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

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No. 88-1597

IN THE ee

Supreme Court of the United States

OCTOBER TERM, 1989

BOARD OF EDUCATION OF THE WESTSIDE COMMUNITY

SCHOOLS (DIST. 66), ef. al.,

Petitioners,

—V_-—

BRIDGET C. MERGENS, et ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH, THE AMERICAN CIVIL LIBERTIES

UNION, THE NATIONAL COALITION FOR PUBLIC

EDUCATION AND RELIGIOUS LIBERTY, THE

NATIONAL JEWISH COMMUNITY RELATIONS ADVI-

SORY COUNCIL, THE COMMITTEE FOR PUBLIC

EDUCATION AND RELIGIOUS LIBERTY, AND AMER-

ICANS FOR RELIGIOUS LIBERTY, AMICI CURIAE,

IN SUPPORT OF PETITIONERS

RICHARD E. SHEVITZ

Anti-Defamation League

of B'nai B'rith

823 United Nations Plaza

New York, NY 10017

(212) 490-2525

Counsel of Record

Of Counsel Ruti G. TEITEL

MEYER EISENBERG New York Law School

JEFFREY P. SINENSKY 57 Worth Street

STEVEN M. FREEMAN New York. NY 10013

Jitt L. KAHN (212) 431-2322

Anti-Defamation League :

of B'nai B'rith

823 United Nations Plaza

New York, NY 10017

(212) 490-2525

Counsel for Amici Curiae

“

Il.

Questions Presented

Whether the Equal Access Act and its application in the

present case requiring Westside High School to recognize

and sponsor a Christian prayer club violates the estab-

lishment clause of the first amendment.

Whether the Equal Access Act’s mandate requiring pub-

lic secondary schools to recognize and sponsor religious

student speech as it would other speech is compelled by

the free speech clause of the first amendment.

TABLE OF CONTENTS

QUESTIONS PRESENTED .......-----+-++05:

TABLE OF CONTENTS.......---:-:seeeeeee?

TABLE OF AUTHORITIES.......----- +++:

CONSENT OF THE PARTIES ......-----+++>:

INTEREST OF AMICI CURIAE ......-..----.

INTRODUCTORY STATEMENT AND

SUMMARY OF ARGUMENT .......----->>

ARGUMENT .......-ccccccccccscccccsescees

1. The Equal Access Act Violates the

Establishment Clause of the First

Amendment .......cccccccccccccedvccees

A. Public Schools and the Establishment

Clause: The Lemon Test........--+->-

B. The Equal Access Act On Its Face and

as Applied in This Case Violates All

Three Prongs of the Lemon Test.....-...

1. The Purpose of the EAA and of the

Christian Bible Club Meetings at

Westside High School is Religious ....

a. The EAA’s Religious Purpose ....

i. The Origins of the EAA ......

ii. The Language of the EAA ....

b. The Religious Purpose of the

Student Meetings at Westside

High School .....-....--++++++>

2. The EAA Has the Primary Effect of

Promoting Religion ........---++++:

a. Use of School Resources......--.

b. The Imprimatur of Government...

own S. +S

c. The Effect of School-Endorsed

Prayer on Students .............

d. The Effect of the Christian Club

at Westside: School Sanctioned

3. The EAA and its Application in this

Case Fosters Unconstitutional

Entanglement of Government and

Ee eo

Ne le tc eee eees

b. The Application of the EAA in the

Present Case Would Result In

Excessive Entanglement Between

Government and Religion ........

Ill. Widmar v. Vincent Does Not Apply to Public

Secondary Schools ............--eeeeeeees

IV. The Court of Appeals Erred in Deferring to

Congress’ Fact-Finding on a Matter of

EE cc cc cess accceccecs

V. Westside is Not Compelled by the Free

Speech Clause of the First Amendment To

Sponsor the Christian Bible Club ..........

