The “Fallon Treaties” (Part Two)

NOTE: Part One of this post can be found here. Both segments are from the rough draft of a book I’m hoping will be called something like “Have To” History: Stuff You Don’t Really Want To Know (But For Some Reason Have To) About The Most Boring Events, People, and Issues in American History.

The Clayton-Bulwer Treaty (U.S. & U.K., 1850)

The Treaty of Guadalupe-Hidalgo is nothing more than a poor man’s Clayton-Bulwer Treaty. (Late Night w/ Jimmy Fallon)

Oh Man, This Plan… A Canal?

The Monroe Doctrine announced by the U.S. in the 1820s had never quite overcome the young nation’s hesitance to openly challenge British influence in Central and South America. They’d been there longer, and despite several embarrassing defeats at the hands of the U.S. and its allies, were still very much the big kid on the block for most of the nineteenth century.

The British had for years flirted with the idea of building a canal right through Central America to allow their massive navy easier access from the Atlantic to the Pacific. Over time, the U.S. started thinking maybe that actually wasn’t such a bad idea – although they, of course, assumed American merchants and military vessels as the primary beneficiaries. Neither side was ready to push ahead with such an ambitious project, but each began worrying that perhaps the other would – perhaps cutting them out in the process.

In the meantime, they at least agreed on the most natural location of such a venture. The geography, the political dynamics, even the catchy name once completed:

The “Nicaragua Canal.”

Half of the envisioned canal was already present in the form of natural waterways. Nicaragua itself had spent the previous few decades being tossed back and forth like the ugly kid in a divorce. It had gone from being part of Mexico to joining a Central American “league” to periods of independence – all while technically remaining part of a British “protectorate” in that part of the world.

There’s no record of anyone in the U.S. or Great Britain consulting Nicaragua as to their thoughts on the matter.

The Actual Treaty

The Clayton-Bulwer Treaty was signed in 1850 while President Zachary Taylor was in office and the Whigs were still a thing… barely. It focused primarily on what each side promised NOT to do:

  • Neither the U.S. nor the U.K. would establish new colonies in Central America.
  • Neither the U.S. nor the U.K. would build up, arm, or fortify any existing interests near the proposed canal.
  • Neither the U.S. nor the U.K. would attempt to build the canal without the cooperation and consent of the other.
  • If a canal were eventually built, neither the U.S. nor the U.K. would take steps to ensure exclusive control of the canal or territories bordering the canal. It would be made available to everyone on some sort of neutral basis.

The young Democratic Party declared the treaty to be a violation of the Monroe Doctrine, an accusation which helped only sped the Whigs’ journey into political irrelevance. Despite the backlash, the treaty held off British influence in Central America and continued to strengthen the relationship between the U.S. and its ex-Motherland. It held for half a century until replaced by the Hay-Pauncefote Treaty (1901), by which time Panama had become the favored site for this long-desired canal. Great Britain was by that point happy to let the U.S. do the building and administrating, knowing they’d have all the access they needed without the expense or headaches of running the thing themselves.

The Gadsden Purchase

Why haven’t you done any jokes about the Gadsden Purchase? Signed in 1854 by President Franklin Pierce? Granted the U.S. sovereignty over the southern tips of Arizona and New Mexico? See, uh… the terrain in the southernmost portion of the Mexican Cession (1848) was, uh… too rocky for the Transcontinental Railroad, so…

Well, if you love this thing so much, why would you want me to make a joke about it?

You gotta be able to laugh at the Gadsden Purchase. I mean… it’s what life’s all about.

(Late Night w/ Jimmy Fallon)

A Lone Star Is Born

You probably remember the major highlights of Texas Independence from Mexico – empresarios like Stephen Austin curating settlements of mostly white folks from the north who never quite believed they weren’t in the U.S. anymore, the Texas Revolution, William Travis, Sam Houston, David Crockett, Juan Seguín, Jim Bowie, and of course General Antonio López de Santa Anna and his two healthy, attached legs. You may even remember details like that “Come And Take It” flag or a minor scuffle involving an old mission called the Alamo.

Somehow out of all that craziness, Texas won.

After a decade or so of doing quite well for themselves as an independent republic (something they still won’t shut up about, honestly), Texas was annexed by the United States in 1845 and became the twenty-eighth state. If Mexico had begun getting over the events of the previous decade, seeing Texas in the arms of another stirred up old passions and resentments, many of which were now directed at new beau Uncle Sam.

As with any messy breakup, there were lingering disputes. In the case of Texas and Mexico, the biggest issue involved the southwestern border of Texas. Mexico claimed the territory ended at the Nueces River, while Texas – and now the U.S. – placed it at the Rio Grande. This wasn’t a difference of a few miles or a dispute over where to park the camper on Labor Day weekend. The maps envisioned by Mexico and the U.S. differed by over half-a-million square miles, including most of what today is New Mexico and a significant chunk of Colorado as well.

