.  The First Amendment is not
so strangely inharmonious that to enforce one provision is to violate
another.  The Establishment Clause, no less than the Free Speech or
Free Exercise Clauses, was intended as a guarantee of liberty.  By
prohibiting an official orthodoxy, the Establishment Clause promotes
"diversity and pluralism in all areas" (Lynch v. Donnelly, No. 82-1256
(Mar. 5, 1984), slip op. 8).  It was not the intention of the drafters
of the Establishment Clause to inhibit the creation of wide-open
forums for discussion of ideas.

   We begin with the proposition that religious expression, as a form
of speech, is entitled to no less protection under the First Amendment
than any other category of expression.  Widmar v. Vincent, 454 U.S.
263, 269 & n.6 (1981);  cf. Healy v. James, 408 U.S. 169 (1972).  The
great cases of this Court upholding the right of free speech
frequently deal, not surprisingly, with speech of a religious nature.
Se e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943);  Cantwell v.
Connecticut, 310 U.S. 296 (1940);  Martin v. City of Struthers, 319
U.S. 141 (1943).

   Indeed, religious expression and related aspects of religious
practice are entitled in some contexts to protections that go beyond
those extended to comparable forms of belief, either as a matter of
legislative policy (see, e.g., Gillette v. United States, 401 U.S. 437
(1971);  Zorach v. Clauson, 343 U.S. 306 (1952)), or as a matter of
constitutional law (see, e.g., Thomas v. Review Board, 450 U.S. 707
(1981);  Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943)).  "(T)he
Constitution * * * affirmatively mandates accommodation, not merely
tolerance, of all religions, and forbids hostility toward any." Lynch
v. Donnelly, slip op. 4.  Cases of legislative accommodation can
present difficult constitutional questions, with which this Court has
had to grapple in recent Terms.  See, e.g., Estate of Thornton v.
Caldor, Inc., cert. granted, No. 83-1158 (Mar. 5, 1984);  Wallace v.
Jaffree, prob. juris, noted, No. 83-812 (Apr. 2, 1984);  Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).  But there is not a
single instance in which this Court has accepted the argument --
though it has often been made -- that because of the Establishment
Clause or related policy considerations a unit of government is
justified in singling out religious speech for discriminatory
suppression.  See, e.g., Widmar v. Vincent, supra;  McDaniel v Paty,
435 U.S. 618 (1978);  Niemotko v. Maryland, 340 U.S. 268 (1951);  see
also Heffron v. International Society for Krishna Consciousness, Inc.,
452 U.S. 640 (1981);  McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984),
aff'd by an equally divided Court, No. 84-277 (Mar. 27, 1985);  O'Hair
v. Andrus, 613 F.2d 931 (D.C. Cir 1979).  /9/

   The drafters of the Bill of Rights had no intention to place
religionists or religious speech under any special disabilities, even
within the public arena.  See McDaniel v. Paty, 435 U.S. at 641
(Brennan, J., concurring).  Indeed, it is no exaggeration to state
that the result below is directly contrary to the original intent, and
that it interprets the Establishment Clause in a manner expressly
feared and sought to be avoided by its drafters.  The principal point
of criticism of the early drafts of the Establishment Clause by
members of the First Congress was that it might be interpreted in a
way that would be "extremely hurtful to the cause of religion." 1
Annals of Congress 758 (Aug. 15, 1789 (J. Gales ed. 1834)) (remarks of
Rep. Huntington);  see also id. at 757 (remarks of Rep. Sylvester).
The response of James Madison, principal author of the draft
Amendment, was that "the object it was intended to prevent" was that
"one sect might obtain a pre-eminence, or two combine together, and
establish a religion to which they would compel others to conform"
(id. at 758-759;  see also id. at 758).  A policy of equal access for
all groups is precisely the ideal envisioned by the Founders.  An
exclusion of religious groups from a forum otherwise open to all
offends the very core of the First Amendment.  Widmar v. Vincent,
supra;  Niemotko v. Maryland, supra;  see generally M. Malbin,
Religion and Politics:  The Intentions of the Authors of the First
Amendment 6-17 (1978).

   This case does not require the Court to explore the limits of
affirmative accommodation of religion;  the student petitioners ask
only that they be treated in the same way as any other student group.
See Widmar v. Vincent, 454 U.S. at 273 n.13.  They seek tolerance,
equal treatment, nondiscrimination.  The Establishment Clause does not
authorize -- and the Free Speech Clause prohibits -- the singling out
of religious speech for direct discriminatory prohibition.

