Amicus Curiae Brief — Bender v. Williamsport Area School Dist.

No. 84-773

IN THE

Supreme Court of the GQnited States. 3

October Term, 1984

MICHAEL BENDER, et al., —

‘ANDER L. STEVAS,

Petitioners,

y

v. — _

AREA SCHOOL DISTRICT, et al.,

Respondents.

THE WILLIAMSPO+r."

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF THE RUTHERFORD INSTITUTE, THE RUTHERFORD

INSTITUTE OF ALABAMA, THE RUTHERFORD INSTITUTE OF

GEORGIA, THE RUTHERFORD INSTITUTE OF MINNE-

SOTA, THE RUTHERFORD INSTITUTE OF MONTANA,

THE RUTHERFORD INSTITUTE OF TENNES-

SEE, THE RUTHERFORD INSTITUTE OF

TEXAS, AND THE RUTHERFORD

INSTITUTE OF VIRGINIA,

AMICI CURIAE, IN

SUPPORT OF THE

PETITIONERS

JOHN W. WHITEHEAD

COUNSEL OF RECORD

JAMES J. KNICELY

THOMAS S. NEUBERGER

The Rutherford Institute

9411 Battle Street

Manassas, Virginia 22110

(703) 369-0100

THOMAS QO. KotTouc

The Rutherford Institute

of Alabama

317 North Hull Street

Montgome-y, Alabama 36104

WILLIAM P. HOLLBERG

The Rutherford Institute

of Georgia

1750 Peachtree Rd., N.W.

Atlanta, Georgia 30309

TONY P. TRIMBLE

The Rutherford Institute

of Minnesota

316 East Main

Anoka, Minnesota 55305

J. DOUGLAS ALEXANDER

The Rutherford Institute

of Montana

104 Second Avenue, S.W.

Sidney, Montana 59270

LARRY L. CRAIN

The Rutherford Institute

of Tennessee

First American Center

12th Floor

Nashville, Tennessee 37238

W. CHARLES BUNDREN

The Rutherford Institute

of Texas

4300 Interfirst One

Dallas, Texas 75202

Guy O. FARLEY, JR.

The Rutherford Institute

of Virginia

10521 Judicial Place

Fairfax, Virginia 22030

Attorneys for Amici Curiae

_

TABLE OF CONTENTS

Page

eg ig s's ss see seesace l

a aes se eee a buns eeeeenes 3

EE a ere 3

Argument

I. Permitting A Student Religious Organization To

Meet Voluntarily In A Public High School Does

Not Cenflict With The Intentions Of The Framers

Of The First Amendment As Revealed In Their

ns CY IIo oc wecccceccscesccancs 5

Il. Permitting A Student Religious Organization To

Meet Voluntarily In A Public High School Is An

Example Of Affirmatively Mandated Accomodation. 12

Ill. Permitting A Student Religious Organization To

Meet Voluntarily In A Public High School On The

Same Basis As Other Student Activities Does Not

Violate The Establishment Clause................. 14

A. First Amendment Rights In A_ Public High

School May Be Restricted Only By Disciplinary

Requirements, Certain Well-Defined State Con-

stitutional Obligations and Reasonable Time,

Place and Manner kegulations................. 15

8. The Court Of Appeals Has Failed To Distinguish

The Law Of This Case From The Important

rirst Amendment Principles Set Forth In

IS a ee 17

C. The Court of Appeals Has Overstated And

Oversimplified The Significance Of The Distinc-

tion Between The McCollum And Zorach Cases. 22

D. There Is No Entanglement Problem Presented

Peseckéndeneeckwess Mabhdhvesesesedesenss 24

IBY A oe cca I ALG Sl US eR Eire Oe Pn 25

TABLE OF CASES

Cases

Page

Ambach v. Norwick, 441 U.S. 68 (1979) 0... 0.0.0.0 0 eens 20

Bender v. Williamsport Area School District, 563 F. Supp.

607 (04.D. Pa. 1963)... oc ascscseunuueeenee 3, 17, 21, 25

Board cf Education, Island Trees v. Pico, 457 U.S. 853

( '/ Re 16, 20

Braunfeld v. Brown, 366 U.S. 599 (1961). .............45. 13

Cantwell v. Connecticut, 310 U.S. 296 (1940). ............ 7

Carey v. Brown, 447 U.S. 455 (19GB) . 0... ccc cccccccccess 16

Engel v. Vitale, 370 U.S. 421 (1962). ..............206- 7, 23

Epperson v. Arkansas, 393 U.S. 97 (1968) ...........005- 15

Everson v. Board of Education, 330 U.S. 1 (1947)....... 6,7

Grayned v. City of Rockford, 408 U.S. 104 (1972). ........ 16

Keyishian v. Board of Regents, 385 U.S. 589 (1967). ...... 16

Lemon v. Kurtzman, 403 U.S. 602 (1971). ..........4.. 17, 19

Lynch v. Donnelly, U.S. ___., 104 S. Ct. 1355

(GRRE. ca ccstducteeas .<ucueeeaneee 4. 5, 8, 14, 19, 20, 25

Marsh v. Chambers, 463 U.S. 783 (1983) ...........4. 5,7, 13

McCollum v. Board of Education, 333 U.S. 203 (1948)... 18, 23

McDaniel v. Paty, 433 U.S. 618 (1978) ...............0.4. 19

Mueller v. Allen, 463 U.S. 388 (1983)..........0. eee eeeee 25

New Jersey, Petitioner v. T.L.O., ____U.S. ___.,, §3

U.S.L.W. 4683 Ganuary 15, GED)... cesccenscsceee 16, 18

New York Trust Co. v. Eisner, 256 U.S. 345 (1921) ....... 5

Perry Education Association v. Perry Local Educator's

Association, 48 U.S. $7 (05GS) .. . . ccceccscccaseseun 18

School District of Abington Township v. Schempp, 374

U.S. 208 (ISGD). . on cccccecvcuuueeneeeee 19, 23, 24, 26

Shelton v. Tucker, 364 U.S. 479 (1960) .............005.. 16

Sherbert v. Verner, 374 U.S. 398 (1963) ................. 13

Stone v. Graham, 449 U.S. 39 (1980)................. 23

Tinker v. Des Moines Independent School District, 393

ee kere ee ee seca ee. 4, 14, 15, 16, 18, 20

Walz v. Tax Commission, 397 U.S. 664 (1970)........ 5, 13, 25

West Virginia v. Barnette, 319 U.S. 624 (1942) ........... 16

Widmar v. Vincent, 454 U.S. 263

EEE ee 4, 14, 15, 16, 18, 21, 23, 24

Williamsport Area School District v. Bender, 741 F.2d 538

Deeks tne ns ancseccees 15, 17, 19, 21, 22

Wisconsin v. Yoder, 406 U.S. 205 (1972)................. 19

Zorach v. Clauson, 343 U.S. 306 (1952)............ 14, 18, 23

Statutes

A Treaty Between the United States of America and the

Kaskaskia Tribe of Indians, 7 Stat. 78-79 (Peters ed.