The Mexican-American War (1846 – 1848)

President Polk sent Zachary Taylor into the disputed area to provoke Mexican troops repeatedly until someone finally fired back or hit them with a stick or something. At that point, Polk ran to Congress yelling that Mexico had “invaded” American territory and attacked U.S. forces for no reason! Here we were, trying to peacefully resolve things through diplomacy, but those darned Mexicans and their violent natures, etc.

The resulting war commenced in April of 1846 and lasted until the Treaty of Guadalupe-Hidalgo in February of 1848. The U.S. received the disputed territory (the “Mexican Cession”) but agreed to pay Mexico several million dollars in return. The “Wilmot Proviso” was introduced in Congress, seeking to ban slavery in any territory acquired from Mexico. It didn’t pass, but the resulting debates certainly helped speed the nation towards civil war.

But again, you probably know all of this already. It’s juicy stuff, even if it’s not all particularly flattering to our forebears.

What Life’s All About

Despite the fact that the entire premise of the Mexican-American War was resolving cartographical disparities, boundary disputes lingered even after the treaty ending it was signed. There were other issues as well, but none merited renewed hostilities. What finally reopened negotiations between the U.S. and Mexico wasn’t the specter of war, but Uncle Sam’s commitment to trains and westward expansion.

The Whig dream of connecting the various regions of the nation hadn’t faded, and visionaries of all political stripes coveted an infrastructure to support the nation’s rapid expansion. As the Fallon bit points out, however, the topography of southern plains suggested that the best route for laying railroad tracks dipped ever-so-slightly into Mexican territory – and that wouldn’t go over well. U.S. President Pierce sent U.S. Minister to Mexico James Gadsden to negotiate with whoever happened to be in charge of Mexico that week.

Between the Texas Revolution and the Gadsden Purchase, leadership of Mexico changed hands approximately 873 times. About a third of these resulted in our old friend Antonio López de Santa Anna running things for a season or two at a time, and that’s who happened to be in the big chair when Gadsden arrived. Gadsden’s timing was ideal; Santa Anna was distracted trying to squash internal rebellions (something of a theme for Mexico in those days) and in need of quick cash. Gadsden just happened to be authorized to offer him just that in exchange for what seemed a few negligible swaths of land way up north.

The treaty was signed and one more little chunk of glory was added to the United States. Several other minor issues between the two nations were addressed as well, but none quite so almost-exciting or somewhat-relevant as the Gadsden Purchase.

Why The Fallon Treaties Matter

As previously mentioned, treaties are one indication that a nation is either all grown up or well on its way. As any middle school educator can tell you, the ability to resolve our differences using words is something that comes only with maturity and a sprinkling of hard-won wisdom.

After the War of 1812, the U.S. never again took up arms against Great Britain, whatever their disagreements. Some of this was simply pragmatic; the English still had one of the most powerful militaries in the world and there was no sense messing with them if it could be avoided. Plus, they were becoming excellent trading partners. Just as importantly, however, the U.S. and Britain understood one another – and not just because they shared a common language. Culturally, religiously, economically, and politically, they were far more similar than different. Even when they argued, they wanted the same things and approached disputes in similar ways.

Not so the U.S. and Mexico (or any other Latin American country). Neither ever quite understood the other. The U.S. looked down on what appeared to be a backward people and their chaotic government, while Mexico had little use for smug Americans and their manifestly violent destinies. They could negotiate, perhaps even settle – but they could never truly come to peace with one another.

The tendency of the U.S. to get what it wanted from other nations by dangling bags of cash in front of them would continue (as it still does today). It may not be particularly glorious or noble, but it’s often more economically practical and morally defensible than going to war, whatever the cause.

The Webster-Ashburton Treaty was a major step in normalizing negotiation over calls to arms whenever the U.S. and Great Britain were at odds. The Clayton-Bulwer Treaty eventually led to the Panama Canal (although there were several steps in between). The canal was in turn important for most of the twentieth century, from President Theodore Roosevelt’s first cartoon shovel all the way through President Carter’s “giveaway” in the 1970s. And the Gadsden Purchase really did make it easier to run those railroad lines all the way across the continent, despite the project being delayed by civil war before it could be completed.

Making The Grade: What You’re Most Likely To Be Asked

Webster-Ashburton and Clayton-Bulwer are, sadly, more likely to show up as detractors (“wrong answers”) for multiple-choice questions than as correct responses: “Which of the following attempted to prevent the expansion of slavery into territory acquired from Mexico? (A) The Webster-Ashburton Treaty, (B) The Clayton-Bulwer Treaty, (C) The Wilmot Proviso, or (D) The Ostend Manifesto.”

