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

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No. 88-1597

j _ olprame Geurt, US

Freee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

THE BOARD OF EDUCATION OF THE

WESTSIDE COMMUNITY SCHOOLS ( DIST. 66) et al.,

. Petitioners,

BRIDGET C. MERGENS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF

THE NATIONAL SCHOOL BOARDS ASSOCIATION

IN SUPPORT OF PETITIONERS

GWENDOLYN H. GREGORY

Counsel of Record

Deputy General! Counsel

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street

Ale-.andria, Virginia 22314

(" 03) 838-6722

AUGUST W. STEINHILBER

NSBA General Counsel

THOMAS A. SHANNON

NSBA Executive Director

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| TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAB 0.c.0.cccccccsscsvesossve00-u 1

| ISSUES PRESENTED FOR REVIEW ©... 1

: STATEMENT OF THE CASE o.ou..o..o.-cc-scoscccesesseesoees 2

| SE AE ne ee 2

L Seco 2

Il. THE EQUAL ACCESS 1S FACIALLY UN-

I acids cnsopeshintbicsipnisininhitntanncenin 4

A. Congress Did Not Have a Secular Purpose

in Passing the Act

B. If the Court of Appeals’ Interpretation of

“Noncurriculum Related” Is Correct, the

a Act Has the Primary Effect of Advancing

NEN SEE TE NNSA a OR 10

III. THE COURT OF APPEALS ERRED IN ITS

INTERPRETATION OF “NONCURRICULUM

SET lacihs*Lesoienictisciskenstjascnpuniaceenpacenssedciiebeeientnenies 13

IV. PETITIONERS’ REFUSAL TO ALLOW RE-

SPONDENTS TO MEET DOES NOT VIO-

LATE THEIR FREE SPEECH RIGHTS........ 25

SUI teint intcarhesviieiiaimeevvitnsiininhicsapenhenniiniactciiainnieiatannantaivenen 30

ibs ll

ii

TABLE OF AUTHORITIES

CASES: Page

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

BED CO ccceccttnivincniccenieimi 2

Aguilar v. Felton, 473 U.S. 402 (1985)... 5,12

Bender v. Williamsport Area School Dist., 741

et § ft Sea 3, 6, 26

Bethel School Dist. v. Fraser, 106 S. Ct. 3169

CFI ncxacnccinsncesscocesitsntitansesssammenn 2, 20, 22

Blanchard v. Bergeron, 109 S. Ct. 939 (1989) ........ 14

Board of Education of Hendrick Hudson Central

School District v. Rowley, 458 U.S. 176 (1982).. 22, 23

Board of Education of Rogers, Ark. v. McCluskey,

Rt SO) re ee 23

Cornelius v. NAACP Legal Defense & Educational

Fund, Inc., 473 U.S. 788 (1985) ........-- 27

Edwards v. Aguillard, 482 U.S. 578 (1987) ............. 4

Engel v. Vitale, 370 U.S. 421 (1962) ......... 2,7

Epperson v. Arkansas, 393 U.S. 168 (1968) _.......... 4

Fraser v. Bethel School Dist. No. 403, 755 F.2d

oF fs eae Se 27

Garnett v. Renton School Dist. No. 403, 865 F.2d

ei, fe | =| ee 23

Garnett v. Renton School Dist. No. 403, 874 F.2d

en. ot ee 23, 24

Grand Rapids School District v. Ball, 473 U.S. 373

CRIED ceccecececesesasintntnintsninintiiilamassnaaa 11

Hazelwood School Dist. v. Kuhimeier, 108 S. Ct.

i) Ge 2, 16, 22, 27, 28

Lemon v. Kurtzman, 402 U.S. 602 (1971) _............. 3, 4,11

Lubbock Civil Liberties Union v. Lubbock Inde-

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

1982), cert. denied, 459 U.S. 1158 (1983) ..... 3, 6, 8

Marsh v. Chambers, 463 U.S. 783 (1983) ................ 11

McCollum v. Board of Education, 333 U.S. 203

CGD ececrcesccessninstintsicirmnimamaen 2

Perry Educ. Ass’n v. Perry Local Education

PY og @ ORS SE A); 11

Stone v. Graham, 449 U.S. 39 (1980)... 4

Wallace v. Jaffree, 472 U.S. 38 (1985) —...... 4,5, 10

iii

TABLE OF AUTHORITIES—Continued

Page

Widmar v. Vincent, 454 U.S. 263 (1981) ......... 3, 4, 11, 22,

25, 26, 28, 29

Wood v. Strickland, 420 U.S. 308 (19738) -................ 23

STATUTES:

Equal Access Act, 20 U.S.C. §§ 4071-4074 (Supp.

a acssnrentnanananonns 1, 2, 18, 21

OTHER AUTHORITIES:

130 Cong. Rec. $8331, $8336-38, S8342-44, $8348

(daily ed. June 27, 1984) _.............3, 5, 6, 7, 8, 10, 15, 22

130 Cong. Rec. H7726 (daily ed. July 25, 1984)

(statement of Rep. Bonker).................................. 7

130 Cong. Rec. H7730, H7732-33, H7782 (daily ed.

July 25, 1984) ........... Sr 8, 10, 15, 25

Developing a Student Leadership Class (NASSP

iia ecntctenncnncenscansssccscensenccanseetas 20

Ferguson, J., Student Council Activity Resource

Book 1 (NASSP a 19

Ferguson, J., Student Council Projects v, 75

ccs inertsenneptensguenaneoencsies 19

Gholson, R. and Buser, R., Cocurricular Activity

Programs in Secondary Schools v (NASSP

a rsarrnmnsnsensnncocnoes 19

NASSP, National Honor Society Handbook 1

aa tates eneaienicnencnsnntscsteesceasesococees 20

New York Times, July 25, 1984, printed in 130

Cong. Rec. at H7728 (daily ed. July 25, 1984)... 7

Statement of Dale D. Hawley in Foreword to

Biernat, N. and Klesse, E., Student Activities v

(National Association of Secondary School Prin-

RE ID so cncccncscsnassssccsscssesscncenececess 18

Statement of Terrence J. Giroux in Christensen,

D., Managing School Activities v (NASSP

SIT iaiiitiaiddabthAnnmindannpcaanenstedesosssccsccesscsetsssenccesssereseoes 19

BRIEF AMICUS CURIAE OF

THE NATIONAL SCHOOL BOARDS ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

The National School Boards Association (NSBA) is a

nonprofit federation of this nation’s state school boards

associations, the District of Columbia school board and

the school board of the Virgin Islands. Established in

1940, NSBA is the only major educational organization

representing school boards and their members. Its mem-

bership is responsible for the education of more than

ninety-five percent of this nation’s public school children.

Nearly all public school districts receive federal finan-

cial assistance and, therefore, are subject to the require-

ments of the Equal Access Act, 20 U.S.C. §§ 4071-4074

(Supp. 1989). In addition, all public school districts are

subject to the free speech clause and the establishment of

religion clause of the first amendment.

