Board of Education of Westside Community Schools v. Mergens By and Through Mergens

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 88-1597 Argued: Jan. 9, 1990 --- Decided: June 4, 1990
OPINION

Justice O'CONNOR delivered the opinion of the Court, except as to Part III.

This case requires us to decide whether the Equal Access Act, 98 Stat. 1302, 20 U.S.C. §§ 4071-4074, prohibits Westside High School from denying a student religious group permission to meet on school premises during noninstructional time, and if so, whether the Act, so construed, violates the Establishment Clause of the First Amendment.

I

Respondents are current and former students at Westside High School, a public secondary school in Omaha, Nebraska. At the time this suit was filed, the school enrolled about 1,450 students and included grades 10 to 12; in the 1987-1988 school year, ninth graders were added. Westside High School is part of the Westside Community School system, an independent public school district. Petitioners are the Board of Education of Westside Community Schools (District 66); Wayne W. Meier, the president of the school board; James E. Findley, the principal of Westside High School; Kenneth K. Hanson, the superintendent of schools for the school district; and James A. Tangdell, the assistant superintendent of schools for the school district.

Students at Westside High School are permitted to join various student groups and clubs, all of which meet after school hours on school premises. The students may choose from approximately 30 recognized groups on a voluntary basis. A list of student groups, together with a brief description of each provided by the school, appears in the Appendix to this opinion.

School Board Policy 5610 concerning "Student Clubs and Organizations" recognizes these student clubs as a "vital part of the total education program as a means of developing citizenship, wholesome attitudes, good human relations, knowledge and skills." App. 488. Board Policy 5610 also provides that each club shall have faculty sponsorship and that [p232]

clubs and organizations shall not be sponsored by any political or religious organization, or by any organization which denies membership on the basis of race, color, creed, sex or political belief.

Ibid. Board Policy 6180, on "Recognition of Religious Beliefs and Customs" requires that "[s]tudents adhering to a specific set of religious beliefs or holding to little or no belief shall be alike respected." Id. at 462. In addition, Board Policy 5450 recognizes its students' "Freedom of Expression," consistent with the authority of the Board. Id. at 489.

There is no written school board policy concerning the formation of student clubs. Rather, students wishing to form a club present their request to a school official, who determines whether the proposed club's goals and objectives are consistent with school board policies and with the school district's "Mission and Goals" -- a broadly worded "blueprint" that expresses the district's commitment to teaching academic, physical, civic, and personal skills and values. Id. at 473-478.

In January, 1985, respondent Bridget Mergens met with Westside's principal, Dr. Findley, and requested permission to form a Christian club at the school. The proposed club would have the same privileges and meet on the same terms and conditions as other Westside student groups, except that the proposed club would not have a faculty sponsor. According to the students' testimony at trial, the club's purpose would have been, among other things, to permit the students to read and discuss the Bible, to have fellowship, and to pray together. Membership would have been voluntary and open to all students, regardless of religious affiliation.

Findley denied the request, as did associate superintendent Tangdell. In February, 1985, Findley and Tangdell informed Mergens that they had discussed the matter with superintendent Hanson and that he had agreed that her request should be denied. The school officials explained that school policy required all student clubs to have a faculty sponsor, [p233] which the proposed religious club would not or could not have, and that a religious club at the school would violate the Establishment Clause. In March, 1985, Mergens appealed the denial of her request to the Board of Education, but the Board voted to uphold the denial.

Respondents, by and through their parents as next friends, then brought this suit in the United States District Court for the District of Nebraska, seeking declaratory and injunctive relief. They alleged that petitioners' refusal to permit the proposed club to meet at Westside violated the Equal Access Act, 20 U.S.C. §§ 4071-4074, which prohibits public secondary schools that receive federal financial assistance and that maintain a "limited open forum" from denying "equal access" to students who wish to meet within the forum on the basis of the content of the speech at such meetings, § 4071(a). Respondents further alleged that petitioners' actions denied them their First and Fourteenth Amendment rights to freedom of speech, association, and the free exercise of religion. Petitioners responded that the Equal Access Act did not apply to Westside, and that, if the Act did apply, it violated the Establishment Clause of the First Amendment, and was therefore unconstitutional. The United States intervened in the action pursuant to 28 U.S.C. § 2403 to defend the constitutionality of the Act.