Remember that both were between the U.S. and Great Britain and note the general time frame (1840-1850). While you may not be asked about these first two treaties by name, they’re excellent details for short answer or essay responses related to the time period, particularly those involving foreign policy or political parties in the mid-nineteenth century. If you’re really lucky, you’ll be asked about accomplishments of the short-lived Whig Party. Obviously, you’ll focus on stuff related to the American System (infrastructure, a strong centralized economy, etc.), but both Webster-Ashburton and Clayton-Bulwer were negotiated under Whig Presidents, so there! Look at you go, tiger.

Gadsden will come up slightly more often since it involved westward expansion and Texas (er… sort of). It’s the only one of the three likely to manifest itself as part of a map question – “Identify the following territories” or “label these territories and the date each was added to the U.S.” (Such maps will tend to show the Louisiana Purchase, the Mexican Cession, Oregon Country, etc., as well as the Gadsden Purchase.) Gadsden is right up there with “Fifty-four forty or fight!” in terms of being nearly name-brand history and only partially boring. It’s essential to remember that it was largely motivated by the needs of the transcontinental railroad. You can rarely go wrong connecting details back to westward expansion or technological progress.

Now, go back and watch the video again. The faux obsessions of the various characters don’t seem quite so out there anymore, do they?  

OK, maybe still a little.

The “Fallon Treaties” (Part One)

NOTE: This post and its sequel are from the rough draft of a book I’m hoping will be called something like “Have To” History: Stuff You Don’t Really Want To Know (But For Some Reason Have To) About The Most Boring Events, People, and Issues in American History.

I’d like a longer title, but it simply won’t fit on the cover.

The “Fallon Treaties”: The Webster-Ashburton Treaty (1842), the Clayton-Bulwer Treaty (1850), and the Gadsden Purchase (1854) 

Three Big Things:

1. The Webster-Ashburton Treaty (1842) between the U.S. and Great Britain settled boundary disputes between New England and Canada as well as a handful of other “play nicely together” logistics. Larger issues like the slave trade or Oregon Territory, however, were left for another time.

2. The Clayton-Bulwer Treaty (1850) between the U.S. and Great Britain primarily consisted of promises by both sides not to bulk up their presence in Central America and mutual promises not to build a canal through Central America without consulting one another first.

3. The Gadsden Purchase (1854) added strips of land along southern Arizona and New Mexico to territory already taken from Mexico by the Treaty of Guadalupe-Hidalgo (1848). It was primarily motivated by the needs of the transcontinental railroad.

The “Fallon Treaties”?

Several years ago, talk show host Jimmy Fallon did a wonderful bit with planted audience members in which they argued about which historical treaties were the coolest. The humor was built on the relative obscurity and banality of the treaties being discussed contrasted with the passion shown by the faux audience members. In other words, it was engaging because the subject matter was presumed to be so boring that no one could possibly care about it that much – and yet, they did.

Sound familiar?

The Fallon video has since practically become required viewing in any American History class dealing with the first half of the nineteenth century. (If you’re not familiar with it, try searching “Fallon Gadsden Purchase” on YouTube. I’ll wait.) 

The sketch references the Treaty of Guadalupe-Hidalgo (1848) which ended the Mexican-American War and granted the U.S. a big chunk of land known as the “Mexican Cession.” This one should be well-known to any student of history, in school or otherwise. The Louisiana Purchase is mentioned in passing as well, but it, too, is pretty hard for anyone to miss. That leaves the three agreements covered below.

And yes, they’re worth knowing – even beyond what’s covered in the sketch.

Contextualization

There are so few truly engaging treaties in U.S. history. They sometimes end interesting wars – the Treaty of Paris (1783) which granted the colonies independence, for example. They may come about as the result of a memorable surrender – the Confederacy at Appomattox Court House (1865), Japan on the deck of the USS Missouri (1945), or Cheap Trick on Heaven Tonight (1978). But the treaties themselves? Not so much.

Treaties created to prevent wars are even less exciting, and yet remain stubbornly present in state standards and APUSH course descriptions. It’s like they don’t even want history to be fun.

Boring or not, treaties are an essential element of foreign policy and by their very nature suggest that a nation is grown-up enough to solve at least some of its problems with words rather than violence. They require two parties to acknowledge one another as sufficiently legitimate for a signed agreement to be both appropriate and reliable. For a still relatively young nation like the U.S. in the mid-nineteenth century, the fact that nations like Great Britain and Mexico would negotiate small print with them proved that – if nothing else – they were practically a real country.

Understanding treaties you’re required to know sometimes starts by exploring a few things you’re not – so buckle up and let’s see if we can hit enough essentials that you can (a) remember these boring-but-somewhat-important treaties, and (b) throw in enough details when asked that you’ll sound like you actually know (and care) way more than you do.

