# Board of Education of Westside Community Schools v. Mergens

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## Concurring Opinions

    Kennedy
    Marshall

## Dissenting Opinion

    Stevens
United States Supreme Court
496 U.S. 226
Board of Education of Westside Community Schools v. Mergens
No. 88-1597 Argued: Jan. 9, 1990. --- Decided: June 4, 1990
Syllabus
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 (CA8 1989), 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. 234-237.
(a) The Act provides, among other things, that a "limited open forum" exists whenever a covered school "grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises." Its equal access obligation is therefore triggered even if such a school allows only one "noncurriculum related" group to meet. Pp. 234-237.
(b) Although the Act does not define the crucial phrase "noncurriculum related student group," that term is best interpreted in the light of the Act's language, logic, and nondiscriminatory purpose, and Congress' intent to provide a low threshold for triggering the Act's requirements, to mean any student group that does not directly relate to the body of courses offered by the school. A group directly relates to a school's curriculum if the group's subject matter is actually taught, or will soon be taught, in a regularly offered course; if that subject matter concerns the body of courses as a whole; or if participation in the group is required for a particular course or results in academic credit. Whether a specific group is "noncurriculum related" will therefore depend on the particular school's curriculum, a determination that would be subject to factual findings well within the competence of trial courts to make. Pp. 237-247.
(c) Westside's existing student clubs include one or more "noncurriculum related student group[s]" under the foregoing standard. For example, Subsurfers, a club for students interested in scuba diving, is such a group, since its subject matter is not taught in any regularly offered course; it does not directly relate to the curriculum as a whole in the same way that a student government or similar group might; and participation in it is not required by any course and does not result in extra academic credit. Thus, the school has maintained a "limited open forum" under the Act and is prohibited from discriminating, based on the content of the students' speech, against students who wish to meet on school premises during noninstructional time. Pp. 243-247.
(d) Westside's denial of respondents' request to form a religious group constitutes a denial of "equal access" to the school's limited open forum. Although the school apparently permits respondents to meet informally after school, they seek equal access in the form of official recognition, which allows clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, public address system, and annual Club Fair. Since denial of such recognition is based on the religious content of the meetings respondents wish to conduct within the school's limited open forum, it violates the Act. P. 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, 102 S.Ct. 269, 275-77, 70 L.Ed.2d 440-which applied the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 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.
(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. Pp. 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 "noninstructional 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, nonschool 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 KENNEDY, joined by Justice SCALIA, agreeing that the Act does not violate the Establishment Clause, concluded that, since the accommodation of religion mandated by the Act is a neutral one, in the context of this case it suffices to inquire whether the Act violates either of two principles. First, the government cannot give direct benefits to religion in such a degree that it in fact establishes a state religion or religious faith, or tends to do so. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655, 109 S.Ct. 3086, 3134, 106 L.Ed.2d 472 (KENNEDY, J., concurring in judgment in part and dissenting in part). Any incidental benefits that accompany official recognition of a religious club under the Act's criteria do not lead to the establishment of religion under this standard. See Widmar v. Vincent, 454 U.S. 263, 273-274, 102 S.Ct. 269, 276. Second, the government cannot coerce any student to participate in a religious activity. Cf. County of Allegheny, supra, 492 U.S. at 659, 109 S.Ct., at 3136. The Act also satisfies this standard, since nothing on its face or in the facts of this case demonstrates that its enforcement will pressure students to participate in such an activity. Pp. 258-259, 260-262.
Justice MARSHALL, joined by Justice BRENNAN, although agreeing that the Act as applied to Westside could withstand Establishment Clause scrutiny, concluded that the inclusion of the Christian club in the type of forum presently established at the school, without more, will not assure government neutrality toward religion. Pp. 263-270.
(a) The introduction of religious speech into the public schools reveals the tension between the Free Speech and Establishment Clauses, because the failure of a school to stand apart from religious speech can convey a message that the school endorses, rather than merely tolerates, that speech. Thus, the particular vigilance this Court has shown in monitoring compliance with the Establishment Clause in elementary and secondary schools, see, e.g., Edwards v. Aguillard, 482 U.S. 578, 583-584, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510, must extend to monitoring the actual effects of an "equal access" policy. P. 263-264.
(b) The plurality misplaces its reliance on Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, in light of the substantially different character of the student forum at issue here. In Widmar, the state university maintained a wide-open and independent forum, affording many ideological organizations access to school facilities; took concrete steps to assure that the university's name was not identified with the policies or programs of any student group; and emphasized the autonomy of its students. Here, in contrast, Westside currently does not recognize any student group that advocates a controversial viewpoint and explicitly promotes its student clubs as a vital part of its total educational program and as a means of developing citizenship, shaping character, and inculcating fundamental values. Moreover, the absence of other advocacy-oriented clubs in the highly controlled environment provides a fertile ground for peer pressure. In these circumstances, Westside's failure to disassociate itself from the activities and goals of the Christian club poses a real danger that it will be viewed by students as endorsing religious activity. Pp. 264-269.
(c) Thus, Westside must take steps to fully disassociate itself from the Christian club's religious speech and avoid appearing to sponsor or endorse the club's goals. It could, for example, entirely discontinue encouraging student participation in clubs and clarify that the clubs are not instrumentally related to the school's overall mission. Or, if Westside sought to continue its general endorsement of those clubs that did not engage in controversial speech, it could do so if it also affirmatively disclaimed endorsement of the Christian club. Pp. 269-270.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, in which REHNQUIST, C.J., and WHITE, BLACKMUN, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part III, in which REHNQUIST, C.J., and WHITE and BLACKMUN, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined, post, p. 262. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 262. STEVENS, J., filed a dissenting opinion, post, p. 270.
Allen E. Daubman, Omaha, Neb., for petitioners.
Jay Alan Sekulow, Decatur, Ga., for respondents, Bridget C. Mergens, etc., et al.
Solicitor Gen. Kenneth W. Starr, Washington, D.C., for respondent, U.S.
Justice O'CONNOR delivered the opinion of the Court, except as to Part III.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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