The court of appeals decision removes the discretion of

school districts to make decisions about the type of clubs

they wish to sponsor. As the law now stands, a school’s

only safe alternative is to refuse to allow any club or

organization to meet during the school day in order to

assure that the school does not violate the constitutional

or statutory rights of any child.

This brief is filed with the consent of counsel for peti-

tioners and respondents. A letter granting universal con-

sent to all amici curiae is on file with this Court.

ISSUES PRESENTED FOR REVIEW

1. Does the Equal Access Act unconstitutionally estab-

lish religion?

2. Did the Court of Appeals err in its broad interpre-

tation of “noncurriculum related”?

3. Does Petitioners’ student activities program violate

respondents’ free speech rights?

2

STATEMENT OF THE CASE

Amicus incorporates by reference thereto the statement

of the case contained in brief by Petitioners.

ARGUMENT

I. INTRODUCTION.

Public institutions often find themselves in the position

of having to choose between violating free speech or free

exercise rights of individuals and risking establishing

religion. Because of the unique nature of the public

schools, these risks are even greater than in other forums.

Also, because of the unique nature of the public schoole,

many establishment of religion cases involve public schools.

E.g., Abington School District v. Schempp, 374 U.S. 203

(1963) (scripture reading and reciting Lord’s Prayer in

classrooms) ; Engel v. Vitale, 370 U.S. 421 (1962) (re-

citing in classrooms prayer written by state) ; McCollum

v. Board of Education, 333 U.S. 203 (1948) (religion

classes as part of curriculum). In addition, a number of

“exceptions” to an unfettered free speech right have been

drawn in school cases. E.g., Hazelwood School Dist. v.

Kuhlmeier, 108 S. Ct. 562 (1988); Bethel School Dist. v.

Fraser, 106 S. Ct. 3169 (1986).

The Equal Access Act makes it unlawful for any pub-

lie secondary school which receives federal funds and op-

erates a “limited open forum,” to deny “equal access” to

students “who wish to conduct a meeting within that

limited open forum on the basis of religious, political,

philosophical, or other content of the speech at such meet-

ings.” 20 U.S.C. § 4071(a). A school operates a “lim-

ited open forum” if it allows one or more “noncurricu-

lum related” clubs to meet in the school during “nonin-

structional time.” Jd. at § 4071(b).

The first version of the Act designed by many of its

sponsors to bring prayer back to the schools was substan-

tially reworked, with the assistance of drafters from the

American Civil Liberties Union, the National Education

Association and others seeking to limit the religious ef-

fect of the Act and place the schools in a passive role of

3

assuring that all students have an equal right to expres-

sion. 130 Cong. Rec. $8338 (daily ed. June 27, 1984).

Much of the impetus for the Act came from two court

decisions. Shortly before passage of the Act, the Third

Circuit Court of Appeals in Bender v. Williamsport Area

School Dist., 741 F.2d 538 (3d Cir. 1984), overturned a

district court decision requiring the school to allow religi-

ous clubs, under a “free speech” theory, to meet in the

schools during the “activity period.” The circuit court

held that, elementary and secondary level schools may not

allow religious groups to meet because allowing such con-

duct during school hours gives the “impression” to young

students that the school is sponsoring the religion, even

though the school may in fact only be attempting to guar-

antee free speech rights of all students. The court held

that the establishment clause holds a higher rank than

the free speech clause, and therefore, must take prece-

dence when the two clauses conflict.

Earlier, the Fifth Circuit in the case of Lubbock Civil

Liberties Union v. Lubbock Independent School District,

669 F.2d 1038 (5th Cir. 1982), cert. denied, 459 U.S.

1158 (1983), Feached the same conclusion. However,

unlike the Williamsport School District, the Lubbock dis-

trict had for many years prior to the adoption of its

“open access” policy, officially sponsored religion by al-

lowing Bible readings in the classroom, prayers over

loudspeakers in the school, school assemblies with evan-

gelistic speakers and distribution of Gideon Bibles to

students.

The case at bar raises the question of the constitution-

ality of the Equal Access Act and the question of whether

this Court’s decision in Widmar v. Vincent, 454 U.S. 263

(1981), applies to secondary schools. As to the first ques-

tion, under this Court’s decision in Lemon v. Kurtzman,

402 U.S. 602 (1971), a state policy or practice first, must

have a secular purpose, second, must have a primary ef-

fect that neither advances nor inhibits religion and third,

must not foster an excessive government entanglement

with religion. Amicus submits that the Act does not pass

4

the first prong of the test, and its ability to satisfy the

second prong depends on whether the Court agrees with

the court of appeals’ interpretation of “noncurriculum

related.” If that interpretation is incorrect, the decision

should be reversed, because under a narrower reading of

the statutory language, the school district is not operating

a “limited public forum” and thus, is not subject to the

requirements of the Act. If the court’s interpretation is

correct, the Act has the primary effect, as applied to re-

ligious clubs, of advancing religion.

Finally, Amicus requests that the Court address the

question of whether the Widmar standard applies in the

public secondary school context and, if so, whether Peti-

tioners have violated that standard. Amicus submits

that although Widmar may apply to school districts in

some circumstances, the standard to be applied in deter-

mining whether a school is operating a “limited open

forum” is not the same as that in a university. Amicus

further contends that Petitioners were not operating a

“limited open forum” in this case and, therefore, are not

subject to Widmar.

Il. THE EQUAL ACCESS ACT IS FACIALLY UNCON-

STITUTIONAL.

A. Congress Did Not Have a Secular Purpose in Pass-

ing the Act.

Since its decision in Lemon v. Kurtzman, this Court

has held that a law must have a secular purpose in order

to pass constitutional muster. The three-pronged test in

Lemon v. Kurtzman requires in addition to a secular

purpose, that the “principal or primary effect [of the

law] must be one that neither advances nor inhibits re-

ligion” and, finally, the statute must not foster “an ex-

cessive entanglement with religion.” See, e.g., Stone v.

Graham, 449 U.S. 39 (1980) (posting of the Ten Com-

mandments in public school classrooms) ; Wallace v. Jaf-

free, 472 U.S. 38 (1985) (moment of silence for prayer

and silent meditation): Epperson v. Arkansas, 393 U.S.

168 (1968) (statute barring teaching of evolution) ; Ed-

wards v. Agutllard, 482 U.S. 578 (1987) (statute for-

5

bidding teaching of evolution); Aguilar v. Felton, 473

U.S. 402 (1985) (use of Chapter I funds to pay teachers

providing services on religious school premises).

In Wallace the Court opined that the Lemon test does

not require the intent to be entirely secular, but it found

that the Alabama legislature’s “intent to return prayer

to the public schools is, of course, quite different from

merely protecting every student’s right to engage in vol-

untary prayer during an appropriate moment of silence

during the school day.” 472 U.S. at 59. The Court noted

that an earlier Alabama law on the subject of moment of

silence would have protected that right; thus, there was

no reason to add the words “and voluntary prayer” ex-

cept to evidence the state’s “endorsement” of religion and

prayer. “Such an endorsement is not consistent with the

established principle that the government must pursue a

course of complete neutrality toward religion.” Id. at 60.

