Respondents Brief — Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens

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IN THE oct 24 we

Supreme Court cf the Unite _ SPANIDL, 38.

OctToBER TERM, 1988

Tue Boarp or EpucaTIon or THE WESTSIDE

Community ScHoo ts (Dist. 66), et al.,

Petitioners,

Bripcet C. MEercEns, et al.,

Respondents.

ro ae

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

BRIEF FOR RESPONDENTS

Rosert K. Sko_roop Jay ALAN SEKULOW

National Legal Foundation (Counsel of Record)

Suite 306, P. O. Box 64845 Enric Aan Day

Virginia Beach, Virginia James M. HENDERSON, Sr.

23464 1000 Thomas Jefferson

(804) 424-4242 Street, N.W. Suite 520

Washington, D.C. 20007

Douc.ias VEITH — :

205 Galvin Road (404) 633-2444

Bellevue, Nebraska 68005 Douctas W. Davis

(402) 292-2800 6332 Chestnut Hill Road

Cuar.es E. Rice wae Beach, Virginia

Free Speech Advocates

P. O. box 815 (804) 420-0120

Notre Dame, IN 46556

(502) 549-5454

—— ~ — ee =

II.

QUESTIONS PRESENTED

DOES THE SCHOOL OFFICIALS’ BAN OF A VOL-

UNTARY STUDENT-INITIATED BIBLE CLUB CON-

STITUTE AN UNCONSTITUTIONAL

INFRINGEMENT ON THE STUDENTS’ FREE

SPEECH RIGHTS AS PROTECTED BY THE FIRST

AND FOURTEENTH AMENDMENTS?

A. Do Public School Students Have First Amendment

Rights of Freedom of Speech and Freedom of

Association?

1. Are Religious Discussion and Worship Forms

of Speech Protected By the First Amendment?

B. Can the Voluntary, Student-Initiated Bible Club Be

Banned From the Club and Organization System at

Westside High School?

1. Is the Club and Organization System at West-

side High School an Open Public Forum?

2. Is the School Board’s Content-Based Ban Justi-

fied By a Compelling State Interest?

a. Is the School Board’s Ban Content Based?

b. Do School Officials Have a Compelling

State Interest?

3. Is the School Officials’ Ban Narrowly Tailored?

C. Is the School Officials’ Ban of a Student-Initiated

Bible Club Unconstitutional Because It Is An Effort

To Suppress Expression Merely Because They

Oppose the Students’ Viewpoints?

D. Is the School Officials’ Ban of the Bible Club A

Reasonable Time, Place and Manner Regulation?

DOES THE BAN OF A STUDENT-INITIATED BIBLE

CLUB CONSTITUTE A VIOLATION OF THE STU-

DENTS’ DUE PROCESS RIGHTS BECAUSE OF THE

LACK OF OBJECTIVE STANDARDS AND PRO-

CEDURAL SAFEGUARDS WHICH RESULTED IN

THE SCHOOL OFFICIALS’ EXERCISE OF ARBI-

TRARY DISCRETION?

" j

Il.

QUESTIONS PRESENTED - Continued

A. Did School Officials Exercise Impermissible Dis-

cretion In Refusing to Allow the Student-Initiated

Bible Club To Meet On the Westside High School

Campus?

B. Is the School Officials’ Ban of the Student-Initiated

Bible Club Void for Vagueness?

IS THE EQUAL ACCESS ACT CONSTITUTIONAL

UNDER THE FIRST AND FOURTEENTH

AMENDMENTS?

A. Has Westside High School Established A Limited

Open Forum Under the Equal Access Act?

B. Does the Equal Access Act Violate the Establish-

ment Clause of the First Amendment?

1. Does the Equal Access Act Have a Secular

Purpose?

2. Does Equal Access Have the Primary Effect of

Advancing Religion?

3. Does an Equal Access Policy Foster Excessive

Government Entanglement With Religion?

TABLE OF CONTENTS

Page

So once c ct dccccsccesccess i

ES Sic occ cep cesessecccecccces iv

ee vii

STAbmeamm: OF THE CASE ............cceecccees l

SUMMARY OF THE ARGUMENT .................. 8

eee esc aces ccesccescesccsss 11

I. THE SCHOOL OFFICIALS’ BAN OF A VOLUN-

TARY, STUDENT-INITIATED BIBLE CLUB IS

AN UNCONSTITUTIONAL INFRINGEMENT ON

THE STUDENTS’ FREE SPEECH RIGHTS AS

FROTECTED BY THE FIRST AND FOUR-

TESNTH AMENDMENTS...........:.......-.- 11

A. Public School Students Have First Amendment

Rights of Freedom of Speech and Freedom of

a oS ee sew eee yesees 11

1. Religious Discussion and Worship are

Forms of Speech Protected By the First

Circe eG Ue Obbos dda scescocce 19

B. The Club System At Westside High School Is A

Public Forum From Which A Voluntary, Student-

Initiated Bible Club May Not Be Banned....... 19

1. The Club and Organization System at

Westside High School Constitutes An Open

PTE Seb ds wsceccbesecascese 19

2. The School Officials’ Content-Based Ban

Is Not Justified By a Compelling State

ect eeeccees 21

Il.

TABLE OF CONTENTS — Continued

Page

a. The School Officials’ Ban is Content

ee 2 ane ~

b. The School Officials Have Not Shown

a Compelling State Interest..........

3. The School Officials’ Ban Is Not Narrowly

a eee ee eee

The School Officials’ Ban of a Student-Initi-

ated Bible Club is Unconstitutional Because It

Is An Effort To Suppress Expression Merely

Because They Oppose the Students’ View-

eee eee ree. a eee

The School Officials’ Ban of the Bible Club Is

Not A Reasonable Time, Place and Manner

Regulation

Seee OCeeresgCgcescea2 ce atwe een oe eee See .6 & ©

THE BAN OF A STUDENT-INITIATED BIBLE

CLUB CONSTITUTES A VIOLATION OF THE

STUDENTS’ DUE PROCESS RIGHTS BECAUSE

OF THE LACK OF OBJECTIVE STANDARDS

AND PROCEDURAL SAFEGUARDS WHICH

RESULTED IN THE SCHOOL OFFICIALS’

EXERCISE OF ARBITRARY DISCRETION .....

The School Officials Exercised Impermissible

EE Ta RR Sry hk eee

The School Officials’ Ban of the Student-Initi-

ated Bible Club Is Vague ..................

THE EQUAL ACCESS ACT IS CONSTITU-

TIONAL UNDER THE FIRST AND FOUR-

TEENTH AMENDMENTS

TABLE OF CONTENTS -— Continued

Page

Westside High School Has Established A Lim-

ited Open Forum Under The Equal Access Act

The Equal Access Act Does Not Violate the

Establishment Clause of the First Amendment

1. The Equal Access Act Has A Secular Leg-

RE ee ee

2. Equal Access Does Not Have the Primary

Effect of Advancing Religion...........

3. An Equal Access Policy Does Not Foster

Excessive Government Entanglement With

EE bo) sibiccevcnctubsokesveesnee ren

GIRO: hace davs'cnesdevdetenesataneneanes

TABLE OF AUTHORITIES

Page

CAsEs:

Ambach v. Norwick, 441 U.S. 08 (1979)............... 26

Bates v. City of Little Rock, 361 U.S. 516 (1960)...... 15

Bender v. Williamsport Area School Dist., 475 U.S.

i EE ES ree a 24, 25, 45

Bethel School District No. 403 v. Fraser, 478 U.S. 675

ee eR ROEE ooed denon ctuknste dieses cs 16

Board of Airport Commissioners v. Jews for Jesus,

ee eT I, nn, te wencesaces 8, 19, 26, 33, 34

Board of Education v. Pico, 457 U.S. 853 (1982) .. 13, 45

Boos v. Barry, 485 U.S. __, 108 S.Ct. 1157 (1988)

BP SPOS he a Pee eee, ae i

Broadrick v. Oklahoma, 413 U.S. 601 (1974)

Brown v. Board of Education, 347 U.S. 483 (1954). 29, 35

Buckley v. Valeo, 424 U.S. 1 (1979)............... 32, 33

Burnside v. Byars, 363 F.2d 744 (Sth Cir. 1966) ....... 12

Cantwell v. Connecticut, 310 U.S. 296 (1940)...... 23, 46

Carey v. Brown, 447 U.S. 455 (1980) ........... 9, 21, 25

Cornelius v. NAACP Legal Defense & Ed. Fund, 473

i da ss Gace udk rune, oem 26, 27, 28, 30

Corporation of Presiding Bishop v. Amos, 483 U.S.

re SE BIE 6 dw’ bdo v's ee Deas eet ed 28, 30

County of Allegheny v. American Civil Liberties

Union, 492 U.S. __, 109 S.Ct. 3086 (1989)

2's ods GSna se Mhe d 0 64 i0 6 Eats 4 CR Pea sss 10, 25, 27, 43

Cox v. Louisiana, 379 U.S. 536 (1965)................ 22

Eastland v. United States Servicemen’s Fund, 421

EER aa eo ee 44

Edwards v. Aguillard, 482 U.S. 578 (1987)..... 23, 41, 43

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

Vii

TABLE OF AUTHORITIES — Continued

Page

Epperson v. Arkansas, 393 U.S. 97 (1968)......... 18, 42

Everson v. Board of Education, 330 U.S. 1 (1947)..... 24

Frisby v. Schultz, 487 U.S. ____, 108 S.Ct. 2495 (1988) .... 28

Grayned v. City of Rockford, 408 U.S. 104 (1972) . 29, 32

Hazelwood School District v. Kuhlmeir, 484 U.S. __.,

ee I EE dc det atbivecscccccseses 6, 15, 19

Healy v. James, 408 U.S. 169 (1972)........ 8, 14, 15, 18

Heffron v. International Society for Krishna Con-

sciousness, Inc., 452 U.S. 640 (1981)........... 19, 28

Hoffman Estates v. Flipside, Hoffman Estates, 455

as oe Sata ihe wenn dee oes sent 23

Houston v. Hill, 482 U.S. 451 (1987) ..............055. 9

Hunt v. McNair, 413 U.S. 734 (1973) ........eceeeeeve 42

Katzenbach v. Morgan, 384 U.S. 641 (1966)...... Paap ae

Keyishian v. Board of Regents, 385 U.S. 589 (1967).... 13

Kolender v. Lawson, 461 U.S. 352 (1983) ......... 31, 32

Kovacs v. Cooper, 336 U.S. 77 (1949)............. 29, 34

Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)..... 47

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...10, 22, 40, 41, 44

Lewis v. City of New Orleans, 430 U.S. 130 (1974) ....31, 32

Lovell v. City of Griffin, 303 U.S. 444 (1938) ..... 19, 20

Lynch v. Donnelly, 465 U.S. 668 (1984) 25, 40, 41, 42, 43

McDaniel v. Paty, 435 U.S. 618 (1978)................ 24

McGowan v. Maryland, 366 U.S. 420 (1961)........... 42

Viii

TABLE OF AUTHORITIES - Continued

Page

Mergens v. Board of Education, No. CV 85-0-426,

Slip Op. (1988) (reproduced in Pet. For Certiorari:

ET EG eouardies \o6csedceeenuseeeeaess passim

Mergens v. Board of Education, 867 F.2d 1076 (8th

Me etd SARE ATOUEUAK oo Chakea haus passim

Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 11

Minnesota v. Clover Leaf Creamery Co. +49 U.S. 456

NA eG eat ale ea re ee lk 44

NAACP vy. Alabama ex rel. Patterson, 357 U.S. 449

Cs rik Send die eek a dead Y bile oo ewt ics ck euwe) 14

NAACP v. Button, 371 U.S. 415 (1963)................ 25

New York v. Ferber, 458 U.S. 747 (1985)............ 9, 32

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .... 22

Niemetko v. Maryiand, 340 U.S. 268 (1951) ....19, 25, 29

O’ Hair v- Andrus, 198 U.S. App. D.C. 198, 613 F.2d

ES soi igs: €o4 on dawn tucks caacies 46

Perry Education Assn. v. Perry Local Educators

oe ee 20, 26, 28

Plessy v. Ferguson, 163 U.S. 537 (1896) .............. 29

Police Department v. Mosley, 408 U.S. 92 (1972) .. 22, 31

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

LT Waite oipiuid ces cu deedhncukete ste seeds 42

TABLE OF AUTHORITIES —- Continued

Page

Saia v. New York, 334 U.S. 558 (1948)................ 19

Schaumburg v. Citizens for a Better Environment, 444

chiles dt Chet es ieee eke bees eae.eee 28

Schneider v. State, 308 U.S. 147 (1939).... 15, 19, 20, 29

School District v. Schempp, 374 U.S. 203 (1963)... 23, 43, 45

Secretary of State v. Joseph H. Munson Co., 467 U.S.