The Webster-Ashburton Treaty (U.S. & U.K., 1842)

You mean the 1842 treaty that resolved minor boundary disputes between the U.S. and Canada? Negotiated by U.S. Secretary of State Daniel Webster? I LOVE the Webster-Ashburton Treaty! (Late Night w/ Jimmy Fallon) 

The Caroline Affair

In 1837-1838, several British colonies in Canada began pushing back against what they perceived as oppressive rule and inadequate representation in their own government. (Who knows where people get these wacky ideas?) The result was a small-scale revolution which the British promptly put down, although the Motherland did attempt to address a few of their complaints as a result.

A handful of unsatisfied rebels ended up on a little island in the Niagara River along with a smattering of Americans who were either sympathetic to their cause or just couldn’t resist the chance for a good scrap. Canadian soldiers (still loyal to the British Empire at that point) intercepted a U.S. ship named the Caroline which the islanders had hired to bring them supplies, killing one of the crew in the struggle. The captured ship was then sent over Niagara Falls. 

Sadly, no one thought to post the video.

The Caroline Affair, as it became known, was certainly unpleasant for those involved, but it didn’t become an international incident until a guy named Alexander McLeod showed up in New York claiming to have been the guy who killed the crewmember and bragging about his role in seizing the Caroline. Whatever his motivations, this was totally uncool. New York arrested him, but England intervened, claiming McLeod could not be punished by criminal law for something he’d done as a member of the British military – even if he was being a jerk about it now. The U.S. agreed but lacked the authority to force New York to release him. (Obviously, state-federal dynamics have evolved considerably in the nearly two centuries since.)

New York tried McLeod and acquitted him, thus saving face for themselves without actually incarcerating or executing a British soldier. Despite this diplomatic (and possibly predetermined) outcome, emotions remained raw all ‘round.

The Aroostook War (aka, “Battle of the Maps”)

Around the same time, in an otherwise unrelated incident, another contingent of British troops almost came to blows with the state of Maine.

The Treaty of Paris (1783) which ended the American Revolution fell a bit short when it came to clearly defining boundaries between the new United States and what later became Canada. The U.S. and England quibbled about sections of this border off and on for several decades, until someone finally realized they’d been overlooking the most obvious solution in the world. They asked the King of the Netherlands to decide everything.

Yes, seriously.

He did, but the U.S. didn’t like his answer, so they stomped their little toddler-nation feet and refused to accept it. The conflicts continued.

In the meantime, New England settlers had begun drifting into the disputed region – as had Canadian lumberjacks coming from the other direction. The two groups initially settled for scowling at one another across the greens, but by the late 1830s, things were escalating. Violence became a very real possibility.

Canadians began arresting New Englanders as “trespassers.” New Englanders in turn arrested Canadian “intruders.” In 1839, the British sent in troops from Quebec. The state of Maine responded by sending in 10,000 state militia volunteers (who’d apparently missed the bit in the Constitution about how states can’t go to war with foreign powers all by themselves). This is what’s known in the history biz as “escalation.”

President Martin Van Buren, who you probably thought never did anything cool, ordered General Winfield Scott and 50,000 federal troops into the area to calm things down, which seems counterintuitive until you remember that they were the only ones in the mix without a personal stake in the outcome – one of the many benefits of a “professional” army. It also didn’t hurt that they substantially outnumbered everyone else.

A truce was reached, and the two nations agreed to finally get serious about resolving their boundary problems. Sadly, they’d have to do so without the help of the King of the Netherlands this time.

The Creole Revolt 

In 1841, the U.S. experienced arguably the most successful slave uprising in American history, which is probably why we don’t talk about it that much. It’s much more comfortable to focus instead on all the times white people quickly took back control and killed everyone.

A ship called the Creole was transporting 134 slaves from Virginia to New Orleans (an entirely legal venture at the time since it didn’t involve bringing in newly enslaved chattel from abroad). The slaves revolted and managed to steer the Creole to Nassau in the Bahamas, knowing it was under British rule at the time and believing that British law would require they be set free.

They were right.

This wasn’t the first time the British had freed American slaves who for whatever reason ended up in their hands, but it was certainly the largest group emancipated all at once. Americans could hardly contain their outrage – do the British have NO respect for property rights or personal freedoms? Who DOES that to other people?!?

We Need To Talk

Ongoing tensions between the U.S. and Great Britain finally led to the Webster-Ashburton Treaty of 1842. It was negotiated by Secretary of State Daniel Webster (by this time serving under President John “Yes, I’m A ‘Real President’” Tyler) and did, in fact, settle those pesky boundary disputes. It established criminal extradition between the two nations and granted the U.S. navigation rights on the St. John River, which runs through Maine into Canada before emptying into the Atlantic Ocean via the Bay of Fundy – a name so cool it simply had to be Canadian.

