Amicus Curiae Brief — Lubbock Independent School District v. Lubbock Civil Liberties Union

ee

No. 82-805

OS

E

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

LUBBOCK INDEPENDENT SCHOOL DISTRICT, et al.,

- Petitioners,

LUBBOCK CIVIL LIBERTIES UNION,

Respondent.

MOTION OF SENATOR MARK O. HATFIELD, SENATOR

PAUL LAXALT, SENATOR JENNINGS RANDOLPH,

SENATOR JAKE GARN, SENATOR PETE V. DOMENICI,

SENATOR JEREMIAH DENTON, SENATOR DONALD L.

NICKLES, SENATOR SLADE GORTON, SENATOR

JESSE A. HELMS, SENATOR S. I. HAYAKAWA,

SENATOR JAMES ABDNOR, SENATOR DAVID L.

BOREN, SENATOR DENNIS DeCONCINI, SENATOR

WILLIAM PROXMIRE, SENATOR ALAN K. SIMPSON,

SENATOR ORRIN G. HATCH, SENATOR ROGER W.

JEPSEN, SENATOR PAULA HAWKINS, SENATOR

WILLIAM L. ARMSTRONG, SENATOR SAM NUNN,

SENATOR ROBERT J. DOLE, SENATOR MAX S.

BAUCUS, SENATOR HOWELL HEFLIN, AND

SENATOR J. BENNETT JOHNSTON, MEMBERS

OF THE UNITED STATES CONGRESS, FOR LEAVE

TO FILE BRIEF AS AMICI CURIAE AND BRIEF

AMICI CURIAE IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN W. NIELDs, JR.

WILLiAM JAY HUNTER, In.

(Counsel of Record)

JAMES G. GILLILAND, Jr.

CYNTHIA K. COURTNEY

Howrey & SIMON

1730 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 783-0800

December 14, 1982 Attorneys for Amici Curiae

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-805

LUBBOCK INDEPENDENT SCHOOL DISTRICT, et al.,

e Petitioners,

LUBBOCK CIVIL LIBERTIES UNION,

Respondent.

MOTION OF SENATOR MARK O. HATFIELD, SENATOR

PAUL LAXALT, SENATOR JENNINGS RANDOLPH,

SENATOR JAKE GARN, SENATOR PETE V. DOMENICI,

SENATOR JEREMIAH DENTON, SENATOR DONALD L.

NICKLES, SENATOR SLADE GORTON, SENATOR

JESSE A. HELMS, SENATOR S. I. HAYAKAWA,

SENATOR JAMES ABDNOR, SENATOR DAVID L.

BOREN, SENATOR DENNIS DeCONCINI, SENATOR

WILLIAM PROXMIRE, SENATOR ALAN K. SIMPSON,

SENATOR ORRIN G. HATCH, SENATOR ROGER W.

JEPSEN, SENATOR PAULA HAWKINS, SENATOR

WILLIAM L. ARMSTRONG, SENATOR SAM NUNN,

SENATOR ROBERT J. DOLE, SENATOR MAX S.

BAUCUS, SENATOR HOWELL HEFLIN, AND

SENATOR J. BENNETT JOHNSTON, MEMBERS

OF THE UNITED STATES CONGRESS, FOR LEAVE

TO FILE BRIEF AS AMICI CURIAE IN SUPPORT

OF THE PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Senators Mark O. Hatfield, Paul Laxalt,

Jennings Randolph, Jake Garn, Pete V. Domenici, Jere-

miah Denton, Donald L. Nickles, Slade Gorton, Jesse A.

Helms, S. I. Hayakawa, James Abdnor, David L. Boren,

Dennis DeConcini, William Proxmire, Alan K. Simpson,

Orrin G. Hatch, Roger W. Jepsen, Paula Hawkins, Wil-

liam L. Armstrong, Sam Nunn, Robert J. Dole, Max S.

Baucus, Howell Heflin, and J. Bennett Johnston, respect-

fully move this Court for leave to file the attached brief

as amici curiae in support of the petition for a writ of

certiorari. Respondent, Lubbock Civil Liberties Union,

has refused to consent to the filing of this brief.

Movants’ interest in this case arises from their re-

sponsibilities as Members of the United States Senate.

