# Board of Education of Westside Community Schools v. Mergens/Dissent Stevens

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Kennedy Marshall
* Dissenting Opinion Stevens
Justice STEVENS, dissenting.
The dictionary is a necessary, and sometimes sufficient, aid to the judge confronted with the task of construing an opaque Act of Congress. In a case like this, however, I believe we must probe more deeply to avoid a patently bizarre result. Can Congress really have intended to issue an order to every public high school in the Nation stating, in substance, that if you sponsor a chess club, a scuba diving club, or a French club without having formal classes in those subjects-you must also open your doors to every religious, political, or social organization, no matter how controversial or distasteful its views may be? I think not. A fair review of the legislative history of the Equal Access Act (Act), 98 Stat. 1302, 20 U.S.C. §§ 4071-4074, discloses that Congress intended to recognize a much narrower forum than the Court has legislated into existence today.
* The Act's basic design is easily summarized: when a public high school has a "limited open forum," it must not deny any student group access to that forum on the basis of the religious, political, philosophical, or other content of the speech of the group. Although the consequences of having a limited open forum are thus quite clear, the definition of such a forum is less so. Nevertheless, there is considerable agreement about how this difficulty must be resolved. The Court correctly identifies three useful guides to Congress' intent. First, the text of the statute says that a school creates a limited open forum if it allows meetings on school premises by "noncurriculum related student groups," a concept that is ambiguous at best. Ante, at 237. Second, because this concept is ambiguous, the statute must be interpreted by reference to its general purpose, as revealed by its overall structure and by the legislative history. Ante, at 238-239. Third, the Act's legislative history reveals that Congress intended to guarantee student religious groups access to high school fora comparable to the college forum involved in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). See ante, at 235, 239. All of this is common ground, shared by the parties and by every Court of Appeals to have construed the Act.
A fourth agreement would seem to follow from these three. If "noncurriculum related" is an ambiguous term, and if it must therefore be interpreted in light of congressional purpose, and if the purpose of Congress was to ensure that the rule of Widmar applied to high schools as it did to colleges, then the incidence of the Act in this case should depend upon whether, in light of Widmar, Westside would have to permit the Christian student group to meet if Westside were a college. The characteristics of the college forum in Widmar should thus provide a useful background for interpreting the meaning of the undefined term "noncurriculum related student groups." But this step the Court does not take, and it is accordingly here that I part company with it.
Our decision in Widmar encompassed two constitutional holdings. First, we interpreted the Free Speech Clause of the First Amendment to determine whether the University of Missouri at Kansas City had, by its own policies, abdicated discretion that it would otherwise have to make content-based discriminations among student groups seeking to meet on its campus. We agreed that it had. 454 U.S., at 269, 102 S.Ct., at 274; see also id., at 280-281, 102 S.Ct., at 279-80 (STEVENS, J., concurring in judgment). Next, we interpreted the Establishment Clause of the First Amendment to determine whether the university was prohibited from permitting student-initiated religious groups to participate in that forum. We agreed that it was not. Id., at 270-277, 102 S.Ct., at 274-78; see also, id., at 280-281, 102 S.Ct., at 279-80 (STEVENS, J., concurring in judgment).
To extend Widmar to high schools, then, would require us to pose two questions. We would first ask whether a high school had established a forum comparable under our Free Speech Clause jurisprudence to that which existed in Widmar. Only if this question were answered affirmatively would we then need to test the constitutionality of the Act by asking whether the Establishment Clause has different consequences when applied to a high school's open forum than when applied to a college's. I believe that in this case the first question must instead be answered in the negative, and that this answer ultimately proves dispositive under the Act just as it would were only constitutional considerations in play.