Similar facts are evident with respect to the Equal

Access Act. There was no reason to include the word

“religious” in the Act if, indeed, its purpose was to grant

equal access to all groups. The Congress’ debate on the

Act belies its avowed intent to codify the free speech

clause as to elementary and secondary schools. And,

unlike the situation in Wallace, the Court need not re-

sort to testimony in court after passage to determine the

intent of the Act’s sponsors. The intent is apparent from

the legislative history itself.

The bill that was ultimately passed as the Equal Access

Act was an amended version of a bil] introduced by

Senators Denton and Hatfield which read as follows:

Denton-Hatfield Amendment No. 3152 to provide that

it shall be unlawful to deny equal access to students

in public secondary schools who wish to meet volun-

tarily for religious purposes and to provide district

courts with jurisdiction over equal access violations.

130 Cong. Rec. $8331 (daily ed. June 27, 1984).

Although the bill that finally passed as the Equal Access

Act broadened the coverage of Denton-Hatfield Amend-

6

ment No. 3152, the sole interest of its sponsors, and of

most of those who voted for the Act, was in providing

access to religious groups and overturning the effect of

the decisions in Williamsport and Lubbock. Senator Den-

ton on a number of occasions during floor debate, as ex-

emplified in the statements set forth below, made it

clear that the intent of both his original bill and the

bill which ultimately passed, was to bring religion and

prayer back to the public schools.

Back to the discrimination which this amendment

would eliminate. I emphasize that the discrimination

involved applies only to religious activities, that the

amendment before us applies only to religious

activities. ...

_ There is broad support for equal access because

it is a fundamentally fair, well drafted, and reason-

able approach to the problems of religious expression

in public schools. Jd. at S8336.

The question before us is whether or not we are

going to continue to exist in the condition which

began in 1962-63 and which prohibits the mention of

the word “God” in the Jewish, Moslem, Christian, or

whatever context, in a reverent, orderly sense, in a

sense of assembly, if you will, voluntary on the part

of the students. Are we going to restore that right

in public schools, or are we going to continue to

maintain the situation to which the great majority of

Americans of all faiths object, in which the name of

God cannot be mentioned except profanely in public

schools?

I believe that that basic question is that which

underlies the yea or nay on the two amendments. .. .

I want to go back to the underlying amendment’s

purpose in order to discuss the one under considera-

tion now, which is a perfecting amendment.

The underlying amendment focuses on religious

speech for the simple reason that it is religious

speech which has been singled out for censorship in

public schools. Please let us not forget that as we

consider this matter. Jd. at S8348.

7

The event that took place in 1962-63 to which Senator

Denton refers is, of course, this Court’s decision in Engel

v. Vitale, 340 U.S. 421 (1962), which held that a public

school’s practice of allowing prayer in the classroom

violates the establishment clause. Members of the House,

too, commented on that decision. See 130 Cong. Rec.

H7726 (daily ed. July 25, 1984) (statement of Rep.

Bonker).

During the time during which Congress was debating

the bill, Senator Denton was encouraging his colleagues

to vote for the measure ‘n order to get a religious foot

in the door. “A sealed door has had its seal broken...

We can probably get it to grade schools.” New York

Times, July 25, 1984, printed in 130 Cong. Rec. at H7728

(daily ed. July 25, 1984).

Only a handful of members and senators who partici-

pated in the debate expressed support for the bill because

it granted equal access to all groups. The tenor of the

argument was that religion should be allowed back in

the schools. Senator Dixon, for example, stated:

Mr. President, as a co-sponsor of the amendment

to permit equal access for student religious groups,

I urge my colleagues to support the amendment.

My position on this issue is the same today as it

was back in March 1984 when the Dixon amendment

included a similar provision in the silent school

prayer and silent reflection amendment to Senate

Joint Resolution 73....

Mr. President, this is a good amendment. Its

time has come. I sincerely believe that we should

have an equal access provision that permits high

school students who want to discuss religious matters

to come together on a voluntary basis in the public

schools to follow the dictates of their own conscience

and their own religious desires. This amendment

does just that. 130 Cong. Rec. S8338 (daily ed.

June 27, 1984).

Similarly, in the House, Representative Clinger argued

fervently on the issue of why religic. should be brought

back into the schools.

8

We must strive to keep these facts [citing ex-

amples of religion in other aspects of public life] in

mind. Religion and the belief in God helped to shape

and mold our great Nation. The proof is in our art,

our literature, and in our Government institutions.

Must we now, as political descendants of our de-

voutly religious Founding Fathers, ignore the rights

of individuals to religious freedom?

Please, I strongly urge you to vote for the equal

access resolution today. If you may have trouble

deciding, reach into your pockets and grab a coin, for

on that coin are four simple words which tell the

whole story of our proud Nation. Those are the

words “In God We Trust.” If this Nation truly

believes that, then surely in God we Americans do

trust. Id. at H7730 (daily ed. July 25, 1984).

Senator Hatfield, undoubtedly realizing the fact that

such remarks could raise questions as to the intent of

the Congress, stated:

The Senator from Alabama [Denton] has spoken

about religious activities as such and the circum-

scribing of those religious activities. I believe you

can equally present this case as purely a matter of

freedom of speech and freedom of assembly. Re-

ligion might be a secondary consideration. ... 7d.

at S8337 (daily ed. June 27, 1984).

Senator Hatfield then cited several cases “where a very

narrow interpretation of the Constitution has, in effect,

impinged upon the freedom of speech of students.” Id.

One of the cases cited by Hatfield and by other senators

during other times in the debate is a case which is likely

the primary moving force behind the Equal Access Act,

Lubbock Civil Liberties Union (LCLU) v. Lubbock Inde-

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

cert. denied, 459 U.S. 1155 (1983).

Although described by Senator Hatfield and others as

an “equal access” case, an examination of the history

of the case shows that the “equal access” aspect of the

case was but the last resort by the school district in its

attempt to bring prayer into the schools—much in the

9

same way as the Congress has attempted to bring prayer

to the schools through the Equal Access Act. Initially, the

district had a practice of reading prayers over loud-

speakers, allowing silent prayers in the classroom, holding

Bible readings in school and allowing distribution of

Gideon Bibles to students. A court challenge filed by the

L.C.L.U. motivated the district to alter its religious prac-

tices. Then the district adopted a policy which permitted

supervised voluntary meetings of student groups before

and after school hours for any “education, moral, religious

or ethical purposes.” The Fifth Circuit held the new

policy to be unconstitutional because the primary purpose

of the policy was religious and its primary effect was to

advance religion.

Also belying the argument that the Act’s intent is

primarily to protect free speech rights, is the discussion

of the other types of groups which would be permitted

to meet under an equa! access policy. Senator Gorton

asked Senator Hatfield, the floor manager of the bill, about

the status of gay rights activist school organizations in

the limited open forum. Hatfield expressed reservations

as to whether the bill requires a school to allow such

an organization on school premises. The colloquy con-

tinued as follows:

Mr. Gorton. I gather the summary of what the

Senator has said is that the creation of a limited

open forum does not require that student organiza-

tions be permitted for any speech purpose whatso-

ever; that at least with the perfecting amendment of

Senator Danforth, if the school finds that the prohibi-

tion of an organization is necessary or advisable to

maintain order and discipline on school premises,

they can prohibit the formation of a student or-

ganization in spite of the limited open forum, even

though that student organization is only going to

engage in talk and not in any form of action or

physical disruption whatsoever.