   These principles are relatively well settled in most contexts;
however, their application in the high school setting has divided and
perplexed the lower federal courts.  /10/ The special character of the
public schools warrants special sensitivity to potential Establishment
Clause problems in that setting.  However, the reasons that have been
offered for denying to these petitioners -- these high school students
-- First Amendment protections they would receive as adults in other
public settings (Widmar v. Vincent, supra), and indeed as high school
students if their speech were of a different, secular, sort (see pages
19-20, infra) are not persuasive.

 B. The Presumed Greater Impressionability Of High School Students Is
Not A Basis For Permitting Discrimination Against Religious Speech

   Widmar v. Vincent, supra, is the paradigm from which all
discussions of the issue in this case begin.  If Widmar, which arose
in a university setting among university students, is applicable as
well to a high school setting and high school students -- a question
impliedly left open in Widmar (454 U.S. at 274 n.14) -- then
petitioners' free speech claim is irrefutable and no Establishment
Clause obstacles exist that might preclude vindication of their
rights.  The court of appeals acknowledged (Pet. App. 25a) that
"(a)ll" of the considerations distinguishing this case from Widmar
"are an outgrowth of the differences between a high school and a
university." Principal among those differences, according to the court
of appeals, is the different "maturity and impressionability" of high
school students.  That is, high school students "would be less able to
appreciate the fact that permission for Petros to meet would be
granted out of a spirit of neutrality toward religion and not
advancement." Ibid.  We submit that this conclusion is based on faulty
empirical assumptions and cannot withstand analysis.

   1. The notion that high school students are too impressionable to
understand that the school's neutral treatment of a religious club
would not constitute official endorsement of religion was investigated
in detail by Congress in its consideration of the Equal Access Act.
An express congressional finding that high school students are mature
enough to understand the difference between school accommodation and
school endorsement of religion was the premise of the Act's
prohibition on public secondary schools with "limited open forums"
excluding activities on the basis of their religious content.

   The Senate Report on the legislation stated:  "(t)he Committee
finds that students below the college level are capable of
distinguishing between State-initiated, school-sponsored, or
teacher-led, religious speech on the one hand and student-initiated,
student-led religious speech on the other." S. Rep. 98-357, supra, 35;
 see id. at 9-10.  This "exercise of (the Committee's) fact-finding
powers" (id. at 9) was based in part on the expert views of
psychologists (id. at 35), and in part on the testimony of many
witnesses, including high school students (id. at 10).  /11/
Supporters of the legislation in the House expressed a similar view.
/12/

   Where Congress has made findings of fact in the discharge of its
legislative function, due regard for the separation of powers and for
the ability of the legislature to gather information and analyze
issues of legislative fact required that courts defer to congressional
determinations, even for purposes of constitutional adjudication,
unless those determinations can be said to be irrational.  See, e.g.
Texaco, Inc, v. Short, 454 U.S. 516, 532-533 (1982);  Rostker v.
Goldberg, 453 U.S. 57, 74, 80-83 (1981);  Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 464 (1981);  Brotherhood of Locomotive
Firemen & Enginemen v. Chicago, R.I. & Pac. R.R. 393 U.S. 129, 136,
138-139 (1968);  Katzenbach v. Morgan, 384 U.S. 641, 653 (1966);
Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964);  Communist Party
v. Subversive Activities Control Board, 367 U.S. 1, 94-95 (1961).  As
Justices Brenna, White, and Marshall stated in their concurring and
dissenting opinion in a case involving a similar question -- the
maturity of 18-21 year olds -- Oregon v. Mitchell, 400 U.S. 112,
247-248 (1970) (citations omitted):  "(T)he nature of the judicial
process makes it an inappropriate forum for the determination of
complex factual questions of the kinds so often involved in
constitutional adjudication.  Courts, therefore, will overturn a
legislative determination of a factual question only if the
legislature's finding is so clearly wrong that it may be characterized
as 'arbitrary,' 'irrational,' or 'unreasonable.'" Cf. Katzenbach v.
Morgan, 384 U.S. at 668 (Harlan, J., dissenting) ("(t)o the extent
'legislative facts' are relevant to a judicial determination, Congress
is well equipped to investigate them, and such determinations are of
course entitled to due respect").