The forum at Westside is considerably different from that which existed at the University of Missouri. In Widmar, we held that the university had created "a generally open forum," id., at 269, 102 S.Ct., at 274. Over 100 officially recognized student groups routinely participated in that forum. Id., at 265, 102 S.Ct., at 272. They included groups whose activities not only were unrelated to any specific courses, but also were of a kind that a state university could not properly sponsor or endorse. Thus, for example, they included such political organizations as the Young Socialist Alliance, the Women's Union, and the Young Democrats. See id., at 274, 102 S.Ct., at 276; Chess v. Widmar, 635 F.2d 1310, 1312, and n. 1 (CA8 1980). The university permitted use of its facilities for speakers advocating transcendental meditation and humanism. Since the university had allowed such organizations and speakers the use of campus facilities, we concluded that the university could not discriminate against a religious group on the basis of the content of its speech. The forum established by the state university accommodated participating groups that were "noncurriculum related" not only because they did not mirror the school's classroom instruction, but also because they advocated controversial positions that a state university's obligation of neutrality prevented it from endorsing.
The Court's opinion in Widmar left open the question whether its holding would apply to a public high school that had established a similar public forum. That question has now been answered in the affirmative by the District Court, the Court of Appeals, and by this Court. I agree with that answer. Before the question was answered judicially, Congress decided to answer it legislatively in order to preclude continued unconstitutional discrimination against high school students interested in religious speech. According to Senator Hatfield, a cosponsor of the Act: "All [it] does is merely to try to protect, as I say, a right that is guaranteed under the Constitution that is being denied certain students." 130 Cong.Rec. 19218 (1984). As the Court of Appeals correctly recognized, the Act codified the decision in Widmar, "extending that holding to secondary public schools." 867 F.2d 1076, 1079, and n. 1 (CA8 1989). What the Court of Appeals failed to recognize, however, is the critical difference between the university forum in Widmar and the high school forum involved in this case. None of the clubs at the high school are even arguably controversial or partisan.
Nor would it be wise to ignore this difference. High school students may be adult enough to distinguish between those organizations that are sponsored by the school and those which lack school sponsorship even though they participate in a forum that the school does sponsor. See ante, at 250. But high school students are also young enough that open fora may be less suitable for them than for college students. The need to decide whether to risk treating students as adults too soon, or alternatively to risk treating them as children too long, is an enduring problem for all educators. The youth of these students, whether described in terms of "impressionability" or "maturity," may be irrelevant to our application of the constitutional restrictions that limit educational discretion in the public schools, but it surely is not irrelevant to our interpretation of the educational policies that have been adopted. We would do no honor to Westside's administrators or the Congress by assuming that either treated casually the differences between high school and college students when formulating the policy and the statute at issue here.
For these reasons, I believe that the distinctions between Westside's program and the University of Missouri's program suggest what is the best understanding of the Act: An extracurricular student organization is "noncurriculum related" if it has as its purpose (or as part of its purpose) the advocacy of partisan theological, political, or ethical views. A school that admits at least one such club has apparently made the judgment that students are better off if the student community is permitted to, and perhaps even encouraged to, compete along ideological lines. This pedagogical strategy may be defensible or even desirable. But it is wrong to presume that Congress endorsed that strategy-and dictated its nationwide adoption-simply because it approved the application of Widmar to high schools. And it seems absurd to presume that Westside has invoked the same strategy by recognizing clubs like the Swimming Timing Team and Subsurfers which, though they may not correspond directly to anything in Westside's course offerings, are no more controversial than a grilled cheese sandwich.
Accordingly, as I would construe the Act, a high school could properly sponsor a French club, a chess club, or a scuba diving club simply because their activities are fully consistent with the school's curricular mission. It would not matter whether formal courses in any of those subjects-or in directly related subjects were being offered as long as faculty encouragement of student participation in such groups would be consistent with both the school's obligation of neutrality and its legitimate pedagogical concerns. Nothing in Widmar implies that the existence of a French club, for example, would create a constitutional obligation to allow student members of the Ku Klux Klan or the Communist Party to have access to school facilities. More importantly, nothing in that case suggests that the constitutional issue should turn on whether French is being taught in a formal course while the club is functioning.