An Act granting further time for locating military land

warrants, and for otver purposes, Ch. 26, 2 Stat.

EE y

An Act in addition to an act, intituled etc., Ch. 30, 2 Stat.

EEE Se i)

An Act to provide for the Government of the Territory

Norihwest of the river Ohio (Northwest Ordinance), Ch.

8, 1 Stat. 50-51 (Peters ed. 1845)................0000.. 6

An Act to revive and continue in force, etc., and for other

purposes, Ch. 30, 2 Stat. 236-237 (Peters ed. 1845)...... -)

Ord. of 1787, July 13, 1787, Art. 3, reprinted in

Documents Illustrative of the Formation of the Union of

cea c cece cceeencecececs 6

Other Sources

C. Antieau, A. Downey and E. Roberts, Freedom From

Federal Establishment (1964) .............0 ccc cee eees

H. Black, Constitutional Law (4th ed. 1927)..............

Clark, The Church and the State—Its History and Rela-

tionship, from Forum on Religion and the Public School

(Wartburg College, Waverly lowa, 1964)...............

T. Cooley, Principles of Constitutional Law (1893)........

R. Cord, Separation of Church and State: Hist’ cal Fact

OE COREE CO 6 0 0 i 6 0c od6sedestcbsvedaes

Giannella, Religious Liberty, Nonestablishment and Doc-

trinal Development-Part I, 81 Harv. L. Rev. 513 (1968).

M. Howe, The Garden and the Wilderness (1965).........

Kauper, Prayer, Public Schools and the Supreme Court,

GS He Bes Ss Te GU ab 56s 6 carder ewcndnnseexe

2 J. Story, Commentaries on the Constitution of the

CS FOS Es. GHG a 0 hohe ho cba bh oe ee eb ced,

A. N. Whitehead, The Aims of Education (1952)..........

J. O. Wilson, Public Schools of Washington, | Records of

the Columbia Historical Society (1897) ...............

8 Works of Thomas Jefferson (Washington ed. 1861) ......

1S Writings of Thomas Jefferson (Memorial ed. 1904) .....

19 Writings of Thomas Jefferson (Memorial ed. 1904) .....

iv

Page

IN THE

Supreme Court of the Gnited States

October Term, 1984

No. 84-773

MICHAEL BENDER, et al.,

Petitioners,

v.

THE WILLIAMSPORT AREA SCHOOL DISTRICT,

et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF THE RUTHERFORD INSTITUTE, THE

RUTHERFORD INSTITUTE OF ALABAMA, THE

RUTHERFORD INSTITUTE OF GEORGIA, THE

RUTHERFORD INSTITUTE OF MINNESOTA, THE

RUTHERFORD INSTITUTE OF MONTANA, THE

RUTHERFORD INSTITUTE OF TENNESSEE,

THE RUTHERFORD INSTITUTE OF TEXAS,

AND THE RUTHERFORD INSTITUTE OF

VIRGINIA, AMICI CURIAE, IN SUPPORT

OF THE PETITIONERS

INTEREST OF AMICI CURIAE!'

This case presents :mportant issues concerning indi-

vidual free speech rights and the constitutional necessity

of the state to recognize and accommodate religious plu-

ralism and diversity in the operation of America’s public

‘Counsel of record to the parties in the case described above have

consented to the filing of this brief and letters of consent have been

filed with the Clerk pursuant to Rule 36.

2

schools. The Rutherford Institute is greatly concerned

about the implications for religious freedom and toler-

ance raised by the Court of Appeals’ decision in this

case.

The Rutherford Institute believes that the Court of Ap-

peals erred when it upheld the Williamsport school board

policy prohibiting students from meeting voluntarily dur-

ing a self-directed student activity period solely because

of the religious content of their speech. The activity pe-

riod, which clearly did not advance religion, merely pro-

vided a time for students to meet freely for seif-directed

activity. It manifestly recognized in neutral fashion the

freedom of each student to utilize the activity period in

the manner he or she individually chose Consequently,

it did not infringe upon religious conscience or constitute

state-sanctioned or endorsed religion.

Amici Curiae are non-profit religious corporations

named for Samuel Rutherford, a i7th-century Scottish

minister and Rector at St. Andrew’s University. With

state chapters in Alabama, Georgia, Minnesota, Mon-

tana, Tennessee, Texas and Virginia, and its national

office in Manassas, Virginia, the Rutherford Institute

undertakes to assist litigants and to participate in sig-

nificant cases relating to First Amendment religious

freedoms. Counsel for Amici Curiae have specialized in

constitutional litigation in state and federal courts, in-

cluding the Religion Clauses of the First Amendment,

and have participated as counsel for amici curiae in

previous cases before this Court. Counsel John W. White-

head has argued and served as special constitutional

consultant in numerous First Amendment cases and has

authored several booxs and law review articles that fo-

cus On int... pretation and application of the First Amend-

ment Religion Clauses. The Rutherford Institute be-

lieves the expertise of its counsel will be of assistance to

the Court in this case.

STATEMENT OF FACTS

Amici curiae adopt by reference the statement of facts

as set forth in Petitioners’ brief filed with this Court.

However, the following findings of the District Court

should a:so be carefully considered by this Court in de-

ciding this case:

This is not a case where school administrators have

adopted a rule or policy requiring, or even allowing,

students to meet for religious purposes. This is not a

case where a school teacher or other school official

has adopted a practice of requiring or encouraging

school prayer or other religious discussion in his

classroom. It is not a case where a teacher or other

school official encouraged or counselled the stu-

dents to request the opportunity to meet during the

activity period. It is not a case where the students

represent a _ particular religious denomination.

Rather, in this case, a number of students, acting

voluntarily and free of outside influences, have re-

quested permission to form a club and meet during

the schooi’s activity period on the same basis as

other student organizations. The request was denied

on the sole ground that the students wish to engage

in religious speech. This decision was not based on

a judgment regarding curricular choices or concerns

of discipline and order. It was based solely upca the

belief that the school board cannot exercise power

to grant the request without contravening the United

States Constitution.

Bender v. Williamspert Area School ‘District, 563 F

Supp. 697, 698-699 (M.D. Pa. 1983).

SUMMARY OF ARGUMENT

In prior cases, this Court has relied upon the intent of

the Frame~: of the Bill of Rights for understanding the

meaning and reach of the Establishment Clause. The his-

torical record shows that the climate of the revolutionary

and founding periods was fundamentally religious and

favored government accommodation of religious prac-

tices. Both Thomas Jefferson and James Madison, often

cited for their disestablishmentarian views, in fact toler-

ated and approved numerous religious practices in the

public schools and in public life. Jefferson, for example,

was President of the School Board of the District of Co-

lumbia where the Bible and the Watts Hymnals were

used as primary texts. Moreover, our national history is

replete with examples of government, in a spirit of tol-

eration and accommodation, recognizing America’s reli-

gious tradition and culture, but without infringing on the

rights of conscience of those who do not subscribe to

particular tenets of that tradition or culture.