The District Court entered judgment for petitioners. The court held that the Act did not apply in this case because Westside did not have a "limited open forum" as defined by the Act -- all of Westside's student clubs, the court concluded, were curriculum-related and tied to the educational function of the school. The court rejected respondents' constitutional claims, reasoning that Westside did not have a limited public forum as set forth in Widmar v. Vincent, 454 U.S. 263 (1981), and that Westside's denial of respondents' request was reasonably related to legitimate pedagogical concerns, see Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). [p234]

The United States Court of Appeals for the Eighth Circuit reversed. 867 F.2d 1076 (1989). The Court of Appeals held that the District Court erred in concluding that all the existing student clubs at Westside were curriculum-related. The Court of Appeals noted that the "broad interpretation" advanced by the Westside school officials "would make the [Equal Access Act] meaningless" and would allow any school to "arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content," which was "exactly the result that Congress sought to prohibit by enacting the [Act]." Id. at 1078. The Court of Appeals instead found that "[m]any of the student clubs at WHS, including the chess club, are noncurriculum-related." Id. at 1079. Accordingly, because it found that Westside maintained a limited open forum under the Act, the Court of Appeals concluded that the Act applied to "forbi[d] discrimination against [respondents'] proposed club on the basis of its religious content." Ibid.

The Court of Appeals then rejected petitioners' contention that the Act violated the Establishment Clause. Noting that the Act extended the decision in Widmar v. Vincent, supra, to public secondary schools, the Court of Appeals concluded that "[a]ny constitutional attack on the [Act] must therefore be predicated on the difference between secondary school students and university students." 867 F.2d at 1080 (footnote omitted). Because "Congress considered the difference in the maturity level of secondary students and university students before passing the [Act]," the Court of Appeals held, on the basis of Congress' factfinding, that the Act did not violate the Establishment Clause. Ibid.

We granted certiorari, 492 U.S. 917 (1989), and now affirm.

II

A

In Widmar v. Vincent, 454 U.S. 263"]454 U.S. 263 (1981), we invalidated, on free speech grounds, a state university regulation that prohibited [p235] student use of school facilities "‘for purposes of religious worship or religious teaching.'" Id. at 265. In doing so, we held that an "equal access" policy would not violate the Establishment Clause under our decision in 454 U.S. 263 (1981), we invalidated, on free speech grounds, a state university regulation that prohibited [p235] student use of school facilities "‘for purposes of religious worship or religious teaching.'" Id. at 265. In doing so, we held that an "equal access" policy would not violate the Establishment Clause under our decision in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). In particular, we held that such a policy would have a secular purpose, would not have the primary effect of advancing religion, and would not result in excessive entanglement between government and religion. Widmar, 454 U.S. at 271-274. We noted, however, that

[u]niversity students are, of course, 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.

Id. at 274, n. 14.

In 1984, Congress extended the reasoning of Widmar to public secondary schools. Under the Equal Access Act, a public secondary school with a "limited open forum" is prohibited from discriminating against students who wish to conduct a meeting within that forum on the basis of the "religious, political, philosophical, or other content of the speech at such meetings." 20 U.S.C. §§ 4071(a) and (b). Specifically, the Act provides:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

20 U.S.C. § 4071(a). A "limited open forum" exists whenever a public secondary school

grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.

§ 4071(b). "Meeting" is defined to include "those activities of student groups which are permitted under a school's limited open forum and are not directly related to the school curriculum." § 4072(3). [p236] "Noninstructional time" is defined to mean "time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends." § 4072(4). Thus, even if a public secondary school allows only one "noncurriculum related student group" to meet, the Act's obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time.

The Act further specifies that "[s]chools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum" if the school uniformly provides that the meetings are voluntary and student-initiated; are not sponsored by the school, the government, or its agents or employees; do not materially and substantially interfere with the orderly conduct of educational activities within the school; and are not directed, controlled, conducted, or regularly attended by "nonschool persons." §§ 4071(c)(1), (2), (4), and (5). "Sponsorship" is defined to mean

the act of promoting, leading, or participating in a meeting. The assignment of a.teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting.

§ 4072(2). If the meetings are religious, employees or agents of the school or government may attend only in a "nonparticipatory capacity." § 4071(c)(3). Moreover, a State may not influence the form of any religious activity, require any person to participate in such activity, or compel any school agent or employee to attend a meeting if the content of the speech at the meeting is contrary to that person's beliefs. §§ 4071(d)(1), (2), and (3).

Finally, the Act does not "authorize the United States to deny or withhold Federal financial assistance to any school," § 4071(e), or

limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the wellbeing of students and faculty, and to [p237] assure that attendance of students at the meetings is voluntary.

§ 4071(f).

B

The parties agree that Westside High School receives federal financial assistance and is a public secondary school within the meaning of the Act. App. 57-58. The Act's obligation to grant equal access to student groups is therefore triggered if Westside maintains a "limited open forum" -- i.e., if it permits one or more "noncurriculum related student groups" to meet on campus before or after classes.

Unfortunately, the Act does not define the crucial phrase "noncurriculum related student group." Our immediate task is therefore one of statutory interpretation. We begin, of course, with the language of the statute. See, e.g., Mallard v. U.S. District Court, 490 U.S. 294, 300; United States v. James, 478 U.S. 597, 604 (1986). The common meaning of the term "curriculum" is "the whole body of courses offered by an educational institution or one of its branches." Webster's Third New International Dictionary 557 (1976); see also Black's Law Dictionary 345 (5th ed. 1979) ("The set of studies or courses for a particular period, designated by a school or branch of a school"). Cf. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. at 271 (high school newspaper produced as part of the school's journalism class was part of the curriclum). Any sensible interpretation of "noncurriculum related student group" must therefore be anchored in the notion that such student groups are those that are not related to the body of courses offered by the school. The difficult question is the degree of "unrelatedness to the curriculum" required for a group to be considered "noncurriculum related."