Mr. Hatfield. The answer to the Senator’s ques-

tion is “yes,” but I come back to the basic purpose

and the reason we have this whole matter coming

10

up in the Senate is for none of those issues but,

rather, the simple proposition that schools today are

increasingly limiting in the area of free speech. 130

Cong. Rec. $8344 (daily ed. June 27, 1984).

What Senator Hatfield apparently meant was that he

wanted equal access, free speech rights, for religious

groups, but not necessarily for pay rights groups or other

groups which the senator believes are properly excluded

from the schools.

A review of the entire debate makes clear that tise

overwhelming vote in favor of the bill was because the

voters back home want prayer in the schools, not because

the members and the senators wanted to protect free

speech rights. In the words of Congressman Ackerman:

But to paraphrase the words of the very perceptive

child who refused to eat his sugar-coated vegetables,

this bill looks like school prayer, it tastes like school

prayer, and it smells like school prayer. 130 Cong.

Rec. H7733 (daily ed. July 25, 1984).

Amicus submits that the Congress could pass a consti-

tutional Equal Access Act, but, like the legislature in

Wallace v. Jaffree, the Congress’ intent in this case

changed the color of the Act. The Equal Access Act is

but establishment of religion in free speech clothing.

B. If the Court of Appeals’ Interpretation of “Non-

curriculum Related” Is Correct, the Act Has the

Primary Effect of Advancing Religion.

The court of appeals determined that some of the clubs

in question are “noncurriculum related” and, therefore,

the school district operates a “limited open forum” and

all clubs, including religious clubs, must be allowed to

meet. As discussed below, Amicus submits that the court

erred in its interpretation of the Act. However, if it is

held that the court’s broad interpretation of “noncurricu-

lum related” is correct, then the Act goes beyond the

parameters of the first amendment’s free speech clause,

and instead, becomes an affirmative obligation on school

districts to allow religious groups to meet on their

campuses. Such an interpretation renders the Act un-

11

constitutional because it would have the primary effect of

advancing religion.

This Court has not been mechanical in following the

Lemon three-prong standard in all establishment of re-

ligion cases. See, e.g., Marsh v. Chambers, 463 U.S. 783

(1983). However, Lemon has been the standard in cases

involving elementary and secondary age students.

We have particularly relied on Lemon in every

case involving the sensitive relationship between gov-

ernment and religion in the education of our chil-

dren. The government’s activities in this area can

have a magnified impact on impressionable young

minds, and the occasional rivalry of parallel public

and private school systems offers an all-too-ready op-

portunity for divisive rifts along religious lines in

the body politic. Grand Rapids School District v.

Ball, 473 U.S. 373, 383 (1985).

If this Court determines that the Act passes the first

prong of the Lemon test, the next question is whether a

school’s compliance with the Act as regards religious

meetings necessarily has a primary effect of establishing

religion.

Amicus submits that it does not as long as “noncurri-

culum related” is read narrowly. If the district- operates

a “limited open forum” in the sense of this Court’s deci-

sions under the Constitution, e.g., Widmar v. Vincent;

Perry Educ. Ass’n v. Perry Local Education Ass’n, 460

U.S. 37 (1983) (assuming those facts are possible in the

context of a secondary school), there is very little possi-

bility that students will perceive a religious club in that

forum as school sponsored. But with facts such as those

at bar, no inference other than that the school is sponsor-

ing religion could be drawn.

Under the court of appeal’s broad interpretation; clubs

that have traditionally—traditionally, across the country,

not only in this school district—been considered to be part

of the educational program of the school will become

part of the same category as the religious club. In other

words, religious clubs will appear to have the same status

12

as clubs that formerly were sponsored by the school, whose

activities were formerly directed by school employees.

Whether one agrees or not that secondary school students

are more “impressionable” than their university-age coun-

terparts, given facts such as these, it would be under-

standable that both students and adults could perceive

that the religious club had become part of the school’s

educational program.

Just as the presence of a public school teacher in a pri-

vate school during the school day creates the perception

of state advancement of religion, Aguilar v. Felton, 473

U.S. 402 (1985), the presence of a religious club in a

public school has a similar effect when the clubs have tra-

ditionally been school-sponsored.

This case does not involve a university where clubs are

allowed to meet in various places across the campus with

little or no presence, much less involvement, of school per-

sonnel. This case involves one secondary school with one

campus where traditionally only school sponsored, educa-

tion related clubs have been allowed to meet after school

under the direction of the school administration. Sud-

denly a religious club appears in that forum. How does

the school overcome the perception that the clubs continue

to be school sponsored, rather than merely “student ini-

tiated”? How does the school avoid the impression that

the religious club is sponsored in the same manner as the

school has sponsored the other clubs?

Thus, the primary effect of the circuit court’s broad

interpretation of “noncurriculum related” is nothing less

than to advance religion. Under the Eighth Circuit’s

view, if a school allows student groups that do not have

a direct connection to an academic subject, it has created

a limited open forum and would not be allowed to differ-

entiate between those clubs which support its educational

mission and those which do not. If the school has tradi-

tionally sponsored nonacademic clubs, the perception of

sponsorship would likely remain, and for all appearances,

the religious club would be sponsored as well.

13

For example, in the present case if the circuit court’s

conclusion that Westside’s chess club is noncurriculum re-

lated is accepted, the school must allow the religious stu-

dent group to meet in the “limited open forum” under the

Equal Access Act. The religious club would then meet

during noninstructional time on school grounds on the

same basis as Westside’s thirty other groups and clubs

which have been accepted by school officials as satisfying

the goals and requirements of the school board policy on

student groups. The board policy regards student clubs

and organizations as “a vital part of the total education

program as a means of developing citizenship, wholesome

attitudes, good human relations, knowledge and skills.”

The policy requires that school-sponsored groups have a

faculty sponsor and that the superintendent establish op-

erational guidelines for clubs and organizations. The pol-

icy does not cover the formation of clubs, but in practice-

students wishing to form a club present their proposal to

school officials who must then decide whether the club

would comport with board policy. To allow a religious

student group to- meet in such a context could do nothing

but convey the impression that the school supports the

religious group, a result at odds with the requirement

that the state refrain from acts which have the effect of

advancing religion.

Ill. THE COURT OF APPEALS ERRED IN ITS INTER-

PRETATION OF “NONCURRICULUM RELATED.”

If the Act is held to be constitutional, the question

arises as to whether Petitioners violated the Act by re-

fusing to allow Respondents to meet. The requirements

of the Equal Access Act attach only when the school dis-

trict is operating a “limited open forum,” by granting an

“opportunity for one or more ‘noncurriculum related’ stu-

dent groups to meet on school premises during noninstru-

tional time.” 20 U.S. § 4071(b). The term “meeting”

is defined as “those activities of student groups which are

permitted under a school’s limited open forum and are

not directly related to the school curriculum.” /d. at

§ 4072(3).