The principles announced by this Court in Widmar v.

Vincent, 454 U.S. 263 (1981) and Tinker v. Des Moines

Independent School District, 393 U.S. 503 (1969) should

control the disposition of this case. The school district

has created a ‘“‘free’’ period for independent siudent ac-

tivity. Having done so, it may not then discriminate

against some students solely on account of the content of

their speech. Once access for voluntary, self-directed

free speech activity is accorded to some, it should be

accorded to all. Moreover, there is no constitutionally

valid reason why an “‘open forum” in a public high school

should be treated differently than one in a public univer-

sity. There is no implied state sponsorship of religious

activity in an open forum policy, neither is there any

state-mandated or endorsed religious exercise. Student

meetings are wholly voluntary, without violation of con-

science. Under these circumstances the school district

cannot be said to lend its prestige, power or influence to

religious thought or expression. Rather, it has affirma-

tively accommodated religion and non-religion, without

favoritism or hostility. Lynch v. Donnelly, —__U.S.

, 104 S. Ct. 1355 (1984). This approac’ properly ad-

vances the free speech rights of all studenis without im-

posing upon the rights of conscience of others.

ARGUMENT

I.

Permitting A Student Religious Organization

To Meet Voluntarily In A Public High School Does Not

Conflict With The Intentions Of The Framers

Of The First Amendment As Revealed

In Their Words, Deeds And History.

In Religion Clause adjudication, no less than any other

area of law, Justice Oliver Wendell Holmes’ statement is

most fitting: “‘A page of history is worth a volume of

logic.”” New York Trust Co. v. Eisner, 256 U.S. 345, 349

(1921). The determination of *‘the ultimate constitutional

objective’ as expressed by the Framers and ‘‘as illumi-

nated by history’ is of particular relevance here. Lynch

v. Donnelly, __U.S. . , 104 S. Ct. 1355, 1361

(1984); Marsh v. Chambers, 463 U.S. 783 (1983): Walz

v. Tax Commission, 397 U.S. 664, 671 (1970). Because

of this basic constitutional presupposition, concrete, spe-

cific historical evidence of the Framers’ views on reli-

gion and religious practices in public education must be

placed at a premium to understand the reach and mean-

ing of the First Amendment Religion Clauses.

History provides varied and ample evidence that

among the Founders of this Republic the universal sen-

timent towards religion was one of accommodation. Pub-

lic education was no exception. For example, the Con-

tinental Congress enacted the Northwest Ordinance on

July 13, 1787. That ordinance, in part, provided:

Religion, morality, and knowledge being essential

to good government and the happiness of mankind,

schools and the means of education shall forever be

encouraged.

Ord. of 1787, July 13, 1787, Art. 3, reprinted in Docu-

ments lilustrative of the Formacion of the Union of Amer-

ican States 52 (1927) (emphasis supplied). This early

acknowledgement of the relationship between religion

and education bespeaks a clear intent that religion, in-

stead of being segregated from the educational process,

was, in fact, inseparable from the educational process. It

is also significant that on August 7, 1789 (after the agree-

ment to the final wording of the First Amendment Reli-

gion Clauses and the other provisions of the Bill of

Rights), the Congress of the newly formed Federal gov-

ernment reenacted the Northwest Ordinance. An Act to

provide for the Government of the Territory Northwest

of the river Ohio (Northwest Ordinance), Ch. 8, 1 Stat.

50-51 (Peters ed. 1845). Any public school policy that

fails to accommodate the diverse religious tradition of

the American people is, therefore, at odds with the man-

date for education found in the Northwest Ordinance.

The views of Thomas Jefferson and James Madison

have been previously recognized by this Court as most

instructive in determining the meaning and reach of the

Religion Clauses. Everson v. Board of Education, 330

U.S. 1 (1947). Although Thomas Jefferson can in no sense

be regarded as a Framer of the First Amendment, this

Court, in its early Religion Clause cases, has adopted the

view that “‘the framers spoke in a wholly Jeffersonian

dialect and those who ratified it fully understood that

style of speech.’ M. Howe, The Garden and the Wilder-

ness 10 (1965).* At the time of the drafting and adoption

*Antieau, Downey and Roberts note, however, that: **{T]Jhe First

Amendment was hardly the exclusive product of any one person.

Sudsequent interpretations of the Amendment should not be con-

trolled by the singular statements of Madison [or] Jefferson... . An

of the First Amendment, Jefferson was in France. How-

ever, through his correspondence with James Madison,

his influence was at least partially felt.

In many ways, the views of Madison and Jefferson

were not represertative of those of the Framers of the

Constitution. Both Madison and Jefferson were from Vir-

ginia and were central figures in the fight in that state for

the disestablishment of the Church of England. See Ev-

erson V. Board of Education, 330 U.S. at 11-13 and 33-42

and Engel v. Vitale, 370 U.S. 421, 428-429 (1962).° Not

all states, however, shared Madison’s and Jefferson’s

fervor for disestablishment. As this Court has previously

noted, at the outbreak of the Revolutionary War, ‘‘there

were established churches in at least eight of the thirteen

former colonies and established religions in at least four

of the other five.’’ Engel! v. Vitale, 370 U.S. at 428.

Although the adoption of the Fourteenth Amendment

eventually resulted in the Establishment Clause being

made applicable against the States,* the historically di-

examination of the early activities of the Federal Government indi-

cates that the people approved and welcomed its aid to church re-

lated activities .. . . There was undoubtedly the faith that subse-

quent generations of Americans would be able to utilize the power

of the Federal Government to promote the concurrent interests of

government and religion under First Amendment norms that were

reasonable, pragmatic, and just.’ C. Antieau, A. Downey and E.

Roberts, Freedom From Federal Establishment 207-209 (1964).

‘Both Madison’s Memorial and Remonstrance Against Religious

Assessments, written in 1785 in opposition to legislation which would

use Virginia’s public funds to pay teachers of the Christian religion,

and Jefferson's Bill for Establishing Religious Freedom in Virginia,

proposed in 1779 and enacted in 1786 were central documents to

these disestablishmentarian forces.

*Historical evidence of the Framers’ intent is made no less rele-

vant by the adoption of the Fourteenth Amendment. In Marsh v.