Each is sworn to support and defend the Constitution of

the United States. As described in the accompanying

brief, the Senate presently has pending before it proposed

constitutional amendments and legislation concerning

school prayer, including legislation designed to remove

voluntary school prayer cases involving state laws from

the jurisdiction of the federal courts. Thus, movants

have a substantial official interest in the resolution of the

issue presented in this case.

The proposals pending in the Senate are the result of

the widespread perception that the lower federal courts,

including the Fifth Circuit in the instant case, are in-

terpreting the Constitution in a way that is hostile to

religion. As this Court has recognized repeatedly, the

Constitution requires state neutrality, not state hostility,

toward religion. School boards around the country are in

turmoil and confusion about whether they may treat re-

ligious activities neutrally, or whether they now must

monitor student actions and prohibit voluntary student

speech and association with apparent religious content.

The ruling of the court below fails to follow this Court’s

mandate of neutrality. It has increased the national con-

fusion as to the law and concern as to the attitude of the

judiciary toward religion. The question presented in this

case should be resolved quickly by the Court in favor of

neutrality by granting certiorari in this case and revers-

ing the decision of the Fifth Circuit panel.

As representatives of our constituents, and as legisla-

tors who must act on this issue in our official capacities,

we submit that we are in a unique position to demon-

strate to the Court the importance of this issue to the

people of this country and the extent to which our con-

stituents are confused by the conflicting interpretations

of the Constitution given by the courts on the subject

of school prayer. See, e.g., National Organization for

Women, Inc. v. Idaho, 455 U.S. 918 (1982) (Motions of

Senator Jake Garn, et al., and Congressman Thomas P.

O'Neill, Jr., et al., for leave to file briefs as amici curiae

granted). Thus, these Senators request that the Court

grant their motion for leave to file the attached brief

as amici curiae in support of the petition for a writ of

certiorari.

Respectfully submitted,

Joux W. NIELDs, JR.

Wu LM Jay HUNTER, JR.

(Counsel of Record)

JAMES G. GILLILAND, JR.

CYNTHIA K. COURTNEY

Howrey & SIMON

1730 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 783-0800

Attorneys for Senators

Mark O. Hatfield, Paul Lazalt,

Jennings Randolph, Jake Garn,

Pete V. Domenici, Jeremiah Denton,

Donald L. Nickles, Slade Gorton,

Jesse A. Helms, S. 1. Hayakawa,

James Abdnor, David L. Boren,

Dennis DeConcini, William Prormire,

Alan K. Simpson, Orrin G. Hatch,

Robert W. Jepsen, Paula Hawkins,

William L. Armstrong, Sam Nunn,

Robert J. Dole, Max S. Baucus,

Howell Reflin, and J. Bennett Johnston

December 14, 1982

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...000.0.0...2...---..-:ccceceseseeee-neees

INTEREST OF THE AMICI CURA E

STATEMENT OF THE CASE ...00202022.0..20---2.-c0c0000000--

SUMMARY OF ARGUMENT

—— . wd

I. This Court Should Grant the Writ to Reduce

the Nationwide Confusion Concerning Proper

Policies for Religious Activities in Public

II. This Court Should Grant the Writ to Uphold

the Principle of Neutrality —....................

III. This Court Should Grant the Writ to Protect

Students’ Rights of Free Speech and Assembly

II crccnctrascnncenescanssnsossennscesseecnssonamenveensnsenennvevages

Page

ii

11

13

ii

TABLE OF AUTHORITIES

Cases Page

Abington School District v. Schempp, 374 U.S.

( ieeiaanin 9,11

Board of Education v. Allen, 392 U.S. 236 (1968) .. 10

Brandon v. Board of Education, 635 F.2d 971 (2d

Cir. 1980), cert. denied, 454 U.S. 1123 (1981) 5

Engel v. Vitale, 370 U.S. 421 (1962 11

Everson v. Board of Education, 330 U.S. 1 (1947). 10

Lemon v. Kurtzman, 403 U.S. 602 (19717 10

Lubbock Civil Liberties Union v. Lubbock Inde-

pendent School District, 669 F.2d 1038 (5th Cir.