A. The Free Speech Clause Does Not

Require the Public Schools to Sponsor

Religious Expression..............--++:

B. Westside’s Sponsorship of a Christian

Club Would Constitute Government

Speech and Would Promote a Religious

ne ee

C. Non-Recognition of the Christian Club

Does Not Infringe Student Free Speech

PEER G CSW ssasecvescccseccccess

1. Equal Endorsement v. Equal Access ..

2. Respondents’ Religious Expression... .

3. The School Cannot Disclaim a

Religious Endorsement .........----

D. School Religious Clubs Undermine the

Public School’s Ability to Foster

Democratic Values of Equality and

ee ee

CONCLUSION .... cc cccc cece ce crcrceecccers

APPENDIX A: Member Organizations of the

National Jewish Community

Relations Advisory Council .....

APPENDIX B: Member Organizations of the

National Coalition for Public

Education and Religious Liberty .

PAGE

TABLE OF AUTHORITIES

Cases

Abington School District v. Schempp,

ee eee ee

Aguilar v. Felton, 473 U.S. 402, 412 (1985) ..

Allegheny County v. A.C.L.U.,

ee I eee cnc ceeses

Ambach v. Norwick, 441 U.S. 68 (1979) .....

Bd. of Educ. v. Pico, 457 U.S. 853 (1982)....

Bell v. Little Axe Indep. Sch. Dist.,

766 F.2d 1391 (10th Cir. 1985)...........

Bender v. Williamsport Area Sch. Dist.,

741 F.2d 538 (3d Cir. 1984) .............

Bethel v. Fraser, 478 U.S. 679 (1986) .......

Brandon v. Bd. of Ed., 635 F.2d 971

ee nb weldeee6s

Brown v. Board of Ed., 347 U.S. 483 (1954)..

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

Collins v. Chandler, 644 F.2d 759

we eelis

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

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

Garnett v. Renton Sch. Dist., 865 F.2d 1121

SE I ee ch Labbe k hdd ads

Grand Rapids v. Ball, 473 U.S. 373 (1985)...

Hazelwood School Dist. v. Kuhlmeier,

484 US. ,108 S. Ct. 562 (1988) ........

PAGE

passim

12, 22

passim

5,17

passim

4, 12, 24

passim

vi 7 vil

PAGE PAGE

Knights of the KKK v. East Baton Rouge Stone v. Graham, 449 U.S. 39 (1980) ....... 5

Parish School Board, 578 F.2d 1122 (Sth Student Coalition for Peace v. Lower Merion

Cir. 1978) TURP TELE ERECECEE ETE TEE LTT 28 School, 776 F.2d 431 (3d Cir. 1985) ‘eee 6, 20

Landmark Communications, Inc. v. Virginia, Tilt Richardson. 403 US. 672 (1971) ... 24

435 U.S. 829 (1978) 0.0... cece eee ce. 24 a he 4 ri ys ve riot ny ia

petites Celie Bien inker v. Des Moines, se :

a re 12 Trietley v. Board of Ed., 65 A.2d 1,

EE TE ove cscs cccccccscn 18

Larson v. Valente,

Se ID oo sks cannes... 15 United States v. Carolene Products,

ee ced Nase wks be acees 23

Lemon v. Kurtzman, 403 U.S. 602 (1971) .... passim wall Jaffree, 472 US. 38 (1985)

ree, S. 38 (1985)....... assim

Lubbock Civil Liberties Union v. Lubbock : a 7 fe ,

Indep. School Dist., 669 F.2d 1038 Widmar v. Vincent, 454 U.S. 263 (1981) ..... passim

(Sth Cir. 1982) a awe a ee oe oe Oe eee 8 8 0 4 8 8 12, 18 Constitutional Provisions and Statutes

Lynch v. Donnelly, 465 U.S. 668 (1984)...... 5, 14, 19 USC pee

S. ES assin

Mary May v. Vanderburgh, 787 F.2d 1105 ne ee ; “

SS Se 26 Equal Access Act, 20 U.S.C. §§4071

i 6a a nis i 5 5 6 v6 4 ne 6% 5

McCollum v. Board of Education, Supp ae

swe essees passim Legislative Materials

Nartowicz v. Clayton County Sch. Dist., Bills

736 F.2d 646 (1 Ith Cir. 1984) seeeeveceoces 12, 22 S.2782, 98th Cong., Ist Sess. (1984) eee ee 6

Perry Education Assn. v. Perry Local H.R.4996, cited as revised S.815, 98th Cong.,