Chambers, 463 U.S. 783, ___ , 103 S. Ct. 3330, 3335, (1983) this

Couri said:

In applying the First Amendment to the states through the 14th

Amendment, Cantweil v. Connecticut, 310 U.S. 296 (1940), it

verse record of state church establishment nevertheless

illustrates that the term ‘“‘establishment’’ in the First

Amendment had an institutional meaning: *“*{t}he real ob-

ject of the [first] amendment was ... to prevent any

national ecclesiastical establishment which should give

—— to a hierarchy the exc'usive patronage of the national

government.’ Lynch v. Donnelly, U.S. at __ , 104

S. Ct. at 1361, citing 2 J. Story, Commentaries on the

Constitution of the United States 593-595 (2d ed., 1851).

As Jefferson’s often quoted expression stated, the Reli-

gion Clauses were to build ‘‘a wall of separation between

Church and State.’ 8 Works of Thomas Jeffersen 113

(Washington ed. 1861) (emphasis supplied). No wall of

separation was intended, however, even by Jefferson, to

seal religion hermetically from governmental or public

activities. Rather, the institution of the church was to be

isolated from the institution of the state. As Jefferson

stated in 1817:

If by religion, we are to understand sectarian dog-

mas, in which no two of them agree, then your ex-

clamation on that hypothesis is just, ‘‘that this would

be the best of all possible worlds, if there were no

religion in it.’’ But if the moral precepts, innate in

man, and made a part of his physical constitution, as

necessary for a social being . . . in which all agree,

constitute true religion, then, without it, this would

be, as you again say, ‘“‘something not fit to be named

even, indeed, a Hell.”

15 The Writings of Thomas Jefferson 109 (Memorial Ed.

1904). Indeed, it must be noted: ‘Probably, at the time

of the adoption of the constitution, and of the amend-

ment to it now under consideration, the general if not the

would be incongruous to interpret that clause as imposing more

stringent First Amendment limits on the states than the draftsman

imposed upon the Federal Government.

universal sentiment in America was, that Christianity

ought to receive encouragement from the state so far as

was not incompatible with the private rights of con-

science and the freedom of religious worship.”’ J. Story,

supra; see also H. Black, Constitutional Law 515 (4th

ed., 1927) and T. Cooley, Principles of Constitutional

Law 224 (1893). The First Amendment was, therefore,

imbued by the Framers with amicability, not hostility, to

the free exercise of religion. This was the shibboleth of

that era.

That this sort of accommodation of religious freedom

was compatible with the alleged *‘separationist’’ views

of Thomas Jefferson was particularly evident in Jeffer-

son's actions in the field of education. Jefferson as Pres-

ident repeatedly departed from the fastidious separation-

ism which revisionist historians have attributed to him.

For example, on three separate occasions, Jefferson

signed into law extensions of a land grant given by the

Federal government specifically to promote education

and proselytizing amongst the Indians. R. Cord, Sepa-

ration of Church and State: Historical Fact and Current

Fiction 41-46 (1982).° Further, In 1803, President Jef-

ferson proposed to the United States Senate a treaty

with the Kaskaskia Indians in which the Federal govern-

ment would agree to “‘give annually for seven years one

hundred dollars towards the support of a priest’’ and

‘‘further give the sum of three dollars to assist the said

tribe in the erection of a church.”’ A Treaty Between the

United States of America and the Kaskaskia Tribe of

‘An act regulating the grants of land appropriated for military

services, and for the society of the United Brethren for propagating

the gospel among the heathen, and for other purposes, as exteaded

by: An Act in addition to an act, intitled etc., Ch. 30, 2 Stat. 155-156

(Peters ed. 1845); An Act to revive and continue in force, etc., and

for other purposes, Ch. 30, 2 Stat. 236-237 (Peters ed. 1845); and An

Act granting further time for locating military land warrants, and

for other purposes, Ch. 26, 2 Stat. 271-272 (Peters ed. 1845).

10

Indians, 7 Stat. 78-79 (Peters ed. 1846). The treaty was

ratified on December 23, i803, and included a specific

appropriation for a Catholic mission, at President Jeffer-

son's request.

Jefferson’s involvement in the accommodation of the

religious nature of the American people was not limited

to Federal grants for the education and proselytizing of

Indians. It extended as well to general public education.

Jefferson was the founder of the University of Vir-

ginia. From its inception, in 1819, the school was gov-

erned, managed and controlled by the Commonwealth of

Virginia. The question of the constitutional limitations

with respect to the teaching of the Christian religion at

the University of Virginia was presented to him. In his

annual report as Rector to the President and Directors of

the Literary Fund of the University of Virginia dated

October 7, 1822, approved by the Visitors of the Univer-

sity of whom James Madison was one, Mr. Jefferson set

forth his views in detail as follows:

The want of instruction in the various creeds of re-

ligious faith existing among our citizens presents,

therefore, a chasm in general institution of the use-

ful sciences. . . . A remedy, however, has been. sug-

, ested of promising aspect, which, while it excludes

the public authorities from the domain of religious

freedom, will give to the sectarian schools of divin-

ity the full benefit the public provisions made for

instruction in the other braaches of science... . It

has, therefore, been in contemplation, and sug-

gested by some pious individuals, who perceive the

advantages of associating other studies with those

of religion, to establish their religious schools on the

confines of the University, so as to give to their stu-

dents ready and convenient access and attendance

on the scientific lectures of the University; and to

maintain, by that means, those destined for religious

professions on as high a standing of science, and of

personal weight and respectability, as may be ob-

tained by others from the benefits of the University.

Such establishments would offer the further and great

advantage of enabling the students of the University

to attend religious exercise with the professor of their

particular sect, whether in rooms of the building

still to be erected, and destined to that purpose un-

der impartial regulations, as proposed in the same

report of the commissioners, or in the lecturing room

of such professor. ... . Such an arrangement would

complete the circle of the useful sciences embraced

by this institution, and would fill the chasm now

existing, on principles which would leave inviolate

the constitutional freedom of religion. . . .

19 The Writings of Thomas Jefferson 414-17 (Memorial

ed., 1904) (Emphasis supplied). Simply put, Thomas Jef-

ferson was not opposed to religious worship and study

being conducted on the premises of a public educational

institution. To the contrary, in order to perpetuate and

acco:nodate the religious beliefs and exercise of students

at the public University of Virginia, he recommended

that students be allowed to meet on the campus to pray,

worship and be instructed together or, if need be, to

meet and pray with their professors. He wanted only to

‘*exclude the public authorities from the domain of reli-

gious freedom,”’ i.e. from prescribing religious expres-

sion. Surely, Jefferson would not have objected to vol-

untary, self-directed prayer, worship or instruction by

students on the premises of a public school.®

It is also significant that when Congress initially au-

thorized the public schools for the nation’s capital, the

first president of the school board was Jefferson himself.

J.O. Wilson, Public Schools of Washington, | Records

“James Madison was a Member of the Board of Visitors which

approved the report Jefferson made as Rector, providing a vivid

indication of Madison's views on the constitutionality of voluntary

religious worship and education in public schools.

}?