14

Although the legislation is far from clear in this re-

gard, it appears that the section which defines “meeting”

does not limit school district discretion to designate what

is a curriculum related group. Instead the definition

refers to the meetings held by noncurriculum related

groups. Thus, the activities of the student groups need

not be directly related to a particular course.

Since the Act does not define “noncurriculum related,”

the legislative history must be consulted, bearing in mind

Justice Sealia’s admonition regarding the use of legisla-

tive history to determine intent. Blanchard v. Bergeron,

109 S. Ct. 939, 945 (1989). A look at the debate in both

houses provides some insight on the issue. For example,

during House debate Mr. Goodling, in a colloquy with

himself stated:

If we had had the time, for a further colloquy,

Mr. Bonker was going to ask me the following ques-

tion: One of the terms in the equal access amend-

ment which needs clarification is “noncurriculum re-

lated student groups,” which would trigger the equal

access policy of this legislation. I would like to ask

the gentleman from Pennsylvania {Mr. Goodling], as

a former teacher and school administrator and prin-

cipal cosponsor of the legislation how he would de-

fine “noncurriculum related student groups” for pur-

pose of this measure.

In answer to that question, I would say as fol-

lows: I would interpret “noncurriculum related” to

encompass those student activities which are either

of a type which schools usually do not sponsor or

those activities which the school might sponsor but

has not. Thus, there woud be a two-step inquiry to

determine whether a meeting is noncurriculum

related.

First, is the subject matter of the meeting of a’

type, which a public school could sponsor? In other

words, the meeting must be academic, athletic, or

musical to be curriculum related. A Latin club, a

soccer team, and a school band would all clearly fall

within this category. A young Democrat or Republi-

can club, private social organizations, or religious

15

groups would not be of the type which a school could

sponsor.

Second, does the school or a school-teacher require

or directly encourage student participation in such

group in connection with curriculum course work?

If both elements of this two-part analysis are sat-

isfied, the meeting would be considered curriculum

related and the equal access policy would not be trig-

= 130 Cong. Rec. H7782 (daily ed. July 25,

1984).

In the Senate, the colloquy between Senator Gorton and

Senator Hatfield indicates that the Senate, too, intended

to leave the discretion on sponsorship of clubs to the

school.

Senator Gorton: Would the school district have the

full authority to determine where the line is to be

drawn between curriculum-related activities and

noncurriculum-related?

Mr. Hatfield: We in no way seek to limit that

discretion. 130 Cong. Rec. $8342 (daily ed. June

27, 1984).

The court of appeals in this case cited a colloquy be-

tween Senators Gorton and Hatfield wherein Gorton sug-

gested that a chess club would be noncurriculum related

so that “If the school permits a chess club, it has thereby

created the limited open forum which brings into effect

the proscriptions of the act.” Jd. Senator Hatfield

agreed. However, the colloquy is inconsistent on the ques-

tion of chess clubs, because Senator Gorton (a clever cross

examiner who ultimately voted against the bill) later

asked Senator Hatfield, in the context of their discussion

about school district discretion, “Could the school make

the same determination [of relatedness to the curriculum]

with reference to a chess club?” Hatfield answered: “I

would not say that no school district could but I cannot

readily conceive of a criterion that could be used at this

time to establish that as a curriculum-related activity, I

am not saying it could not be, because as long as you

have lawyers, they can find ways of doing things one way

or another.” Jd.

16

At the least it would appear that the legislative history

indicates that school districts should have broad discretion

in determining what is curriculum related. At the most,

the legislative history shows that the members did not

define the term and left it to the courts to fashion an

appropriate standard.

But a judicially formulated standard is entirely differ-

ent from courts deciding, on a club-by-club basis that

French is curriculum related but chess is not. The court’s

duty is to decide, based on some general standard, such as

relationship to a “reasonable pedagogical goal,” whether

or not the district’s action was arbitrary. Hazelwood

School Dist. v. Kuhlmeier, 108 S. Ct. 562 (1988). The

circuit court provided no standard in this case for its

conclusion that the chess club and others which the court

declined to name were noncurriculum related.

The Eighth Circuit based its determination that West-

side High School is subject to the Equal Access Act and

therefore must allow the student religious group to meet

simply on its own assessment of whether any of the ten

student clubs listed in Stipulation #17 of the Pretrial

Order are curriculum-related. These groups include: In-

teract, Zonta, Welcome to Westside, Chess, Subsurfers,

National Honor Society, Photography, Future Business

Leaders of America, Student Advisory Board and Student

Forum. Unlike the district court, the court of appeals

did not accept the testimony of school officials that each

of these student activities is related to the curriculum of

Westside. Rather the Eighth Circuit believed that the

school administrators characterized these clubs as cur-

riculum-related in an “arbitrary” fashion as a means of

circumventing the requirements of the Equal Access Act

and denying the student religious group access to its fa-

cilities.

The appeals court “explained” its conclusion that WHS

operates a limited forum with only one example. The

court believed that the Chess Club is in fact not curricu-

lum-related, because Westside offers no course in logic

that would correspond with the asserted purpose of

17

strengthening logic and reasoning skills. (Whether West-

side does in fact offer a course in logic is unclear since

the district court mentions testimony that the Chess Club

is an extension of Westside High School logic class.) The

Eighth Circuit supported its view of the Chess Club with

statements by members of Congress regarding whether a

chess club would be considered curriculum-related under

the Equal Access Act. See discussion, supra at 15. By

this highly selective use of remarks appearing in the

Act’s legislative history, the court suggested that Con-

gress had determined that a chess club could never be

considered curriculum-related for Equal Access Act pur-

poses. This is misleading since, as noted above, Senator

Hatfield admitted that his conclusion about the curricu-

lum relatedness of a chess club was based on his own in-

ability to perceive a relationship, but that a school district

had full discretion to reach the opposite conclusion. The

court also stated that other unspecified groups at West-

side are not related to the curriculum but failed to offer

any justifications for this conclusion.

Ignoring Hatfield’s comment that the Equal Access Act

does not alter the full discretion of school districts, the

Eighth Circuit regarded the school officials’ testimony

that each of the listed clubs is curriculum-related as mere

“administrative decree’ meant to exclude certain “un-

favored” clubs. The appeals court suggested that the

school officials’ justifications were somehow dishonest or

contrived as a means of frustrating the purposes of the

Equal Access Act. In reality the testimony of the West-

side officials comports with the views expressed by edu-

cators knowledgeable about student activities that these

groups play an important role in the total learning ex-

perience offered by public schools and that they are re-

garded by some as an integral part of a school’s curricu-

lum.

“Student Activities” have been called by many

names over the years, and while the definition of

“curriculum” historically has caused much debate, the

appropriate title recognizing student activities lacks

universal acceptance. The term “extracurricular ac-

18

tivities,” an old term, gives the impression that they

are outside the curriculum, but, as we enter the

1990’s, student activities are recognized as a major

part of the total school program.