The treaty also included some lofty language about working together to suppress the slave trade, but other than informal assurances, the issues at the heart of the Creole conflict were left unresolved. A year after the treaty was signed, Great Britain agreed to compensate the “owners” of the freed slaves for their loss – a pragmatic move, no doubt, but it kinda took the moral shine off the whole affair. 

The two nations deferred discussions of similar boundary disputes further west (perhaps hoping the Grand Duchy of Finland or the Governor of New Zealand could somehow be persuaded to get involved). This decision would later provide James K. Polk with one of the most memorable campaign lines of the mid-nineteenth century. If he were elected president, he assured the nation, there’d be no compromising with the British in Oregon Territory – “Fifty-four forty or fight!” Never had a line of latitude been so loaded with patriotism or testosterone.

It worked, by the way. Contrary to all appearances, Oregon is today part of the United States.

Finally, the nations agreed that the next time either one of them decided to send an entire ship over a waterfall, they’d absolutely make sure the video was posted on YouTube. (Presumably this language was accidentally omitted from the final draft.)

Next Time: Part Two – the Clayton-Bulwer Treaty & the Gadsden Purchase

The Decision (Westside Community Schools v. Mergens, 1990 – Part Two)

Summary of Part One:

1. The Equal Access Act of 1984 prohibited any public school which permitted “non-curricular” clubs to meet on school property from picking and choosing which clubs they allowed based on ideologies or beliefs. The trick was figuring out what counted as “non-curricular.”

2. Bridget Mergens was a student at Westside High School in Omaha, Nebraska. In 1985, she asked her principal for permission to form a Christian club at the school. 

3. The school said no, arguing that organizations like Chess Club and Scuba Club were essentially (if not directly) curriculum-related in that they were extensions of the sorts of things the school promoted as a whole, and thus inadequate to trigger the requirements of the act. Bridget didn’t buy it.  

The Decision

The Supreme Court determined that Westside’s existing activities were non-curricular enough that they had a “limited open forum,” and the Equal Access Act did not violate the Establishment Clause. The school would let the kids have their Bible Club. Justice Sandra Day O’Connor wrote most of the opinion for the majority and the rest for a plurality of justices, while several who supported the result wrote concurrences differing in some of the details or focusing on different factors. Justice John Paul Stevens was the sole voice of dissent, which at least simplified the math on that side of things.

Justice O’Connor’s mostly-majority opinion recapped the history of the case, including the role of Widmar v. Vincent (1981) and the Equal Access Act which was clearly intended to apply the standards outlined in Widmar to public schools. The sticking point, she acknowledged, was the use of the term “noncurriculum related student group” in the Act. The bill’s authors somehow overlooked that one tiny little detail – like when you forget to add coffee to your cream and sugar or bring your car with you to the gas station. O’Connor weighed several possible approaches to resolving this before arriving at the Court’s solution:

In our view, a student group directly relates to a school’s curriculum if the subject matter of the group is actually taught… in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a common sense interpretation of the Act that is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.

For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school’s student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school…

On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be “noncurriculum related student groups” for purposes of the Act. The existence of such groups would create a “limited open forum” under the Act and would prohibit the school from denying equal access to any other student group on the basis of the content of that group’s speech…

In other words, if Westside had a Scuba Club but not a Scuba Class, they’d have to allow Bible Club as well – along with any ideological undesirables seeking similar sanctuary.

As to the Establishment Clause, the Equal Access Act passed the “Lemon Test” on all three fronts. It had a secular legislative purpose (equal access and protection of different viewpoints or beliefs), it did not substantially advance or hinder religion (it merely stayed out of the way), and it didn’t create excessive entanglement (the school wasn’t funding or regulating the meetings beyond what it would do for anything else happening on campus). “Indeed,” O’Connor explained, “the message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.”

Perhaps hoping the message would resonate more effectively if marinated in a light snark sauce, she circled back for a double tap:

{T}here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary 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… The proposition that schools do not endorse everything they fail to censor is not complicated.

So there you go.

Cautious Concurrence

Justice Anthony Kennedy, joined by Justice Antonin Scalia, agreed with the decision, but for slightly different reasons than those explained by Justice O’Connor. Justice Thurgood Marshall, joined by Justice William Brennan, on the other hand, had something more extensive on his mind:

I agree with the majority that “noncurriculum” must be construed broadly to “prohibit schools from discriminating on the basis of the content of a student group’s speech.” As the majority demonstrates, such a construction “is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.” …

The Act’s low threshold for triggering equal access, however, raises serious Establishment Clause concerns where secondary schools with fora that differ substantially from the forum in Widmar are required to grant access to student religious groups…

Justice Marshall explained that the University of Missouri—Kansas City (the institution prompting the Widmar case) had over a hundred different organizations on campus, many of which were political or issue-driven. There was little danger any reasonable person could believe that so many conflicting ideologies were simultaneously promoted by the University. The University also took great pains to ensure that none of these groups promoted themselves as official extensions of UMKC.