So

of the Columbia Historical Society 4 (1897). In fact, he

‘was the chief author of the first plan of public education

adopted for the City of Washington.”’ /d. at 5. The first

official report on file indicates that the Bible and the Watts

Hymnal were the principal, if not the only, books then in

use for reading by the public school student. /d. at 9.

If this Court is to maintain at least some semblance of

allegiance to history and the intentions of the Framers, it

will vigorously protect the Petitioners’ freedom to asso-

ciate voluntarily in public secondary schools for self-di-

rected religious activity. To rule otherwise would distort

the law and run contrary to the wishes of the very men

who drafted the document upon which we base our

freedoms.

Permitting A Student Religious Organization

To Meet Voluntarily In A Public High School

Is An Example Of Affirmatively

Mandated Accomodation.

First Amendment neutrality mandates that the public

school present no affront to the spiritual needs and con-

cerns of its students. Denying the rights of the student in

the present case would have two “‘chilling effects’’ on

the First Amendment rights of students. First, it would

prefer those who believe in no religion over those who

believe. Second, it would subjugate the Free Exercise

Clause to Establishment Clause interests,’ thus contra-

dicting the original intention of the Framers of the First

Amendment.

’As Paul Kauper has written: “If the protection afforded in the

name of religious freedom against a state-prescribed, non-theistic

orthodoxy is that a person cannot be compelled to participate.

whereas the protection afforded in the name of the establishment

clause is that a person may demand that any exercise promoting

theistic belief be completely eliminated, the result is that the free-

dom protected by the establishment clause is regarded as having a

higher value than the freedom protected by the free exercise clause.”

13

It is obvious that governmental actions which are **sim-

ply a tolerable acknowledgement of beliefs widely held

among the people of this country,’ are not per se an

establishment of religion. Marsh v. Chambers, 463 U.S.

at___ , 103 S. Ct. at 3336. It is equally clear that the

“limits of permissible state accommodation are by no

means co-extensive with the non-interference mandate

by the Free Exercise Clause. To equate the two would

be to deny a national heritage with roots in the Revolu-

tion itself. See Sherbert v. Verner, 374 U.S. 398, 423

(1963) (Harlan, J. dissenting); Braunfeld v. Brown, 366

U.S. 599, 608 (1961)."° Walz v. Tax Commission, 397

U.S. at 673. *‘There is room for play in the joints pro-

ductive of benevolent neutrality’’ towards religion. /d. at

669. This benevolence is mandated in the present case.

Professor Alfred North Whitehead has pointed out that

education is an essentially religious inquiry. A. N. White-

head, The Aims of Education 26 (1952). Education, as

contrasted with vocational training, requires an exami-

nation and discussion of fundamental values. Govern-

ment schools obviously intrude into the area of religion

with courses in comparative religion, philosophy, ethics,

sex education and values clarification. As Professor Gi-

annella notes:

Unlike. . . other areas, formal public education does

not involve a pattern of regulation in which the place

of religion can be derived from secular categories

.. . education directly touches upon religious con-

cerns, such as the meaning of existence and the

sources and nature of human values.

Giannella, Religious Liberty, Nonestablishment and

Doctrinal Development—Part II, 81 Harv. L. Rev. 513,

561 (1968).

Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich.

L. Rev. 1030, 1063 (1962).

14

Because of this entrance of the state into the precinct

of religion, it is constitutionally impermissible for gov-

ernment fanatically to seal religious expression from the

public schools. Such a secularization would prefer nonbe-

lief over belief. Zorach v. Clauson, 343 U.S. at 314.

Moreover, the Constituticn does not require “‘complete

separation of church and state; it affirmatively mandates

accommodation, not merely toleration. of all religions,

and forbids hostility towards any.”’ Lynch v. Donnelly,

__U.S. at __ , 104 S. Ct. at 1359 (emphasis supplied).

The requirement of afnrmatively mandated accommo-

dation is particularly relevant in education. Just as state-

prescribed religious exercises could convey—indeed in-

culcate—doctrines contrary \o the views of the children’s

parents, here the placing of the governmental hand upon

the shoulder of a young religious adherent for freely hold-

ing and expressing religious views would be equally in-

appropriate. In the past, this Court has sought to **spon-

sor an attitude on the part of government that shows no

partiality to any one group and that lets each flourish

according to the zeal of its adherents and the appeal of

its dog.ma’’. Zorach v. Clauson, 343 U.S. at 313-314. No

more than that would be undertaken here in permitting

equal access for self-directed religious activity on the

same basis as other student activities.

Permitting A Student Religious Organization

To Meet Voluntarily In A Public High School

On The Same Basis As Other Student Activities

Does Not Violate The Establishment Clause.

The law of the case at bar should be drawn from this

Court's precedents in Widmar v. Vincent, 454 U.S. 263

(1981) and Tinker v. Des Moines Independent School

District 393 U.S. 503 (1969). Both the Court of Appeals

15

majority and Judge Arlin M. Adams, in dissent, recog-

nized the strong similarities between this case and

_Widmar. See Williamsport Area School District v.

Bender, 741 F. 2d 538, 547 and 562. The majority stated:

Widmar, of course, bears many similarities to the

present case, at least insofar as the students’ free

speech rights are concerned. In both situations, there

exists a policy of open access to state-owned facil-

ities in an educational setting, a policy which cer-

tainly implies the existence of some type of forum.

Indeed it is the very nature and purpose of any

school, be it college or nigh school, to communicate

knowledge. The fact that Widmar involved a univer-

sity, while we here are concerned with a high school,

does not mean we are free to ignore the nature of

the free speech rights enjoyed by the students.

741 F. 2d at 547 (citations omitted). Thus, the only real

difference between this case and Widmar is the setting, a

public high school rather than a university. The issue for

decision is whether and to what extent the First Amend-

ment rights of secondary school students are less pro-

tected than those of university students.

A. First AMENDMENT RIGHTS IN A PuBLic HIGH SCHOOL

May Be RestrRicTeD ONLY By DisciPLINARY REQUIREMENTS,

CERTAIN WELL-DEFINED STATE CONSTITUTIONAL OBLIGATIONS

AND REASONABLE TIME, PLACE AND MANNER REGULATIONS.

This Court has stated that First Amendment sights must

be analyzed *‘in light of the special characteristics of the

school environment.’’ Widmar v. Vincent, 454 U.S. at

267-268, n. 5, citing Tinker v. Des Moines Independent

School District, 393 U.S. 503, 506 (1969). The Court has

called for *‘care and restraint’’ in judicial interposition in

the operation of the public school system. Epperson v.

Arkansas, 393 U.S. 97, 164 (1968); Board of Education,

16

Island Trees v. Pico, 457 U.S. 853, 864, 866 (1982); New

Jersey, Petitioner v. T.L.O., __U.S. __ , 53 U.S.L.W.