The “Third Curriculum”—first termed by Robert

W. Frederick—seems to be the best title, as it infers

two additional curricula. The first is the coursework

required to earn a high school diploma. The second

curriculum allows for student choice, exploration, and

specialization that include the electives that our stu-

dents study to prepare for post-secondary study or

work. Student activities represent a wide variety of

school-sponsored teams, clubs, and organizations.

Research reveals that it is in these activities that

students learn most of the carry-over skills for adult

life. While participating in student activities, our

young adults learn critical lessons in leadership, fol-

lowership, character, communications, teamwork, de-

cision-making, self-worth, and individual potential.

It is this level of learning that is called the Third

Curriculum. Statement of Dale D. Hawley in Fore-

word to Biernat, N. and Klesse, E., Student Activities

v (National Association of Secondary School Princi-

pals (NASSP) 1989).

Cocurricular activities vary from school to school.

They are determined more by tradition, expectations,

and policies of local schools and their respective pub-

lies than by written educational philosophies.

Change, flexibility, and adaptability characterize the

cocurricular component of the educational program

perhaps more than the more traditional classroom

component of American education.

Since the early 1900’s schools have modified and

expanded their programs of studies so that what was

once considered extracurricular is now incorporated

into the curriculum. Today it is common for schools

to offer band, chorus, student publications, drama,

and physical education-related experiences for credit.

Furthermore, it is not uncommon for students to earn

credits toward graduation for away-from-school work

experience, school or community service, educational

tours, leadership training activities, and cultural-

19

language studies abroad. Gholson, R. and Buser, R.,

Cocurricular Activity Programs in Secondary Schools

v ‘NASSP 1983).

[T}hose of us committed to student activities pro-

grams ... know that the learning experience must

go beyond the classroom to the space where the stu-

dent council convenes, to the cheerleading camp, to

the speech tournament, to the dark room frequented

by the photography club, and the crowded chamber

where the school newspaper is carefully edited. State-

ment of Terence J. Giroux in Christensen, D., Man-

aging School Activities v (NASSP 1984).

These statements reinforce the idea well-accepted by

many courts, including this Court, that decisions relatifig

to curriculum matters are best left to local policymakers

and administrators precisely because educational theories,

philosophies, methodologies and goals are not rigid and

static concepts susceptible to narrow judicial delineations.

For example, Westside asserted that the Student Advisory

Board and Student Forum constituted its form of stu-

dent government which is generally related to teaching

democracy and citizenship and to reinforcing a govern-

ment course. These educational goals have been recog-

nized as part of the learning experience associated with

student councils, along with development of skills such as

communication, leadership, goal identification, decision-

making, planning and organization, impiementation of

ideas, problem solving and evaluation. See Ferguson, J.,

Student Council Projects v, 75 (NASSP 1982). Schools

may seek to encourage the learning of such skills through

different forms of student government. As explained by

Ferguson in another publication, Student Council Activity

Resource Book 1 (NASSP 1980) :

When America’s schcols were established one of

their goals was to provide for the continuation of

democracy. The student council was established to

further that objective. If students are involved in

making decisions which affect them, they will learn

how the democratic process functions.

20

Learning to make decisions is an important part

of young people’s development. Accepting the conse-

quences of decisions is equally important. As stu-

dents mature they must be given more responsibility

and more involvement in making decisions which

affect their lives.

Other schools have made leadership training, a “formal”

course offering many of the same educational goals as

those associated with student councils that are not classi-

fied as “courses” or “classes.” See NASSP, Developing a

Student Leadership Class (1977). In Bethel School Dis-

trict v. Fraser, 106 S. Ct. 3159 (1986), the school dis-

trict sponsored a student assembly for the purpose of stu-

dent government nomination speeches. This Court agreed

with the school that the assembly was related to the edu-

cational mission of the school and not a “limited open

forum.” While no court would likely find an elective

course in leadership training to be unrelated to the cur-

riculum, under the court of appeals reasoning, it is pos-

sible that a court could find student government activities

to be noncurriculum related even though the school’s pur-

pose for allowing a student council is to foster the devel-

opment of the same life skills taught within the confines

of a “class” in leadership. Such a result would clearly il-

lustrate the wisdom of judicial deference to local school

boards and administrators in making educational deter-

minations.

Such deference would likewise be appropriate were a

school to view its chapter of the National Honor Society

as curriculum-related. The society was created in 1921

to encourage academic achievement while developing

other characteristics essential to citizenship in a democ-

racy, including character, service and leadership. See

NASSP, National Honor Society Handbook 1 (1984).

This Court itself has recognized that promoting the de-

velopment of students as citizens and members of society

is one of the most important functions of our educational

system. E.q., Bethel School District v. Fraser. However,

under the Eighth Circuit’s approach, a court could deter-

21

mine that activities meant to inculcate sych values are

not curriculum-related based on its own view that the

educational goals are too “broadly” defined.

One wonders how the circuit court in this case could

make this determination about the WHS clubs given the

fact that the school has chosen not merely to allow stu-

dents to meet, but to sponsor each of the activities. The

Eighth Circuit, however, totally omitted any discussion

of the relevance of school sponsorship to the issue of cur-

riculum relatedness. However, the sponsorship factor

must be considered, because if the court of appeals is

correct, the school will be forced under the Act, not only

to allow the religious club to meet but also to cease its

sponsorship of the other groups which are found by the

court to be “noncurriculum related.”

Section 802(c) of the Act provides:

Schools shall be deemed to offer a fair opportunity

to students who wish to conduct a meeting within its

limited open forum if such school uniformly [empha-

sis supplied] provides that—...

(2) there is no sponsorship of the meeting by the

school, the government, or its agents or employees.

20 U.S.C. § 4071 (c).

The term “sponsorship” is defined in section 803(2) of

the Act.

The term “sponsorship” includes the act of promot-

ing, leading, or participating in a meeting. The as-

signment of a teacher, administrator, or other school

employee to a meeting for custodial purposes does not

constitute sponsorship of the meeting. Jd. at § 4072

(2).

Of course the reason these two provisions are in the

law is to avoid school-sponsorship of a religious club

which would constitute establishment of religion. But,

would a school violate the Act by sponsoring some non-

curriculum re!zted clubs and not sponsoring others. Al-

though such a requirement seems nonsensical, it appears

from the legislative history that Congress,-in order to

-_—

22

assure that schools not sponsor religious clubs, has in the

process also prohibited sponsoring of any other club

deemed to be “noncurriculum related.” In the colloquy

between Senators Hatfield and Gorton, Senator Hatfield

explains that “Sponsorship is forbidden, very tightly con-

trolled, according to our lawyer’s counsel.” Senator Gor-

ton then asks: “I understand and I appreciate that,

Madam President. I think it would be very good to

tighten control. But those strictures will apply to all

noncurriculum related student activities which may use

the open forum?” Senator Hatfield answered “That is

correct.” This part of the colloquy goes on at some length

making it very clear that the intent was to control all

“noncurriculum related” clubs. Finally Senator Gorton

states: “So the question is whether it is curriculum re-

lated. If it is not curriculum related, the Senator’s

amendment is providing controls over the faculty and ad-

ministration personnel considerably greater than are many

school districts in the United States today, is it not?”