   Particularly in this case, where the court of appeals' conclusions
regarding student immaturity were based on pure speculation, and where
the district judge came to a contrary factual conclusion, the
Congressional findings -- based as they were on actual testimony --
should carry considerable weight.

   2. There is a curious inconsistency between the decision below and
decisions involving the First Amendment rights of high school students
regarding non-religious matters.  See, e.g., Board of Education v.
Pico, 457 U.S. 853 (1982) (plurality);  Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969);  Seyfried
v. Walton, 668 F.2d 214, 219-220 (3d Cir. 1981) (Rosenn, J.,
concurring);  Russo v. Central School District No. 1, 469 F.2d 623,
633 (2d Cir. 1972), cert. denied, 411 U.S. 932 (1973).  These
decisions presuppose that high school students are capable of learning
from exposure to a diversity of viewpoints, without confusing free
expression with official orthodoxy.  /13/ Thus, school authorities
have been prohibited from censoring the expression of controversial
views by teachers and school-sponsored newspapers -- situations in
which there is a much greater risk than in the present case of the
views being imputed to the school itself.  James v. Board of
Education, 461 F.2d 566, 574 (2d Cir.), cert. denied, 409 U.S. 1042
(1972) (teacher wearing black armband in classroom to protest Vietnam
War);  Gambino v. Fairfax County School Board, 429 F. Supp. 731,
736-737 (E.D. Va.), aff'd, 564 F.2d 157 (4th Cir. 1977) (article in
school newspaper entitled "Sexually Active Students Fail to Use
Contraceptives");  Bayer v. Kinzler, 383 F. Supp. 1164 (E.D.N.Y.
1974), aff'd, 515 F.2d 504 (2d Cir. 1975 ) (Table) (school newspaper
with information on birth control);  Shanley v. Northeast Indep.
School Dist., 462 F.2d 960, 970-972 (5th Cir. 1972) (school newspaper
with articles on drugs and birth control).

   There is surely no reason to assume that expression of religious
views will play any more powerfully upon the imagination of high
school students than such subjects as sex, drugs, or political
activism.  If students are able to perceive that their peers' opinions
on sexuality or military conscription are not those of the school
administration, the same will be true of their peer's opinions on
religion.

   3. If high school students (unlike college students) would construe
approval of a religious club's request for permission to meet as
endorsement of religion, why would they not also construe disapproval
of the application as official hostility to religion -- a result
equally at variance with the Establishment Clause?  The district judge
in this case concluded that a policy of singling out religious groups
for exclusion from the school's activities period could well be viewed
by the students as manifesting official hostility toward religion.
Pet. App. 97a.

   Respondent School Board itself apparently recognized that its
action might be construed as hostility toward Petros' religious
character.  The letter from the Board to the students explaining the
dicision included the following (Pet. App. 6a;  J.A. 48-49):

         Please be assured that neither the School Board, nor the
      Administration regard the proposed prayer fellowship group as
      being unworthy.  Present law simply does not permit public
      schools to authorize or support religious activities on school
      property.

It is not surprising that the Board apprehended that the students
might construe its action as indicating that the group was "unworthy,"
since, as the court of appeals noted (Pet. App. 8a), Petros is the
only proposed student club or activity ever denied the right to
participate in the school's activities period during the memory of the
principal.  J.A. 75.

   The impression of state hostility to religion caused by exclusion
of religious groups is not unique to this case.  In its consideration
of the Equal Access Act, Congress heard testimony to that effect from
students, and found that many students have in fact perceived their
school's refusal to allow religious activity as manifesting
discrimination and official hostility.  The Senate Committee concluded
that "students reasonably perceive the denial of access for religious
speech as State hostility toward religion" (S. Rep. 98-357, supra, at
36), and stressed that "(t)he perception of State hostility is not a
speculative one created by the Committee, but one held by students as
evidenced by the testimony of the students themselves.' Id. at 11,
19-20.

   If it were true that high school students are too immature to
appreciate the difference between neutral school actions and
endorsement of (or hostility toward) religion, then school officials
could not avoid violating the Establishment Clause, whether they
granted or denied a request for equal access.  Any action on a
religious group's request for permission to meet would convey a state
position regarding the merits of religion, according to this view.
The only way out of the dilemma would be for the school to close its
limited public forum -- that is, to forbid any voluntary student
activities on school property.  Surely the Constitution does not
require such a result.

