Religious Clubs in the Public Schools: What Happened after Mergens?

I. INTRODUCTION The Equal Access Act,(1) upheld by the Supreme Court in Board of Education v. Mergens,(2) requires public secondary schools to allow access to religiously based student groups on the same basis as other student clubs.(3) Mergens presents many challenges to civil libertarians, who may find their traditional sympathies aligned on both sides of the issue.(4) This article seeks to throw light on some of those issues by reporting on a research project that ascertained the actual effect of the Act on public high schools in Ohio.(5) II. LEGAL BACKGROUND In Widmar v. Vincent,(6) the Supreme Court held that a public university in the State of Missouri was required to allow religiously based student groups the same access to school facilities as it afforded to other student groups.(7) If a public university adopts a policy of accommodating various student groups' meetings, as was the case in Widmar,(8) the university has created what is known as an "open" or "public" forum.(9) In other words, if the student democrats and the student chess club were allowed certain access and privileges, a student religious club could not be excluded.(10) The decision was grounded primarily on the right of free speech, with the Court viewing the exclusion of religious clubs as "content-based discrimination."(11) The university argued that allowing religious groups to meet for worship in state university buildings was a violation of the Establishment Clause of the First Amendment.(12) Using the three-pronged Lemon test,(13) the Court found the university's "open-forum policy" did not discriminate against religious speech, as the policy had a secular purpose, avoided entanglement of government with religion, and did not have the "`primary effect' of advancing religion."(14) In addressing the university's concerns on the issue of "advancement," the Court pointed to the rich diversity of clubs and interest groups already on campus, many of whose goals were not endorsed by the university.(15) The Court noted "[u]niversity students are ... young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion."(16) Thus, there was little danger that students would perceive the university, or the State of Missouri, as giving religion special encouragement or endorsement that amounted to either an impermissible privilege or resulted in a significant advancement of religion's interests.(17) Subsequently, some federal courts failed to extend the reasoning of Widmar to public secondary schools. Some federal courts departed from Widmar in the "open forum" analysis,(18) while others departed from the "advancement" analysis.(19) For example, in Lubbock Civil Liberties Union v. Lubbock Independent School District,(20) the Fifth Circuit held that a secondary school is not a "public forum," even if the school allows many student groups to meet before or after school.(21) In Lubbock, the court stated: "[t]he District also argues that the school is a public forum, relying on Widmar, ... maintaining that it created a public forum when it allowed many student groups to meet before or after school. This reliance is misplaced."(22) The Lubbock court instead relied on the decision in Brandon v. Board of Education,(23) decided by the Second Circuit a year before Widmar.(24) In Brandon, the Second Circuit explicitly held "a high school is not a `public forum' where religious views can be freely aired."(25) Other federal courts departed from Widmar in the advancement analysis; for example, in Bender v. Williamsport Area School District,(26) the Third Circuit noted high school students are less mature and more impressionable than university students, and, thus, were "less able to appreciate the fact that permission for [the religious club] to meet would be granted out of a spirit of neutrality toward religion and not advancement. …