Educators re 6

Me OUEOD vvdecnccccccces 20 679%. $1 C 24S 004 :

Perumal v. Saddleback, 243 Cal. Rptr. 545, eats ian wasith shia :

cert. denied, 109 S. Ct. 327 (1988) ........ 26 S.J. Res. 212, 98th Cong., Ist Sess. (1984) ... 6

Sable Communications of California, Inc. v. 128 Cong. Rec. 11,719 (1982) .............. 5

F.C.C., 109 S. Ct. 2829 (1989) ........... 24 130 Cong. Rec. 93 (1984) ................. 6

Smith v. Board of Commissioners, 827 F.2d 130 Cong. Rec. 2433 (1984) ............... 6

1684 (11th Cir.), aff'd, —- U.S. — (1989) 25, 26, 28 130 Cong. Rec. 2678 (1984) .............-. 6

Smith v. St. Tammany Parish Board, 316 F.

Supp. 1174 (E.D. La. 1970), aff'd, 448 F.

eee 28

Vili ix

PAGE PAGE

Hearings Yudof, When Government Speaks: Toward a

Hearings on S.815 and S.1059 Before the Theory of Government Expression and the

Senate Comm. on the Judiciary, 98th Cong., First Amendment, 51 Tex. L. Rev. 863

RR a en tad cine xs 6, 20 Semen tee renee Ree e ry esses pn Heme > + > 25, 28

R New York Times, Aug. 1, 1984 ............. 7

eports

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

reprinted in 1989 U.S. Code Cong., & Ad.

0 EN a ee a 6, 20

Debates

130 Cong. Rec. S$.8330-8337, 8360-8361 (daily

Ss ad iw key eee 6, 7

130 Cong. Rec. S$.8340-8343 (daily ed.

Medes sad wbiewe ke wds «060% 28

Other Authorities

J. Melton, A Directory of Religious Bodies in

the United States, xiii (1977) ............. 28

Stewart, The First Amendment, the Public

Schools and the Inculcation of Community

Values, 18 Journal of Law and Education 23

EE Leek Ce ieee kore See geek vb 0 08 6 26

Stone, The Equal Access Controversy: The

Religion Clauses and the Meaning of

Neutrality, 81 Nw.U.L. Rev. 168 (1986) ... 23

Teitel, The Unconstitutionality of Equal

Access Policies and Legislation Allowing

Organized Student-Initiated Religious

Activities in the Public Schools, 12 Hastings

ET RB fo Serer errrrr 7, 11

CONSENT OF THE PARTIES

All parties have consented to the filing of this brief and their

joint letier of consent has been filed with the Clerk of the

Court.

INTEREST OF AMICI CURIAE

The Anti-Defamation League of B'nai B'rith was organized

in 1913 to advance good will and mutual understanding

among Americans of all creeds and races, and to combat

racial and religious prejudice in the United States. The Anti-

Defamation League has always adhered to the principle that

these goals and the general stability of our democracy are best

served through the vigorous protection of the separation of

church and state.

In support of this principle, the League has previously filed

briefs in this Court as counsel and as a friend of the court in

numerous cases dealing with the religious liberty clauses of

the first amendment. E.g., Allegheny County v. A.C.L.U., 109

S. Ct. 3086 (1989); Edwards v. Aguillard, 482 U.S. 578

(1987); Hobbie v. Unemployment Appeals Comm'n of Flor-

ida, 480 U.S. 136 (1987); Aguilar v. Felton, 473 U.S. 402

(1985); Wallace v. Jaffree, 472 U.S. 38 (1985); Lynch v.

Donnelly, 465 U.S. 668 (1984); Widmar v. Vincent, 454 US.

263 (1981); Lemon v. Kurtzman, 403 U.S. 602 (1971). The

League is able to bring to this appeal the perspective of a

national organization dedicated to safeguarding all persons’

religious freedoms.