   4. The court of appeals appeared to place great weight on its view
that "nonconforming students" might be "ostracize(d)" or
"stigmatize(d)" by the Petros meetings, because of the force of "peer
pressure inherent in a high school environment" (Pet. App. 44a).
Accord, Brandon v. Board of Education, 635 F.2d at 978, We would note,
however, that there is absolutely no evidence in the record that any
student at Williamsport High School has felt pressured or coerced into
joining Petros, as opposed to participating in any of the other 25
student groups authorized to meet at the same time.  Indeed, Petros,
alone of the student organizations, has agreed to eschew various forms
of school publicity -- inclusion in the yearbook and school newspaper
and access to the public address system -- that might be viewed as
instruments of "peer pressure." The fact that Petros has never
attracted more than 45 students (out of 2500) makes the court of
appeals' hypothetical concerns seem quite overstated.  /14/

   More troubling as a legal matter is the court of appeals' unstated
assumption that, in this context, the Establishment Clause operates to
restrain individuals -- and not just governments -- from propagating
their belief.  As the district court noted (Pet. App. 91a), "(a)ny
advancement of religion would come from the students themselves, and
this the Establishment Clause does not bar, it being a limitation on
government conduct rather than on individual activity." The neutral
provision of a forum -- a meeting place -- does not somehow transform
the private conduct of the students into an establishment of religion.

   Moreover, if "peer pressure" is the problem, preventing Petros
meetings is no solution, for Petros is simply a gathering of
like-minded individuals who wish to engage in prayer, Bible study, and
related discussion.  To prevent "peer pressure" would require the
rigorous suppression of speech and discussion during occasions when
Petros members interact with other students -- in the hallways, on the
playing field, at lunch.  This the Constitution would plainly not
countenance.  The solution, instead, is for the government neither to
endorse nor to suppress free expression -- to adopt a policy of
neutrality and pluralism, not of secularism and censorship.  It was,
after all, in the context of public high schools that this Court made
its famous pronouncement (Zorach v. Clauson, 343 U.S. at 313):  "We
sponsor an attitude on the part of government that shows no partiality
to any one group and that lets each flourish according to the zeal of
its adherents and the appeal of its dogma."

 C. There Is No Other Basis For Distinguishing This Court's Decision
In Widmar v. Vincent

   The court of appeals cited several additional grounds for not
applying the teaching of Widmar v. Vincent, supra, in this setting.
None of these has merit.

   1. Compulsory attendance laws.  Compulsory attendance laws may
necessitate some limitations on the speech and conduct of teachers and
school officials that might take advantage of the "captive audience"
of public school students.  But they provide no basis for limiting
voluntary, student-initiated speech by the students themselves.  So
long as the students may freely choose among a wide range of
activities and topics, there is no compulsion.  Indeed, the court of
appeals itself acknowledged (Pet. App. 18a):

      (T)he activity period at Williamsport Area High School provides
      a forum for self-expression, by which students exercise their
      own discretion in deciding which organization, if any, to
      support.  Indeed, unlike compulsory instructional classes, which
      are created and designed by the school authorities, the very
      existence of such organizations depends entirely upon voluntary
      student participation and interest.

   Students at the Williamsport High School who wish to attend
meetings of Petros must affirmatively choose to do so.  Thus, this
case is entirely different from situations in which the school
provides a captive audience for religious speech, requiring students
who wish not to participate to take affirmative steps to avoid it.
See Goodwin v. Cross County School Dist. No. 7, 394 F. Supp. 417,
425-427 (E.D. Ark. 1973) (violation of Establishment Clause when
students permitted to read Bible verses and recite prayer to captive
classroom audience);  Collins v. Chandler Unified School Dist., 644
F.2d 759 (9th Cir.), cert. denied, 454 U.S. 863 (1981) (violation of
Establishment Clause when students permitted to recite prayer at
school assembly;  students not wishing to attend assembly could report
to study hall).

   The answer to the court of appeals' argument here is no different
from that supplied by this Court in a similar context in Zorach (343
U.S. at 311 (footnote omitted)):

         There is a suggestion that the system involves the use of
      coercion to get public school students into religious
      classrooms.  There is no evidence in the record before us that
      supports that conclusion.  The present record indeed tells us
      that the school authorities are neutral in this regard and do no
      more than release students (who) so request.