4083, 4088, n. 9 (January 15, 1985). Deference to the

judgment of school officials has been the rule. Jd. How-

ever, when important constitutional safeguards are

threatened, the Court has also declared that ‘‘vigilant

protection of constitutional freedoms is nowhere more

vital than in the community of American schools.’’ Shel-

ton v. Tucker, 364 U.S. 479, 487 (1960). Lack of vigi-

lance would, as this Court has stated, “‘strangle the free

mind at its source and teach youth to discount important

principles of our government as mere platitudes’’, West

Virginia v. Barnette, 319 U.S. 624, 637 (1943), and fur-

ther, ‘“‘cast a pall of orthodoxy over the classroom.”’

Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

It is axiomatic that students *‘do not shed their rights

to freedom of speech or expression at the schoolhouse

gate.”’ Tinker v. Des Moines Independent School Dis-

trict, 393 U.S. at 506; West Virginia v. Barnette, 319

U.S. 624 (1943). To limit or restrict such rights, the state

must (1) demonstrate a compelling interest in maintain-

ing discipline and standards of conduct conducive to

learning in the public schools, Tinker v. Des Moines In-

dependent School District, 393 U.S. at 513, or in com-

plying with the state’s own constitutional obligations

Widmar v. Vincent 454 U.S. at 271, or (2) promulgate

reasonable time, place and manner regulations govern-

ing the speech in question. Grayned v. City of Rockford,

408 U.S. 104 (1972): Widmar v. Vincent, 454 U.S. at 271.

Further, any such limitation or restriction must be **nar-

rowly drawn to achieve that end.” /d., citing Carey v.

Brown, 447 U.S. 455, 461, 464-465 (1980). The sole in-

terest advanced by Respondents in this case is that the

Establishment Clause precludes the school board from

permitting Petitioners to meet on the same basis as other

17

student organizations simply because Petitioners wish to

engage in religious association and speech. See Bender

v. Williamsport Area School District, 563 F. Supp. 697,

699 (M.D. Pa. 1983).

B. Tue Court OF AppeALs HAs Faitrp to DisTiINGUISH THE

LAW OF THIS CASE FROM THE IMPORTANT FIRST AMENDMENT

PRINCIPLES SET FortTH IN WIDMAR V. VINCENT.

In the Widmar case, this Court found no Establish-

ment Clause infirmity in an ‘‘open forum” policy a

public university, using the tri-partite test of Lemon v.

Kurtzman, 403 U.S. 602 (1970). In this case, however.

two judges of the Court of Appeals ruled that the pri-

mary effect of an open forum in a high school environ-

ment would impermissibly advance religion and engen-

der excessive entanglement with religion. The Court of

Appeals majority distinguished this Court's ‘‘primary ef-

fect’’ analysis in Widmar, finding what it termed *‘height-

ened dangers”’ in a high school environment, namely:

(1) High school students stand in a very different

position than university students in terms of matu-

rity and impressionability, in part, because the State

in the high school environment “‘stand[s] in large

measure, in loco parentis.””

(2) Religious meetings in high school present a

“more obvious presence’ because of compulsory

attendance laws and the more structured and con-

trolled envire..nent, resulting in involuntary con-

tact between nonparticipating students and religious

groups.

(3) The presence of a monitor, whether teacher, par-

ent or other adult, imparts the impression of the

State's approval of the student religious meetings.

741 F. 2d at 552-553. The majority was also influenced by

the distinction it perceived between the use of public

18

classrpoms and the use of off-campus locations for reli-

gious activities, citing McCollum v. Board of Education,

333 U.S. 293 (1948) and Zorach v. Clauson, 343 U.S. 306

(1952). It vie ’ed this distinction as an obvious and con-

stitutionally _ignificant ‘‘brighi line’? that would enjoin

the proposed student religious activity. For the reasons

expressed below, the majority is wrong on all counts.

First, in the absence of a direct, state-prescribed or

initiated religious practice, constitutional doctrine should

not depend upon judicial perceptions of the *‘maturity”’

or ‘“‘impressionability’’ of secondary school students.

Judge Adams was correct to warn of the dangers inher-

ent in ‘“‘vague impressions of the emotional sophistica-

tion of high school strdents.”’ 741 F. 2d at 563. Judg-

ments of this latter sort ‘“‘should be made by academi-

cians, not by federal judges.’’ Widmar v. Vincent, 454

U.S. at 278-279 (Stevens, J. concurring). Williamsport

school officials have determined that Williamsport stu-

dents are sufficiently mature and independent for volun-

tary, self-directed activities in furtherance of *‘intellec-

tual, physical or social development.’’ There being a

forum for such activities, the state may not then dis-

criminate against students who decide to utilize state-

granted freedom for activities with religious overtones.

Perry Education Association v. Perry Local Educator's

Association, 460 U.S. 37, 45-46 (1983). As this Court

clearly stated in Tinker, **. . . students may not be re-

garded as closed-circuit recipients of only that which the

State chooses to communicate.’ 393 U.S. at 511.

The majority suggested that the school district stands

in loco parentis to high school students, somehow fur-

thering the ‘“‘impression’’ that the district endorses all

activities that take place on its premises. See 741 F. 2d at

554. The in loco parentis concept was squarely rejected,

however, in New Jersey, Petitioner v. T.L.O., ___U.S.

19

—___ , 53 U.S.L.W. at 4086, where the Court acknowl-

edged *‘[t]his reasoning is in tension with contemporary

reality and the teachings of this Court.’’ Accord, Wis-

consin Vv. Yoder, 406 U.S. 205, 229-234 (1972). As Judge

Adams commented, ‘‘it is inconsistent to accept, on the

one hand, a level of intellectual sophistication among

high school students sufficient to consider and contribute

to the exchange of controversial views and yet, on the

other hand, to declare them incapable of discerning the

distinction between a school’s creation of a public forum

that may permit religious speech and an endorsement of

such activity.’” 741 F. 2nd at 564-565. Moreover, it is

equally facile to conclude that compulsery attendance

laws ‘“‘compel’’ or unduly influence students to partici-

pate in voluntary, student-directed religious activities.

The activities held during the free period were diverse

and numerous. Participation was wholly voluntary. There

was no compulsion to participate, nor was there any un-

toward influence. If anything, the very policy the major-

ity advocates, that of excluding religious groups, ‘‘may

in fact be understood as a manifestation of official hos-

tility toward religion,’’ clearly proscribed by the First

Amendm:nt. 74] F. 2d at 565 (Adams, J. dissenting):

School District of Abington Township v. Schempp, 374

U.S. 203, 222 (1963); Lemon v. Kurtzman, 403 U.S. 602.

612 (1970); Lynch v. Donnelly ____U.S.____ ._ «104

S. Ct. 1355, 1366 (1984) (O'Connor, J. concurring). *‘The

Establishment Clause does not license goverament to

treat religion and those who teach or practice it, simply

by virtue of their status as such, as subversive of Amer-

ican ideals and therefore subject to unique disabilities.’’

