Religious clubs in the public schools: what happened after Mergens?

• Author: Davis, Dena S.

1. 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)

2. 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."(27) The court concluded: "the possible perception by adolescent students that government is communicating a message of endorsement of religion if it permitted a religious group to meet would be vastly different in a high school setting than the perception of such action by college students in a college setting."(28)

   Congress reacted to the confusion created by the federal courts' failure to extend Widmar to secondary public schools(29) by passing the Equal Access Act.(30) The Act prohibits all secondary schools that receive federal funding, and that have a "limited open forum," from discriminating against student groups on the basis of their "religious, political, philosophical, or other content of the speech at such meetings."(31) A "limited open forum" exists when the school provides opportunities for noncurriculum-related student groups to meet on school premises outside of class hours.(32) Therefore, if a school allows a chess club, a science fiction club, or a Young Homemakers of America club, it must also allow a Christian club or a Jewish club (or, of course, a Hare Krishna club) as well.(33)

   In Board of Education v. Mergens,(34) the Supreme Court ruled that the Equal Access Act was constitutional and did not violate the Establishment Clause.(35) Although the bulk of the decision focused on the meaning of a "limited open forum," the Court did address the constitutional issues as well.(36) The plurality stated that neither the difference in age and maturity of high school versus college age students, nor the state's compulsory attendance laws, required a different result in Mergens than in Widmar.(37)

   To be sure, the possibility of student peer pressure remains, but there is little if any risk of official state endorsement or coercion where no formal classroom activities are involved and no school officials actively participate.... To the extent a school makes clear that its recognition of respondents' proposed club is not an endorsement of the views of the club's participants, ... students will reasonably understand that the school's official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech.(38) The plurality also dismissed concerns about faculty sponsors and other accoutrements of secondary school life,(39) relying on the language of the Act itself to curtail excessive "entanglement" between government and religion.(40)

3. DISCUSSION

   The issue raised in Mergens is an extremely difficult one for civil libertarians. On the one hand, it is patently wrong, not to mention unconstitutional, to allow public schools to exclude certain groups merely because of their beliefs.(41) The message thus given to students--whether it is one of hostility toward religion or contempt for the requirements of free expression--is certainly not one we wish to promote. Further, it is condescending and destructive to assume that students cannot have sincere political or religious views that command protection from school censorship. In 1969, civil libertarians rejoiced when the Court decided that high school students had the right to symbolic speech that expressed their opposition to the Vietnam War.(42) As Douglas Laycock asks, "[h]ow can it be that students are mature enough to deal with war protests and refusals to salute the flag--in the presence of an entire class--but are not mature enough to deal with a secluded prayer meeting attended only by those who wish to attend?"(43)

   On the other hand, it would be disingenuous to ignore the pervasively coercive environment of a public secondary school, which is strikingly unlike that of a public university. Extracurricular clubs are part of the school experience and students are encouraged to participate. Faculty "sponsors" or "monitors" are usually required in high school clubs. In some schools, extracurricular activities may substitute for curricular requirements. Club meetings may be announced over the Public Address system by school leaders. Laycock's comments that separationists have been "led into error" about equal access because of their "hostility to the set of political and religious views that they associate with the supporters of school prayer"(44) are naive in view of his own comment that the religious right generally "denies that the establishment clause requires neutrality."(45) The "give 'em an inch and they'll take a mile" attitude that separationists have toward the religious right is not without reason.

   In fact, the concurrence by Justice Marshall (joined by Justice Brennan) in Mergens emphasizes the differences between Westside High and the University of Missouri, and delineates a number of steps that Westside must take in order to "avoid appearing to sponsor or endorse the [religious] club's goals."(46) Marshall notes that the important difference is not that university and high school students have different levels of sophistication and varying abilities "to perceive the subtle differences between toleration and endorsement,"(47) but that the institutions themselves differ in how they define their relationship to student groups.(48) The university seems to take a neutral attitude toward these clubs, whereas Westside urges students to get involved in extracurricular activities, and "regards its student clubs as a mechanism for defining and transmitting fundamental values."(49) Thus, Marshall believes that "Westside must redefine its relationship to [the] club program."(50)

   Another issue raised in the concurrence is the lack at Westside of a "truly robust forum that includes the participation of more than one advocacy-oriented group."(51) Whereas the university's clubs included a wide spectrum of political opinion, such that no student could seriously believe that the university was endorsing all the clubs, Westside's clubs certainly merited Justice Stevens's barb that they were as controversial as a "grilled cheese sandwich."(52) In a list of...