A «chee de Che Ee RMR ebeeeeee eines aces cenee 30

Shelton v. Tucker, 364 U.S. 479 (1960)..:....... 9, 13, 25

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ..... 20

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

es SCL ied ah ens wekbeines teas 0's ses oe ee 20

Stone v. Graham, 449 U.S. 39 (1980) ............. 23, 42

Texas Monthly v. Bullock, 489 U.S. __, 109 S.Ct. 890

EEE IESE SS Ne eae em eT eRe eae 10, 42, 43

Thomas v. Review Board, 450 U.S. 707 (1981)......... 18

Tinker v. Des Moines Independent Community School Dis-

trict, 393 U.S. 503 (1969) .... 8, 11, 12, 13, 15, 16, 18, 45

Tilton v. Richardson, 403 U.S. 672 (1971)............. 40

United States v. American Trucking Association, 310

U.S. 534 (1940)... 2... cece cece eee cee eee e ences 34

United States v. Grace, 461 U.S. 171 (1983)........... 28

Wallace v. Jaffree, 472 U.S. 29 (1985) ............ 25, 43

Waiz v. Tax Commission, 397 U.S. 664 (1970) ......... 46

TABLE OF AUTHORITIES — Continued

Page

Ward v. Rock Against Racism, 491 U.S. __, 109 S.Ct.

DOIG Nadchuutaes¢wes.ceeatdutaescherss 21, 25

Wayte v. United States, 470 U.S. 586 (1985)........... 22

West Virginia State Board of Ed. v. Barnette, 319 U.S.

Se hick cece, dhavsdbudieaddbeesececegeetsss 13

Whitney v. California, 274 U.S. 357 (1927)............ 22

Widmar v. Vincent, 454 U.S. 263 (1981)........... passim

Wisconsin v. Yoder, 406 U.S. 205 (1972)........... 21, 23

Zorach v. Clauson, 343 U.S. 306 (1952)....... «9, 24, 45

ConstiTuTIONS AND STATUTES:

en oa a Cals wo ehie ees passim

eee My CEE oa bowen sd decees ssdeeandiucned ete 22

U.S. Const. amend. XIV ......... To eBe ON, TE, Bee Bee oe

ee is Se cudeevawendeeawene passim

ee ee ES OE ov cv ddncadiccnvunewdereesuss 3, 35

The 4-Way Test Of The Things We Think, Say Or Do

(Rotary International, Evanston, Illinois)......... 27, 38

Hearing Before the Senate Committee on Judiciary on

S.815 & S.1089, 98th Cong., 2d Sess., April 28,

See. Ge Fe Oe WU GEO ac vcccccsececseccces . 44

S. Rep. No. 357, 98th Cong., 2d Sess. ............ 43, 44

TABLE OF AUTHORITIES -— Continued

Page

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

PE ae ntdeu ister de at ahh epee ths wsscssvecenes 34

130 Cong. Rec. (daily ed. June 27, 1984)

DG Cas clbvck res cdi ba vdeddeve ss enen eee 10, 33, 34

EE PTT eee ey eT ee TT 34

Gian cUCo eb ae thes bu wiveddeddwe(abaeb acum 33

Ee asks cn kann nnn kewl oghe 10k kane eel 34

eons didn ile aie Ue ek laa deen 36, 37, 38, 39

cubes ekndsadhanaedeces cadidetbenues 37, 39

DR Sibu bens Oebes anaueechuWs cuseseeeeeanued 47

ign cided das uneenkne qusdaveukeds cheat Ke 33, 47

EE cin stn ba tune cbehewese Ube eee neeeeeael 34

DEN Los see Lid oe iumieet reese eran 34

RT Cite Aie ticalie @ nh eink hood al & dena gene Re 34

NE RE ree Ee Pee eye re 37

hia Cab de Ulin deka weds ink scew eee oeeeeenan 33

inn teGwiGiaeddds 10aNs Gu dhuk Sed cceeeued 33

130 Cong. Rec. (daily ed. July 25, 1984)

Pfc ockiws slelhkeinew ee euneandass neous 33

tans was Vk aaieien dukes eae one ee ee 37

EP eee VERT E TT Pe Peer rer Tre 33, 41

Fe errs ey een rT 33

ED es Skin Ga CWE SA ewe a Vea an alr 33

xii

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES:

Laycock, Equal Access and Moments of Silence: The

Equal Status of Religious Speech by Private

Speakers, 81 Nw. U.L. Rev. 1 (1986)............

Religious Speech Protection Act: Hearing on H.R.

4996 before the Subcomm. on Elementary, Second-

ary, and Vocational Education of the House Comm.

Education and Labor, 98th Cong., 2nd Sess. 47

RSE OT ON e6 ones ce ESS ENS aSORESEOREER EH C0 000

Webster’s Third New International Dictionary (1967)....

Note, The Constitutional Dimensions of Student-Initi-

ated Religious Activity in Public High Schools, 92

Se IN 00 o eee a6 h Fal eve ee- anetes

Note, Religious Expression On The Public School

Forum: The High School Students’ Right To Free

COG, Fae GOO. Ted. TFS CIDBSR on cs cece ccccnces

Page

No. 88-1597

IN THE

Supreme Court of the Hnited States

OcToBEeR TERM, 1988

THE Boarp or EpucaTion or THE WESTSIDE

Community ScHOooLs (Dist. 66), et al.,

Petitioners,

vV.

Bripcet C. MeErGEns, et al.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

BRIEF FOR RESPONDENTS

STATEMENT OF THE CASE

Westside High School (WHS) is a public secondary

school as defined by Nebraska State Law.! (J.A. 57). Located

in Omaha, Nebraska, WHS is organized as part of the West-

side Community School system, an independent public school

district managed by the Board of Education of Westside

Community Schools. /d. WHS receives federal financial

assistance. Jd. Respondents, Bridget C. Mergens, et al., are

students at WHS who desire to form a voluntary student-

initiated Bible Club. (J.A. 72, 116-17, 133). Had school

Officials allowed them to meet, the students envisioned using

“any empty classroom in the morning or after school” on the

WHS campus. (J.A. 78, 117). As proposed to school officials,

the Bible Club meetings would have included Bible study,

prayer and discussions of relevant topics in an effort to

encourage personal and spiritual growth. (J.A. 73-77, 154-55,

185, 190). Christian fellowship, Bible reading, worship and

prayer are a vital part of the daily lives of these students.

(J.A. 75, 131, 163). The student-initiated Bible Club sought

the same rights, privileges, terms and conditions accorded to

other clubs at WHS. (J.A. 105, 109). Simply put, the students

wanted equal treatment, nothing more, nothing less.?

The school board maintains WHS for the benefit of its

students and it provides, by policy and practice, for the

dissemination of a wide range of ideas to those required to

1 The School Officials and students, in a pretrial stipulation, agreed

that WHS is a secondary school “as defined by the Equal Access Act.”

(Pretrial Order No. 2, J.A. 57). WHS served students in grades 10-12.

2 Although the students wanted the same rights, privileges, terms

and conditions as other clubs, they were willing to allow the school to

make announcements in the school paper or the public address system to

the effect that the school did not endorse the content of the Bible Club.

(J.A. 73).

attend WHS.? Over thirty student clubs and activities are

recognized by school officials at WHS.* (J.A. 479). Several of

these clubs are not related to the school’s curriculum. For

instance, “Peer Advocates” is a “service activity” club at

WHS that allows WHS students to work with handicapped

students. Dr. Findley, Principal of WHS, testified at trial that

“Peer Advocates” is not curriculum related:

Q- Did Peer Advocates, when you were looking

at it, relate to any of the required curriculum

or elective courses at Westside High School?

A- No.

(J.A. 231).

Permitting both curricular and noncurricular clubs

accords with school officials’ recognition that the “primary

liberties in a student’s life involve the process of inquiry and

learning, of acquiring and imparting knowledge, and of

exchanging ideas.” (J.A. 489 [School Policy 5450]). In addi-

tion to clubs and activities, a school newspaper is published

by the students (J.A. 136, 262-66, 326-27) and the administra-

tion invites speakers and organizations from the general pub-

lic to participate in club activities and classes. (J.A. 95-96,

3 Indeed, the school has shown the movie “The Omen” concerning

devil worship (J.A. 171). Abortion and homosexuality were also dis-

cussed in class at WHS. (J.A. 125). Yet, a voluntary, student-initiated

Bible Club was not allowed to meet. Bible Club students could have

discussed such controversial subjects from a Biblical perspective if

permitted to meet on campus. (J.A. 75).

* As of August, 1984, the following Clubs and activities were

recognized at WHS: Band, Chess Club, Cheerleaders, Choir, Class Offi-

cers, Computer Club, Distributive Education, Speech and Debate, Drill

Squad and Squires, Future Business Leaders of America, Future Medical

Assistants, Interact (associated with Rotary International), International

Club, Latin Club, Math Club, Student Publications, Student Forum,

Dramatics, Creative Writing Club, Photography Club, Orchestra, Outdoor

Education, Swimming Timing Team, Student Advisory Board, Intra-

murals, Competitive Athletics, Zonta Club (associated with Zonta Interna-

tional girls association), Subsurfers, Welcome to Westside Club,

Wrestling Auxiliary, National Honor Society and Peer Advocates. (J.A.

231, 479-487).

167-68, 175, 268-70, 279-81, 307-08, 360, 375-76, 451).

Students are encouraged to “express opinions, to take stands,

and to support causes, publicly or privately, in a manner

consistent with the rights of others and the lawful functions

and objectives of the school and school district.” (J.A. 489).

Yet, the students desiring to form a Bible Club were treated

differently. (J.A. 72). They were banned not only from the

club forum, but from meeting on a regular basis anywhere on

the WHS campus. (J.A. 452).

Students attending WHS are told that they can organize

and participate in a variety of student clubs and organizations

which meet after school hours on school grounds. (J.A.

221-222, 297-298, 358, 479, 488). Superficially, clubs are

allegedly “sponsored” by the assignment of “faculty spon-

sors.” In most cases, these “sponsors” are monitors perform-

ing purely custodial functions. (J.A. 92, 111-12, 123-24).

Several club “sponsors” did not regularly attend the club

meetings. (J.A. 92). Kevin Dale Coates, a WHS student,

testified that the “faculty sponsor” of the Computer Club was

not a member of the teaching faculty of WHS and attended

only “about a fourth” of the meetings. (J.A. 182). Likewise,

Respondent Mergens testified that the “sponsor” of the Drama

Club did not attend all of the meetings and “sometimes he

would come back and lock up after we were done.” (J.A. 92)

(emphasis added). Student testimony was confirmed by Dr.

Findley, the WHS Principal. Dr. Findley testified, with regard

to the role of the faculty sponsor, “that there’s not someone

there all the time” monitoring the Club.> (J.A. 247). Some

5 The Equal Access Act, 20 U.S.C. § 4071(c)(2) (1984) prohibits the

“sponsorship of the meeting by the school, the government, or its agents

or employees.” The term “sponsorship”, however, as defined by the Act,

prohibits participation, leading or promotion of the meeting by the school.

“The assignment of a teacher, administrator, or other school employee to

meeting for custodial purposes does not constitute sponsorship.” 42

U.S.C. § 4072(2) (emphasis added). In fact, the policy and practice of

club sponsorship at WHS (J.A. 92, 111-12, 123-24, 182, 247) accords

with the limited, “custodial,” role permitted under the Equal Access Act.

20 U.S.C. § 4072(2).

sponsors receive remuneration for their services, while others

do not. (J.A. 239).

School Board policy 5610 recognizes 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.” (J.A. 488). Policy 5610 does

not provide a procedure for the formation of clubs and organi-

zations and there are no formal written guidelines for club

creation. (J.A. 231, 240-41, 292-93, 359-60). At WHS, the

practice is to direct student requests for club formation to

Ronald Huston, the Activities Director, who analyzes pro-

posals and determines compatibility with the missions and

goals of WHS. (J.A. 231).

Schooi Administrators testified that the Bible Club would

be in accord with the goals and missions of WHS. (J.A. 234,

254). Yet, the students’ request for a Bible Club was denied,

and the denial was based solely on the content of the proposed

club. (J.A. 71, 81, 341).

In January, 1985, Bridget Mergens requested permission

from Dr. Findley, the school principal, to form a Bible Club

that would meet at WHS after school hours. (J.A. 72). As

stated previously, she requested that the club be treated in the

same manner as other WHS clubs, but indicated that assign-

ment of a faculty sponsor would not be required if the school

could not or would not provide one. (J.A. 83-85). At the time

of her request, Bridget Mergens was unaware of the require-

ments for forming a club but was “very willing to oblige

whatever the school policy was.” (J.A. 85). Immediately, Dr.

Findley advised Bridget Mergens that she would not be per-

mitted to meet due to the content of the proposed club. (J.A.

72, 81, 85-86, 246, 347-49, 373-74).

In February, 1985, Bridget Mergens again presented her

request to Dr. Findley, together with Dr. James Tangdall,

Associate Superintendent of Schools. This second request was

discussed with School Superintendent Kenneth Hansen and all

three officials agreed that the initial decision be upheld and

that the Bible Club request would be denied based on the

“separation of church and state” and administrative inter-

pretation of school policy. (J.A. 341, 345-46). Administrators

agreed that students could discuss religious topics informally

but that informal religious meetings conducted by a group of

students on a regular basis would be prohibited. (J.A. 431-34,

451-54) (emphasis added). Bridget Mergens was given no

opportunity to clarify her request or to discuss the purpose,

goals and activities of the Bible Club with any school official.

The denial was an immediate hysterical response to the idea

of a “Bible Club.”