Senator Hatfield’s answer: “That is true.” 130 Cong.

Rec. $8342-43 (daily ed. June 27, 1984).

Therefore, the question of whether a particular club is

“noncurriculum related” or not has an importance beyond

whether a particular club must be allowed to meet on

campus. The answer to that question will also determine

whether the school and its employees can actively partici-

pate in the club or must merely stand by silently.

This Court has ruled on numerous occasions that it is

not the province of the courts to make educational deci-

sions. E.g., Hazelwood School District v. Kuhlmeier, 108

S. Ct. 562; Bethel School District v. Fraser, 106 8. Ct.

3169; Board of Education of Hendrick Hudson Central

School District v. Rowley, 458 U.S. 176 (1982).

Even in the university context where it has been held

that the university cannot deny access based solely on its

disagreement with the viewpoint expressed, it “legiti-

mately may regard some subjects as more relevant to its

educational mission than others.” Widmar, 454 U.S. at

280.

_ — ——

: 23

The appeals court may not agree that chess is reason-

ably related to teaching of math, but that is not sufficient

reason to overturn the school’s curriculum decision.

Courts should not substitute their own judgment for the

judgment of school officials. See, e.g., Wood v. Strickland,

420 U.S. 308 (1973), holding that it is not the province

of the federal courts to set aside decisions of school ad-

ministrators which the court may view as lacking a basis

in wisdom or compassion; Board of Education of Rogers,

Ark. v. McCluskey, 458 U.S. 966 (1982), reversing the

lower court holding that the school board unreasonably

interpreted a rule against consuming alcoholic beverages;

and Board of Education of Hendrick Hudson Central

School District v. Rowley, 458 U.S. 176 (1982), holding

that courts, in assuring that the requirements of the Ed-

ucation for All Handicapped Children Act are met, must

take care to avoid imposing their view of preferable edu-

cational methods upon states.

A passage in Garnett v. Renton School Dist No. 403,

874 F.2d 608 (9th Cir. 1989), is worth noting on this

point. That case was originally decided on January 17,

1989, Garnett v. Renton School Dist No. 403, 865 F.2d

1121 (9th Cir. 1989), the court holding, inter alia, that

refusing to allow a religious club to meet under the cir-

cumstances of that case did not violate the Equal Access

Act. After the court of appeals rendered its decision in

the case at bar, the Ninth Circuit amended its earlier

ruling to add a discussion on the issue of whether the

district operates a “limited open forum.” Whereas the

earlier opinion merely affirmed the district court’s fac-

tual finding that the activities “are supervised by faculty

advisers and are so closely related to course work or are

so integral a part of the traditional and official school

programs that they cannot reasonably be termed ‘non-

curriculum related,’” Jd. at 1127 (quoting district court,

675 F. Supp. 1268, 1274 (W.D. Wash. 1987)), the

amended opinion expands on the role of the court in de-

termining curriculum relatedness.

24

[Wle respect the district’s determination about

which activities are curriculum related. Complete de

novo review of every school district decision as to

what is and what is not curriculum related would

invite litigation from every student group denied a

classroom for one reason er another, and is not neces-

sary to effectuate the goals of the Act. Courts have

always afforded school districts broad discretion in

the management of school affairs, limited, of course,

by any applicable constitutional or statutory princi-

ples. (Citations omitted.) The Equal Access Act

does not expressly depart from this principle of def-

erence to the judgment of local school officials. Con-

gress must, therefore, be understood to have legislated

in light of this principle. The legislative history

supports this interpretation. 874 F.2d at 613-14.

As noted in Garnett, courts should not accept without

question a final determination of the school district that

it does not operate a limited open forum. They must ex-

amine the actions of the district, not just their words. In

Garnett all activities were supervised by faculty and were

“so closely related to course work or are so integral a

part of the traditional and official school programs that

they cannot reasonably be termed ‘noncurriculum re-

lated.’ ” In the case at bar every club had an active fac-

ulty sponsor who was paid extra compensation for such

duties. Petition for cert. at 4. The school district pro-

vided ample evidence of the relationship of each club to

the curriculum. ZJd. at 8-10. The court of appeals ap-

parently does not accept the educational judgment that

chess is related to mathematics and, therefore, substituted

its own educational judgment for that of the school dis-

trict.

The court of appeals also implied that Subsurfers, a

scuba club, is not curriculum-related. Whether or not one

agrees that sports and physical education are an import-

ant part of the curriculum, nevertheless, such activities

are a part of most curricula in schools across the country.

Furthermore, the legislative history makes clear that

sports were considered by the Congress to be curriculum

25

related. House sponsor Goodling stated during debate:

“|T]he meeting must be academic, athletic, or musical to

be curriculum related. A Latin club, a soccer team, and

a school band would all clearly fall within this category.” -

130 Cong. Rec. H7732 (daily ed. July 25, 1984). Scuba

diving is as much a sport as soccer, and school sponsor-

ship of a diving club is perhaps even more important

than of a soccer club because of safety considerations.

While Amicus does not suggest that every student ac-

tivity could be arbitrarily classified as “curriculum-

related” for purposes of the Equal Access Act, it does

urge this Court to recognize that what is considered part

of a school’s curriculum may with good reason vary

among school leaders and educators, from place to place

and over time. Such determinations certainly should not

reside with the courts.

IV. PETITIONERS’ REFUSAL TO ALLOW RESPOND-

ENTS TO MEET DOES NOT VIOLATE THEIR

FREE SPEECH RIGHTS.

Since the Act is allegedly an attempt at codifying the

free speech clause of the Constitution and this Court’s

decision in Widmar v. Vincent, the facts in that case

should be compared with the facts in the case at bar, with

the crucial question being whether Petitioners are operat-

ing a “limited open forum” under this Court’s constitu-

tional standards.

In Widmar the university had a written policy ex-

pressly allowing every student group to meet except reli-

gious groups. Over 100 groups were allowed to meet and

apparently none of those groups were sponsored by the

university. Arguably, in a very large high school with a

diverse student body as many as 100 student organized

and operated clubs could be present on campus. In that

context it is unlikely that the students would perceive

state sponsorship of a religious club in absence of a his-

tory of school sponsorship of other religious activities.

But this situation will not, of course, exist on every high

school campus. So, like other free speech issues, each case

should be determined on its own merits.

26

In the Widmar case, if the university had a history of

sponsoring religious activities similar to that of the Lub-_

bock School District, the decision might have been differ-

ent. The decision might also have been different had the

school involved its faculty in the groups to the extent that

Petitioners have done in this case. Nothing in Widmar

indicates that the university could not have limited its

forum to student groups which are sponsored by the school ~

and directed by faculty. But, given the hands off policy

of the university and the large number of secular clubs,

the forum was limited only to the extent that only stu-

dents could participate. Given those facts, refusing to

allow religious clubs to meet violated the students’ free

speech rights. A similar situation at the secondary level

could arguably produce a similar result.