% A ee passim

Roemer v. Board of Public Works, 426 U.S. 736

RRS SIN ee nN a 10

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (196997 11,12

Walz v. Tax Commission, 397 U.S. 664 (1970) 10

Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269,

re passim

Legislative Materials

S.J. Res. 199, 97th Cong., 2d Sess. (19827

S.J. Res. 247, 97th Cong., 2d Sess. (1982)

S. 481, 97th Cong., Ist Sess. (1981)

S. 1378, 97th Cong., Ist Sess. (1981)

S. 1577, 97th Cong., Ist Sess. (19817)

S. 1742, 97th Cong., Ist Sess. (1981)

S. 2928, 97th Cong., 2d Sess. (1982)

128 Cong. Rec. 811780 (daily ed. Sept. 17, 1982)

Constitutional Provisions

IR“ 1 3 passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-805

LUBBOCK INDEPENDENT SCHOOL DISTRICT, et al.,

7 Petitioners,

LUBBOCK CIVIL LIBERTIES UNION,

Respondent.

BRIEF AMICI CURIAE OF SENATOR MARK O.

HATFIELD, SENATOR PAUL LAXALT, SENATOR

JENNINGS RANDOLPH, SENATOR JAKE GARN,

SENATOR PETE v. DOMENICI, SENATOR JEREMI\H

DENTON, SENATOR DONALD L. NICKLES, SENATOR

SLADE GORTON, SENATOR JESSE A. HELMS,

SENATOR S. I. HAYAKAWA, SENATOR JAMES

ABDNOR, SENATOR WAVID L. BOREN, SENATOR

DENNIS DeCONCINI, SENATOR WILLIAM PROXMIRE,

SENATOR ALAN K. SIMPSON, SENATOR ORRIN G.

HATCH, SENATOR ROGER W. JEPSEN, SENATOR

PAULA HAWKINS, SENATOR WILLIAM L.

ARMSTRONG, SENATOR SAM NUNN, SENATOR

ROBERT J. DOLE, SENATOR MAX S. BAUCUS,

SENATOR HOWELL HEFLIN, AND SENATOR

J. BENNETT JOHNSTON, MEMBERS OF THE

UNITED STATES CONGRESS, IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

INTEREST OF THE AMICI CURIAE

The amici curiae are elected members of the United

States Senate. Each has taken an oath to support and

defend the Constitution of the United States. Each serves

at the will of and as the representative of the citizens

of one of the several States. Each bears the responsi-

bility of voting upon legislation designed to preserve and

protect rights guaranteed by the Constitution of the

United States.

Amici do not lightly seek leave to appear before this

Court. However, the decision below would require a

school board to discriminate against students who wish

to use school facilities outside school hours for discussion

the school board considers to have religious content. We

submit that the decision violates fundamental principles

of the First Amendment. The decision treats one of the

most divisive socia] issues of our day. It is an issue

involving the deepest convictions and most cherished liber-

ties of the American people.

The issue presented is one that we have been asked to

address officially on several recent occasions and one

which we will have to address again. The United States

Senate has before it constitutional amendments to permit

prayer in public schools,“ legislation to permit prayer in

public schools to some degree, and legislation to remove

1S... Res. 199, 97th Cong., 2d Sess. (1982), a constitutional

amendment proposed by President Ronald Reagan and sponsored

by Senators Thurmond and Hatch declares that “Nothing in the

Constitution shall be construed to prohibit individual or group

prayer in public schools or other public institutions. No person

shall be required by the United States or by any State to partici-

pate in prayer.” An alternative constitutional amendment proposed

by Senator Byrd is similar in nature. S.J. Res. 247, 97th Cong.,

2d Sess. (1982).

2 Title IV of 8.1378, 97th Cong., Ist Sess. (1981) and S.1577,

97th Cong., Ist Sess. (1981), introduced by Senator Jepsen, would

grant every individual the right to participate in voluntary prayer

or religious meditation in any public building and would forbid

the State from abridging that right. 8.2928, 97th Cong., 2d Sess.