Westside, on the other hand, had for years openly embraced and promoted its extracurricular clubs and extolled the roles they played in the developing student character. They were part of the overall culture of the school, just like the football team or band. While Marshall and Brennan had no problem with the addition of Bible Club to the mix, this sort of enthusiastic endorsement by school officials would be inappropriate for a religious group. It would be too easy, they argued, for the average student to assume that the district was advocating this new option on the same terms as the rest.

Justice Stevens’ Dissent

The lone voice of dissent, Justice John Paul Stevens, was having none of it.

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. 

Well, gosh – when you put it that way…

Justice Stevens agreed with the majority that determining appropriate application of the Equal Access Act hinged on the definition of “noncurriculum related student group.” He agreed that the Court should look to Congress’ intent to help do so, and that Congress clearly meant to apply the principles of Widmar to schools like Westside. The Act was obviously intended to prevent discrimination against religious groups once a “limited open forum” had been established and contained language to prevent school officials from evading the Act’s requirements through sophistry – creatively redefining terms to fit their desired outcome.

At that point, however, Justice Stevens believed the majority had lost their black-robed minds.

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 is 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. But high school students are also young enough that open fora may be less suitable for them than for college students…

That’s why Congress, in his understanding, left it up to school officials to decide whether to limit school clubs to those clearly supporting institutional ideals and goals – things the district could safely promote and encourage – or whether to open them up to more mature topics, as was the case in Widmar.

Once opened to political or religious ideologies, the district must honor the “limited public forum.” But, Justice Stevens insisted, neither Chess Club nor Scuba Club did that.

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… compete along ideological lines… {I}t seems absurd to presume that Westside has invoked {this} strategy by recognizing clubs like Swim 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… 

{A} high school could properly sponsor a French club, a chess club, or a scuba diving club… because their activities are fully consistent with the school’s curricular mission… Nothing in Widmar implies that the existence of a French club… would create a constitutional obligation to allow student members of the Ku Klux Klan or the Communist Party to have access to school facilities.

Justice Stevens’ reasoning hearkened back to that of the district court which first heard the case (and wasn’t so far removed from Justices Marshall and Brennan in their concurrence). He seemed to share the same sorts of concerns which likely motivated Westside officials to turn down Bridget Mergens in the first place.

Aftermath

The courts have largely held to the standards established in Widmar and legislated by the Equal Access Act, in some cases extending them by inference to circumstances not specifically addressed in either.

A few years after Mergens, in Lamb’s Chapel v. Center Moriches Union Free School District (1993), the Court held that schools allowing community groups to use their facilities after hours could not deny the same access to a group based on its religious message. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Court required the University to fund religious student publications on the same terms it did for other non-curricular student periodicals. Good News Club v. Milford Central School (2001) offered a few minor variations on the theme but was otherwise a repeat of Lamb’s Chapel – with the same outcome.

Some districts have chosen to eliminate extra-curricular activities entirely rather than open their doors to kids wanting to meet under the auspices of Gay-Straight Alliance (GSA), Muslim Students Club, or any of the variations of Atheist or Satan Club. Districts are permitted to refuse groups promoting behavior or values clearly antithetical to the school’s mission (the KKK, for example, could be refused without much constitutional danger – although the Communists would probably get their club), but the boundaries of this discretion are still being tested here and there.

Local courts have also periodically confronted variations of the issue (if the district cancels all clubs to avoid allowing Teen Q-Anon to meet, does that violate the spirit of the law?) By and large, however, the principles established in Mergens have remained firm for over three decades and there’s little reason to expect them to change anytime soon.

NOTE: This post is an excerpt from “Have To” History: A Wall Of Education

Bridget Wants A Bible Club (Westside Community Schools v. Mergens, 1990 – Part One)

Background

In Widmar v. Vincent (1981), the Supreme Court determined that when the University of Missouri (Kansas City) made its facilities available to extra-curricular groups outside of normal school hours, it created a “limited open forum.” If religious student organizations wished to use the facilities on the same terms as other groups, they must be allowed to do so. Not only was this NOT a violation of the Establishment Clause (as the University had feared), but denying equal access was a form of inhibiting students’ “free exercise” of religion. Justice Lewis Powell, writing for the majority in Widmar, explained it this way:

The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. In this context, we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion… 

It is possible – perhaps even foreseeable – that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization’s enjoyment of merely “incidental” benefits does not violate the prohibition against the “primary advancement” of religion…  

A few years later, the U.S. Congress – no doubt hoping to seize the moment – passed the Equal Access Act of 1984. It essentially took the standard expressed in Widmar and applied it to public schools. Any district which prevented students from having meetings or forming clubs on the basis of the “religious, political, philosophical, or other content of the speech at such meetings” would lose federal funding and receive a very nasty glare from D.C. 