On March 4, 1985, Bridget Mergens presented her

request to the Westside Community Schools Board of Educa-

tion. At the meeting, she stressed that students wanted to meet

after school hours on a voluntary basis and that a faculty

sponsor would not be necessary unless required by the school.

(J.A. 59:15, 464-67). The school board voted to uphold the

administrative decision denying permission to conduct a Bible

Club at WHS (J.A. 467). No other student group has been

denied access to WHS on the basis of the content of speech.®

In this case, WHS students have been denied the right to meet

at WHS for religious discussion after school hours. (J.A.

431-34, 451-54).

On April 17, 1985, five students and their parents

brought suit against the school district, school administrators

and school board members in the United States District Court

for the District of Nebraska. The Complaint alleged that

denial of the students’ right to meet as a Bible Club violated

their freedom of speech, freedom of assembly, free exercise

of religion and equal protection rights guaranteed by the First

and Fourteenth Amendments of the United States Constitu-

tion, and by Article I of the Nebraska Constitution and the

Equal Access Act, 20 U.S.C. §§ 4071-4074 (1984) (EAA). In

their Answer, the Defendants denied the applicability of the

EAA to WHS and relied on the Establishment Clause as their

defense. (J.A. 37-54).

Dungeon and Dragons Club and certain athletic club requests were turned

down for other reasons. (J.A. 293-94, 309-10, 352, 367).

On April 8, 1987, the case went to trial. On February 2,

1988, the district court entered judgment for the Defendants,

holding that WHS maintains a closed forum and that, there-

fore, the EAA does not apply to WHS. Further, the court held

that the actions of the Defendants did not vivlate the First and

Fourteenth Amendment rights of the students. Effectively, the

court dismissed Petitioners’ contention that the Establishment

Clause constituted a compelling interest justifying exclusion

of a Bible Club from WHS by its finding that students at

WHS could distinguish between school-mandated religious

activity and student-initiated religious activity. The court

based its finding in this regard on two factors:

‘First, the proposed format protects against the con-

ferring of an imprimatur of school approval. Sec-

ond, Dr. David Workman, [sic] an expert in the

development of cognitive reasoning and intellectual

development, testified that students over the age of

12 years can make sponsorship distinctions and that

there is no significant differences between high

school and college students in their abilities to

understand endorsement or nonendorsement by the

school. The court credits this evidence.

Mergens v. Board of Education, No. CV 85-0-426 Slip Op.

(1988) (reproduced in Pet. For Certiorari, Appendix B-11)

The court’s finding on the issue of impressionability was

based on the testimony of Dr. David Moshman and on the

testimony of students who had no interest in forming or

participating in a Bible Club. These students testified that

they would feel no compulsion to attend a Bible Club if one

were permitted access to WHS and that they would not view

the existence of such a club as the school favoring one

religion over another. (J.A. 211-12, 214-15).

In deciding that the Bible Club could not be permitted

access to WHS, the district court held that the administrators’

unwritten policy, requiring presentation of a balanced view

when political, religious and economic information is dis-

pensed within WHS facilities, constitutes a “legitimate educa-

tional concern which reasonably justifies WHS’s actions in

this case.” Mergens, supra, at 15.

On February 8, 1989, the Eighth Circuit Court of Appeals

reversed, holding that WHS maintains a limited open forum

under the EAA, that the EAA is constitutional and that this

Court’s decision in Widmar v. Vincent, 454 U.S. 263 (1981),

requires reversal. The appeals court noted that the WHS

administrators’ interpretation of “curriculum-related” would

permit school officials to circumvent the EAA by administra-

tive fiat while allowing them to arbitrarily deny unfavored

student speech. Mergens v. Board of Education, 867 F.2d

1076, 1079 (8th Cir. 1989). Relying on legislative history, the

court found that, by allowing a Chess Club to meet, as well as

many other noncurriculum-related clubs, WHS had created a

limited open forum for student speech. Mergens, 867 F.2d at

1079.

The eighth circuit decision noted that the EAA closely

tracks this Court’s decision in Widmar. In fact, the court found

that the only difference between this case and Widmar is the

extension of Widmar principles to the high school level. In

light of congressional fact-finding that rejected the fotion

that high school students would confuse an equal access

policy with state sponsorship of religion, the court held that

the EAA does not violate the Establishment Clause. Mergens,

867 F.2d at 1079-80. The Court concluded by stating that

Widmar compels the same result even in the absence of the

EAA.’ Mergens, 867 F.2d at 1080. _

Finally, the limited scope of this case is to be noted. This

case does not involve an off-campus group seeking access to

the WHS facilities. This case does not involve disruption or

interference with the academic purpose or atmosphere of the

high school. This case does not involve religious activity

during the school day or during mandatory school hours. This

case does not involve an effort by these students to obtain any

greater accommodation for Bible Club meetings than is made

for other student clubs at WHS. This case simply involves the

7 Indeed, this Court need not reach the constitutionality or appli-

cability of the EAA and can affirm the eighth circuit decision by applying

this Court’s precedent in Widmar, supra.

right of these religiously motivated students to use school

facilities after school hours with the same rights ané respon-

sibilities as other clubs and on an equal basis, without favori-

tism Or opposition from the administration. In sum, this case

is Widmar v. Vincent at the public secondary school level.

SUMMARY OF THE ARGUMENT

1. The High School Students Desiring to Form the Bible

Club Were Protected By the First Amendment.

The First Amendment to the United States Constitution

protects the students at WHS who desired to form a student-

initiated Bible Club to meet after school in any empty class-

room. These students did not “shed their constitutional rights

to freedom of speech or expression at the schoolhouse gate.”

Tinker v. Des Moines Independent Community School District,

393 U.S. 503, 506 (1964). There has been no showing or

finding that the Bible Club would have “materially and sub-

stantially interfered with the requirements of appropriate dis-

cipline in the operation of the school.” /d. at 509. To the

contrary, the testimony established that the Bible Club would

meet the missions and goals of WHS. (J.A. 256).

In addition to the students’ freedom of speech, the School

Officials’ ban of the Bible Club violated the students’ free-

dom of association. Healy v. James, 408 U.S. 169, 180 (1972).

The affected students wanted to meet for Bible study, prayer

and worship, which are forms of speech protected by the First

Amendment. Widmar v. Vincent, 454 U.S. 263 (1981). Equal

treatment to that afforded the other student clubs and organi-

zations was all these students desired. (J.A. 105, 109). Yet the

School Officials would not even allow the students at WHS to

meet informally on a regular basis. (J.A. 431-34, 451-54).

2. The Club System at Westside High School Constitutes

an Open Public Forum.

The WHS Club System constitutes an open forum. This

Court has identified three types of public forums: “the tradi-

tional public forum, the public forum created by government

designation, and the nonpublic forum.” Board of Airport

Commissioners v. Jews for Jesus, 482 U.S. 569 (1987). Over thirty

clubs and organizations exist at WHS. By policy and practice,

School Officials at WHS have “created a forum generally open for

use by student groups.” Widmar, 454 U.S. at 267.

School Officials have not established any compelling state

interest to justify their complete prohibition of the Bible Club.

Carey v. Brown, 447 U.S. 455, 461 (1980); Widmar, 454 U.S. at

270. Their reliance on the Establishment Clause as a “compelling

interest” was specifically rejected by this Court in Widmar. The

School Officials’ hostility toward the students’ religious speech

“show[s] a callous indifference to religious groups.” Zorach v.

Clauson, 343 U.S. 306, 314 (1952). Rather than utilizing narrc ly

drawn regulations employing the least restrictive mean., School

Officials have implemented a ban “that broadly stifle[s)] fundamen-

tal liberties.” Shelton v. Tucker, 364 U.S. 479 (1960).

3. The School Officials’ Ban Is An Unconstitutional Prior

Restraint.

The sweeping ban of the Bible Club is an unconstitutional

prior restraint on the students’ freedoms of speech and association.

School Officials exercised the sort of official discretion that this

Court will not tolerate. Houston v. Hill, 482 U.S. 451 (1987).

Further, the School Officials’ application of unwritten guidelines,

coupled with their broad-based and open-ended view of “curricu-

lum related,” constitute vague policies in violation of the Due

Process Clause of the Fourteenth Amendment. New York v. Ferber,

458 U.S. 747 (1985).

4. The Equal Access Act Is Constitutional.

The School Officials’ ban of the student-initiated Bible Club

is in violation of the Equal Access Act (EAA). The EAA became

law in 1984. Under the EAA, public secondary schools that

received federal financial assistance are required to grant equal

access to their facilities for students wishing to meet for religious,

political or philosophical purposes when the school has a limited

public forum. 20 U.S.C. § 4071(a). Congress passed the EAA

to end confusion among school administrators by applying

Widmar to public high schools, thereby insuring that public

schools “not discriminate against speech based on its con-

tent.” 130 Cong. Rec. $8332 (daily ed. June 27, 1984).

A public secondary school triggers the EAA “whenever

such school grants an offering to or opportunity for one or

more noncurriculum-related student groups to meet on school

premises during non-instructional time.” 20 U.S.C. § 4071(b).

Over thirty student clubs and organizations meet and use

WHS facilities after school hours. (J.A. 231, 479-87). The

eighth circuit correctly noted that many noncurriculum-

related clubs meet at WHS. Mergens, 867 F.2d at 1079. In

fact, Dr. Findley, the WHS principal, admitted that the Peer

Advocates Club is noncurriculum related. (J.A. 231). Further-

more, Interact, an affiliate of Rotary International which is

imbued with moral philosophy, exists at WHS. Subsurfers

Scuba Club, which is supervised by non-school personnel, is

another noncurriculum club in existence at WHS. Dr. Syb-

outs, a curriculum expert, reviewed the EAA and its legisla-

tive history. Based on this review, Dr. Sybouts found that

WHS had one or more noncurriculum-related clubs and there-

fore the EAA was triggered. (J.A. 412). 20 U.S.C. § 4071(b).

The EAA does not violate the Establishment Clause. The

application of the three-part test enunciated by this Court in

Lemon v. Kurtzman, 403 U.S. 602 (1971), confirms the consti-

tutionality of the EAA. The creation of a forum for student

speech, including religious speech, constitutes a legitimate

secular purpose. Widmar, supra. Likewise, a policy of equal

access “does not confer any imprimatur of state approval on

religious sects or practices.” Texas Monthly v. Bullock, 489

U.S. __, 109 S.Ct. 890 (1989). Over thirty student clubs and

Organizations are in existence at WHS. “The provision of

benefits to so broad a spectrum of groups is an important

index of secular effect.” Widmar, 454 U.S. at 274. By allow-

ing a policy of equal access, School Officials will not be

“making adherence to a religion relevant in any way to a

person’s standing in the political community.” County of

Allegheny v. American Civil Liberties Union, 492 U.S. __.,

109 S.Ct. 3086 (1989).

The argument that high school students are more impres-

sionable than college students was properly rejected by Con-

gress, the District Court and the Eighth Circuit Court of

Appeals. In short, a policy of equal access does not have the

primary effect of advancing religion.

Finally, permitting a voluntary, student-initiated Bible

club to meet during noninstructional time does not foster an

excessive government entanglement with religion. In fact,

enforcing a ban against religion at WHS would prove to be far

more entangling than a neutral policy of equal access. Widmar

at 272 n.11.

ARGUMENT

I. THE SCHOOL OFFICIALS’ BAN OF A VOLUN-

TARY, STUDENT-INITIATED BIBLE CLUB IS AN

UNCONSTITUTIONAL INFRINGEMENT ON THE

STUDENTS’ FREE SPEECH RIGHTS AS PRO-

TECTED BY THE FIRST AND FOURTEENTH

AMENDMENTS.

A. Public High School Students Have First Amendment

Rights of Freedom of Speech and Freedom of

Association.

The high school students at WHS who desired to form a

voluntary student initiated Bible Club to meet on campus did

not “shed their constitutional rights to freedom of speech or

expression at the school house gate.” Tinker v. Des Moines

Independent Community School District, 393 U.S. 503, 506

(1969). As proposed to School Officials, the Bible Club

meetings would have included Bible study, prayer and discus-

sions of relevant topics in an effort to encourage personal and

spiritual growth. (J.A. 73-77, 154-55, 185, 190). The Club

would have met in “any einpty classroom” either before the

commencement of the required school day or after the com-

pletion of the school day. (J.A. 78, 117). The student-initiated

8 “This has been the unmistakable holding of this Court for almost

50 years.” Tinker, 393 U.S. at 506; Meyer v. Nebraska, 262 U.S. 390

(1923).

Bible Club simply desired the same rights, privileges, terms

and conditions as the Other clubs at WHS. (J.A. 75, 131, 163).

See note 2, supra.

The School Officials’ prohibition cannot be sustained

since there has been “no finding and no showing that engag-

ing in the [Bible Club] would materially and substantially

interfere with the requirements of appropriate discipline in

the operation of the school.” Tinker, 393 U.S. at 509 (quoting

Burnside v. Byars, 363 F.2d 744, 749 (Sth Cir. 1966)). To the

contrary, even the school administrators testified at trial that

the Bible Club would be in accord with the goals and missions

of the school. (J.A. 234, 254). Notwithstanding the obvious

compatibility of the Bible Club’s purpose and the school’s

goals, the students’ request was flatly and unequivocally

denied.