McDaniel v. Paty, 433 U.S. 618, 641 (1978) (Brennan. J.

concurring).

The majority also contended that there would be a

more “‘obvious”’ presence of religious groups on a high

20

school campus, thereby increasing the likelihood of **‘in-

voluntary contact’ by nonparticipating students. This

Court has previously indicated in Tinker that First

Amendment rights should not be permitted to depend

upon “‘undifferentiated fear or apprehension of distur-

bance.’ Tinker v. Des Moines Independent School Dis-

trict, 393 U.S. at 508. In Tinker, this Court acknowl-

edged that:

Any departure from absolute regimentation may

cause trouble. Any variation from the majority's

opinion ma. inspire fear. Any word spoken in class,

in the lunchroom, or on the campus, that deviates

from the views of another person may start an ar-

gument or cause a disturbance. But our Constitution

says we must take this risk, and our history says

that it is this sort of hazardous freedom—this kind of

openness—that is the basis of our national strength

and of the independence and vigor of Americans

who grow up and live in this relatively permissive,

often disputatious, society.

Id. at 509 (citation omitted; emphasis added). Indeed,

the purpose of school is to train and develop youth for

citizenship and individual fulfillment ‘‘in the pluralistic,

often contentious society in which they will soon be adult

members’’. Board of Education, Island Trees v. Pico,

457 U.S. 853, 868 (1982); Ambach v. Norwick, 441 U.S.

68, 76-77 (1979). The school room is a ‘“‘market place of

ideas.”’ Tinker v. Des Moines Independent School Dis-

trict, 393 U.S. at 512. This is the goal of the pluralism we

profess. The State’s accommodation of all creeds, while

espousing none, cannot help but to further intellectual

and social development, as well as the values of plural-

ism, religious tolerance and religious liberty. To hold

otherwise in the context of this case would “‘impose a

crabbed reading of the [religion] clauses on the coun-

try,”’ Lynch v. Donnelly, ___U.S. at___._ , 104 S. Ct. at

21

1366, stifling the diverse traditions and dynamics that

have made this country great. As Judge Adams so elo-

quently stated in dissent:

One of the great triumphs of America’s constitu-

tional experiment has been the avoidance of reli-

gious factionalism in the political sphere. Our

country’s continued progress in this endeavor ulti-

mately depends on the individual citizen’s tolerance

and respect for religious diversity. When the schools

can teach such tolerance to our ycung citizens with-

out impermissibly sponsoring religion, I believe the

Constitution and the Nation are the better for it.

741 F. 2d at 569-570.

The majority’s objection to the presence of a neuiral

“monitor” at student activities is based solely on spec-

ulation. However, the only purpose of a monitor is to

‘insure orderly meetings,’’ Bender v. Williamsport Area

School District, 563 F. Supp. at 715, not to participate in

such meetings. A monitor (whether teacher, administra-

tor or otherwise) is, as the District Court recognized, no

more than *‘the functional equivalent of a policeman at a

religious rally held in a public park.”’ Jd. There is nothing

in the record at trial that would suggest otherwise. The

clearly defined role of the monitor in this case manifestly

avoids the appearance of state endorsement of the activ-

ity in question.

In the absence of direct state prescription of religious

instruction or exercises, it is clear that an ‘“‘open forum”’

or “‘equal access’’ policy in public secondary schools

would not violate Establishment Clause principles. See

Widmar v. Vincent, 454 U.S. 263 (1981). There is no

state sponsorship. No particular religious exercise is

sanctioned by the schools. No student is required to prac-

tice a religious exercise or to attend religious instruction.

22

/

Student meetings are wholly voluntary and without vio-

lation of conscience in any respect.

Moreover, an ‘“‘open forum”’ or “‘equal access’’ policy

is unquestionably neutral. There is no favoritism. There

is no ‘‘religious gerrymander.’’ The state is not lending

its prestige, power or influence to religious thought or

expression. There is absolute neutrality between religion

and religion, and religion and non-religion. As in Widmar,

there is a proper balance between Establishment, Free

Speech and Free Exercise. To decide otherwise would

‘‘ignore the fundamental differences between self-initi-

ated and state-sponsored religious activity,’’ 741 F. 2d at

538 (Adams, J. dissenting), and denigrate the First

Amendment rights of students who choose to use the

free period for religious speech.®

C. THE Court OF APPEALS HAS OVERSTATED AND

OVERSIMPLIFIED THE SIGNIFICANCE OF THE DISTINCTION

BETWEEN THE MCCOLLUM AND ZORACH CASES.

Not only has the Court of Appeals majority failed to

establish any persuasive basis on which to distinguish

the Widmar case, it has also overstated and oversimpli-

fied the significance of any distinction between this

‘The Court of Appeals majority also concluded, as a matter of law

and fact, that the Establishment Clause provides a compelling state

interest which would override any free speech rights in this case. In

making this finding, the Court of Appeals concluded, in part, that:

Public schools have never been a forum for religious expression.

The free speech right enjoyed by the students is therefore of a

comet different character than the right to communicate in

a traditional public forum such as a park or on a sidewalk, or

through the press, where the overriding importance of allowing

a expression has been deeply and firmly rooted throughout our

istory.

741 F. 2d at 560. This gross generalization should not be permitted

to charade as constitutional law or fact. The historical record is

abundantly clear that the public schools have always been a forum

for religious expression of one form or another. See the historical

23

Court’s decisions in McCollum v. Board of Education,

333 U.S. 203 (1948) and Zorach v. Clauson, 343 U.S. 306

(1952).

Zorach permitted ‘‘released time’’ religious instruc-

tion off-campus, whereas McCollum forbade similar ac-

tivities on-campus. Unlike the present case, neither of

those cases involved a state-created ‘‘open forum’’. The

infringement upon individual First Amendment rights is

iar More Onerous in the present case. Moreover, to con-

clude that the geography of the activity is the operative

distinction between the cases is simplistic to the extreme

and not supported by the case law. In McCollum, as well

as in the later cases of Engel v. Vitale, Abington School

District v. Schempp and Stone v. Graham,’ the state

clearly stood behind the content of the doctrinal teaching

or exercise. In each, the government was actively spon-

soring religion or- prescribing religious exercises or prac-

tices on its premises as an integral part of the school

curriculum. By contrast, in Zorach, the activities were

not curricular in nature. They were not mandated or re-

discussion in Part | of this Brief; cf. Widmar v. Vincent, 454 U.S.

263 (1981); Engel v. Vitale, 370 U.S. 421 (1962); Abington School-

District v. Schempp, 374 U.S. 203 (1963).