(1982), introduced by Senator Hatfield, would require public secon-

dary schools that receive federal aid and which generally allow

students to meet during non-instructional periods also to permit

use of school facilities on an equal basis by students meeting volun-

tarily for the purpose of religious discussion or prayer.

voluntary school prayer cases arising under state law

from the jurisdiction of the federal courts.“

The proposals before the Senate are responsive to the

widespread perception that the courts are interpreting

the Constitution in a way that is hostile to religion. We

are of the firm conviction that the decision below is just

such a decision and that, if allowed to stand, it will place

the judiciary at odds with the people it serves and the

Constitution it interprets. The Constitution is not hostile

to religion and the prior decisions of this Court do not

compel the holding below that it is. Rather, the over-

whelming weight of this Court’s vrior decisions estab-

lishes that the Constitution requires the government to

maintain neutrality toward religion in a way that recog-

nizes and protects the liberties of our students. The hold-

ing below improperly requires state hostility to religion

and infringes student rights.

This case presents the Court with the opportunity

to resolve an issue of unusual importance that is caus-

ing widespread confusion and confrontation. Numerous

school boards throughout the country are uncertain as

to the applicable law on the subject of equal access to

school facilities by voluntary student groups.“ Some, rely-

ing on this Court’s recent decision in Widmar v. Vincent,

454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981),

applicable to colleges, believe they must permit voluntary

religious activities that are initiated and run by students

when they make their facilities available for nonreligious

8.481, 97th Cong., Ist Sess. (1981), and S.1742, 97th Cong.,

Ist Sess. (1981), introduced by Senator Helms, would eliminate

Supreme Court and federal district court jurisdiction to review

and hear any case arising under state law relating to voluntary

prayer in public buildings and schools.

4 See, e.g., 128 Cong. Rec. 811780-86 (daily ed. Sept. 17, 1982).

The present confusion is discussed in more detail, infra, at 9.

4

activities. Others, relying on the decision below,“ believe

they are prohibited from doing so. Still others believe

that the discretion whether to permit such activities rests

with the school boards. A clear rule on this issue is

urgently needed. This case squarely presents the Court

with the opportunity to announce such a rule.

Amici believe that neither legislation nor a constitu-

tional amendment is required to permit a school to open

its facilities for all appropriate student-initiated and

student-managed activities including, if the students wish,

religious activities. The Constitution already so provides.

The Establishment, Free Exercise and Free Speech Clauses

of the First Amendment require treatment of such

activities in a neutral manner. Consequently, public

schools properly may allow students equal access to school

facilities for volu..tary, extracurricular, religious speech

and assembly.

Supreme Court reaffirmation of this neutrality prin-

ciple will assist amici in acquitting their responsibilities

as elected officials when acting upon pending legislation

and constitutional amendments and when providing guid-

ance to constituents who operate or attend public schools.

These amici curiae have a substantial official interest in

the issue presented in this case, and urge the Court to

grant the petition for certiorari and to reverse the de-

cision of the Fifth Circuit.

STATEMENT OF THE CASE

On August 26, 1980, the Lubbock Independent School

District adopted a policy concerning the use of school fa-

cilities during non-instructional periods that provided

equal access to voluntary, supervised, student groups for

5The Fifth Circuit decision, reported at 669 F.2d 1038 (5th

Cir. 1982), is reprinted as Appendix A to the Petition for a Writ

of Certiorari to the United States Court of Appeals for the Fifth

Circuit filed November 12, 1982 (“Petition for Certiorari“).

any “educational, moral, religious or ethical purposes.

st is neutral on its face. Paragraph four of the policy

states:

The School Board permits students to gather at

the school with supervision either before or after

regular school hours on the same basis as other

groups as determined by the school administration

to meet for any educational, moral, religious or ethi-

cal purposes so long as attendance at such meetings

is voluntary.

The Lubbock Civil Liberties Union challenged this policy

under the Establishment Clause of the First Amendment

as unconstitutional on its face and as applied.’

The District Court held that the equal access policy

was not facially unconstitutional. Rather, it “strikes

the correct balance between the First Amendment’s man-

date against governmental establishment of a religion and

Since this case clearly involves the question whether public

school facilities already available to other student groups may be

made available on an equal basis to voluntary student groups

seeking to engage in religious discussion or prayer, it differs from

Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980), cert.

denied, 454 U.S. 1123 (1981), as that case was presented to this

Court.