It was the content of the speech in Tinker to which the

school board objected, and, likewise, it is the content of the

students’ speech in the present case, to which School Offi-

cials now object.? Yet,

[iJn our system, state-operated schools may not be

enclaves of totalitarianism. School officials do not

possess absolute authority over their students. Stu-

dents in school as well as out of school are ‘per-

sons’ under our constitution. They are possessed of

fundamental rights which the State must respect,

just as they themselves must respect their obliga-

tions to the State. In our system, students may not

be regarded as closed-circuit recipients of only that

which the State chooses to communicate. They may

9 Professor Laurence Tribe noted that, for constitutional purposes,

the speech in Tinker was indistinguishable from a student-initiated Bible

study. “No conceivable principal of distinction can suggest that students

who have a right to wear arm bands to protest the war suddenly lose that

right if they utter the name of God in the process, or if, heaven forbid,

they should do it as a group instead of single file.” Religious Speech

Protection Act: Hearing on H.R. 4996 before the Subcomm. on Elemen-

tary, Secondary, and Vocational Education of the House Comm. on

Education and Labor, 98th Cong., 2nd Sess. 47 (1984).

not be confined to the expression of those senti-

ments that are officially approved.!°

Tinker, 393 U.S. at 511.

Students who seek to form the Bible Club acknowledge

that the School Officials have “important, delicate and highly

discretionary functions” to perform. West Virginia State Board

of Education v. Barnette, 319 U.S. 624, 637 (1943). These

functions, however, must be performed “within the limits of

the Bill of Rights.”!! Barnette, Id. at 637. “The vigilant

protection of constitutional freedoms-is nowhere more vital

than in the community of American schools.” Shelton v.

Tucker, 364 U.S. 479, 487 (1960); Keyishian v. Board of.

Regents, 385 U.S. 589, 603 (1967). By forbidding the Bible

Club to meet, the School Officials exercised “authoritative

selection” violative of the well-established principle that the

“classroom is peculiarly the marketplace of ideas.” Keyishian,

385 U.S. at 603.

This Court has recognized that “personal intercom-

munication among the students” in high school is an activity

to which schools are dedicated. Tinker, 393 U.S. at 512. The

10 In fact, official approval is exactly what School Officials require.

In his affidavit submitted at trial, James E. Findley, Principal of WHS,

testified “[t}hat in the event any one or more of the student clubs or

organizations are determined by the Court to be noncurriculum related

and if the Court determines that Westside High School has a limited open

forum under the Equal Access Act, / would recommend to the administra-

tion and Board of Education that it consider amending the policies to

discontinue such student clubs or organizations.” (J.A. 472) (emphasis

added).

'! See also, Board of Education v. Pico, 457 U.S. 853 (1982). Public

schools “are educating the young for citizenship [which] is reason for

scrupulous protection of constitutional freedoms of the individual, if we

are not to strangle the free mind at its source and teach youth to discount

important principles of our government as mere platitutes.” Barnetie, 319

U.S. at 637.

WHS students desired to meet together before or after regular

school hours. The right of these students to meet, does “not

embrace merely the classroom hours.” /d. The School Offi-

cials’ prohibition against the Bible Club violates the students’

rights of freedom of speech and freedom of association. '!2

“Among the rights protected by the First Amendment is

the right of individuals to associate to further their personal

beliefs.” Healy v. James, 408 U.S. 169, 180 (1972). The

School Officials have denied a fundamental constitutional

right to the WHS students who seek to form a Bible Club. The

students wanted treatment equal to that afforded other WHS

clubs, nothing more. (J.A. 105, 109). Rather than provide

equal treatment, School Officials, in an attempt to circumvent

constitutional mandates, allegedly would have allowed the

Bible Club to meet “informally” or off campus at a nearby

church.!3 (J.A. 81, 83; Pet. Brief at 7). These identical con-

tentions were raised by the school officials in Healy and

rejected by this Court.

In Healy, school officials asserted that students desiring

to form a local chapter of Students for a Democratic Society

(SDS) could “meet as a group off campus . . . and that they

still may meet together informally on campus — as individuals,

but not as CCSC-SDS.” 408 U.S. at 182 (emphasis added).

12 Those rights are protected by the First Amendment to the United

States Constitution as applied to the States through the Fourteenth

Amendment. “It is beyond debate that freedom to engage in association

for the advancement of beliefs and ideas is an inseparable aspect of the

“liberty” assured by the Due Process Clause of the Fourteenth Amend-

ment, which embraces freedom of speech. Of course, it is immaterial

whether the belief sought to be advanced by association pertain to

political, economic, religious or cultural matters, and state action which

may have the effect of curtailing the freedom to associate is subject to the

closest scrutiny.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

460-61 (1958) (citations omitted) (emphasis added).

'3 In fact, “informal” meetings held on campus on a regular basis

would not have been allowed. (J.A. 431-434, 451-454).

Rejecting the school officials’ proposition, this Court held

that “the group’s possible ability to exist outside the campus

community does not ameliorate significantly the disabilities”

imposed by the campus ban.!* /d.

Similarly, the denial of official recognition burdens and

abridges the freedom of association.'> “The primary impedi-

ment to free association flowing from nonrecognition is the

denial of use of campus facilities for meetings and other

appropriate purposes.” Healy, 408 U.S. at 181. The “associa-

tional interests” of students desiring to form the Bible Club

“were circumscribed by the denial of the use of campus

bulletin boards and the school newspaper.” /d. These “impedi-

ments cannot be viewed as insubstantial.” /d. at 182. The

freedom of association is “protected not only against heavy

handed frontal attack, but also from being shifted by a more

subtle governmental interference.” Bates v. City of Little

Rock, 361 U.S. 516 (1960).'©

Recently this Court revisited issues of student free

speech rights in the public high school environment. In Hazel-

wood School District v. Kuhlmeir, 484 U.S. __, 108 S.Ct. 562

(1988), the Court reaffirmed the Tinker test for regulations of

14 This Court, in Schneider v. State, 308 U.S. 147, 163 (1939), held

that “one is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be exercised in some

other place.”

1S There is a distinction between recognition and sponsorship. In

Webster’s Third New International Dictionary (1967), “recognition” is

defined, in pertinent part, as “acceptance of an individual as being entitled

to consideration or attention.” /d. at 1896. “Sponsorship” is defined as

“the state of being a sponsor; [the] act of sponsoring; official or financial

support.” Id. at 2204 (emphasis added).

'6 As discussed infra at III B, Petitioners’ justification for banning

the Bible Club is based on concerns of an Establishment Clause violation.

As discussed more fully below, a policy of equal access does not violate

the Establishment Clause. Furthermore, it is the School Officials who

have failed to meet the “heavy burden” necessary to demonstrate the

appropriateness of their actions.

Student-initiated speech.!? While, in Hazelwood, this Court

allowed school officials to edit and eliminate student-written

stories from the high school newspaper, the Court unequivo-

cally stated that the issues in Hazelwood were distinct from

those presented in Tinker.

The question whether the First Amendment requires

a school to tolerate particular student speech — the

question that we addressed in Tinker — is different

from the question whether the First Amendment

requires a school affirmatively to promote particu-

lar student speech. The latter question concerns

educators’ authority over school-sponsored publica-

tions, theatrical productions, and other expressive

activities that the students, parents and members of

the public might reasonably perceive to bear the

imprimatur of the school.

Hazelwood, 484 U.S. at __, 108 S.Ct. at 569.

The student-initiated, voluntary Bible Club at WHS

would not be deemed “school sponsored” within the meaning

of Hazelwood. In Hazelwood, the school paper

Spectrum was written and edited by the Journalism

II class at Hazelwood East. The newspaper was

published every three weeks or so during the

1982-1983 school year. More than 4,500 copies of

the newspaper were distributed during that year to

students, school personnel, and members of the

community.

'7 The Tinker test may be summarized as follows: Absent a showing

that the speech activity would “materially and substantially interfere with

the requirements of appropriate discipline” or would interfere with the

rights of others, prohibition of the speech activity would be inappropriate.

Tinker, 393 U.S. at 513. In Bethel School District No. 403 v. Fraser, 478

U.S. 675 (1986), this Court again reaffirmed the principles enunciated in

Tinker. In Bethel, the Court approved the school’s actions in punishing a

student for a nominating speech filled with lewd remarks and sexual

innuendos. The speech was given at a school assembly - a school-

sponsored forum. Id. at 677.

The Board of Education allocated funds from its

annual budget for the printing of Spectrum.

Id. at __, 108 S.Ct. at 565.

Furthermore, “Journalism I] was taught by a faculty

member during regular class hours. Students received grades

and academic credit for their performance in the course.” /d.

at __, 108 S.Ct. at 568.

These factors, indicating school sponsorship, are absent

from the present case.'* The Bible Club would have been

voluntary, and it would have met after school. No credit or

grade would have been received for participation. (J.A. 72,

78, 117). Furthermore, School Officials have no “legitimate,

pedogogical concerns” with regard to the Bible Club. In fact,

of the over 30 clubs and organizations at WHS, participation

in only three of them could have any effect on a student’s

grade. !9

The School Officials’ sponsorship argument presents a

“Catch 22” situation for the students. They argue that students

can meet “informally” for religious discussions but that infor-

mal meetings conducted on a regular basis will not be

allowed. (J.A. 431, 434, 451-454). The School Officials fault

the students for requesting permission to meet on an equal

basis with other student clubs; and they claim they did not

request a faculty sponsor as required by Policy 5610. (J.A. 59,

Pretrial rder Stipulation No. 13). School Officials further

contend that the presence of a faculty sponsor at a Bible Club

meeting would violate the Establishment Clause. Ultimately,

the Bible Club is denied the right to meet either informally on

a regular basis or formally at all. Thus, the School Officials’

reasoning for the denial of access for stUdents wishing to

18 Far from being taught by a faculty member, many “faculty

sponsors” for WHS clubs frequently missed the meetings. (J.A. 92, 182,

247). =»

19 Participation in Band, Choir and Drama can affect course grade.

Each of these clubs, however, constitute activities that are part of the

regular curriculum or activities that are extensions of secular academic

classes. (J.A. 479, 483).

form a Bible Club, is merely a pretextual justification for

discriminating against religious beliefs and speech.?°

This Court has reaffirmed the duty of federal courts “to

apply the First Amendment’s mandates in our educational

system” in order “to safeguard the fundamental values of

freedom of speech and inquiry. . . .” Epperson v. Arkansas,

393 U.S. 97, 104 (1968). “[Blasic constitutional values” are

“directly and sharply” implicated in this case by the School

Officials’ ban of the student-initiated Bible Club. Pico, 457

U.S. at 866 (quoting Epperson, 393 U.S. at 104).2! The

Student-initiated, voluntary Bible Club would not have “mate-

rially or substantially” disrupted the educational process,

therefore, the School Officials’ prohibition violates the stu-

dents’ free speech, free exercise and freedom of association

rights protected by the First and Fourteenth Amendments.

Tinker, 393 U.S. at 513.72

20 Christian fettowship, Bible reading, worship and prayer are a

vital part of the daily lives of these students. (J.A. 75, 131, 163). In

addition to the violation of the students’ rights of freedom of speech and

association, the School Officials’ prohibition of the voluntary, student-led

Bible Club violates the free exercise clause of the First Amendment.

School Officials have denied a “benefit because of the conduct mandated

by religious belief.” Thomas v. Review Board, 450 U.S. 707, 717-18

(1981).

21 See also Note, The Constitutional Dimensions of Student-Initiated

Religious Activity in Public High Schools, 92 Yale LJ. 499 (1983); Note,

Religious Expression on the Public School Forum: The High School

Students’ Right to Free Speech, 72 Geo. L.J. 135 (1983).

22 This Court can affirm the opinion of the United States Court of

Appeals for the Eighth Circuit without reaching the constitutionality of

the EAA or the applicability of the open forum doctrine. The constitu-

tional rights of students to freedom of speech and freedom of association

as set forth in Tinker and Healy, are independent of the EAA or the open

forum doctrine.

1. Religious Discussion and Worship Are Forms of

Speech Protected By the First Amendment.

As proposed to school officials, the Bible Club meetings

would have included Bible study, prayer, and discussions of

relevant topics in an effort to encourage personal and spiritual

growth. (J.A. 73-77, 154-155, 185, 190). Identical speech was

at issue in Widmar, 454 U.S. 263. A “typical Cornerstone

meeting included prayer, hymns, Bible commentary and dis-

cussion of religious views and experiences.” Widmar, 454

U.S. at 266 n.2. It is a constitutional axiom that the kinds of

speech proposed for the student-initiated Bible Club, consist-

ing of religious worship and discussion, “are forms of speech

and association protected by the First Amendment.” Widmar,

454 U.S. at 269.23

B. The Club System at Westside High School Is A Public

Forum From Which A Voluntary, Student-Initiated

Bible Club May Not Be Banned.

1. The Club and Organization System at Westside High

School Constitutes An Open Public Forum.

