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

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