   2. Location of the meetings.  The court of appeals also
distinguished this case from Zorach and Widmar on the ground that the
meetings took place on school property in a more controlled
environment than a university.  Pet. App. 25a-26a, 27a.  /15/
Therefore, the court concluded, "involuntary contact between
nonparticipating students and religious groups is inevitable.
Students of differing or conflicting creeds would therefore be less
able to overlook the activities of such a group within their school,
and by the same token would be more likely to perceive a message of
endorsement by school authorities * * *." Pet. App. 26a, 28a.

   However, the meetings of the religious group involved in Widmar
also took place on school property, in university classrooms and in
the student center (454 U.S. at 265 n.2).  The Williamsport Area High
School is located on a 147-acre campus and has 2,500 students -- a
size comparable to many smaller college campuses.  More than 25 clubs
have received permission to meet during the activities period (J.A.
103-104), in addition to other competing activities (homeroom,
computer station, career counseling, and library), as compared to some
100 clubs in Widmar (not necessarily all meeting at the same time).
In addition, the club in this case has agreed to forego use of school
bulletin boards and other organs of publicity (a restriction not
undertaken in Widmar).  In short, there is no constitutionally
significant difference between the visibility of Petros and the club
involved in Widmar or similar clubs at other college campuses.

   On this point, the court of appeals relied heavily (Pet. App.
27a-28a, 31a) on Illinois ex rel. McCollum v. Board of Education, 333
U.S. 203 (1948), in which this Court held unconstitutional a program
in which religious classes were taught on the premises of public
schools by clergymen of vairous faiths;  students who did not choose
to participate could attend study hall.  However, McCollum is
distinguishable on several grounds.  First, the program in McCollum
singled out religion for special treatment, while here the students
desire only rights equal to those accorded others.  As this Court
stated in Widmar, 454 U.S. at 272 n.10 (emphasis in original):

         Because this case involves a forum already made generally
      available to student groups, it differs from those cases in
      which this Court has invalidated statutes permitting school
      facilities to be used for instruction by religious groups, but
      not by others.  See, e.g., McCollum v. Board of Education, 333
      U.S. 203 (1948).  In those cases the school may appear to
      sponsor the views of the speaker.

Second, as the district court observed (Pet. App. 95a), participation
in the McCollum program was only "nominally voluntary" -- like that in
the school prayer cases -- because students were "placed in two
categories, i.e., those taking religious instruction and those who
were not." Here, in contrast, the religious club is only one of
numerous alternative activities.  The wide range of choice is a
guarantee against subtle coercion.  Finally, the religious program in
McCollum was organized and operated by students themselves, totally at
their own initiative.  Thus, while in McCollum there was state
sponsorship, here there is only free exercise and association.

   3. Presence of adult monitor.  The court of appeals concluded (Pet.
App. 26a-27a) that the required presence of an adult monitor
"necessarily must impart the impression to students that the school's
authority and that the school's endorsement is implicated in the
relevant activity, since every monitor must be approved by the
school." However, the record makes clear that the only function of the
monitor is to take attendance and to maintain order.  The district
court correctly concluded that "(i)nasmuch as the teacher would be
present only to ensure orderly meetings, the instant situation would
involve no more entanglement than when a state provides for 'the
safety, security and general convenience' for persons attending a
celebration of a Mass at the National Mall;  or provides police and
fire protection to a church" (Pet. App. 99a-100a (footnote and
citations omitted)).

   4. Excessive entanglement.  The court of appeals concluded that the
club's commitment not to use the school's newspaper, bulletin boards,
or public address system -- a commitment not made in Widmar -- would
entail "excessive entanglement" (Pet. App. 33a-34a).  /16/ However,
this purported distinction is based on a misunderstanding.  The court
of appeals apparently viewed the students' commitment as
distinguishing between "religiously oriented material" and other
announcements (id. at 33a);  this would require the school officials
"to interpret the posted announcements in order to distinguish
religious from non-religious content" (id. at 34a).  However, the
club's commitment was to forego all use of the bulletin board, public
address system, or newspaper to publicize their meetings -- a
commitment which, as Judge Adams observed (id. at 59a), "represents a
simple, easily administered rule" that does not require the school
authorities to distinguish religious from non-religious content.