The club and organization system in place at WHS con-

Stitutes an open public forum. “In balancing the government

interest in limiting the use of its property against the interests

of those who wish to use the property for expressive activity,

the Court has +dentified three types of forum: the traditional

public forum, the public forum created by government desig-

nation and the nonpublic forum.” Board of Airport Commis-

sioners v. Jews for Jesus, 482 U.S. 569 (1987).

An open forum consists of public property which the

State has opened for use by the public, “or by some segment

of the public, such as student organizations,” as a place for

expressive activity. Hazelwood, 484 U.S. at ___, 108 S.Ct. at

23 See, e.g, Heffron v. International Society for Krishna Conscious-

ness, Inc., 452 U.S. 640 (1981); Niemetko v. Maryland, 340 U.S. 268

(1951); Saia v. New York, 334 U.S. 558 (1948); Schneider, 308 U.S. 147;

Lovell v. City of Griffin, 303 U.S. 444 (1938).

568. The Constitution forbids a State to enforce certain exclu-

sions from a forum generally open to the public even if it was

not required to create the forum in the first place. Perry

Education Assn. v. Perry Local Educational Assn., 460 U.S.

37, 45 (1983). Undeniably, WHS School Officials created a

student activities forum. As in many other cases decided by

this Court,2* exclusions from a forum, “come[] to this Court

bearing a heavy presumption against [their] constitutional

validity.” Southeastern Promotions v. Conrad, 420 U.S. 546,

558 (1975). School Officials have failed to overcome that

heavy presumption.

The Widmar decision controls the issues presented

herein. The University of Missouri at Kansas City encouraged

the activities of student organizations as its stated policy.

Similarly, WHS School Officials “regard student clubs and

organizations as a vital part of the education program.” (J.A.

488). In Widmar, the University recognized over 100 student

groups. Likewise, WHS School Officials recognized over 30

clubs and student organizations. Despite its stated policy, the

University would not allow “Cornerstone” to meet on campus

because a regulation prohibited the use of university grounds

for religious teaching or worship. Likewise, WHS School

Officials banned the student-initiated Bible Club because the

content of the students’ speech would have been “religious.”

In Widmar, this Court held that the university’s prohibi-

tion was unconstitutional. The facts of the present case dictate

the same result reached in Widmar. “Through its policy of

accommodating their meetings, [the School Officials have}

created a forum generally open for use by student groups.

Having done so, [the School Officials have] assumed an

obligation to justify its discriminations and exclusions under

applicable constitutional norms.” Widmar, 454 U.S. at 267. In

Widmar, the University could not justify its exclusion of

religious speech from the University forum. In the present

24 See, e.g., Schneider, supra; Lovell, supra; Shuttlesworth v. Bir-

mingham, 394 U.S. 147 (1969).

case, the School Officials have similarly failed to justify their

policy of excluding religious speech.

2. The School Officials’ Content-Based Ban Is Not Justi-

fied By a Compelling State Interest.

a. The School Officials’ Ban is Content Based.

The School Officials’ ban of the student-initiated Bible

Club cannot be constitutionally justified.

In order to justify discriminatory exclusion from a

public forum based on the religious content of a

group’s intended speech, the [School Officials]

must therefore satisfy the standard of review appro-

priate to content-based exclusions. It must show

that its regulation is necessary to serve a compelling

State interest and that it is narrowly drawn to

achieve that end.

Widmar, 454 U.S. at 269-70 (emphasis added); Carey v.

Brown, 447 U.S. 455, 461, 464-65 (1980).25

There is no question that the Bible Club ban is a content-

based response to the students’ intended speech. (J.A. 81,

313). Dr. Findley testified at trial that it was the Christianity

of the club that prompted his decision. (J.A. 312). This Court

defines content-neutral speech restrictions as “those that are

justified without reference to the content of the regulated

speech.” Boos v. Barry, 485 U.S. __, __, 108 S.Ct. 1157,

23 The least restrictive alternative test must be applied to this case

because content-based bans “must be subjected to the most exacting

scrutiny.” Ward v. Rock against Racism, 491 U.S. ___, __, 109 S.Ct.

2746, ___ (1989). The least restrictive alternative test must be applied

here because of Respondents’ asserted claims of injury to their rights of

free exercise of religion. Wisconsin v. Yoder, 406 U.S. 205 (1972) (“only

those interests of the highest order and those not otherwise served can

overbalance legitimate claims to the free exercise of religion.”). Peti-

tioners content-based prohibition “is not narrowly tailored; a less restric-

tive alternative is readily available.” Boos, 485 U.S. at __, 108 S.Ct. at

1168.

——$_$___.

1163 (1988) (citations omitted). Here, it was solely the con-

tent of the students’ speech that was the basis for the imple-

mentation of the ban on the student-initiated Bible Club.?°

b. The School Officials Have Not Shown a Compelling

State Interest.

School Officials have failed to establish a compelling

interest justifying the sweeping ban of the Bible Club. Their

reliance upon the Establishment Clause as a “compelling

interest” was specifically rejected by the Widmar Court.?’

While this Court agreed “that the interest of the University in

complying with its constitutional obligations may be charac-

terized as compelling[,] {i]t does not follow, however, that an

“equal access” policy would be incompatible with this

26 Stressing its disdain for content-based prohibitions, this Court has

said:

But, above all else, the First Amendment means that the

government has no power to restrict expression because of its

message, its ideas, its subject matter, or its content. [Citations

omitied.] . . . The essence of this forbidden censorship is

content control. Any restriction on expressive activity because

of its content would completely undercut the “profound

national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open... .”

[New York Times Co. v. Sullivan, 376 U.S. at 270).

Police Department v. Mosley, 408 U.S. 92, 95-96 (1972).

Content-based regulation of speech constitutes “censorship in a most

odious form” and violates the First Amendment. Cox v. Louisiana, 379

U.S. 536, 581 (1965) (Black, J., concurring). Education is a proper and

preferable alternative to censorship. Whitney v. California, 274 U.S. 357

(1927). Content-based discrimination also constitutes a violation of Equal

Protection through the Fifth Amendment. Wayte v. United States, 470

U.S. 586, 608 n.9 (1985).

27 For an analysis of the Establishment Clause under the three-prong

test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971), see section

Ill B, infra.

——— —_

Court's Establishment Clause Cases.”?® Widmar, 454 U.S. at

271 (emphasis added).

Voluntary, student-initiated, student-led religious activity

on public school property has never been prohibited by this

Court. Indeed, this Court’s interpretation of the Establishment

Clause has required that school officials accommodate the

needs of students with religious convictions. See, e.g., Yoder,

406 U.S. 205.

Sound constitutional distinctions may be made between a

State-initiated religious activity, in which students choose

whether or not to participate and a voluntary, student-initiated

religious activity that school officials simply permit under a

neutral policy of equal access allowing students to meet to

discuss their various interests. Markedly different from a

voluntary, student-initiated Bible Club are state statutes

requiring posting of the Ten Commandments in public class-

room walls, Stone v. Graham, 449 U.S. 39 (1980), state laws

requiring daily Bible reading and recitation of the Lord’s

Prayer in public classrooms, School District v. Schempp, 374

U.S. 203 (1963), state statutes requiring recitation of a State-

composed prayer in the public classroom, Engel v. Vitale, 370

U.S. 421 (1962), and state statutes requiring teachers that

teach evolution to also teach creation, Edwards v. Aguillard,

482 U.S. 578 (1987).

28 The Establishment Clause provides that “Congress shall make no

law respecting an establishment of religion. . . .” U.S. Const., amend. I.

The Establishment Clause is applicable to the States through the Four-

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

Petitioners have also asserted that they have met the compelling state

interest test because the Bible Club would not have presented a “balanced

view” (Pet. Brief at 44). Rather than justifying their ban in light of this

Court’s precedent, Petitioners rely upon a heretofore unheard of theory of

law requiring the presentation of a “balanced view” when controversial

subjects are discussed at WHS. Presenting a balanced view does not

constitute a compelling interest. This Court examines, with the highest

degree of scrutiny, regulations that infringe on constitutional rights.

Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982).

The Establishment Clause was designed to prevent gov-

ernment from exercising jurisdiction over matters of religion.

The Establishment Clause does not address or affect rights of

communication between individuals. As Justice Brennan

wrote in his concurring opinion in McDaniel v. Paty, 435 U.S.

618, 641 (1978), “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.”

Yet, the School Officials have treated the students desiring to

form the Bible Club at WHS as “subversives.” Dr. Findley,

the Principal at WHS, testified that if the Court deems WHS a

public forum, he would “recommend to the administration and

the Board of Education that it consider amending the policies

to discontinue such student clubs or organizations.” (J.A.

472).

The School Officials’ hostility toward the students’ reli-

gious speech “show(s] a callous indifference to religious

groups.” Zorach v. Clauson, 343 U.S. 306, 314 (1952).?9 This

Court has recognized that the “Establishment Clause man-

dates state neutrality, not hostility, toward religion.”%° Bender

v. Williamsport Area School Dist., 475 U.S. 534, 554 (1986).

(Burger, C.J. dissenting) (emphasis added).

The Free Speech Clause and the Establishment Clause do

not conflict.

[T)he First Amendment require[s] vision capable of

distinguishing between state establishment of reli-

gion, which is prohibited by the Establishment

Clause, and individual participation and advocacy

of religion which, far from being prohibited by the

Establishment Clause, is affirmatively protected by

29 In fact, Respondent Andrea Dawn Simmonds testified that when

school officials denied the Bible Club the right to meet, she felt that she

was discriminated against on the basis of her religious beliefs. (Tr. 100).

30 In Everson v. Board of Education, 330 U.S. 1, 18 (1947), Justice

Black, writing for the Court, stated that the First Amendment “requires

the state to be neutral in its relations with groups of religious believers

and nonbelievers; it does not require the state to be their adversary. State

power is no more to be used to handicap religions than to favor them.”

the Free Exercise and Free Speech Clauses of the

First Amendment.

Bender, 475 U.S. at 553.

Equal access to public high schools for all lawful groups

who are entitled to be there is precisely the ideal and vision of

the Founding Fathers. To exclude a student-initiated, student-

led Bible Club from the WHS club forum offends the very

core of the First Amendment. Widmar, supra; Niemetko,

supra. A policy of equal access at WHS would not endorse

religion, nor promote it, nor would it coerce participation.

Over 30 clubs and organizations are in existence at WHS. By

following a policy of equal access, School Officials will not

be “making adherence to a religion relevant in any way to a

person’s standing in the political community.” Lynch v. Don-

nelly, 465 U.S. 668, 687 (1984); County of Allegheny v.

American Civil Liberties Union, 492 U.S. __, 109 S.Ct. 3086

(1989). In sum, an equal access policy does not constitute a

violation of the Establishment Clause of the First Amend-

ment. See generally, Laycock, Equal Access and Moments of

Silence: The Equal Status of Religious Speech by Private

Speakers, 81 Nw. U.L. Rev. 1 (1986).

3. The School Officials’ Ban Is Not Narrowly Tailored.

The absolute ban of a student-initiated Bible Club from

the WHS campus is not “narrowly drawn” nor does it utilize

“least restrictive alternatives” as is required to meet constitu-

tional standards. Widmar, supra; Carey, supra; Boos, supra;

Ward, supra; Shelton, supra. “(B)jecause First Amendment

freedoms need ‘breathing space’ to survive, government may

regulate in this area only with narrow specificity.” NAACP v.

Button, 371 U.S. 415, 433 (1963). “Precision of regulation

must be the touchstone” in regulating free speech. /d. at 438.

Rather than implementing narrowly drawn regulations,

School Officials implemented a ban “that broadly stifle[s]

fundamental personal liberties when the end can be more

narrowly achieved.” Shelton, 364 U.S. at 252. Many less

restrictive alternatives exist which would accommodate the

School Officials’ concern. The students would have been

willing to allow School Officials to post disclaimers in order

to convey state neutrality to the student population. (J.A.

72).31 Yet School Officials did not even consider these least

restrictive means. (J.A. 73). These same School Officials

must teach the meaning of the Bill of Rights to students, not

only by words, but by action. Ambach v. Norwick, 441 U.S.

68, 76-77 (1979). Instead of complying with the applicable

constitutional requirements, however, School Officials cre-

ated a “First Amendment Free Zone” at WHS with regard to

the Bible Club. Jews for Jesus, 482 U.S. at 574.

C. The School Officials’ Ban of a Student-Initiated Bible

Club is Unconstitutional Because It Is An Effort To

Suppress Expression Merely Because They Oppose the

Students’ Viewpoints.

The School Officials’ ban of a student-initiated Bible

club would be unconstitutional even in a nonpublic forum

because it is an, “effort to suppress expression merely

because public officials oppose the speaker’s view.” Perry

Ed. Assn. v. Perry Local Ed. Assn., 460 U.S. 37, 46 (1983).

Just as a ban may be void regardless of the nature of the

forum on overbreadth grounds, Bd. of Airport Com'rs of Los

Angeles v. Jews for Jesus, 482 U.S. 569 (1987), so too, the

School Officials’ ban is void regardless of the nature of the

forum because it is, “impermissibly motivated by a desire to

suppress a particular point of view.” Cornelius v. N.A.A.C.P.

Legal Defense & Ed. Fund, 473 U.S. 788, 812-13 (1985).

Although the School Officials may prefer the discussion

of “some subjects over others,” they have intentionally, albeit

impermissibly, engaged in blatant viewpoint discrimination.