The American Civil Liberties Union (ACLU) is a nation-

wide, nonpartisan organization with 275,000 members dedi-

cated to preserving the principles embodied in the Bill of

Rights, including the separation of church and state. The

ACLU has frequently appeared before this Court on church-

State issues, both as direct counsel and as amicus curiae.

The National Coalition for Public Education and Religious

Liberty is a coalition of individuals and organizations dedi-

cated to a strong public school system which guarantees the

religious liberty of all citizens. In support of these principles,

the National Coalition for Public Education and Religious

Liberty has intervened in many key establishment clause

cases. Edwards v. Aguillard, 482 U.S. 578 (1987); Aguilar v.

Felton, 473 U.S. 402, 412 (1985); Wallace v. Jaffree, 472 US.

38 (1985); and Grand Rapids v. Ball, 473 U.S. 373 (1985).

Members organizations of the National Coalition for Public

Education and Religious Liberty participating in this brief are

listed at appendix B.

The National Jewish Community Relations Advisory Coun-

cil (NJCRAC) is an umbrella organization including the

following national organizations: B'nai B'rith, Hadassah,

Jewish Labor Committee, Jewish War Veterans of the U.S.A.,

National Council of Jewish Women, Union of American

Hebrew Congregations, Union of Orthodox Jewish Congrega-

tions of America, United Synagogue of America/National

Women’s League for Conservative Judaism, Women’s Ameri-

can ORT as well as 117 community member agencies repre-

senting all major Jewish communities in the United States,

listed in appendix A. As the national planning and coordinat-

ing body for the field of Jewish community relations, the

NJCRAC believes that the separation of church and state in

the public schools is an essential bulwark in maintaining the

individual and political equality of all Americans.

This brief is also submitted on behalf of the Committee for

Public Education and Religious Liberty (PEARL), a non-

profit corporation consisting of organizational and individual

members committed to the preservation of the dual principles

of the separation of church and state and the free exercise of

religion as they relate to education in the State of New York.

To effectuate this purpose, PEARL has instituted suits and

submitted briefs amicus curiae in numerous actions arising

under the establishment clause, including Aguilar v. Felton,

473 U.S. 402 (1985); Committee for Public Education and

Religious Liberty v. Nyquist, 413 U.S. 756 (1973); and Levitt

v. Commiitee for Public Education and Religious Liberty,

413 U.S. 472 (1973).

Americans for Religious Liberty (ARL) is a non-profit,

nationwide educational organization whose members

represent the entire religious spectrum. ARL maintains that

strict religious neutrality is required of our public schools by

the first amendment. In support of this principle, ARL has

filed briefs amicus curiae in numerous establishment clause

cases. E.g., Edwards v. Aguillard, 482 U.S. 578 (1987).

INTRODUCTORY STATEMENT AND SUMMARY

OF ARGUMENT

In enacting the Equal Access Act (“EAA”) Congress

expressly rejected this Court’s interpretations of both the free

speech and the establishment clauses of the first amendment.

This Court has long held that the estabiishment clause prohib-

its school-sponsored religious activities in the public schools.

In addition, this Court has recognized that the free speech

clause permits limitations on those forms of student expression

which implicate the voice of government. The EAA rejects

these fundamental principles of first amendment

jurisprudence.

The EAA seeks to equate school-sponsored prayer meetings

with nonreligious school-sponsored activities. This legislative

equation overlooks the establishment clause barrier against

the use of the public schools to promote religion. The EAA

permits, even requires, government to lend both material and

symbolic support to religion, in blatant disregard for this

Court’s longstanding teachings under the establishment

clause. An examination of the text and history of the EAA

and its application to the prayer club involved in this case

demonstrates that the EAA violates core establishment clause

principles by providing government support to religion.

The EAA purports to extend the protection of the free

speech clause to school sanctioned religious activities. Under

the free speech clause, students in this case and in public

schools across the country are free to meet to discuss religious

issues and to pray. But the free speech clause does not require

the public schools to place their imprimatur upon student

religious meetings. By requiring our nation’s public schools to

endorse sectarian activities, the EAA, rather than fostering

religious freedom, threatens individual rights of conscience.

ARGUMENT

I. The Equal Access Act Violates the Establishment Clause

of the First Amendment.