At the time the decision was rendered in Widmar v. Vincent,

supra, 102 8. Ct. 269, and thus at the time of the denial of certiorari

in Brandon, the Court described Brandon as a case “in which

religious groups claim that the denial of facilities not available to

other groups deprives them of their rights under the Free Exercise

Clause.” 102 8. Ct. at 276 n.13 (emphasis in original). The Court

subsequently eliminated the reference to Brandon in footnote 13 of

the Widmar decision, see Widmar v. Vincent, 454 U.S. 263, 273 n.13

(1981).

7 At trial, however, the president of the Lubbock Civil Liberties

Union, a professor of constitutional law, testified that the policy

was not facially unconstitutional (Tr., at 28) and that despite

widespread publicity concerning the litigation respondent had re-

ceived no complaints concerning the policy as applied. (Tr. at 27-28.)

its protection of the free exercise of religion.“ The Dis-

trict Court also found that there was no evidence that the

policy had been unconstitutionally applied.’

The Fifth Circuit Court of Appeals reversed this de-

cision, finding that the School Board’s equal-access-to-

facilities policy was an unconstitutional establishment of

religion. Lubbock Civil Liberties Union v. Lubbock Inde-

pendent School District, 669 F.2d 1038 (5th Cir. 1982).

The Circuit Court held that the policy was constitution-

ally objectionable because it appear led] in the middle of

a policy concerned with religious activities in the

schools,” because it authorized student meetings “at a

time closely associated with the school day thereby

demonstrating “implicit support and approval of the re-

ligious meetings,” and because the School District, in

connection with its statutory responsibilities concerning

school property, intended to provide personnel to ensure

the protection of school property during the student

meetings.

en bane was denied, with four judges dis-

senting. The dissenting judges asked: “Is neutrality

still the objective or is it the fashion now to make the

state the adversary of religious belief?” This Court

should resolve that question in favor of neutrality, by

The District Court’s unpublished opinion is reprinted as Ap-

pendix B to the Petition for Certiorari. The quoted statement is

found at page 3la of the Appendix.

Petition for Certiorari, Appendix B. at 33a.

10 Petition for Certiorari, Appendix A, at 13a.

Id., at 16a.

12 Id., at 17a.

18 Id., at 18a-20a.

See Petition for Certiorari, Appendix D

0 Id., at 41a.

7

granting petitioner's writ, and by reversing the Fifth

Circuit decision.

SUMMARY OF ARGUMENT

The question of whether a school board may open pub-

lie school facilities to a broad range of student-initiated

activities including religious activities or whether the

school board must discriminate against activities it con-

siders religious is one which the Supreme Court should

resolve now. The Court left this question open in Wid-

mar v. Vincent, supra, 454 U.S. at 274 n.14. The holding

in Widmar and the neutrality principle it espouses point

powerfully in one direction. The holding below points in

the other. School boards do not know what the law is

on a question of great importance to their communities.

The Court should eliminate this confusion by announcing

a clear equal access rule that can be applied by school au-

thorities nationwide.

This case presents the issue clearly. The policy of the

School Board is set forth in writing and has been struck

down as unconstitutional on its face. Certiorari should

be granted »ecause the Fifth Circuit decision conflicts

with the setiled principle that neutral State policies con-

cerning religion are not unconstitutional, and because the

Fifth Circuit decision requires a deviation from such

neutral policies that deprives students of their rights of

Free Speech and Assembly.

ARGUMENT

Reasons for Granting the Writ

I. This Court Should Grant the Writ to Reduce the

Nationwide Confusion Concerning Proper Pelicies for

Religious Activities in Public Schools

Many school boards across the country, genuinely wish-

ing to comply with this Court’s rulings, have struggled

to resolve the issue of whether students may meet volun-

tarily for religious purposes. Some school authorities

have concluded that such meetings cannot be permitted

while others, interpreting the same conflicting legal pre-

cedents, have reached the opposite conclusion. For

example:

In Sonoma, California, a group of high school stu-

dents who had been meeting to discuss religious

topics was recently disbanded by the school’s prin-

cipal after nearly ten years as a recognized stu-

dent group. The school district’s legal counsel,

after reviewing this Court’s decision in Widmar

and the Fifth Circuit’s decision in the instant case,

advised the principal that Lubbock controlled in

the high school setting and thus prohibited the

group’s activities.