The Act's definition of the sort of "meeting[s]" that must be accommodated under the statute, § 4071(a), sheds some light on this question. "[T]he term ‘meeting' includes those activities of student groups which are . . . not directly related to the school curriculum." § 4072(3) (emphasis added). Congress' [p238] use of the phrase "directly related" implies that student groups directly related to the subject matter of courses offered by the school do not fall within the "noncurriculum related" category, and would therefore be considered "curriculum related."

The logic of the Act also supports this view, namely, that a curriculum-related student group is one that has more than just a tangential or attenuated relationship to courses offered by the school. Because the purpose of granting equal access is to prohibit discrimination between religious or political clubs on the one hand and other noncurriculum-related student groups on the other, the Act is premised on the notion that a religious or political club is itself likely to be a noncurriculum-related student group. It follows, then, that a student group that is "curriculum related" must at least have a more direct relationship to the curriculum than a religious or political club would have.

Although the phrase "noncurriculum related student group" nevertheless remains sufficiently ambiguous that we might normally resort to legislative history, see, e.g., James, supra, 478 U.S. at 606, we find the legislative history on this issue less than helpful. Because the bill that led to the Act was extensively rewritten in a series of multilateral negotiations after it was passed by the House and reported out of committee by the Senate, the committee reports shed no light on the language actually adopted. During congressional debate on the subject, legislators referred to a number of different definitions, and thus both petitioners and respondents can cite to legislative history favoring their interpretation of the phrase. Compare 130 Cong.Rec. 19223 (1984) (statement of Sen. Hatfield) (curriculum-related clubs are those that are "really a kind of extension of the classroom"), with ibid. (statement of Sen. Hatfield) (in response to question whether school districts would have full authority to decide what was curriculum-related, "[w]e in no way seek to limit that discretion"). See Laycock, Equal Access and Moments of Silence: The Equal [p239] Status of Religious Speech by Private Speakers, 81 Nw.U.L.Rev. 1, 37-39 (1986).

We think it significant, however, that the Act, which was passed by wide, bipartisan majorities in both the House and the Senate, reflects at least some consensus on a broad legislative purpose. The committee reports indicate that the Act was intended to address perceived widespread discrimination against religious speech in public schools, see H.R.Rep. No. 98-710, p. 4 (1984); S.Rep. No. 98-357, pp. 10-11 (1984), and, as the language of the Act indicates, its sponsors contemplated that the Act would do more than merely validate the status quo. The committee reports also show that the Act was enacted in part in response to two federal appellate court decisions holding that student religious groups could not, consistent with the Establishment Clause, meet on school premises during noninstructional time. See H.R. Rep. No. 98-710, supra, at 3-6 (discussing Lubbock Civil Liberties Union v. Lubbock Independent School Dist., 669 F.2d 1038, 1042-1048 (CA5 1982), cert. denied, 459 U.S. 1155-1156 (1983), and Brandon v. Guilderland Bd. of Ed., 635 F.2d 971 (CA2 1980), cert. denied, 454 U.S. 1123 (1981)); S.Rep. No. 98-357, supra, at 6-9, 11-14 (same). A broad reading of the Act would be consistent with the views of those who sought to end discrimination by allowing students to meet and discuss religion before and after classes.

In light of this legislative purpose, we think that the term "noncurriculum related student group" is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or will soon be 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 [p240] 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. If participation in a school's band or orchestra were required for the band or orchestra classes, or resulted in academic credit, then those groups would also directly relate to the curriculum. The existence of such groups at a school would not trigger the Act's obligations.

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. Whether a specific student group is a "noncurriculum related student group" will therefore depend on a particular school's curriculum, but such determinations would be subject to factual findings well within the competence of trial courts to make.

Petitioners contend that our reading of the Act unduly hinders local control over schools and school activities, but we think that schools and school districts nevertheless retain a significant measure of authority over the type of officially recognized activities in which their students participate. See, e.g., Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S. [p241] 675 (1986). First, schools and school districts maintain their traditional latitude to determine appropriate subjects of instruction. To the extent that a school chooses to structure its course offerings and existing student groups to avoid the Act's obligations, that result is not prohibited by the Act. On matters of statutory interpretation, "[o]ur task is to apply the text, not to improve on it." Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989) (slip op., at 6). Second, the Act expressly does not limit a school's authority to prohibit meetings that would "materially and substantially interfere with the orderly conduct of educational activities within the school." § 4071(c)(4); cf. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 509 (1969). The Act also preserves

the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the wellbeing of students and faculty, and to assure that attendance of students, at meetings is voluntary.