The Legislature had been frustrated in their previous efforts to work around or overturn the Court’s “anti-prayer” and “anti-Bible” decisions in Engel v. Vitale (1962) and Abington v. Schempp (1963), and despite his general popularity, President Reagan had made little progress on his promised Amendment to put the government back in charge of teaching kids what they should believe about Jesus. (OK, that’s not entirely fair. Reagan wanted an Amendment to leave it up to each state how to teach students about Jesus.)

The Equal Access Act included surprisingly practical guidelines. It distinguished between curricular organizations and those unrelated to specific coursework. Meetings had to be student-driven and not facades for outside groups coming in to run things. Perhaps most significantly, they had to be entirely voluntary and outside classroom hours. Before school was fine, lunch was fine, after school was fine – any time other clubs or groups could meet. Faculty “advisors” could attend (there are liability issues when minors are left to their own devices for extended periods of time) but not participate and certainly not lead.

All in all, it was a rather reasonable piece of legislation. That alone makes it something of a novelty in terms of Congress and public education.

Bridget Wants A Bible Study

Bridget Mergens was a student at Westside High School in Omaha, Nebraska. In 1985, she asked her principal for permission to form a Christian club at the school. They’d read and discuss the Bible, pray together, and enjoy what those on the inside call “fellowship.” Membership would be open to anyone, however, regardless of their beliefs – because, you know… school.  

Bridget suggested they skip the required “faculty sponsor” part. (Presumably she was under the impression this might improve her chance for approval.) The principle said no. She went to the Associate Superintendent, who turned her down as well. Their initial argument (inferred from the court’s response) seems to have been that there could be no clubs without a sponsor, and that this club couldn’t have a faculty sponsor because it would violate the Establishment Clause. Bridget, being a persistent little thing (Luke 18:1-5), took her case to the School Board, which backed school administration.

This was stranger than it may at first seem, given several factors. One, this was Nebraska – a perennial “red state.” Two, this was happening in 1985, a mere year after the passage of the Equal Access Act – big news all across the country, and of particular interest to school officials who, as a general rule, don’t like being sued. Three, there’s no way to read the act as suggesting that religious clubs can’t have teacher sponsors – merely that they can’t participate in the actual discussions or activities. If administration actually played that angle (as the record suggests), it was nonsense… and they should have known it was nonsense.

So why would the district fight this particular request so vigorously? That’s part of what made (and makes) this particular issue so interesting.

Let’s Start A “Contemporary Legal Issues” Club 

Mergens, with the support of a few friends and parents, filed suit in their district court. They argued that in addition to violating the Equal Access Act, the school was denying them their freedom of speech, association, and religion as guaranteed in the First Amendment (applied to the states via the Fourteenth). The district clearly had dozens of non-curricular clubs – including Chess Club, Rotary Club, a Scuba Diving Club (naturally very big in, um… Omaha), Photography Club, National Honor Society, Future Business Leaders of America, etc.

The district’s defense was innovative, and perhaps even sincere. All thirty or so of the clubs already established at Westside, they argued, were, in fact, curriculum-related. And since there were no extra-curricular clubs meeting on school property, the Equal Access Act did not apply. The Act assumed a “limited public forum” – and Westside hadn’t created one, legally speaking.

Rotary club? That was an extension of citizenship and public service, important school values and an essential part of each social studies course. Chess club? That was math and science and problem-solving, actual standards in several courses. Photography? Obviously a voluntary extension of art class. And scuba diving? Dude, physical education is a legit course – don’t write it off so easily. But this “Bible Club”? This was different. This was “extra-curricular.” Unlike Scuba Club.

As a backup, they asserted that even if the Equal Access Act did apply, it was unconstitutional – so it didn’t matter.

The district court accepted this reasoning and rejected Mergens’ claims. The case was appealed to the 8th U.S. Circuit Court of Appeals who reversed that decision and found in favor of Bridget’s Bible Club. The district – oddly tenacious, it seemed – appealed to the Supreme Court, which agreed to hear the case in 1990.

If You Give A Mouse A Bible Club…

The most likely explanation for Westside’s stubbornness had nothing to do with opposition to the kids’ faith. There’s at least one reference in court records suggesting that Westside’s principle encouraged the club to meet in the church next door to the school. The Court’s majority opinion mentioned that “the school apparently permits {students} to meet informally after school,” suggesting that at some point the school agreed not to chase them out of the building as long as they didn’t call themselves an official school club. This still meant being ignored in official club listings and left out of announcements, but it hardly evinced a hostility towards the general idea of kids getting together to study the Bible and pray.