   Indeed, as Judge Adams also observed, enforcing a ban against
religious meetings could prove to be far more "entangling" than a
policy of equal access (Pet. App. 59a).  See Walz v. Tax Commission,
397 U.S. 664, 674-675 (1970) (granting tax exemptions to churches
gives rise to lesser government involvement than would taxing them);
Cantwell v. Connecticut, 310 U.S. at 305 (requiring official
determination of what is and what is not a "religion" violates First
Amendment).  For example, assume that the students involved in Petros,
or other students of a known religious orientation, were to form a
Philosophy and Ethics Club.  How could the school be sure that this
club was not a "cover" for religious meetings?  Presumably the adult
monitor would have to keep a close and continuous watch over what the
students said and did at each meeting to "determine which words and
activities fall within 'religious worship and religious teaching.'
This alone could prove to be an 'impossible task in an age where many
and various beliefs meet the constitutional definition of religion.'"
Widmar, 454 U.S. at 272 n.11 (citation omitted).  In essence, the
school would have to assume a continuing role of religious censorship
over such a club's meetings -- a role inimical to the values of the
First Amendment.  /17/

   This provides further reason to believe that "benevolent
neutrality" toward religion (Walz v. Tax Commission, 397 U.S. at 669)
is to be preferred over a "brooding and pervasive devotion to the
secular" (Abington School District v Schempp, 374 U.S. 203, 306 (1963)
(Goldberg, J., concurring)).  We suspect that the court below was so
concerned that religious influences not be felt in the public high
school that it simply lost sight of the wider issues of religious
liberty.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   CHARLES FRIED

      Deputy Solicitor General

   MICHAEL W. McCONNELL

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   ROBERT V. ZENER

      Attorneys

   MAY 1985

   /1/ One State Attorney General, in reliance on the decision below,
has formally opined that the Equal Access Act is unconstitutional, and
has, in effect, instructed State educational officials not to comply
with it.  69 Op. Md. Att'y Gen. No. 84-031 (Dec. 6, 1984).  The
American Association of School Administrators has distributed
guidelines for implementing the Equal Access Act, which are prefaced
by the advice that states covered by the Third Circuit (among others)
"could be out of compliance with previous circuit court rulings if
they act to implement the law." American Ass'n of School
Administrators, Equal Access:  Interpretation and Implementation
Guidelines 1 (1984).  These examples demonstrate that the decision
below is having a direct effect on implementation of the Act.

   /2/ The Equal Access Act applies only where the student activities
occur "before actual classroom instruction begins or after actual
classroom instruction ends" (Section 803(4), 98 Stat. 1303).  This is
not necessarily the same as the hours of compulsory school attendance,
as this case illustrates.  Where, as here, the limited open forum
occurs at the beginning of the day (or after a brief opening homeroom
during which no "actual classroom instruction" occurs), the plain
language of the Act indicates that it would apply despite the fact
that the activities period is covered by compulsory attendance laws.
The legislative history, however, is ambiguous on this point.  Compare
130 Cong. Rec. S8354 (daily ed. June 27, 1984) (remarks of Sens.
Metzenbaum and Hatfield), with id. at S8355-S8356 (daily ed. June 27,
1984) (remarks of Sen. Denton);  id. at H7735-H7736 (daily ed. July
25, 1984) (remarks of Rep. Bonker).

   /3/ This provides no occasion for interpretation of the Equal
Access Act.  The free speech rights of petitioners recognized by both
courts below are at least as broad as their rights under the Act.
Only in the event that this Court should reverse the decision below on
both free speech and establishment grounds -- i.e., hold that
petitioners' free speech rights were not infringed but that to allow
petitioners to meet would not violate the Establishment Clause --
might it be necessary to determine, on remand, whether the Act applies
to this case.

   /4/ The district court acknowledged that if the activities period
were part of the school's curriculum, the superintendent would have
had wide discretion to limit subject matter as part of his power to
define the curriculum.  However, the court pointed out that the sole
reason offered for excluding Petros was legal advice regarding the
Establishment Clause;  the superintendent never purported to be
exercising his authority to define the curriculum.  Pet. App. 82a-85a.