In Anderson County, South Carolina, students have

been meeting weekly in school facilities for the

past two years before school buses arrived for

prayer, Bible study and religious discussions. The

students have met on school premises pursuant to

a written policy applying to non-student groups

allowing use of the school facilities “to promote

the general cultural, civic, religious, educational

and social welfare of the community.” The pclicy

was clarified in November 1982 to make explicit

that religious activity is not permitted during the

school day. The group may continue to meet under

this policy. The local affiliate of the American

Civil Liberties Union has threatened to sue the

school board if the religious activities continue.

—In Williamsport, Pennsylvania, high school stu-

dents have sought recognition as a school club for

prayer, Bible study, and discussion, and have asked

permission to meet on the school premises during

the early morning student activity period. Other

student groups regularly meet during this activity

period. The students’ request has been denied based

on the opinion of the school district’s attorney that

recognition of the group would violate the First

Amendment. On June 2, 1982, the students filed a

complaint against the school board in federal court

seeking a declaration that the refusal to permit

the students to meet violates their First Amend-

ment rights.

—In Saddleback, California, a written school policy

permitted student groups to meet to discuss issues

without regard to content and subject matter. The

policy distinguished between sponsored clubs, which

received financial support and supervision from

the school, and student-initiated groups, which re-

ceived no such support. A student-initiated group

met during the school lunch period to discuss

topical issues and read passages from the Bible.

The American Civil Liberties Union filed suit

against the school board, asking that the policy, as

applied, be declared unconstitutional. The suit was

dropped when a newly elected school board promul-

gated a new policy that allows only sponsored clubs.

These examples illustrate the prevailing confusion as

local authorities attempt to operate the schools in the

face of conflicts between the cases decided by this Court

and the lower federal courts. The Court should grant

petitioners’ writ to resolve this issue by announcing a

clear rule for the nation permitting equal access to school

facilities.

II. This Court Should Grant the Writ to Uphold the

Principle of Neutrality

The Lubbock School Board has formulated a neutral,

non-preferential policy that allows equal access to school

facilities for all types of student groups wishing to meet.

The policy “neither advances nor inhibits religion.” See

Abington School District v. Schempp, 374 U.S. 203, 222

(1963). Merely allowing students to meet for prayer and

religious discussions, pursuant to a policy allowing stu-

dents to meet for a broad variety of purposes, is con-

sistent with this Court’s long-established requirement that

States act in a manner neutral toward religious and non-

10

religious activities. This principle was first articulated

by this Court, through Mr. Justice Black, in Everson v.

Board of Education, 330 U.S. 1, 18 (1947):

[The First] Amendment requires the state to be a

neutral in its relations with groups of religious be-

lievers and non-believers; it does not require the state

to be their adversary. State power is no more to be

used so as to handicap religions than it is to favor

them.

In fact, this Court has consistently re, aired governmental

neutrality toward religion. See Roemer v. Board of Pub-

lic Works, 426 U.S. 736, 745-46 (1976) (“The Court has

enforced a scrupulous neutrality by the State, as among

religions, and also as between religious and other activi-

ties, but a hermetic separation of the two is an impossi-

bility it has never required.” [footnote omitted] ) ; Lemon

v. Kurtzman, 403 U.S. 602, 610 (1971) (“Our decisions

from Everson to Allen have permitted the States to pro-

vide church-related schools with secular, neutral, or non-

ideological services, facilities, or materials.”) ;** Walz v.

Tax Commission, 397 U.S. 664, 669 (1970) (“Short of

those expressly proscribed governmental acts [govern-

mentally established religion or governmental interference

with religion] there is room for play in the joints pro-

ductive of a benevolent neutrality which will permit re-

ligious exercise to exist without sponsorship and without

interference.”); Board of Education v. Allen, 392 U.S.

236, 249 (1968) (Harlan, J., concurring) (“The attitude

16 The Court in Lemon described the types of neutral facilities

and services that school districts can provide :

Bus transportation, school lunches, public health services, and

secular textbooks supplied in common to all students were not

thought to offend the Establishment Clause.