A. Public Schools and the Establishment Clause: The

Lemon Test

The establishment clause of the first amendment mandates

that “Congress shall make no law respecting an establishment

of religion.” In Lemon v. Kurtzman, 403 U.S. 602, 612-613

(1971), this Court developed a now longstanding tripartite

analysis to determine the constitutionality of government

involvement with religion under the establishment clause: the

challenged practice must have a secular purpose, its effect

must neither advance nor inhibit religion, and it must not

foster excessive government entanglement with religion.' A

government action violates the establishment clause if it fails

any one of the three prongs. Edwards v. Aguillard, 482 U.S.

578 (1987).

The Lemon analysis was first articulated in a case involving

government support for religion in education; and this Court

has “relied on Lemon in every case involving the sensitive

relationship between government and religion in the education

of our children.” Edwards, 482 U.S. 578; Grand Rapids v.

Ball, 473 U.S. 373 (1985); Wallace v. Jaffree, 472 U.S. 38

(1985).

B. The Equal Access Act On Its Face and as Applied in This

Case Violates All Three Prongs of the Lemon Test

1. The Purposé of the EAA and of the Christian Bible

Club Meetings at Westside High School is

Religious

a. The EAA’s Religious Purpose

When examining the constitutionality of a statute under the

purpose prong of the Lemon test, this Court examines the

legislation’s “preeminent purpose.” Edwards, 482 U.S. at

'This Court recently reaffirmed the continuing vitality of the Lemon test

in Allegheny v. ACLU, 109 S. Ct. 3086 (1989).

590. In evaluating a statute requiring a religious display in

the public schools, the Court concluded “Kentucky's statute

requiring the posting of the Ten Commandments in public

schoolrooms had no secular legislative purpose and is there-

fore unconstitutional.” Stone v. Graham, 449 U.S. 39 (1980).

Similarly, this Court struck down a legislative attempt to

introduce prayer in the public schools, holding that the statu-

tory provision for a moment of silence was enacted for “the

sole purpose of expressing the State’s endorsement of

prayer....” Wallace, 472 U.S. at 60. More recently, Louisi-

ana’s “Balanced Treatment Act” did not survive constitu-

tional scrutiny because it lacked a secular purpose. Although

the state legislature had articulated a secular purpose, Justice

Brennan, writing for the Court, explained, “it is required that

the statement of such purpose be sincere and not a sham.”

Edwards, 482 U.S. at 587.

As Justice O'Connor explained in her concurring opinion in

Lynch v. Donnelly, 465 U.S. 688 (1984) “[i]he purpose prong

of the Lemon test asks whether government's actua/ purpose is

to endorse or disapprove of religion.” 465 U.S. at 690,

(emphasis added). To determine a statute’s actual purpose,

this Court has focused on the statute’s legislative history. See,

e.g., Wallace, 472 U.S. at 60. An examination of the language

and the legislative history of the EAA demonstrates beyond

any doubt that, notwithstanding its asserted goal of allowing

all students “equal access” to school facilities, the actual

purpose of the EAA is to promote sectarian religious activities

in the public schools.

i. The Origins of the EAA

The EAA was the result of a two year effort, through a

variety of legislative proposals and constitutional amend-

ments, to circumvent this Court’s school prayer decisions, see,

e.g., Engel v. Vitale, 370 U.S. 421 (1962), and to promote

religious activities in the public schools. The original equal

access proposal was introduced in 1982. S.2928 specifically

authorized meetings at the public schools for student religious

groups. $.2928, 97th Cong., 2d Sess., 128 Cong. Rec. 11,719

(1982). This proposal gave way to two proposed constitutional

amendments, the Hatch and Dixon Amendments, which also

sought to introduce prayer into the public schools.’ When

these efforts failed, they gave birth to several legislative initia-

tives. One of the bills, entitled the “Equal Access Act”

provided that it would be unlawful for a school receiving

federal financial assistance to deny “equal access... [to]

students ... that seek to engage in... activities that include

prayer or religious speech on school premises. S.1059, S. Rep.