   /5/ After the briefs were filed in the court of appeals, respondent
Youngman ceased to be a member of the School Board.  As none of the
parties disputes, however, there remains a case or controversy, since
the student petitioners continue to desire to meet, and the School
Board continues to refuse permission.  That the School Board is a
nonlitigating respondent (in effect, a disinterested "stakeholder")
does not affect this, since the Board (by relying on the court of
appeals' judgment as a basis for not complying with the district
court's judgment against it and by resisting attorneys' fees) has in
effect treated the appeal by respondent Youngman as its own.  Having
been sued in his individual as well as his official capacity,
respondent Youngman has standing as appellant below and respondent
herein to defend his interests as parent of children in the school;
if he is correct on the merits, his children's right to attend public
school free from unconstitutional religious influences would be
infringed if petitioners were to prevail.

   The matters were brought to the attention of the court of appeals
(see Pet. for Reh'g 5 n.2), which implicitly held that the case
remained justiciable.

   /6/ Congressional consideration of the Act was completed before the
members of Congress became aware that the district court decision
below was reversed by the court of appeals.

   /7/ This Court's school prayer decisions did not depend on a
finding that prayer is not protected speech, but on the conclusion
that the state acts unconstitutionally if it endorses a particular
religious exercise by incorporating it as part of the official
activity of the classroom.

   /8/ Neither the First Amendment nor the Equal Access Act limits the
discretion of school officials in deciding whether to create a forum
for free expressive activity.  The Act simply provides that, if such a
forum is created, the school may not "deny equal access or a fair
opportunity" to students "on the basis of the religious, political,
philosophical, or other content" of their speech (Section 802(a), 98
Stat. 1302).  See Police Dep't v. Mosley, 408 U.S. 92, 96 (1972):
"Once a forum is opened up to assembly or speaking by some groups,
government may not prohibit others from assembling or speaking on the
basis of what they intend to say.

   /9/ This should be distinguished from the more difficult question
of when, or whether, an individual beneficiary's use of tax-supported
governmental financial assistance may be restricted because of the
religious implications of the expenditure.  See, e.g., Witters v.
Washington Comm'n for the Blind, cert. granted, No. 84-1070 (Apr. 1,
1985).  In such cases, the interests of other persons -- the taxpayers
-- in not being coerced into supporting activities of a religious
nature must be considered.  There are no such third party interests
here.

   /10/ Compare Brandon v. Board of Education, 635 F.2d 971, 978 (2d
Cir. 1980), cert. denied, 454 U.S. 1123 (1981);  Lubbock Civil
Liberties Union v. Lubbock Independent School District, 669 F.2d 1038,
1045-1046 (5th Cir. 1982), cert. denied, 459 U.S. 1155 (1983);  and
the decision below, with Nartowicz v. Clayton County School District,
736 F.2d 646, 649 (11th Cir. 1984);  Amadei v. Spring Branch
Independent School District, No. H-84-4673 (S.D. Tex. Apr. 26, 1984)
(bench ruling);  Bell v. Little Axe Independent School District No.
70, No. CIV-81-620-T (W.D. Olka. Mar. 14, 1983), appeal docketed, No.
83-1458 (10th Cir. Apr. 5, 1983);  and Reed v. Van Hoven, 237 F. Supp.
48 (W.D. Mich. 1964).

   /11/ For Example, a high school student from Sonoma, California
testified:

         They also have a smoking section in our school.  Does that
      mean that the school sanctions, supports and encourages smoking?
       I doubt it, just because the school allows a group to meet,
      doesn't mean it approves of and supports their activities.  The
      same should hold for religious groups.

Equal Access -- A First Amendment Question:  Hearings on S. 815 and S.
1059 Before the Senate Comm. on the Judiciary, 98th Cong., 1st Sess.
64 (1983) (testimony of Sarah Scanlon).  Another student, from
Lubbock, Texas, testified:

         Some people are worried that high school students are very
      impressionable, and that we can't make decisions and that we are
      naive.  I feel that that is pretty naive on the part of the
      people who think that.  I don't think that is true at all.

Id. at 60 (testimony of Bonnie Bailey).  See also, e.g., ibid.
(testimony of Lisa Bender);  Equal Access Act:  Hearings on H.R. 2732
Before the Subcomm. on Elementary, Secondary, and Vocational Education
of the House Comm. on Education and Labor, 98th Cong., 1st Sess. 39
(1983) (testimony of C. Luke Thornton, Principal of John I. Leonard
High School, Lake Worth, Fla.).