403 U.S. at 616-17. See also Board of Education v. Allen, 392

U.S. 236 (1968). The classrooms made available in the present

case on an equal basis to all student groups are also neutral

facilities.

11

of government toward religion must, as this Court has

frequently observed, be one of neutrality.”); Abington

School District v. Schempp, 374 U.S. 208, 215, 218, 222,

225, 299, 306 (1963) ; Engel v. Vitale, 370 U.S. 421, 443

(1962) (Douglas, J., concurring) (“The First Amend-

ment leaves the Government in a position not of hostility

to religion but of neutrality.”).

The equal access policy instituted by the Lubbock School

District satisfies the requirement of neutrality. As this

Court stated in Widmar, a non-preferential policy per-

mitting all student groups to have equal access to uni-

versity facilities reflects a secular purpose, 454 U.S. at

271-72, and “[t]he provision of benefits to [a] broad

spectrum of groups is an important index of secular

effect,” id. at 274. By contrast, the Fifth Circuit’s deci-

sion in Lubbock violates the neutrality principle by re-

quiring the State to become the adversary of public school

students who wish to engage in religious activities. Un-

der Lubbock, school boards would be required to screen

all voluntary groups that are meeting or desire to meet

and deny equal access to school facilities when religious

content is discovered. Such State involvement is precisely

the sort of entanglement that this Court’s rulings under

the Establishment Clause have sought to prevent. Widmar

v. Vincent, supra, 454 U.S. at 269, n.6.

III. This Court Should Grant the Writ to Protect Students’

Rights of Free Speech and Assembly

This Court has emphatically stated that public school

students do not “shed their constitutional rights to free-

dom of speech or expression at the schoolhouse gate.”

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503, 506 (1969). Religious discussion

and worship are “forms of speech and association pro-

12

tected by the First Amendment.” Widmar v. Vincent,

supra, 454 U.S. at 269. Consequently, students must be

permitted to exercise their Free Speech and Association

rights, including the right to engage in speech with re-

ligious content, unless the conduct “would ‘materially and

substantially interfere with the requirements of appropri-

ate discipline in the operation of the school. Tinker,

supra, 393 U.S. at 509, citing Burnside v. Byars, 363

F.2d 744, 749 (5th Cir. 1966). In the instant case there

is no indication whatsoever that voluntary meetings out-

side school hours would disrupt discipline in the school.

Furthermore, this Court has held that where the

facilities of a public university are made generally avail-

able to students for the exercise of their rights of speech

and assembly, they cannot be denied to other students

who wish to engage in religious speech and assembly.

Widmar v. Vincent, supra, 454 U.S. 263. The Lubbock

School District permits other voluntary student groups to

use school facilities. It should also be permitted to allow

religious-oriented groups to meet. Indeed, as held in

Tinker, “the prohibition of expression of one particular

opinion, at least without evidence that it is necessary to

avoid material and substantial interference with school-

work or discipline, is not constitutionally permissible.”

393 U.S. at 511 (emphasis added). Since students may

discuss the inquiry of Jean-Paul Sartre whether there is

a God, they should also be permitted to discuss the con-

viction of Saul of Tarsus, that there is. See Widmar v.

Vincent, supra, 454 U.S. at 277 (Stevens, J., concurring).

Under Supreme Court precedent the Lubbock School

District’s Board of Trustees must allow student expres-

sions of opinion. The Fifth Circuit decision would re-

quire the Board to prohibit student expressions about re-

ligion. Such content-based regulation of speech deprives

students of their Free Speech rights.

13

CONCLUSION

Amici curiae respectfully request that the petition of

the Lubbock Independent School District be granted to

reaffirm governmental neutrality toward religion. Lub-

bock should be reviewed and reversed to assure non-

discriminatory access to public school facilities for vol-

untary student meetings.

Respectfully submitted,

JOHN W. NIELDs, JR.

WILLIAM JAY HUNTER, JR.

(Counsel of Record)

JAMES G. GILLILAND, JR.

CYNTHIA K. COURTNEY

Howrey & SIMON

1730 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 783-0800

Attorneys for Amici Curiae

December 14, 1982