§ 4071(f). Finally, because the Act applies only to public secondary schools that receive federal financial assistance, § 4071(a), a school district seeking to escape the statute's obligations could simply forgo federal funding. Although we do not doubt that in some cases this may be an unrealistic option, Congress clearly sought to prohibit schools from discriminating on the basis of the content of a student group's speech, and that obligation is the price a federally funded school must pay if it opens its facilities to noncurriculum-related student groups.

The dissent suggests that

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.

Post at 276; see also id. at 271, 290 (Act is triggered only if school permits "controversial" or "distasteful" groups to use its facilities); post at 291 ("noncurriculum" subjects are those that "‘cannot properly be included in a public school curriculum'"). This interpretation of the Act, we are told, is mandated by Congress' intention to [p242] "track our own Free Speech Clause jurisprudence," post at 279, n. 10, by incorporating Widmar's notion of a "limited public forum" into the language of the Act. Post at 271-272.

This suggestion is flawed for at least two reasons. First, the Act itself neither uses the phrase "limited public forum" nor so much as hints that that doctrine is somehow "incorporated" into the words of the statute. The operative language of the statute, 20 U.S.C. § 4071(a), of course, refers to a "limited open forum," a term that is specifically defined in the next subsection, § 4071(b). Congress was presumably aware that "limited public forum," as used by the Court, is a term of art, see, e.g., Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45-49 (1983), and had it intended to import that concept into the Act, one would suppose that it would have done so explicitly. Indeed, Congress' deliberate choice to use a different term -- and to define that term -- can only mean that it intended to establish a standard different from the one established by our free speech cases. See Laycock, 81 Nw.U.L. Rev. at 36 ("The statutory ‘limited open forum' is an artificial construct, and comparisons with the constitutional [‘limited public forum'] cases can be misleading"). To paraphrase the dissent, "[i]f Congress really intended to [incorporate] Widmar for reasons of administrative clarity, Congress kept its intent well hidden, both in the statute and in the debates preceding its passage." Post at 281-282, n. 15.

Second, and more significant, the dissent's reliance on the legislative history to support its interpretation of the Act shows just how treacherous that task can be. The dissent appears to agree with our view that the legislative history of the Act, even if relevant, is highly unreliable, see, e.g., post at 274-275, n. 5, and 281-282, n. 15, yet the interpretation it suggests rests solely on a few passing, general references by legislators to our decision in Widmar, see post at 274 and n. 4. We think that reliance on legislative history is hazardous at best, but where "‘not even the sponsors of the bill [p243] knew what it meant,'" post at 281, n. 15 (quoting Laycock, supra, at 38 (citation omitted)), such reliance cannot form a reasonable basis on which to interpret the text of a statute. For example, the dissent appears to place great reliance on a comment by Senator Levin that the Act extends the rule in Widmar to secondary schools, see post at 274, n. 4, but Senator Levin's understanding of the "rule," expressed in the same breath as the statement on which the dissent relies, fails to support the dissent's reading of the Act. See 130 Cong.Rec. 19236 (1984) ("The pending amendment will allow students equal access to secondary schools student-initiated religious meetings before and after school where the school generally allows groups of secondary school students to meet during those times") (emphasis added). Moreover, a number of Senators, during the same debate, warned that some of the views stated did not reflect their own views. See, e.g., ibid. ("I am troubled with the legislative history that you are making here") (statement of Sen. Chiles); id. at 19237 ("[T]here have been a number of statements made on the floor today which may be construed as legislative history modifying what my understanding was or what anyone's understanding might be of this bill") (statement of Sen. Denton). The only thing that can be said with any confidence is that some Senators may have thought that the obligations of the Act would be triggered only when a school permits advocacy groups to meet on school premises during noninstructional time. That conclusion, of course, cannot bear the weight the dissent places on it.

C

The parties in this case focus their dispute on 10 of Westside's approximately 30 voluntary student clubs: Interact (a service club related to Rotary International); Chess; Subsurfers (a club for students interested in scuba diving); National Honor Society; Photography; Welcome to Westside (a club to introduce new students to the [p244] school); Future Business Leaders of America; Zonta (the female counterpart to Interact); Student Advisory Board (student government); and Student Forum (student government). App. 60. Petitioners contend that all of these student activities are curriculum-related because they further the goals of particular aspects of the school's curriculum. Welcome to Westside, for example, helps "further the School's overall goal of developing effective citizens by requiring student members to contribute to their fellow students." Brief for Petitioners 16. The student government clubs "advance the goals of the School's political science classes by providing an understanding and appreciation of government processes." Id. at 17. Subsurfers furthers "one of the essential goals of the Physical Education Department -- enabling students to develop lifelong recreational interests." Id. at 18. Chess "supplement[s] math and science courses because it enhances students' ability to engage in critical thought processes." Id. at 18-19. Participation in Interact and Zonta "promotes effective citizenship, a critical goal of the WHS curriculum, specifically the Social Studies Department." Id. at 19.