Principal Findley so desires to suppress the students’ world

view that he would rather, “discontinue such student clubs or

31 In fact, at trial, Bridget Mergens testified that if the School

Officials wanted to make a disclaimer announcement in the school paper

or through the P-A. system, “that would have been fine with me, sir.”

(J.A. 73)

organizations,” than permit the students to study the teachings

of the Bible in a student-initiated Bible Club. (J.A. 472).

In contrast, the teachings of the viewpoint of Interact, a

student affiliate of the Rotary Club International, receives

official sponsorship under the school’s own view of “sponsor-

ship.” Instead of a Ten Commandments, Interact employs the

4-Way Test. The 4-Way Test is:

1. Is it the TRUTH?

2. Is it FAIR to all concerned?

3. Will it build GOODWILL and BETTER

FRIENDSHIPS?

4. Will it be BENEFICIAL to all concerned?

Rotary International, The 4-Way Test Of The Things We

Think, Say Or Do (Rotary International, Evanston, Illinois).

This admirable guiding ethic is considered by Rotarians

to be the catalyst for “a great improvement in moral charac-

ter” for its adherents. /d. at 9.

Justice Stevens has previously addressed the imper-

missibility of inconsistent approaches to doctrinally-related

school clubs:

It seems apparent that the policy under attack would

allow groups of young philosophers to meet to dis-

cuss their skepticism that a Supreme Being exists,

or a group of political scientists to meet to debate

the accuracy of the view that religion is the “opium

of the people.” If school facilities may be used to

discuss anticlerical doctrine, it seems to me that

comparable use by a group desiring to express a

belief in God must also be permitted. The fact that

their expression of faith includes ceremonial con-

duct is not, in my opinion, a sufficient reason for

suppressing their discussion entirely.

Widmar v. Vincent, 454 U.S. 263, 281 (1981) (Stevens, J.,

concurring).

Assuming, arguendo, the validity and reasonableness of

the school’s justifications for banning the club, “those justi-

fications cannot save an exclusion that is in fact based on the

desire to suppress a particular point of view.” Cornelius, 473

U.S. at 812. Under the school’s view, the Establishment

Clause prohibits a Bible club because the school sponsors

clubs, yet they simultaneously sponsor the viewpoint of

Rotary International through the Interact Club. The school’s

ban therefore is void, regardless of the nature of the forum,

because School Officials admit that they have acted, “with the

intent of promoting a particular point of view in religious

matters,” Corporation of Presiding Bishop v. Amos, 483 U.S.

327, 335 (1987).

D. The School Officials’ Ban of the Bible Club Is Not A

Reasonable Time, Place and Manner Regulation.

Reasonable time, place and manner restrictions, not

sweeping prohibitions, are the means by which School Offi-

cials may control access to a public forum. Such restrictions

must be content neutral and “narrowly tailored to serve a

significant government interest, and leave open ample alter-

native channels of communication.” Perry, 460 U.S. at 45.

Insofar as the School Officials’ policy bans the Bible Club

from WHS, it offends the First Amendment for it is neither a

reasonable time, place and manner restriction nor is it nar-

rowly drawn to serve a significant government interest.*2 The

prohibition of the Bible Club at WHS is the type of “sweeping

ban” that this Court has consistently condemned.**

As an attempt to “save” the constitutionality of the prohi-

bition, School Officials asserted that the Bible Club could

32 As set forth fully supra, the School Officials’ ban of the Bible

Club is not content neutral. (J.A. 255).

33 United States v. Grace, 461 U.S. 171 (1983) (a total ban on

display of “flags, banners, or devices” on the sidewalk surrounding the

Supreme Court is unconstitutional); Schaumburg v. Citizens For a Better

Environment, 444 U.S. 620, 637 (1980) (“measures less intrusive than a

direct prohibition on solicitation” can be instituted to prevent fraudulent

misrepresentation); Frisby v. Schultz, 487 U.S. __, 108 S.Ct. 2495

(1988) (picketing in front of a single residence may be prohibited, bus not

general marching, through a residential neighborhood). See also Heffron,

supra, (free speech activities allowed; solicitation on fairgrounds,

(Continued on following page)

meet in a church across the street from the school. This self-

serving gesture cannot be countenanced. Relegating students

otherwise entitled to participate in the club system forum has

the effect of “stamping” Bible Club participants with “a

badge of inferiority.” Plessy v. Ferguson, 163 U.S. 537

(1896). The time is long past when School Officials may

satisfy the Equal Protection Clause by providing separate but

equal facilities. Brown v. Board of Education, 347 U.S. 483

(1954). Finally, as this Court recognized over fifty years ago,

“[ojne is not to have the exercise of his liberty of expression

in appropriate places abridged on the plea that it may be

exercised in some other place.” Schneider, 308 U.S. at 163.

Il. THE BAN OF A STUDENT-INITIATED BIBLE

CLUB CONSTITUTES A VIOLATION OF THE

STUDENTS’ DUE PROCESS RIGHT BECAUSE OF

THE LACK OF OBJECTIVE STANDARDS AND

PROCEDURAL SAFEGUARDS WHICH RESULTED

IN THE SCHOOL OFFICIALS’ EXERCISE OF

ARBITRARY DISCRETION.

A. The School Officials Exercised Impermissible

Discretion.

The School Officials’ ban of the student-initiated Bible

Club is an unconstitutional prior restraint on the students’

freedoms of speech and association. Many times this Court

has held that arbitrary official discretion to permit or forbid

First Amendment activities constitutes an impermissible prior

restraint. Niemotko, 340 U.S. at 271. Even a cursory review of

the facts of this case establishes that the WHS School

(Continued from previous page)

however, required to be conducted from booths to ensure orderly move-

ment of crowds). By enacting reasonable time, place and manner restric-

tions rather than flat prohibitions, free speech will not be stifled at its

source. Kovacs v. Cooper, 336 U.S. 7 (1949) (prohibiting only those

“sound trucks that emit loud and raucous noise”); Grayned, 408 U.S. 104

(prohibiting only those demonstrations that disrupt normal activities).

Officials exercised the type of unbridled discretion “to grant

or withhold [permission] upon a broad criteria unrelated to

the proper regulation of public places” that this Court has

consistently condemned. /d. at 294; accord, Secretary of State

v. Joseph H. Munson Co., 467 U.S. 947 (1984).

Westside School District, like the University in Widmar,

has applied a policy favorably toward non-religious student

groups while applying the same policy in an invidiously

discriminatory manner against religious student groups. Dr.

Findley, the WHS Principal, testified that he and Mr. Huston

are responsible for evaluating student requests for the cre-

ation of student organizations. (J.A. 241). He testified that

there was no written procedure for assessment of student

requests (J.A. 241), only the unwritten, customary procedure

that has evolved over the years. (J.A. 241). The unwritten

policy requires Dr. Findley and Mr. Huston to assess each

student request by determining the goals and objectives of the

club (J.A. 358, 359), and by meeting with potential sponsors

to “see whether or not it fits under our guidelines and our

Board Policy.” (J.A. 359). Only after such an investigation

would the administrators make the decision whether to

approve or deny the club. (J.A. 241).

Bridget Mergens’ request for a Bible Club was treated

differently. When she made her first request to Dr. Findley, it

was immediately denied. (J.A. 72). Mr. Huston was told about

the request only after it had already been denied by Dr.

Findley. Mr. Huston testified that Dr. Findley told him that

someone had requested the formation of a Bible Club. (Tr.

512:17-22). Mr. Huston stated he had no input at all into the

decision-making process for denial of the club. (J.A. 361).

Furthermore, Dr. Findley had already told Mr. Huston that it

was his opinion that the Bible Club could not meet. (J.A.

254).

Dr. Findley did not review school policy before the

denial (J.A. 256, 257), nor did he seek a legal opinion before

denial, despite the fact that the students requested that their

club meet under the guidelines of the EAA. (J.A. 87). The

denial was based on Dr. Findley’s own interpretation of the

Act (J.A. 244, 246), and “the fact that it appeared to me that it

was advocating a religious viewpoint instead of giving a

study of a religion. . . .” (J.A. 246). Dr. Findley denied access

to the proposed club, because he felt that it violated the

missions and goals of WHS in that the Club would not “give

both sides.” (J.A. 254). He then admitted that he had made an

“assumption” with regard to the students’ request (J.A. 255),

and finally stated that a Bible Club could meet the missions

and goals requirements of WHS. (J.A. 256).

The student Bible Club at WHS was denied access under

an oral policy which was applied in an invidiously discrimi-

natory and unequal manner. The administration failed to abide

by its own policy and exercised unfettered discretion in viola-

tion of the First Amendment and Equal Protection Clause.**

The School Officials’ standardless policy provides the

“opportunity for abuse, especially where a [policy] has

received a virtual open-ended interpretation” in violation of

this Court’s many precedents. Lewis v. City of New Orleans,

430 U.S. 130, 135-36 (1974) (Powell, J., concurring). See

also Houston v. Hill, 482 U.S. 451 (1987); Kolender v. Law-

son, 461 U.S. 352 (1983). School Officials must not be

allowed to continue to hold and exercise the sort of official

discretion that this Court refuses to tolerate.

B. The School Officials’ Ban of the Student-Initiated

Bible Club Is Vague.

The School Officials’ “unwritten guidelines”, coupled

with their broad-based and open ended view of “curriculum

related,” constitute vague policies in violation of the Due

Process Clause of the Fourteenth Amendment. These “poli-

cies” embody both offensive aspects under the vagueness

doctrine:

34 This proscription violates the Equal Protection Clause of the

Fourteenth Amendment. It singles out religious clubs as a suspect class

and deprives that class of benefits accorded to all other WHS student

clubs and organizations. See Police Department v. Mosley, 408 U.S. 92,

102 (1972).

It is a basic principle of due process that an enact-

ment is void for vagueness if its prohibitions are not

Clearly defined. Vague laws offend several impor-

tant values. First, because we assume that man is

free to steer between lawful and unlawful conduct,

we insist that laws give the person of ordinary

intelligence a reasonable opportunity to know what

is prohibited, so that he may act accordingly. Vague

laws may trap the innocent by not providing fair

warning. Second, if arbitrary discriminatory

enforcement is to be prevented, laws must provide

explicit standards for those who apply them. A

vague law impermissibly delegates basic policy

matters to policemen, judges and juries for resolu-

tion on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory

application. Grayned v. City of Rockford, 408 U.S.

104, 108 (1972). . . . This Court has recognized that

“a sweeping statute or one incapable of limitation

has the potential to repeatedly chill the exercise of

expressive activity by many individuals... .”

New York v. Ferber, 458 U.S. 747, 772 (1985).

At trial, Dr. Findley admitted that he made an “assump-

tion” with regard to the proposed Bible Club. He employed

“unwritten policy”, and there was no “written procedure” for

assessment of students’ requests, according to his trial testi-

mony. Finally, all the recognized clubs were, in Dr. Findley’s

opinion, “curriculum related.” This vagueness produces a

chilling effect in violation of the First Amendment. Buckley v.

Valeo, 424 U.S. 1, 76-82 (1979); Broadrick v. Oklahoma, 413

U.S. 601, 611-12 (1974). The Eighth Circuit Court of Appeals

condemned the application of “curriculum related” as pro-

posed by the School Officials:

Allowing such a broad interpretation of “curriculum

related” would make the Equal Access Act mean-

ingless. A school’s administration could simply

declare that it maintains a closed forum and then

choose which student clubs it wanted to allow by

tying the purposes of those student clubs to 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. ... . 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.

Mergens, 867 F.2d at 1078 (emphasis added).

The line between the School Officials’ opinion of-curric-

ulum-related clubs “is, at best, murky,” and therefore the

application of the policies are void for vagueness. Jews for

Jesus, supra.

Ill. THE EQUAL ACCESS ACT IS CONSTITUTIONAL

UNDER THE FIRST AND FOURTEENTH

AMENDMENTS.

The School Official’s Ban of the WHS student initiated

Bible Club was a violation of the Equal Access Act. The

Equal Access Act requires a public secondary school receiv-

ing federal financial assistance to grant equal access to its

facilities for students wishing to meet for religious, political

or philosophical purposes when the school has a limited

public forum.35 20 U.S.C. § 4071(a) (1984). According to the

sponsors of the Act, it was necessary for Congress to end

confusion among school administrators by applying the

35 The EAA was passed by overwhelmingly bipartisan majorities in

the House of Representatives (377-73) (130 Cong. Rec. H7740-41 (daily

ed. July 25, 1984)), and the Senate (88-11) (130 Cong. Rec. $8370 (daily

ed. June 27, 1984)). Its supporters cited the need to end discrimination

and hostility toward students desiring to voluntarily associate themselves

together in common interest for religious discussion. See 130 Cong. Rec.

$8337 (daily ed. June 27, 1984) (statement of Sen. Hatfield); see also id.

at $8331-332 (statement of Sen. Hatch); id. at $8355 (statement of Sen.