No. 357, 98th Cong., 2d Sess. 1 reprinted in 1984 U.S. Code

Cong. & Ad. News 2348. The Religious Speech Protection

Act, the immediate precursor to the EAA, also expressly

provided for student prayer meetings in the public schools.’

The religious purpose of the EAA manifested itself in the

floor debates. In struggling to defend the EAA’s deficiencies,

Senator Hatfield, one of its leading proponents, essentially

conceded that the “equal access” concept was an artifice to

escape the establishment clause barrier to the use of the public

schools to promote religion: ““The Senator from Alabama has

spoken about religious activities ... I believe you can... pre-

sent this case as... a matter of freedom of speech and free-

dom of assembly.” See 130 Cong. Rec. $.8337 (daily ed. June

27, 1984). Thus the “equal access” concept was extended to

protect “political, philosophical, or other” types of speech as a

compromise measure to placate those members of Congress

who “feared that protecting any religious speech would run

afoul of the Establishment Clause.” Student Coalition for

S.J. Res. 212, 98th Cong., Ist. Sess. §2, 130 Cong.Rec. 93 (daily ed.

Jan. 24, 1984); S. 2782, 98th Cong., Ist Sess., §§1-2, 130 Cong. Rec. 2678

(daily ed. Mar 4, 1984). In his statement before the Senate Committee on

the Judiciary, Senator Denton explained that equal access measures were

designed “to restore the constitutional right to pray in public schools and

buildings.” Hearings on S.8!5 and S.1059 Before the Senate Comm. on the

Judiciary, 98th Cong., Ist Sess. (1983).

‘The Religious Speech Protection Act provided in part:

It shall be a policy subject to the penalties in section 2 for a public

secondary school receiving federal financial assistance which generally

allows non-school sponsored groups of students to meet, not to discrim-

inate on the basis of the religious content of the speech at such

meetings.

H.R.4996, cited as revised S. 815, 98th Cong., 2d Sess., 130 Cong. Rec.

2433 (daily ed. Mar. 8, 1984).

Peace v. Lower Merion School, 776 F.2d 431, 439 (1985),

discussing 130 Cong.Rec.8336-37 (remarks of Sen. Hatfield).

Senator Mattingly was even more direct: “The purpose of

{the EAA] is, simply and straightforward [sic]—to allow

students in public schools throughout this Nation to meet

voluntarily during noninstructional periods for religious dis-

cussion, or Bible study, or prayer.” Jd. at 8360.‘ He did not

conceal the EAA constituted a legislative maneuver to pro-

mote school prayer:

Earlier this year the Senate debated for several weeks

President Reagan’s constitutional prayer amendment.

Much to my regret, and I am sure to many of my

colleagues in the Senate, President Reagan’s amendment

failed to receive the necessary two-thirds majority vote

for passage.

Following the vote I expressed my disappointment in the

outcwme of the prayer amendment. However, | also

expressed my desire for the Senate to take the next step

toward restoring ... religion in the schools—which is to

ensure that students are provided equal access to school

facilities for voluntary religious activities.

Id. at 8361.

To believe the EAA was actually intended to enhance stu-

dent free speech rights, one would have to overlook thé exten-

sive history reflecting Congressional efforts to promote relig-

ion in the public schools. As reflected in this legislative

history, the EAA “was not motivated by any clearly secular

purpose.” Wallace, 472 U.S. at 56. “[W]e need not be blind

in this case to the legislature’s preeminent religious purpose in

‘The general perception of the religious purpose of the EAA is also

captured in the media's reference to it as “the Son of School Prayer.”

President Signs a Bill To Permit Prayer in Schools, New York Times.

Aug. |, 1984, at A24, col. 1.

‘For added analysis of the religious purpose of the EAA as reflected in its

legislative history, see Teitel, The Unconstitutionality of Equal Access

Policies and Legislation Allowing Organized Student-Initiated Religious

Activities in the Public High Schools, 12 Hastings Const. L.Q. 529 (1985).

enacting this statute.” Edwards, 482 U.S. at 590. The legisla-

tive history of the EAA reveals the statute lacks the constitu-

tionally required secular purpose.

ii. The Language of the EAA

Although the EAA is ostensibly intended as a measure to

protect all student speech equally, its very text reveals its

impermissible religious purpose. The Act purports to protect

the right of students to meet for discussions on all philosophi-

cal, political and religious subjects. Significantly, however, the

majority of the EAA’s provisions are devoted to circumventing

the constitutional barriers to government sponsored religious

activities in the public schools. In seeking to protect religious

meetings, the EAA has the paradoxical effect of limiting,

rather than enhancing, all other nonreligious student activities

in the public schools.