To the extent that petitioners contend that "curriculum related" means anything remotely related to abstract educational goals, however, we reject that argument. To define "curriculum related" in a way that results in almost no schools having limited open fora, or in a way that permits schools to evade the Act by strategically describing existing student groups, would render the Act merely hortatory. See 130 Cong.Rec. 19222 (1984) (statement of Sen. Leahy) ("[A] limited open forum should be triggered by what a school does, not by what it says"). As the court below explained:

Allowing such a broad interpretation of "curriculum-related" would make the [Act] meaningless. A school's administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to allow by tying the purposes of those clubs to [p245] some broadly defined educational goal. At the same time, the administration could arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congress sought to prohibit by enacting the [Act]. A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group.

867 F.2d 1076, 1078 (CA8 1989). See also Garnett v. Renton School Dist. No. 403, 874 F.2d 608, 614 (CA9 1989) ("Complete deference [to the school district] would render the Act meaningless because school boards could circumvent the Act's requirements simply by asserting that all student groups are curriculum related").

Rather, we think it clear that Westside's existing student groups include one or more "noncurriculum related student groups." Although Westside's physical education classes apparently include swimming, see Record, Tr. of Preliminary Injunction Hearing 25, counsel stated at oral argument that scuba diving is not taught in any regularly offered course at the school, Tr. of Oral Arg. 6. Based on Westside's own description of the group, Subsurfers does not directly relate to the curriculum as a whole in the same way that a student government or similar group might. App. 485-486. Moreover, participation in Subsurfers is not required by any course at the school, and does not result in extra academic credit. Id. at 170-171, 236. Thus, Subsurfers is a "noncurriculum related student group" for purposes of the Act. Similarly, although math teachers at Westside have encouraged their students to play chess, id., at 442-444, chess is not taught in any regularly offered course at the school, Tr. of Oral Arg. 6, and participation in the chess club is not required for any class and does not result in extra credit for any class, App. 302-304. The chess club is therefore another "noncurriculum related student group" at [p246] Westside. Moreover, Westside's principal acknowledged at trial that the Peer Advocates program -- a service group that works with special education classes -- does not directly relate to any courses offered by the school and is not required by any courses offered by the school. Id. at 231-233; see also id. at 198-199 (participation in Peer Advocates is not required for any course and does not result in extra credit in any course). Peer Advocates would therefore also fit within our description of a "noncurriculum related student group." The record therefore supports a finding that Westside has maintained a limited open forum under the Act.

Although our definition of "noncurriculum related student activities" looks to a school's actual practice, rather than its stated policy, we note that our conclusion is also supported by the school's own description of its student activities. As reprinted in the Appendix to this opinion, the school states that Band "is included in our regular curriculum"; Choir "is a course offered as part of the curriculum"; Distributive Education "is an extension of the Distributive Education class"; International Club is "developed through our foreign language classes"; Latin Club is "designed for those students who are taking Latin as a foreign language"; Student Publications "includes classes offered in preparation of the yearbook (Shield) and the student newspaper (Lance)"; Dramatics "is an extension of a regular academic class"; and Orchestra "is an extension of our regular curriculum." These descriptions constitute persuasive evidence that these student clubs directly relate to the curriculum. By inference, however, the fact that the descriptions of student activities such as Subsurfers and chess do not include such references strongly suggests that those clubs do not, by the school's own admission, directly relate to the curriculum. We therefore conclude that Westside permits "one or more noncurriculum related student groups to meet on school premises during noninstructional time," § 4071(b). Because Westside maintains a "limited open forum" under the Act, it is prohibited from [p247] discriminating, based on the content of the students' speech, against students who wish to meet on school premises during noninstructional time.

The remaining statutory question is whether petitioners' denial of respondents' request to form a religious group constitutes a denial of "equal access" to the school's limited open forum. Although the school apparently permits respondents to meet informally after school, App. 315-316, respondents seek equal access in the form of official recognition by the school. Official recognition allows student clubs to be part of the student activities program, and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair. Id. at 434-435. Given that the Act explicitly prohibits denial of "equal access . . . to . . . any students who wish to conduct a meeting within [the school's] limited open forum" on the basis of the religious content of the speech at such meetings, § 4071(a), we hold that Westside's denial of respondents' request to form a Christian club denies them "equal access" under the Act.

Because we rest our conclusion on statutory grounds, we need not decide -- and therefore express no opinion on -- whether the First Amendment requires the same result.

III

Petitioners contend that, even if Westside has created a limited open forum within the meaning of the Act, its denial of official recognition to the proposed Christian club must nevertheless stand because the Act violates the Establishment Clause of the First Amendment, as applied to the States through the Fourteenth Amendment. Specifically, petitioners maintain that, because the school's recognized student activities are an integral part of its educational mission, official recognition of respondents' proposed club would effectively incorporate religious activities into the school's official program, endorse participation in the religious club, and provide [p248] the club with an official platform to proselytize other students.