Levin); id., at $8365 (statement of Sen. Baucus); 130 Cong. Rec. H7730

(daily ed. July 25, 1984) (statement of Rep. Nielson); id. at H7734

(statement of Rep. McEwen). “Equal Access will go a long way toward

ending the official hostility that has come to dominate the Government's

attitude toward the free and voluntary practice of religious beliefs.” /d. at

H7737 (statement of Rep. Emerson).

principles enunciated in Widmar, to insure that “[g]overnment

may not discriminate against speech based on its content.”

130 Cong. Rec. $8332 (daily ed., June 27, 1984) (statement of

Sen. Hatch); id. at $8358 (remarks of Sen. Durenburger).*°

The function of this Court in interpreting the EAA “is to

construe the language so as to give effect to the intent of

Congress.” United States v. American Trucking Association,

310 U.S. 534, 542 (1940). Simply stated, the EAA was

enacted in part to eradicate invidious discrimination against

student-initiated religious speech such as was perpetrated by

the WHS School Officials.3’

A. Westside High School Has Established a Limited

Open Forum Under the Equal Access Act.

School Officials have created a limited open forum at

WHS. In determining whether School Officials created a

“limited open forum” under the EAA, the policy and practice

36 Sen. Denton stated that the EAA is designed to clarify that

secondary school students “have the same rights to associate together and

to speak, as do students who wish to meet to discuss chess, politics or

philosophy.” 130 Cong. Rec. $8335 (daily ed. June 27, 1984).

37 Sen. Mark Hatfield, the primary sponsor of the EAA, in expres-

sing his adamant opposition to the President’s School Prayer Amendment

stated:

Instead of concentrating our attention on initiatives like a

School Prayer Amendment, I would urge my colleagues to

devote their energies to rooting out ridiculous barriers that

have been enacted to forbid voluntary meetings of students

who seek to meet and pray in non-disruptive ways.

128 Cong. Rec. $11781 (daily ed. Sept. 17, 1982) (printed remarks of

Sen. Hatfield).

In fact, the majority of those who strongly opposed the prayer

amendment expressed complete support for the Equal Access Act, and

concern that, “[s}chools today are being hostile toward religion. Not

neutral, but plainly antagonistic.” 130 Cong. Rec. $8360 (daily ed. June

27, 1984) (statement of Sen. Mattingly); see also id. at $8340 (remarks of

Sen. Leahy); id. at $8356 (remarks of Sen. Bumpus); id. at $8358

(remarks of Sen. Biden).

at the school is determinative. A public secondary school

triggers the EAA “whencver such school grants an offering to

Or Opportunity for one or more noncurriculum-related student

groups to meet on school premises during non-instructional

time.” 20 U.S.C. § 4071(b). Approximately 30 student clubs

and organizations meet and use the facilities of WHS after

regular school hours. (J.A. 231, 479-87). Attendance at these

clubs is voluntary, and they exist and function on the basis of

student interest. (J.A. 276-277, 363-364). School Officials

testified that clubs cease to exist when student interest wanes.

(J.A. 276-77, 363-364). Participation in extracurricular activ-

ities is encouraged, and the administration entertains student

suggestions for the formation of clubs. (J.A. 230-231,

240-241, 290-291, 358). Teachers play the role of custodial

monitors and do not “instruct” in any sense, in the majority of

these groups meetings.3® (J.A. 92, 111-12, 123-24).

As the Eighth Circuit Court of Appeals held, many non-

curriculum-related clubs meet at WHS. Mergens, 867 F.2d at

38 The Computer Club sponsor is not a member of the teaching

faculty and was not present for “about a fourth” of the club meetings.

(J.A. 182).

Bridget Mergens testified that the Drama Club was directed and run

by the student officers and that the sponsor would “sometimes . . . come

back and lock up after we were done.” (J.A. 92). When asked about the

proposed Bible Club, Bridget Mergens testified:

Q. Who did you expect to direct the activities of the club?

A. Students, simply like any other club that I was ever involved in

that was not Choir. Other than Choir, all the arrangements were

made by the students. It would simply be the same format as

that.

(J.A. 112); see also J.A. 124 (Spanish Club directed by students).

The EAA provides for teacher sponsorship to the extent that they are

present in a nonparticipatory capacity. 20 U.S.C. § 4071(c)(3) (1984).

That section of the Act explains § 4071(c)(2) which would otherwise

appear to permit schools to avoid equal access by requiring “sponsorship”

of student meetings. The term “sponsorship” is defined by the Act in

§ 4072(2) and specifically provides that the assignment of a teacher “for

custodial purposes does not constitute sponsorship of the meeting.”

1078. During Senate debates, Sen. Hatfield stated that “cur-

riculum related” meant the club or organization was an

“extension of the classroom”. 130 Cong. Rec. $8342 (daily

ed. June 27, 1984) (statement of Sen. Hatfield).

In order to determine the extent of the forum at WHS

under the EAA, this Court must answer one fundamental

question: Are the recognized clubs and activities directly

related to curriculum course work? If not, the clubs are not

39 In Webster’s Third New International Dictionary Unabridged,

1986, the word “curricular” is defined as, “of or relating to academic

courses of study.” The word “curriculum” is defined as:

The whole body of courses offered by an educational institu-

tion or one of its branches. Any particular body of courses set

for various majors (e.g., the curriculum in engineering)

Id. at 557.

The word “courses” is defined in that same volume as:

An educational unit usually at the high school, college, or

university level consisting of a series of instruction periods

(as lectures, recitations, and laboratory sessions) dealing with

a particular subject.

A series of such courses coordinated to constitute a curricu-

lum and leading typically to a degree.

Id. at 522. -

In contrast, the word “extracurricular” (also “extracurriculum”) is

defined as:

Outside a regular curriculum: not falling within the scope of a

regular curriculum; specifically: of or relating to officially or

semiofficially approved, and organized student activities (ath-

letics, dramatics, or publication of a school newspaper) con-

nected with the students’ school and usually carrying no

academic credit.

Id. at 806 (emphasis added).

The common and most recognized usage of the word reflects direct

application to academic courses of study offered at a high school or

university which are required in order to obtain a degree. With the

exception of Drama Club, Band and Choir, the clubs at WHS are not

academically oriented and are not required for high school graduation.

(J.A. 479, 483).

“curriculum related” and the school has established a limited

open forum under the EAA.“

Despite WHS School Officials attempt to broadly inter-

pret “curriculum related” and rationalize the exclusion of the

Bible Club, Dr. Findley conceded that Peer Advocates is

noncurriculum related.

Q. Did Peer Advocates, when you were looking at it,

relate to any of the required curriculum or elective

curriculum courses at Westside High School?

A. No.

(J.A. 231).

Furthermore, Interact is a moral philosophic service club

at WHS related to Rotary International. Interact operates in

conformity with specified philosophical guiding principles of

Rotary International. (J.A. 287-89). Rotarians attend Interact

meetings and on occasion Interact members attend Rotary

functions. (J.A. 299-300, 367-68). Interact, like all other

WHS clubs is voluntary and is not required for class credit or

graduation and is not directly related to curriculum course

40 Under Representative Goodling’s test, a club is curriculum related

only if the students who are in the club also attend the related class. 130

Cong. Rec. H7732 (daily ed. July 25, 1984) (statement of Rep. Goodling).

Sen. Dole stated that a club or activity is noncurricular if the

meetings are “not directly related to the school’s curriculum”. 130 Cong.

Rec. $8362 (daily ed. June 27, 1984).

Sen. Hatfield also posited that if the school permits students to

initiate requests for the formation of clubs, they have established a limited

open forum. 130 Cong. Rec. $8342 (daily ed. June 27, 1984).

Other legislators expressed the same principle in a slightly different

manner: If a school permits “voluntary student groups,” “student activ-

ities,” or “student groups” to meet, it must permit voluntary student

groups to engage in religious speech. 130 Cong. Rec. $8342-43 (daily ed.

June 27, 1984) (statement of Sen. Gorton).

work. (J.A. 226-28). Interact is a noncurriculum-related activ-

ity within the parameters of the EAA.*!

The existence of a Chess Club at WHS triggers the EAA,

as evidenced by the following debate:

Mr. Gorton: I gather from the previous remarks of

the Senator from Oregon and the Sen-

ator from Alabama that the definition

of these non-related student groups is

fairly broad. The Chess Club would

be such a group. If the school permits

a Chess Club, it has thereby created

the limited open forum which brings

into effect the proscriptions of the

act.

Mr. Hatfield: That is correct.

130 Cong. Rec. $8342 (daily ed. June 27, 1984) (colloquy of

Sen. Hatfield and Sen. Gorton).

WHS has compiled a list of activities and has specifically

defined such clubs as Band, Choir and Distributive Education

as being “included in our regular curriculum”, “offered as a

part of the curriculum” and “this is an organization that is an

extension of the Distributive Education class.” (J.A. 479-87).

Similar references are made to the Dramatics Club and

Orchestra Club. (J.A. 479-87). The Chess Club is defined,

however, as an activity “for those interested in chess”; Inter-

act and Zonta are described by reference to nationally recog-

nized service organizations. (J.A. 479, 481, 485). By virtue of

these descriptions, WHS has identified those clubs which are

either curriculum or noncurriculum related within its club

system.

At trial, Dr. Ward Sybouts, a curriculum expert, testified

that he had studied the EAA, EAA guidelines, legislative

history and the WHS club system. He testified that, in his

41 “For many decades Rotary clubs and Rotarians around the world

have used The 4-Way Test as an instrument to develop respect and

understanding among peoples.” Rotary International, The 4-Way Test Of

The Things We Think, Say Or Do (Rotary International, Evanston,

Illinois).

opinion, Congress had adopted a definition of curriculum that

included only those student activities related to courses

offered at the school. (J.A. 408). When asked to give his

opinion about specific WHS clubs, Dr. Sybouts stated that

Interact “would be non-curriculum[,]” (J.A. 410), and that

Chess Club “would be more likely considered as a non-

curriculum-related club.” (J.A. 410). Similarly, Welcome to

Westside “would be a service activity and probably not

related to a course and therefore it would be non-curricular.”

(J.A. 411). Also, Dr. Sybouts testified that since WHS had no

class in leadership, “student council or your student forum is

non-curricular.” (J.A. 412). In summary, after reviewing the

Student Activities List (J.A. 479), Dr. Sybouts testified WHS

had one or more non-curriculum-related clubs. (J.A. 412).

The evidence in this case fully supports the eighth cir-

cuit’s finding that WHS has created a limited open forum

under the EAA. The court of appeals correctly held that

adopting the School Officials’ view of the forum would per-

mit them to “arbitrarily deny access to school facilities to any

unfavored student club on the basis of its speech content.”

Mergens, 867 F.2d at 1078.

The School Official’s interpretation of “curriculum

related,” as anything that remotely relates to the educational

purpose and mission of WHS, violates the Act itself, as well

as congressional intent. It is conceivable that any student

group under such a definition would qualify as “educational,”

including the students proposed Bible Club.

As the Eighth Circuit correctly observed, “[a]llowing

such a broad interpretation of ‘curriculum-related’ would

make the EA ningless.” Mergens, 867 F.2d at 1078. To

define “nongtrriculum related student group” in a way that

allows schools to evade the Act by cleverly describing exist-

ing student groups is not faithful to Congress’ intent to

protect “extracurricular student speech.” See e.g., 130 Cong.

Rec. $8342-43 (daily ed. June 27, 1984) (colloquy of Sen.

Hatfield and Sen. Gorton).

B. The Equal Access Act Does Not Violate the Establish-

ment Clause of the First Amendment.

The Equal Access Act does not conflict with the Estab-

lishment Clause. In this case, the conflict is between the WHS

students and the School Officials’ incorrect view of the law.

Wrongly, the School Officials assert, that equal treatment of

voluntary, student-initiated religious speech in a high school

setting operates to establish religion in violation of the First

Amendment. A careful analysis of this Court’s relevant prece-

dents, however, establishes that a policy of equal access for

Student organizations does not violate the Establishment

Clause. Widmar, supra.

In Widmar, this Court provided a framework for analyz-

ing equal access issues consistent with this Court’s earlier

decision in Lemon, 403 U.S. at 612-13, noting that

a[n equal access] policy will not offend the Estab-

lishment Clause if it can pass a three-pronged test:

“First, the [governmental policy] must have a secu-

lar legislative purpose; second, its principal or pri-

mary effect must be one that neither advances nor

inhibits religion . . . ; finally, the [policy] must not

foster ‘an excessive government entanglement with

religion.’ ”

Widmar, 454 U.S. at 263 (quoting Lemon, 403 U.S. at

612-13).42

In Widmar, this Court held that an open-forum policy,

including nondiscrimination against religious speech, would

have a secular purpose and would avoid entanglement with

religion. Widmar, 454 U.S. at 271-72. With respect to the

claim that allowing religious groups to share the forum would

42 The analysis of the three-part Lemon test is equally applicable to

both a “policy and practice” of equal access and the Equal Access Act.

This Court, however, has “repeatedly emphasized [its] unwillingness to

be confined to any single test or criterion in this sensitive area.” See

Lynch, 465 U.S. at 679; Tilton v. Richardson, 403 U.S. 672 (1971).

have the primary effect of advancing religion, this Court

stated that the real question was whether the university, hav-

ing opened its facilities for use by student groups, could “now

exclude groups because of the content of their speech.” /d. at

273. This Court concluded that the school could not do so

without violating the students’ First Amendment rights.