Conversely, if a high school decides to allow political groups to use its facilities, it plainly cannot discriminate among controversial groups because it agrees with the positions of some and disagrees with the ideas advocated by others. Again, the fact that the history of the Republican Party might be taught in a political science course could not justify a decision to allow the young Republicans to form a club while denying Communists, white supremacists, or Christian Scientists the same privilege. In my judgment, the political activities of the young Republicans are "noncurriculum related" for reasons that have nothing to do with the content of the political science course. The statutory definition of what is "noncurriculum related" should depend on the constitutional concern that motivated our decision in Widmar.
In this case, the District Judge reviewed each of the clubs in the high school program and found that they are all "tied to the educational function of the institution." App. B to Pet. for Cert. 25-26. He correctly concluded that this club system "differs dramatically from those found to create an open forum policy in Widmar and Bender." Id., at 26. I agree with his conclusion that, under a proper interpretation of the Act, this dramatic difference requires a different result.
As I have already indicated, the majority, although it agrees that Congress intended by this Act to endorse the application of Widmar to high schools, does not compare this case to Widmar. Instead, the Court argues from two other propositions: first, that Congress intended to prohibit discrimination against religious groups; and, second, that the statute must not be construed in a fashion that would allow school boards to circumvent its reach by definitional fiat. I am in complete agreement with both of these principles. I do not, however, believe that either yields the conclusion which the majority adopts.
First, as the majority correctly observes, Congress intended the Act to prohibit schools from excluding-or believing that they were legally obliged to exclude-religious student groups solely because the groups were religious. Congress was clearly concerned with two lines of decisions in the Courts of Appeals: one line prohibiting schools that wished to admit student-initiated religious groups from doing so, see Lubbock Civil Liberties Union v. Lubbock Independent School Dist., 669 F.2d 1038, 1042-1048 (CA5 1982), cert. denied, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983), and a second line allowing schools to exclude religious groups solely because of Establishment Clause concerns, see Brandon v. Guilderland Bd. of Ed., 635 F.2d 971 (CA2 1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981); see also Bender v. Williamsport Area School Dist., 563 F.Supp. 697 (MD Pa.1983), rev'd, 741 F.2d 538 (CA3 1984), vacated on other grounds, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). See ante, at 239. These cases, however, involve only schools which either desire to recognize religious student groups, or schools which, like the University of Missouri at Kansas City, purport to exclude religious groups from a forum that is otherwise conceded to be open. It is obvious that Congress need go no further than our Widmar decision to redress this problem, and equally obvious that the majority's expansive reading of "noncurriculum related" is irrelevant to the congressional objective of ending discrimination against religious student groups.
Second, the majority is surely correct that a " 'limited open forum should be triggered by what a school does, not by what it says.' " Ante, at 244, quoting 130 Cong.Rec. 19222 (1984) (statement of Sen. Leahy). If, however, it is the recognition of advocacy groups that signals the creation of such a forum, I see no danger that school administrators will be able to manipulate the Act to defeat Congressional intent. Indeed, it seems to me that it is the majority's own test that is suspect on this score. It would appear that the school could alter the "noncurriculum related" status of Subsurfers, see ante, at 245, simply by, for example, including one day of scuba instruction in its swimming classes, or by requiring physical education teachers to urge student participation in the club, or even by soliciting regular comments from the club about how the school could better accommodate the club's interest within coursework. This may be what the school does rather than what it says, but the "doing" is mere bureaucratic procedure unrelated to the substance of the forum or the speech it encompasses.
Not only is the Court's preferred construction subject to manipulation, but it also is exceptionally difficult to apply even in the absence of deliberate evasion. For example, the Court believes that Westside's swim team is "directly related" to the curriculum, but the scuba diving club is not. Ibid. The Court's analysis makes every high school football program a borderline case, for while many schools teach football in physical education classes, they usually teach touch football or flag football, and the varsity team usually plays tackle football. Tackle football involves more equipment and greater risk, and so arguably stands in the same relation to touch football as scuba diving does to swimming. Likewise, it would appear that high school administrators might reasonably have difficulty figuring out whether a cheerleading squad or pep club might trigger the Act's application. The answer, I suppose, might depend upon how strongly students were encouraged to support the football team. Obviously, every test will produce some hard cases, but the Court's test seems to produce nothing but hard cases.