We disagree. In Widmar, we applied the three-part Lemon test to hold that an "equal access" policy, at the university level, does not violate the Establishment Clause. See 454 U.S. at 271-275 (applying Lemon, 403 U.S. at 612-613). We concluded that "an open-forum policy, including nondiscrimination against religious speech, would have a secular purpose," 454 U.S. at 271 (footnotes omitted), and would in fact avoid entanglement with religion. See id. at 272, n. 11 ("[T]he University would risk greater ‘entanglement' by attempting to enforce its exclusion of ‘religious worship' and ‘religious speech'"). We also found that, although incidental benefits accrued to religious groups who used university facilities, this result did not amount to an establishment of religion. First, we stated that a university's forum does not "confer any imprimatur of state approval on religious sects or practices." Id. at 274. Indeed, 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.

The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.

McDaniel v. Paty, 435 U.S. 618, 641 (1978) (BRENNAN, J., concurring in judgment). Second, we noted that "[t]he [University's] provision of benefits to [a] broad . . . spectrum of groups" -- both nonreligious and religious speakers -- was "an important index of secular effect." 454 U.S. at 274.

We think the logic of Widmar applies with equal force to the Equal Access Act. As an initial matter, the Act's prohibition of discrimination on the basis of "political, philosophical, or other" speech as well as religious speech is a sufficient basis for meeting the secular purpose prong of the Lemon test. See Edwards v. Aguillard, 482 U.S. 578, 586 (1987) [p249] (Court "is normally deferential to a [legislative] articulation of a secular purpose"); Mueller v. Allen, 463 U.S. 388, 394-395 (1983) (Court is "reluctan[t] to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State's program may be discerned from the face of the statute"). Congress' avowed purpose -- to prevent discrimination against religious and other types of speech -- is undeniably secular. See Corporation of Presiding Bishop, Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335-336 (1987); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973). Cf. 42 U.S.C. § 2000e-2(a) (prohibiting employment discrimination on grounds of race, color, religion sex, or national origin). Even if some legislators were motivated by a conviction that religious speech in particular was valuable and worthy of protection, that alone would not invalidate the Act, because what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law. Because the Act on its face grants equal access to both secular and religious speech, we think it clear that the Act's purpose was not to "‘endorse or disapprove of religion,'" Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'CONNOR, J., concurring)).

Petitioners' principal contention is that the Act has the primary effect of advancing religion. Specifically, petitioners urge that, because the student religious meetings are held under school aegis, and because the state's compulsory attendance laws bring the students together (and thereby provide a ready-made audience for student evangelists), an objective observer in the position of a secondary school student will perceive official school support for such religious meetings. See County of Allegheny v. ACLU, 492 U.S. 573, 593 (1989) (Establishment Clause inquiry is whether the government "‘convey[s] or attempt[s] to convey a message that religion or [p250] a particular religious belief is favored or preferred'") (quoting Wallace v. Jaffree, supra, 472 U.S. at 70 (O'CONNOR, J., concurring in part and concurring in judgment)).

We disagree. First, although we have invalidated the use of public funds to pay for teaching state-required subjects at parochial schools, in part because of the risk of creating

a crucial symbolic link between government and religion, thereby enlisting -- at least in the eyes of impressionable youngsters -- the powers of government to the support of the religious denomination operating the school,

Grand Rapids School Dist. v. Ball, 473 U.S. 373, 385 (1985), there 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. Cf. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) (no danger that high school students' symbolic speech implied school endorsement); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (same). See generally Note, 92 Yale L.J. 499, 507-509 (1983) (summarizing research in adolescent psychology). The proposition that schools do not endorse everything they fail to censor is not complicated.

[P]articularly in this age of massive media information . . . the few years difference in age between high school and college students [does not] justif[y] departing from Widmar.

Bender v. Williamsport Area School Dist., 475 U.S. 534, 556 (1986) (Powell, J., dissenting).

Indeed, we note that Congress specifically rejected the argument that high school students are likely to confuse an equal access policy with state sponsorship of religion. See S.Rep. No. 98-357, p. 8 (1984); id. at 35 ("[S]tudents below the college level are capable of distinguishing between State-initiated, school sponsored, or teacher-led religious [p251] speech on the one hand and student-initiated, student-led religious speech on the other"). Given the deference due "the duly enacted and carefully considered decision of a coequal and representative branch of our Government," Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 319 (1985); see also Rostker v. Goldberg, 453 U.S. 57, 64 (1981), we do not lightly second-guess such legislative judgments, particularly where the judgments are based in part on empirical determinations.