However, the facts in the case at bar do not even re-

motely resemble those of Widmar. Furthermore, it is un-

likely that such facts would ever be duplicated in a high

school situation.

The educational mission of a high school, in contrast

[to the university], is more circumscribed. The cur-

riculum consists less, and indeed is less conducive

to, of an unfettered inquiry. As a secondary school,

emphasis is placed more on a structured program

“for jinculeating fundamental values necessary to

the maintenance of a democratic political system.’ ”

(Citations omitted) ...

Because of the inherent nature of a secondary

school, any forum, created has purposes which are

narrower, and uses more exclusive than a forum such

as in Widmar or one open generally to all forms of

communication by the public. In determining the

type of forum, if any, created by secondary school

authorities such as the Williamsport Area School

District, therefore, we must take into account, among

other things, the level of maturity of the students

and the nature of the academic program involved.

Bender v. Williamsport Area School Dist., 741 F.2d

538, 548 (3d Cir. 1984).

27

A school district does not create a “limited open forum”

accidently. In absence of some action by the school, the

school is presumed during the school day to be a closed

forum—open only to officially sanctioned and sponsored

educational activities. “The government does not create a

public forum by inaction or by permitting limited dis-

course, but only by intentionally opening a nontraditional

forum for public discourse.” Cornelius v. NAACP Legal

yong & Educational Fund, Inc., 473 U.S. 788, 802

5).

Although some activities may be more closely related

to the actual curriculum than others, that fact does

not make them non-educational. For example, the Ninth

Circuit Court of Appeals in the case of Fraser v. Bethel

School Dist. No. 403, 755 F.2d 1356 (9th Cir. 1985),

held that the school had created a public forum by allow-

ing students to make campaign speeches for fellow stu-

dent candidates during a student assembly called for that

purpose. “To their credit, Bethel High School officials

created an open forum for students to express their po-

litical views; when they did so they implicated the fun-

damental right of participation in the process of self-

government, albeit a student government.” Jd. at 1365.

The Supreme Court reversed. Justice Brennan, in a con-

currence, noted that the school district’s authority over

the student’s speech was limited to the “school environ-

ment.” The key in that case was the fact that the assem-

bly was school sponsored. Although it was not part of

a — itself, the assembly was sponsored by the

school.

This Court also overturned a lower court ruling in

Hazelwood School District v. Kuhlmeier holding that a

school newspaper was a public forum. Citing Cornelius

v. NAACP Legal Defense & Educational Fund, Inc., the

Court ruled that the evidence did not “demonstrate the

‘clear intent to create a public forum,’ that existed in

cases in which we found public forums to have been

created [citations omitted.]!” 108 S. Ct. at 569. The

Hazelwood Court ruled that student activities “may

\ \

28

fairly be characterized as part of the school curriculum,

whether or not they occur in a traditional classroom

setting, so long as they are supervised by faculty mem-

bers and designed to impart particular knowledge or

skills to student participants and audiences.” Id. at 570.

The Court further stated, “(t]he 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 Amend-

ment requires a school affirmatively to promote particular

student speech.”. Jd. at 562.

Similarly, in the case at bar all the clubs at issue are

related to the education mission of the school, sponsored

by the school and directed by faculty and, therefore, are

not part of an open forum.

The Widmar standard does not apply until it is clear

that the school has established an open forum. Since

the school in this case is actively sponsoring all of the

student clubs, the forum remains closed and the school

cannot be forced to allow non-sponsored student groups

to meet on school premises during the school day. There

is insufficient evidence in the record to support Respond-

ents’ contention that the school’s sponsorship of the stu-

dent activities is a sham designed to preclude the Re-

spondent’s club from meeting on school grounds. In

absence of such evidence the school’s determination to

sponsor those groups, and only those groups, should stand.

Most, if not all, of the cases that have ruled that

Widmar does not apply at the secondary level have done

so on the basis of the impressionability of the students

and the restrictive nature of the public school environ-

ment. The “impressionability” analysis is not particu-

larly helpful in this context because the degree of im-

pressionability will vary with the fact sitations. That, of

course, is the major failing of the Equal Access Act—

it attempts to place all schools and all students into neat

little niches. It assumes that if the school allows one

club which falls into some vague, but broad category of

“noncurriculum related,” that it is discriminating against

29

any other club that the school refuses to allow to meet.

The Constitution does not allow such easy answers.

Because of the nature of the public school environment,

which this Court has acknowledged on numerous occasions

is nothing like that of the college or university, it is

unlikely that the Widmar facts could be recreated in

the context of public secondary schools. But, if they could,

the impressionability argument would not be as forceful.

Undoubtedly, high school students could differentiate be-

tween school sponsored and nonsponsored activities given

the right facts. If a high school activities period could

be found that paralleled the student activities policy in

-Widmar, it is unlikely that students in that situation

would have the impression that the school is sponsoring

all the clubs.

However, where the school sponsors all the clubs, all

the clubs have an educational basis, all the clubs meet

during the school day in the same school where all the

classes meet—all of which is true here—adults as well

as students are likely to perceive state sponsorship of

the religious club. Certainly, a hypothetical fact situation

can be created in which dozens of student clubs meet on

high school property, at the complete discretion of the

students, with no school sponsorship or other direct in-

volvement and few would disagree that to refuse a re-

’ ligious club to meet under those circumstances would be

discriminatory. But, that is not the issue here because

those facts are not present here.

Under the facts of this case, we do not need to address

the question of whether allowing the religious club to

meet would establish religion. That issue would only

arise in a case paralleling Widmar where the failure to

allow the group to meet would violate their free, speech

rights. Free speech rights are not implicated here be-

cause the school does not operate a limited open forum.

As noted above, if the court of appeal’s definition of

noncurriculum related stands, then compliance with the

Act in this case would have the primary effect of ad-

oe we ween

30

vancing religion. But, given a reasonable definition which

gives schools broad discretion to determine what is cur-

riculum related, the Act would not have such an effect

and Westside High School would not be required under

the Act to allow the religious club—or any other non-

curriculum related club—to meet.

CONCLUSION

Amicus submits first, that the Equal Access Act is

facially unconstitutional because the Congress did not

have a secular purpose in passing it. And, if the court

of appeal’s broad interpretation of the Act stands, the

Act is unconstitutional because it has a primary effect

of advancing religion. Second, Amicus submits that be-

cause Petitioners are not operating a “limited open

forum” under either a Constitutional analysis or under

the Equal Access Act, they are not violating either the

free speech clause of the Constitution or the Act. For

one or all of those reasons, Amicus submits that the court

of appeals decision should be reversed.

Respectfully submitted,

GWENDOLYN H. GREGORY

Counsel of Record

Deputy General Counsel

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street

Alexandria, Virginia 22314

(703) 838-6722

AvuGusT W. STEINHILBER

NSBA General! Counsel

THOMAS A. SHANNON

NSBA Executive Director