On the other hand, what would be the implications of this “limited public forum” described in the Equal Access Act if the club were officially permitted? None of the existing clubs were particularly “issue-driven” or controversial. The school wasn’t wrong that they largely promoted existing school values and the usual “be a good citizen” stuff.

If the Protestants could have a club, however, then by law so could the Catholics. Next could come other faiths or issue-driven groups. Young Republicans. Young Democrats. Wiccans. Gay students. Black students. Atheists. Pro-life clubs. Pro-choice clubs. Oh god, Dungeons & Dragons could stage a comeback!

While the community would probably have been fine with students voluntarily meeting after school to read the Bible and pray, it’s not much of a stretch to imagine some would have been less-thrilled at the idea of their tax dollars supporting (in their minds) the Gay-Straight Alliance or Black Lives Matter (neither existed yet under those names, but the ideas were certainly nascent). Would the school approve Anarchy Club? Sodomites 4 Satan? MSNBC watch parties? At some point they’d reject a group based on its content and quite possibly be sued. At that point, all bets were off as to the fallout. Better to heed the advice of noted American philosopher Barney Fife: “Nip it, nip it, nip it in the BUD!”

In other words, it seems unlikely that the district fought against Bible Club because they didn’t understand the legal implications. More likely, they fought against it because they did.

NOTE: This post is an excerpt from “Have To” History: A Wall Of Education

Part Two: The Decision

Trying To Simplify The Thirteen Colonies

Colonies 4 RegionsGiven my penchant for delusions of grandeur, I opted not to commit to much this summer other than attending a single AP English institute and gradually working through a long list of “to do” stuff around the house. My hope was to make noticeable progress on a book I kinda laid the groundwork for years ago when I began adding “Have To” History articles to this site.  

The idea was to offer students, teachers, or other interested parties engaging summaries of key figures, events, or issues in history which they maybe didn’t actually want to know about but for some reason had to – for a class, for a paper, or to better fake their way through an argument on social media.  

The idea is solid, even if implementation to date has been spotty. It’s also one of the most utilized sections of the website – so who saw that coming? 

After publishing “Have To” History: Landmark Supreme Court Cases, which fits the theme nicely, and “Have To” History: A Wall Of Education, which kinda doesn’t but I liked the topic and wanted to keep the name, I’m returning to the initial premise in its purist form. “Have To” History: Stuff You Really Don’t Want To Know About The 25 Most Boring Issues & Events In American History will target those subjects that seem to show up on every course outline, curriculum guide, and standardized test year after year despite the fact that we can never quite remember what the hell they were or why they mattered.  

I surveyed thousands of teachers and students (well, OK – I asked, like… seven or eight of them) which topics were hardest to teach, care about, or remember, and selected two dozen of the most common responses. The Whigs. The Bessemer Process. The Interstate Highway System. All real knee-slappers in their own way, but so few Crash Course videos or feature films to substitute for an actual lesson plan.

Many of the responses were variations of “trying to remember stuff about the original thirteen colonies.” Most of us do pretty well with Jamestown, at least in its earliest incarnation, and we can fake our way through the Puritans or Roger Williams. Somehow, though, we’re expected to juggle things like joint-stock company charters vs. proprietary charters or remember which sections relied most heavily on the export of natural resources and how that shaped their feelings about potential rebellion.

If I’m being completely honest, it’s been the most challenging chapter I’ve tackled so far. The subject simply does not lend itself to the predictable formatting and pithy summarization I find most appealing about the whole project. To complicate matters, it’s also likely to be the first chapter of the finished book – meaning I don’t particularly want to alienate or confuse readers right out of the gate.

After what feels like several millenia of wrestling with it, I have a rough draft of what might be the chapter about the thirteen colonies. At the moment, it’s subtitled “Three (or Four) Regions – Three (Evolving) Formats – Three Approaches To Religion.”

I know. Even the subtitle needs work.

Nevertheless, I’ve posted the initial draft on “Have To” History right here on Blue Cereal Education. To keep it at least somewhat manageable, it’s currently broken into two parts. I’d love for you to give it a readthrough and let me know what you think.

Like, seriously – I’m looking for thoughts and feedback, good, bad, or indifferent, from any direction on this one. Your comments are welcome below or you can email me at [email protected].

In the meantime, I’m moving on to other chapters and will return to this one when I can do so with fresh eyes and new energy. I look forward to your responses.

“Have To” History: The Thirteen Colonies (Part One)

“Have To” History: The Thirteen Colonies (Part Two)