Second, we note that the Act expressly limits participation by school officials at meetings of student religious groups, §§ 4071(c)(2) and (3), and that any such meetings must be held during "noninstructional time," § 4071(b). The Act therefore avoids the problems of "the students' emulation of teachers as role models" and "mandatory attendance requirements," Edwards v. Aguillard, 482 U.S. at 584; see also Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 209-210 (1948) (release time program invalid where students were "released in part from their legal duty [to attend school] upon the condition that they attend the religious classes"). 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. Moreover, petitioners' fear of a mistaken inference of endorsement is largely self-imposed, because the school itself has control over any impressions it gives its students. 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, see Widmar, 454 U.S. at 274, n. 14 (noting that university student handbook states that the university's name will not be identified with the aims, policies, or opinions of any student organization or its members), students will reasonably understand that the school's official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech. [p252]

Third, the broad spectrum of officially recognized student clubs at Westside, and the fact that Westside students are free to initiate and organize additional student clubs, see App. 221-222, counteract any possible message of official endorsement of or preference for religion or a particular religious belief. See Widmar, 454 U.S. at 274 ("The provision of benefits to so broad a spectrum of groups is an important index of secular effect"). Although a school may not itself lead or direct a religious club, a school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion. Under the Act, a school with a limited open forum may not lawfully deny access to a Jewish students' club, a Young Democrats club, or a philosophy club devoted to the study of Nietzsche. To the extent that a religious club is merely one of many different student-initiated voluntary clubs, students should perceive no message of government endorsement of religion. Thus, we conclude that the Act does not, at least on its face and as applied to Westside, have the primary effect of advancing religion. See id. at 275 ("At least in the absence of empirical evidence that religious groups will dominate [the university's] open forum, . . . the advancement of religion would not be the forum's ‘primary effect'").

Petitioners' final argument is that, by complying with the Act's requirement, the school risks excessive entanglement between government and religion. The proposed club, petitioners urge, would be required to have a faculty sponsor who would be charged with actively directing the activities of the group, guiding its leaders, and ensuring balance in the presentation of controversial ideas. Petitioners claim that this influence over the club's religious program would entangle the government in day-to-day surveillance of religion of the type forbidden by the Establishment Clause. [p253]

Under the Act, however, faculty monitors may not participate in any religious meetings, and nonschool persons may not direct, control, or regularly attend activities of student groups. §§ 4071(c)(3) and (5). Moreover, the Act prohibits school "sponsorship" of any religious meetings, § 4071(c)(2), which means that school officials may not promote, lead, or participate in any such meeting, § 4072(2). Although the Act permits "[t]he assignment of a teacher, administrator, or other school employee to the meeting for custodial purposes," ibid., such custodial oversight of the student-initiated religious group, merely to ensure order and good behavior, does not impermissibly entangle government in the day-to-day surveillance or administration of religious activities. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 305-306 (1985). Indeed, as the Court noted in Widmar, a denial of equal access to religious speech might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which such speech might occur. See Widmar, 454 U.S. at 272, n. 11.

Accordingly, we hold that the Equal Access Act does not on its face contravene the Establishment Clause. Because we hold that petitioners have violated the Act, we do not decide respondents' claims under the Free Speech and Free Exercise Clauses. For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

It is so ordered.

APPENDIX

Plaintiff's Trial Exhibit 63
STUDENT ACTIVITIES

August, 1984

BAND -- This activity is included in our regular curriculum. Extensions of this activity include Marching Band, Ensembles, Pep Band, and Concert Jazz Band. Performances, [p254] presentations, and programs are presented throughout the school year.

CHESS CLUB -- This activity is for those interested in playing chess. Opportunities to play are held after school throughout the school year.

CHEERLEADERS -- A girls sport cheerleader team is made up of a junior varsity and varsity. The boys sport cheerleaders consist of sophomores, junior varsity, and varsity. Tryouts for these spirit groups are held each spring.

CHOIR -- This is a course offered as part of the curriculum. Extensions of this class include Boys and Girls Glee, Warrior Voices, and Concert and Chamber Choirs. Membership in these activities are determined by enrollment and tryouts.

CLASS OFFICERS -- Voting and selection of junior and senior class officers for the following year are held each spring. Students interested in being a class officer will need to secure support, be willing to make a presentation to their class, and serve their class in an officer capacity for the following year.

DISTRIBUTIVE EDUCATION (DECA) -- This is an organization that is an extension of the Distributive Education class. Membership in this activity is offered to those students involved in D.E. The club for the current year is formulated at the beginning of school each fall.

SPEECH & DEBATE -- This is an activity for students interested in participating on a competitive level in both speech and debate. The season begins the first week in November and continues through March.

DRILL SQUAD & SQUIRES -- These are spirit groups primarily concerned with performing at half time at football and basketball games. Selection for these squads is made in the spring of each school year. These marching units are also support groups for other athletic teams. [p255]

FUTURE BUSINESS LEADERS OF AMERICA (FBLA) -- This is a club designed for students interested in pursuing the field of business. It is open to any student with an interest. Membership begins in the fall of each school year.