1. The Equal Access Act Has a Secular Legislative

Purpose.

The plain language of the EAA proclaims a secular legis-

lative purpose. The Act’s purposc, as stated by its sponsors,

was to end discrimination and confusion surrounding free

speech and assembly rights of students. Supra fns. 35-37.

Facially, the Act not only prohibits discrimination against

religious meetings, but protects “political, philosophical or

other content of the speech at such meetings” as well. Title 20

U.S.C. § 4071(a); 130 Cong. Rec. H7734 (daily ed. July 25,

1984) (statement of Rep. Smith of Nebraska).*?

As this Court noted in Widmar, the creation of a forum

for student speech, including religious speech, constitutes a

legitimate secular purpose. That a policy of equal access

touches on religious speech is no more violative of the Lemon

test than is the inclusion of religious groups in any other

public forum created for secular reasons. As Justice Scalia

stated in Aguillard, in “all three cases in which we have

struck down laws under the Establishment Clause for lack of a

secular purpose, we found that the legislature’s sole motive

was to promote religion.” Aguillard, 482 U.S. at 614 (Scalia,

43 This Court noted in Aguillara, 482 U.S. 578, that it “is normally

deferential to a [governmental] articulation of a secular purpose .. . .” /d.

at 586. In Lynch, 465 U.S. 668 (1984), this Court held that a non-secular

purpose will not be inferred lightly.

J., dissenting) (emphasis added).** Both the EAA and an

equal access policy meet the secular purpose prong of Lemon.

2. Equal Access Does Not Have the Primary Effect of

Advancing Religion.

Allowing a voluntary, student-initiated Bible Club to

meet at WHS does not have the primary effect of advancing

religion. This Court rejected the claim that the extension of an

open forum policy to student religious groups would have the

impermissible primary effect of advancing religion. Widmar,

454 U.S. at 273-75. Acknowledging that it was “foreseeable”

that religious groups would benefit from the open forum

policy, this Court nevertheless held that any benefit would be

“merely incidental” and therefore, would not constitute the

advancement of religion under the Establishment Clause.**

Two factors were identified by the Widmar Court as

especially relevant to its holding: first, the fact that an open

forum policy “does not confer any imprimatur of State

approval on religious sects or practices,” and second, the fact

that the forum was available to a broad class of speakers.

Widmar, 454 U.S. at 274; see also Texas Monthly v. Bullock,

489 U.S. __, 109 S.Ct. 890 (1989).

The endorsement inquiry “turns upon the context in

which the contested object appears.” Thus, “[e]very govern-

ment practice must be judged in its unique circumstances to

44 See also Lynch, 465 U.S. at 680 (describing Stone and Epperson

as cases in which this Court invalidated laws “motivated wholly by

religious considerations”).

45 To this point, the Widmar Court noted several cases in which

state action was held to be constitutional, despite benefits to religious

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

(1976) (aid to institutions of higher education, including institutions

affiliated with religious sects); Hunt v. McNair, 413 U.S. 734 (1973)

(issuance of state revenue bonds for church-affiliated college); McGowan

v. Maryland, 366 U.S. 420 (1961) (Sunday closing Jaws).

determine whether it [endorses] religion.” County of Alle-

gheny, 492 U.S. __, __, 109 S.Ct. 3086 (1989) (citing

Lynch, 465 U.S. at 694). Over thirty student clubs and organi-

zations are in existence at WHS, covering a wide range of

student interests. In fact, WHS students are told that they can

initiate and organize clubs. (J.A. 221-222). “The provision of

benefits to so broad a spectrum of groups is an important

index of secular effect.” Widmar, 454 U.S. at 274; Texas

Monthly, 489 U.S. at ___, 103 L.Ed. 2d at 14. With such a

“broad spectrum” of student clubs and organizations at WHS,

School Officials, by allowing the Bible Club to meet, would

not be “conveying or attempting to convey a message that

religion or a particular religious belief is favored or prefer-

(quoting Wallace v. Jaffree, 472 U.S. at 70).

The School Officials’ argument that WHS students spe-

cifically, and secondary school students in general, are more

impressionable than university students, and would view an

accommodation of the Bible Club as endorsement of one

religion over another is not valid. This assumption of impres-

sionability was investigated in detail by Congress in its con-

sideration of the EAA and was rejected.*” After observing the

46 See also Aguillard, 482 U.S. at 593 (“preference” for particular

religious beliefs constitutes an endorsement of religion); Schempp, 374

U.S. at 305 (Goldberg, J., concurring) (“The fullest realization of true

religious liberty requires that government ... effect no favoritism

among sects or between religion and nonreligion”).

47 The Senate Judiciary Committee found it a false assumption “that

students will not perceive a ban on all extracurricular religious speech as

State hostility toward religion,” and went on to find that “the clear

message that the blackout of religious speech and ideas sends to students

is that the State is hostile to religion.” S.Rep. No. 357, 98th Cong., 2d

Sess. 10, 19 (hereafter S.Rep. No. 357). Congress, in enacting the EAA,

made explicit findings of fact in support of the legislation. “To the extent

‘legislative facts’ are relevant to a judicial determination, Congress is

(Continued on following page)

maturity and capabilities of the students who testified, as well

as psychological information related to impressionability, the

Senate Committee on the Judiciary found that “students below

the college level are capable of distinguishing between State-

initiated, school sponsored, or teacher-led religious speech on

the one hand and student-initiated, student-led religious

speech on the other.” S.Rep. No. 357, supra fn. 50, at 35.**

In addition to legislative fact finding, the students pre-

sented expert testimony refuting the impressionability argu-

ment. Dr. David Moshman, a child psychologist, testified that

students at the age of eleven or twelve have reached the final

stage in the development of cognitive reasoning and are fully

capable of understanding differences between state endorsed

religious activity and student-initiated religious activity. (J.A.

390-391; 399). In fact, Dr. Moshman stated that by the time

students reach age twelve, they are capable of understanding

(Continued from previous page)

well equipped to investigate them, and such determinations are of course

entitled to due respect.” Katzenbach v. Morgan, 384 U.S. 641, 667

(1966). In Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981),

this Court held that those challenging legislative judgment must persuade

the Court that legislators could not reasonably believe the facts on which

they based their judgment. /d., at 464. See also Eastland v. United States

Servicemen’s Fund, 221 U.S. 491 (1985) (the power to investigate is

inherent in the power to legislate).

48 For example, Bonnie Bailey testified before the Committee and

said:

We have been taught that the Constitution guarantees us

freedom of speech. But we feel that here we have been

discriminated against, because we can picket, we can demon-

strate, we Can Curse, we can take God’s name in vain, but we

cannot voluntarily get together and talk about God on any

part of our campus, inside or out of the school.

We just feel frustrated because we don’t feel like we are

being treated equally.

Hearing Before the Senate Committee on the Judiciary on S815 &

$.1089, 98th Cong., 2d Sess., April 28, 1983 and August 3, 1983 at 37.

concepts of hostility and discrimination, and that the exclu-

sion of a religious club from a forum generally open to other

clubs would result in a student perception of hostility toward

religion. (J.A. 392-394, 397, 399). Finally, two WHS students

who would not have participated in the Bible Club testified

that they would not view the existence of such a club at WHS

as the promotion of religion, nor would they feel compelled to

attend the meetings. (J.A. 211-12, 214-15).

Based on the unrebutted expert testimony, the students’

testimony and the format of the clubs at WHS, the district

court correctly held that high school students are not more

impressionable than college students and that they are capable

of making religious sponsorship distinctions. Mergens, Slip

Op. at 11 n.1. The eighth circuit concurred in this finding,

taking note that Congress, in passing the EAA, made the same

finding. Mergens, 867 F.2d at 1080 n.2. The students at WHS

are quite capable of distinguishing between student expres-

sion and school endorsement.

This Court has recognized that high school students are

able to distinguish student speech from school endorsed

speech. In Tinker, students did not perceive a fellow student’s

protest of the Vietnam War as endorsed by the school. Like-

wise, a student’s refusal to salute the flag because of religious

convictions was not perceived as the school’s endorsement of

the student’s religious or political views. Barnette, supra. The

utilization of the Bible as history or literature in a class at

public school does not imply endorsement of the Bible's

teachings. Schempp, 374 U.S. at 225. Accommodating stu-

dents by granting “released time” for religious instruction off

campus does not constitute the imprimatur of state approval.

Zorach, supra. Finally, the existence of controversial books in

the school library does not constitute state approval of the

content. Pico, supra.*? This Court’s view of the free speech

49 Justice Powell, in Bender, correctly noted that “I do not believe -

particularly in this age of massive media information — that the few years

difference in age between high school students and college justifies

departing from Widmar.” Bender, 474 U.S. at 556 (Powell, J., dissenting).

rights of high school students does not change merely because

religious speech is involved.

3. An Equal Access Policy Does Not Foster Excessive

Government Entanglement With Religion.

Permitting a voluntary, student-initiated Bible Club to

meet during noninstructional time does not foster an exces-

sive government entanglement with religion. Enforcing a ban

against religion at WHS would prove to be far more entan-

gling than a neutral policy of equal access. Widmar, 454 U.S.

at 272 n. 11. In rejecting the entanglement argument, the

Widmar Court observed that the “University would need to

determine which words and activities fall within ‘religious

worship and religious teaching.’ This alone could prove ‘an

impossible task in an age where many and various beliefs

meet the constitutional definition of religion.’ Widmar, 454

U.S. at 273 n.11 (quoting O’Hair v. Andrus, 613 F.2d 931,

936 (DC. Cir. 1979)).°°

50 Walz v. Tax Commission, 397 U.S. 664, 674-75 (1970) (granting

tax exemptions to churches gives rise to a lesser governmental involve-

ment than would taxing it); Cantwell, 310 U.S. at 305 (requiring official

determination of what is and what is not a “religion” violates the First

Amendment).

Sen. Levin spoke directly to the entanglement prong of the Lemon

test and observed:

Critics of the Hatfield amendment are concerned that it

will force school officials to become involved in delicate

decision making about whether groups should be permitted to

meet because of the religious content of their speech. This

argument is faulty for two reasons. First, it is precisely

because the law is in the state of chaos that legislation is

needed in order to clarify what is and what is not permitted

under the first amendment. Second, school officials are now

being forced to make difficult decisions each time students

request to meet when the subject of the meeting could be

religion. For example, if a student-initiated group requests the

(Continued on following page)

In view of the nature of the activity permitted under the

EAA and the de minimis amount of school supervision needed

to implement it, no serious contention can be made that the

Act creates excessive entanglements.5! Likewise, as was

established at trial, teacher involvement in WHS clubs consti-

tuted custodial monitoring. (J.A. 92, 111-12, 123-24, 184,

247). The presence of a teacher at the Club meeting as a

custodial monitor is the kind of “limited and incidental entan-

glement between church and state authority [that] is inevita-

ble in a complex modern society” and certainly does not

constitute an excessive entanglement forbidden by the Consti-

tution. Larkin v. Grendel’s Den, Inc., 459 U.S. 736, 747

(1976).

(Continued from previous page)

use of school premises to talk about “moral issues,” school

officials would have to make further inquiries before granting

the request. Will the group be discussing philosophy or

theology? If the students plan to talk about religion, should

the school deny the request? Clearly, school officials already

face difficult decisions. The Hatfield amendment will make

their job easier.

130 Cong. Rec. $8355 (daily ed. June 27, 1984) (statement of Sen.

Levin). Accord, id. at $8348 (remarks of Sen. Danforth); id. at $8363

(remarks of Sen. Mitchell).

Since § 4071(e) of the Act states that it does not authorize the

Federal government to deny or withhold federal financial assistance to

any school, no contention can be made that the Act creates Federal

government entanglement with student-initiated religious groups.

5! Representative Goodling stated:

There are some who say the bill makes school administrators

decide what is religion. That is totally wrong. This bill does

not create such entanglement with religion. This bill applies _

to all noncurricula meetings, regardless of whether religious

or not. So there is no entanglement with religion because

school administrators will make their decisions governing

(Continued on following page)

In short, neither a policy of equal access nor the Equal

Access Act violates the Establishment Clause.

CONCLUSION

For these reasons, the Court should affirm the judgment

of the United States Court of Appeals for the Eighth Circuit.

Respectfully submitted,

Rospert K. SKOLROoD Jay ALAN SEKULOW

National Legal (Counsel of Record)

Foundation Eric ALan DALy

Suite 306 James M. HENDERSON, Sr.

P. O. Box 64845 1000 Thomas Jefferson Street, N.W.

Virginia Beach, Suite 520

Virginia 23464 Washington, D.C. 20007

(804) 424-4242 (404) 633-2444

Douc.Las VEITH Douc.ias W. Davis

205 Galvin Road 6332 Chestnut Hill Road

Bellevue, Nebraska 68005 Virginia Beanch,

(402) 292-2800 Virginia 23464

(804) 420-0120

Cuarves E. Rice

Free Speech Advocates

P. O. Box 815

Notre Dame, IN 46556

(502) 549-5454

Attorneys for Respondents

(Continued from previous page)

such meetings for all noncurricula-related meetings, religious

or otherwise.

130 Cong. Rec., H7732 (daily ed. July 25, 1984).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.