For all of these reasons, the argument for construing "noncurriculum related" by recourse to the facts of Widmar, and so by reference to the existence of advocacy groups, seems to me overwhelming. It provides a test that is both more simple and more easily administered than what the majority has crafted. Indeed, the only plausible answer to this construction of the statute is that it could easily be achieved without reference to the exotic concept of "noncurriculum related" organizations. This point was made at length on the Senate floor by Senator Gorton. Senator Hatfield answered that the term had been recommended to him by lawyers, apparently in an effort to capture the distinctions important to the judiciary's construction of the Free Speech Clause.
Congress may sometimes, however, have a clear intent with respect to the whole of a statute even when it muddles the definition of a particular part, just as, in other cases, the intent behind a particular provision may be clear though the more comprehensive purpose of the statute is obscure. In this case, Congress' general intent is-as Senator Gorton certainly understood a necessary guide to the Act's more particular terms. In answer to this strategy, the Court points out that references to Widmar must be considered in context. Ante, at 242-243. That is surely so. But when this is done it becomes immediately clear that those references are neither "few" nor "passing" nor even "general," ibid.; they are instead the sheet anchors holding fast a debate that would otherwise be swept away in a gale of confused utterances.
We might wish, along with Senator Gorton, that Congress had chosen a better term to effectuate its purposes. But our own efforts to articulate "public forum" analysis have not, in my opinion, been altogether satisfactory. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 833, 105 S.Ct. 3439, 3465, 87 L.Ed.2d 567 (1985) (STEVENS, J., dissenting). Lawyers and legislators seeking to capture our distinctions in legislative terminology should be forgiven if they occasionally stumble. Certainly we should not hold Congress to a standard of precision we ourselves are sometimes unable to obtain. "Our duty is to ask what Congress intended, and not to assay whether Congress might have stated that intent more naturally, more artfully, or more pithily." Sullivan v. Everhart, 494 U.S. 83, 106, 110 S.Ct. 960, 973, 108 L.Ed.2d 72 (1990) (STEVENS, J., dissenting).
My construction of the Act makes it unnecessary to reach the Establishment Clause question that the plurality decides. It is nevertheless appropriate to point out that the question is much more difficult than the plurality assumes. The plurality focuses upon whether the Act might run afoul of the Establishment Clause because of the danger that some students will mistakenly believe that the student-initiated religious clubs are sponsored by the school. I believe that the plurality's construction of the statute obliges it to answer a further question: whether the Act violates the Establishment Clause by authorizing religious organizations to meet on high school grounds even when the high school's teachers and administrators deem it unwise to admit controversial or partisan organizations of any kind.
Under the plurality's interpretation of the Act, Congress has imposed a difficult choice on public high schools receiving federal financial assistance. If such a school continues to allow students to participate in such familiar and innocuous activities as a school chess or scuba diving club, it must also allow religious groups to make use of school facilities. In deed, it is hard to see how a cheerleading squad or a pep club, among the most common student groups in American high schools, could avoid being "noncurriculum related" under the majority's test. The Act, as construed by the majority, comes perilously close to an outright command to allow organized prayer, and perhaps the kind of religious ceremonies involved in Widmar, on school premises.