The Court of Appeals also failed to address adequately the require-

ment of Widmar that state action restricting free speech be ‘‘nar-

rowly drawn to achieve [the desired] end.’’ 454 U.S. at 271. In this

case, the school district denied all access to school premises for

religious activities, stating that *‘pres -nt law simply does not permit

public schools to authorize or support religious activities on school

property.’’ See Appendix A to Petitioners’ Petition for A Writ of

Certiorari at 6a. Such a blanket prohibition of religio's meetings on

school premises is constitutionally overbroad.

*In Engel, 370 U.S. 421 (1962), the Court ruled unconstitutional a

state-prescribed nondenominational prayer for public schools. In

Schempp, 374 U.S. 203 (1963), the Court forbade state-prescribed

Bible readings in pub's: schools. In Stone, 449 U.S. 39 (1980), the

Court outlawed the state-prescribed posting of the Ten Command-

ments in Kentucky school rooms.

24

quired by the state, but were rather voluntary. Each stu-

dent was “‘left to his own desires as to the manner or

time of his religious devotions, if any.’’ 342 U.S. at 311.

The force of the school system was not used to advance

the religious instruction involved.

The fallacy of any geographical distinction was plainly

exposed by Justice Brennan in his concurring opinion in

Schempp. He explained that the real issue in McCollum

was placing the religious instructor in the same position

of authority as the secular teacher in the public school

classroom, “‘lending to the support of sectarian instruc-

tion all the authority of the governmentally operated pub-

lic schoul system.’’ 374 U.S. at 263. He continued:

To be sure, a religious teacher presumably com-

mands substantial respect and merits attention in his

own right. But the Constitution does not permit that

prestige and capacity for :afluence to be augmented

by investiture of all the symbols of authority at the

command of the lay teacher for the enhancement of

secular instruction.

374 U.S. at 263. This Court frriher distinguished McCo-

llum in the Widniar case, noting that the school in Mc-

Collum appeared to sponsor the views of the speaker

because school facilities were made available exclu-

sively to religious instructors, but not to others. 454 U.S.

at 271 n. 10. This is not the case here.

D. THERE Is NO ENTANGLEMENT PROBLEM PRESENTED HERE.

The entanglement prong of the Lemon “‘test’’ is not

violated in this case. This Court has identified greater

entanglement dangers in attempts to enforce exclusion

of religious speech from a public forum. Widmar v.

Vincent, 454 U.S. at 272, n. 11. The agreement by the

religious group 1n this case to forego use of the school

bulletin boards, public address system, newspaper and

25

yearbook presents a clear-cut policy capable of admin-

istration without entanglement. Any ‘‘entanglement”’

arising from the presence cf a “‘monitor’’ would be wholly

speculative and, in any event, as the District Court

pointed out, very limited. 563 F. Supp. at 715. *‘There is

nothing here .. . like the ‘comprehensive, discriminat-

ing, and continuing state surveillance’ or ‘enduring en-

tanglement’ present in Lemon.’’ Lynch v. Donnelly,

dimua as , , 104 S. Ct. 1355, 1364 (1984) (ci-

tation omitted). Neither is there the type of direct sub-

sidy which merits inquiry into potential political divisie-

ness. /d., citing Mueller v. Allen 463 U.S. 388, " *

11, 103 S. Ct. 3062, 3071, n. 11 (1983). In short, there is

no constitutionally significant entanglement proble m pre-

sented by this case.

CONCLUSION

If the school district had chosen to accommodate the

free speech and religious interests of ae Williamsport

students, it would not have had a religitus purpose for

doing so, but rather the purpose of maintaining good

relations with its students (while ensuring their constitu-

tional rights), the purpose of acknowledging our Nation’s

diverse religious culture, or the purpose of accommodat-

ing the First Amendment rights of a// students withoui

discrimination. And if the district had chosen to accom-

modate those interests, it would not have advanced re-

ligion, but rather rassively acknowledged (as opposed to

actively prescribed) religious practices or exercises. Walz

v. Tax Commission, 397 U.S. at 668.

It would not be enough, however, for the decision in

this case to merely point out these obvious truths. For

decades and even to this day, notwithstanding Widmar,

American . Jucators and students have labored under the

dark shadow of the layman’s belief that the United States

26

Supreme Court has ruled that nothing of a religious na-

ture can take place on the campus of a publicly sup-

ported educational institution even if there is no connec-

tion between the activity and the school. And this, de-

spite the fact that Justice Tom Clark, the author of the

opinion in School District of Abington Township v.

Schempp, 374 U.S. 203 (1963), attempted on various oc-

casions to make clear that “‘the Court has specifically

held only one thing with specific reference to prayer in

the public schools and that is that a required prayer in

the public school violates the Establishment Clause”’

(published official transcript of Justice Clark’s address

on November 5, 1964, as the featured speaker of a sym-

posium on ‘‘Religion and Public Schools’’ at Wartburg

College, Waverly, lowa (November 5, 1964), at 46).

Unfortunately, the school district has specifically sin-

gled out the students in the student group known as **Pe-

tros’’ and has denied them their consti utional rights. In

the process, students in this group have been denigrated

and relegated to the position of second class citizens in a

school system which is required by law to treat them

neutrally, not with hostility.

It is urged that this Court put to rest in the strongest

possible terms the insidious and simplistic idea that any

religious expression in the public schools is automati-

cally suspect. It is further urged that many fundamental

constitutional! rights are being violated under this misap-

plication of the Establishment Clause, cheapening the

value of the constitutic aal rights of these students for no

higher reward than to «eep empty an empty school room

(not *‘classroom’’).

The decision of the Court of Appeals conflicts with the

First and Fourteenth Amendments to the United States

Constitution as well as recent decisions rendered by this

Court. The issue is one of such magnitude and of such

27

great constitutional importance that it should be decided

by this Court in favor of the studenjs’ free expression.

espectfully \s itted,

J é ITEHEAD

COUNSEL OF RECORD

JAMES J. KNICELY

THOMAS S. NEUBERGER

The Rutherford Institute

9411 Battle Street

Manassas, Virginia 22110

(703) 369-0100

THOMAS QO. KotTouc

The Rutherford Institute

of Alabama

317 North Hull Street

Montgomery, Alabama 36104

WILLIAM P. HOLLBERG

The Rutherford Institute

of Georgia

1750 Peachtree Rd., N.W.

Atlanta, Georgia 30309

Tony P. TRIMBLE

The Rutherford Institute

of Minnesota

316 East Main

Anoka, Minnesota 55305

J. DOUGLAS ALEXANDER

The Rutherford Institute

of Montana

104 Second Avenue, S.W.

Sidney, Montana 59270

28

LARRY L. CRAIN

The Rutherford Institute

of Tennessee

First American Center

12th Floor

Nashville. Tennessee 37238

W. CHARLES BUNDREN

The Rutherford Institute

of Texas

4300 Interfirst One

Dallas, Texas 75202

Guy O. FARLEY, JR.

The Rutherford Institute

of Virginia

10521 Judicial Place

Fairfax, Virginia 22030