   /12/ See, e.g., 130 Cong. Rec. H7727 (daily ed. July 25, 1984)
(remarks of Rep. Roukema) (disputing claim that "allowing religious
groups to meet in the school under any circumstances will have the
effect of advancing religion because of the impressionability of high
school students" and stating that "studies of adolescent psychology *
* * have shown that it is a time of increased cognitive capacity,
marked by an ability of the adolescent to differentiate himself from
authority figures he depended upon as a younger child");  id. at H7724
(remarks of Rep. Frank) ("I regard this as a very auspicious day (for)
* * * those of us who think we ought not infantilize teenagers.").
These views reflect the conclusions of a recent survey of the
psychological literature, which concluded that "(g)iven the increased
cognitive capacity and the psychological separation between the self
and authority figures that occurs during adolescence, high school may
in fact be a time when the distinction between tolerance based on
mutual respect and explicit approval of student expression is
particularly clear -- even more clear, perhaps, than in later stages
of life." Note, The Constitutional Dimensions of Student-Initiated
Religious Activity in Public High Schools, 92 Yale L.J. 499, 507-509
(1983) (citing psychological studies).

   /13/ In Tinker, this Court held that schoolchildren had a First
Amendment right to wear black armbands while in school as a symbolic
protest to the Vietnam War.  Testifying in support of equal access
legislation, Professor Laurence Tribe commented:  "no conceivable
principle of distinction can suggest that students who have a right to
wear black armbands to protest the war suddenly lose that right if
they utter the name of God in the process, or if, heaven forbid, they
should do it as a group instead of single file." Religious Speech
Protection Act:  Hearing on H.R. 4996 Before the Subcomm. on
Elementary, Secondary, and Vocational Education of the House Comm. on
Education and Labor, 98th Cong., 2d Sess 47 (1984).

   /14/ Indeed, the court of appeals' unexamined assumptions regarding
the peer pressures actually experienced by students at a modern high
school may be unrealistic.  One of the powerful motivating factors for
the formation of a group like Petros, as one member told a Senate
subcommittee (Equal Access:  A First Amendment Question, supra, at 44
(testimony of Lisa Bender)), is the need of religiously-oriented
students to "know() that other students were behind you in what you
believed." To permit so-minded students to meet together may well be a
means for helping them to withstand peer pressure of a different and
more powerful sort.

   /15/ The opinion below states that the club meetings "would be held
in a classroom which, a few minutes after the meeting, is also used
for regular secular classes" (Pet. App. 26a).  In fact, the record
shows that the club met in the school cafeteria.  J.A. 53;  Pet. App
107a.

   /16/ Other courts have also found that permitting student religious
group meetings would involve excessive entanglement.  Lubbock Civil
Liberties Union v. Lubbock Independent School District, 669 F.2d 1038,
1047 (5th Cir. 1982), cert. denied, 459 U.S. 1155 (1983);  Brandon v.
Board of Education, 635 F.2d 971, 979 (2d Cir. 1980), cert. denied,
454 U.S. 1123 (1981);  Johnson v. Huntington Beach Union High School
Dist., 68 Cal. App. 3d 1, 14, 137 Cal. Rptr. 43, 50-51 (1977);  see
also Nartowicz v. Clayton County School Dist., 736 F.2d 646, 649-650
(11th Cir. 1984).

   /17/ Compare the remarks of Senator Levin in support of the Equal
Access Act:

      The status quo right now is that we have State officials who are
      making this determination as to what constitutes religious
      activity, what is a religion, what is a religious speech.  That
      is not something which I am particularly happy having State
      officials doing, yet they are doing it right now because many
      attorneys representing many school boards have told the school
      boards, and their administrators that there cannot be a
      religious meeting. * * *

                      * * * * *

      (S)chool officials are now being forced to make difficult
      decisions each time students request to meet when the subject of
      the meeting could be religion.  For example, if a
      student-initiated group requests the use of school premises to
      talk about "moral issues," school officials would have to make
      further inquiries before granting the request.  Will the group
      be discussing philosophy or theology?  If the students plan to
      talk about religion, should the school deny the request?

130 Cong. Rec. S8354, S8355 (daily ed. June 27, 1984).