We have always treated with special sensitivity the Establishment Clause problems that result when religious observances are moved into the public schools. Edwards v. Aguillard, 482 U.S. 578, 583-584, 107 S.Ct. 2573, 2577-2578, 96 L.Ed.2d 510 (1987). "The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools. . . ." Illinois ex rel. McCollum Board of Ed. of School Dist. No. 71, 333 U.S. 203, 231, 68 S.Ct. 461, 475, 92 L.Ed. 649 (1948) (Frankfurter, J., concurring). As the plurality recognizes, ante, at 2372, student-initiated religious groups may exert a considerable degree of pressure even without official school sponsorship. "The law of imitation operates, and nonconformity is not an outstanding characteristic of children." McCollum, 333 U.S., at 227, 68 S.Ct., at 473 (Frankfurter, J., concurring); see also Abington School Dist. v. Schempp, 374 U.S. 203, 290-291, 83 S.Ct. 1560, 1607-08, 10 L.Ed.2d 844 (1963) (BRENNAN, J., concurring). Testimony in this case indicated that one purpose of the proposed Bible Club was to convert students to Christianity. App. 185. The influence that could result is the product not only of the Act and student-initiated speech, but also of the compulsory attendance laws, which we have long recognized to be of special constitutional importance in this context. Id., at 252-253, 83 S.Ct., at 1587-88; Wallace v. Jaffree, 472 U.S. 38, 60, n. 51, 105 S.Ct. 2479, 2491-92, n. 51, 86 L.Ed.2d 29 (1985). Moreover, the speech allowed is not simply the individual expression of personal conscience, as was the case in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), or West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), but is instead the collective statement of an organization a "student club," with powers and responsibilities defined by that status-that would not exist absent the State's intervention.
I tend to agree with the plurality that the Constitution does not forbid a local school district, or Congress, to bring organized religion into the schools so long as all groups, religious or not, are welcomed equally if "they do not break either the laws or the furniture." That Congress has such authority, however, does not mean that the concerns underlying the Establishment Clause are irrelevant when, and if, that authority is exercised. Certainly we should not rush to embrace the conclusion that Congress swept aside these concerns by the hurried passage of clumsily drafted legislation.
There is an additional reason, also grounded in constitutional structure, why the Court's rendering of the Act is unsatisfying: so construed, the Act alters considerably the balance between state and federal authority over education, a balance long respected by both Congress and this Court. See, e.g., Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 863-864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982). The traditional allocation of responsibility makes sense for pedagogical, political, and ethical reasons. We have, of course, sometimes found it necessary to limit local control over schools in order to protect the constitutional integrity of public education. "That [boards of education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia Bd. of Ed. v. Barnette, 319 U.S., at 637, 63 S.Ct., at 1185; see also Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990). Congress may make similar judgments, and has sometimes done so, finding it necessary to regulate public education in order to achieve important national goals.
The Court's construction of this Act, however, leads to a sweeping intrusion by the Federal Government into the operation of our public schools, and does so despite the absence of any indication that Congress intended to divest local school districts of their power to shape the educational environment. If a high school administration continues to believe that it is sound policy to exclude controversial groups, such as political clubs, the Ku Klux Klan, and perhaps gay rights advocacy groups, from its facilities, it now must also close its doors to traditional extracurricular activities that are noncontroversial but not directly related to any course being offered at the school. Congress made frequent reference to the primacy of local control in public education, and the legislative history of the Act is thus inconsistent with the Court's rigid definition of "noncurriculum related groups." In deed, the very fact that Congress omitted any definition in the statute itself is persuasive evidence of an intent to allow local officials broad discretion in deciding whether or not to create limited public fora. I see no reason-and no evidence of congressional intent-to constrain that discretion any more narrowly than our holding in Widmar requires.
Against all these arguments the Court interposes Noah Webster's famous dictionary. It is a massive tome but no match for the weight the Court would put upon it. The Court relies heavily on the dictionary's definition of "curriculum." See ante, at 237. That word, of course, is not the Act's; moreover, the word "noncurriculum" is not in the dictionary. Neither Webster nor Congress has authorized us to assume that "noncurriculum" is a precise antonym of the word "curriculum." "Nonplus," for example, does not mean "minus" and it would be incorrect to assume that a "nonentity" is not an "entity" at all. Purely as a matter of defining a newly coined word, the term "noncurriculum" could fairly be construed to describe either the subjects that are "not a part of the current curriculum" or the subjects that "cannot properly be included in a public school curriculum." Either of those definitions is perfectly "sensible" because both describe subjects "that are not related to the body of courses offered by the school." See ante, at 237. When one considers the basic purpose of the Act, and its unquestioned linkage to our decision in Widmar, the latter definition surely is the more "sensible."
I respectfully dissent.

## Notes

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