FUTURE MEDICAL ASSISTANTS (FMA) -- This is a club designed for students with an interest in pursuing any area of medicine. The organization assists in securing blood donations from individuals at Westside High School for the Red Cross. Meetings are held to inform the membership about opportunities in the medical field. Memberships are accepted at the beginning of school each fall.

INTERACT -- This is a boys' volunteer organization associated with the Rotary Club of America. Its basic function is to do volunteer work within the community. They are also a support and spirit group for our athletic teams. Membership is open to 11th and 12th grade boys, with membership opportunities being available in the fall of each school year.

INTERNATIONAL CLUB -- This is a club designed to help students understand people from other countries and is developed through our foreign language classes. French, German, Spanish, and Latin teachers encourage membership in this organization in the fall of each year. Sponsorship of foreign students who attend Westside is one of their major activities.

LATIN CLUB (Junior Classical League) -- This is a club designed for those students who are taking Latin as a foreign language. This club competes in competitive situations between schools and is involved with state competition as well. Students have the opportunity to join JCL beginning in the fall of each school year.

MATH CLUB -- This club is for any student interested in mathematics. Meetings are held periodically during the school year. [p256]

STUDENT PUBLICATIONS -- This activity includes classes offered in preparation of the yearbook (Shield) and the student newspaper (Lance). Opportunities to learn about journalism are provided for students interested in these areas. Membership in Quill and Scroll is an extension of a student's involvement in school publications.

STUDENT FORUM -- Each homeroom elects one representative as a member of the student forum. Their responsibility is to provide ideas, make suggestions, and serve as one informational group to the staff and administration for student government. Selections are made for this membership in the fall of each school year.

DRAMATICS -- This activity is an extension of a regular academic class. School plays, one-act plays, and musicals are provided for students with an interest and ability in these areas. Tryouts for these productions are announced prior to the selection of individuals for these activities.

CREATIVE WRITING CLUB -- This is an organization that provides students, with the interest and capability, an opportunity to do prose and poetry writing. This club meets periodically throughout the year and publishes the students' work. Any student with an interest is encouraged to become a member.

PHOTOGRAPHY CLUB -- This is a club for the student who has the interest and/or ability in photography. Students have an opportunity to take photos of school activities. A darkroom is provided for the students' use. Membership in this organization begins in the fall of each school year.

ORCHESTRA -- This activity is an extension of our regular curriculum. Performances are given periodically throughout the year. Tryouts are held for some special groups within the orchestra. All students signed up for that class have the opportunity to try out.

OUTDOOR EDUCATION -- This activity is an opportunity for interested students to be involved in the elementary [p257] school Outdoor Education Program. High school students are used as camp counselors and leaders for this activity. Students are solicited to help work prior to the fall and spring Outdoor Ed Program.

SWIMMING TIMING TEAM -- Offers an interested student a chance to be a part of the Timing Team that is used during the competitive swimming season. Regular season meets, invitational meets, and the metro swim meet are swimming activities at which these volunteers will work. Membership in these group is solicited prior to the beginning of the competitive season.

STUDENT ADVISORY BOARD (SAB) -- Is another facet of student government. Members are elected from each class to represent the student body. These elections are held at the same time class officers are elected. Any student has an opportunity to submit their name for consideration.

INTRAMURALS -- Are offered to Westside students these following times. Basketball begins the latter part of November and continues through February. Coeducational volleyball is the spring intramural activity. Announcements are made to students so they can organize and formulate teams prior to the beginning of these activities.

COMPETITIVE ATHLETICS -- Westside High School offers students the opportunity to try out and participate in eighteen varsity sports. Twenty-seven different competitive teams are available for students at each grade level. The seasons when these are offered and the procedures for getting involved can be found in the Warrior Bulletin that is published and distributed in August, prior to the opening of school.

ZONTA CLUB (Z Club) -- Is a volunteer club for girls associated with Zonta International. Approximately one hundred junior and senior girls are involved in this volunteer organization. Eleventh and twelfth grade students are encouraged to join in the fall of each school year. [p258]

SUBSURFERS -- Is a club designed for students interested in learning about skin and scuba diving and other practical applications of that sport. Opportunities in the classroom and in our pool are made available for students involved in this activity. Membership is solicited in the fall and spring of each year.

WELCOME TO WESTSIDE CLUB -- Is an organization for students who are interested in helping students new to District 66 and to Westside High School. Activities are held for them which are geared toward helping them become a part of our school curriculum and activities.

WRESTLING AUXILIARY -- Is for girls interested in supporting our competitive wrestling team. Membership is solicited prior to the competitive wrestling season.

NATIONAL HONOR SOCIETY -- Westside Honor Society is a chapter of the national organization and is bound by its rules and regulations. It is open to seniors who are in the upper 15% of their class. Westside in practice and by general agreement of the local chapter has inducted only those juniors in the upper 7% of their class. The selection is made not only upon scholarship but also character, leadership, and service. A committee meets and selects those students who they believe represent the high qualities of the organization. Induction into NHS is held in the spring of each year.
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