For example, the EAA specifies that student meetings can-

not be sponsored by the school, government, or its agents or

employees. 20 U.S.C. §4071(c)(5). This statutory provision is

irrelevant to a meeting of typical youth organizations such as

the noncurricular clubs stipulated to this case.* No social,

educational or constitutional propose is served by preventing

the public schools from sponsoring, and even encouraging,

student attendance at such meetings. To the contrary, the

value of such clubs is only diminished by depriving them of

school sponsorship.

The EAA goes on to require that for the purpose of creating

a limited open forum, “nonschool persons may not direct,

conduct, control or regularly attend the meetings.” 20 U.S.C.

§4071(c)(S). Once again, this provision is irrelevant, even

counterproductive, to all student clubs other than sectarian

religious groups. A 4-H club does not need the protection of

the EAA to meet at school, but under the EAA, it could be

prohibited from inviting a local farmer to lead a discussion on

agricultural subjects. While purporting to protect students’

‘The noncurricular clubs at Westside include: the ski club. a chess club. a

surfing club, and service clubs, such as Welcome to Westside, Zonta and

Interact. J.A. 297-307.

rights of free expression, the EAA ironically limits the availa-

bility of information and means of expression in the schools by

extending the constitutional prohibition against school support

for religion to all student clubs.

The provisions of the EAA which specifically address relig-

ious activities conclusively demonstrate that its actual purpose

is to promote religion, and not to broaden free expression in

the public schools. Sections 4071(d)(1), (2) and (3) prohibit

school officials from influencing the form of religious activity,

requiring any person to participate in religious activity and

expending public funds on student meetings. These provisions

are material only to those student meetings which are religious

_and likely to conflict with this Court’s longstanding decisions

prohibiting the use of the public schools to promote religion.

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

(1963); Engel v. Vitale, 370 U.S. 421 (1962); McCollum v.

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

School sponsored student meetings which are not religious

in nature do not need the protection of the EAA. Further,

individual religious student expression does not need the pro-

tection of the EAA. See Tinker v. Des Moines Indep. Com-

munity School Dist., 393 U.S. 503 (1969). Accordingly, it is

specious to argue that the EAA’s purpose is to protect student

rights of free expression. The EAA’s exclusive purpose is to

protect school sponsored religious meetings.

By enacting the EAA, Congress provided statutory support

to those religious faiths seeking governmental support for their

worship and proselytizing efforts. The true purpose of the

EAA is to eviscerate the constitutional mandate forbidding

the use of the public schools to promote religion. “[W]hen the

State enacts a law to serve a religious purpose. . . [its] govern-

mental intention to promote religion is clear.” Edwards, 482

US. at 585.

b. The Religious Purpose of the Student Meetings

at Westside High School

Though respondents strain to characterize the Christian

club as a component of the secular educational goals of West-

side High School (“Westside”), the record clearly demon-

strates that the club is devoted to essential Christian purposes.

Bridget Mergens conceded below that she organized the Bible

club not only to engage in the quintessentially religious activi-

ties of prayer and fellowship, but also because she wanted to

promote Christianity to non-religious students at Westside.

J.A. 75. Prayer and proselytizing are religious activities. See

Engel v. Vitale, 370 U.S. at 424; Cantwell v. Connecticut, 310

U.S. 296 (1940).

Proselytizing is an imporiant part of the Christian Bible

club’s activities. One club member explained that he attended

the Bible club meetings not only because it allowed him to use

Westside to further his development as a Christian, but

because the club also enabled him to assist others to “become

Christians.” J.A. 185. Another club member similarly testi-

fied that the club fit in with her involvement in a program

called “Evangelism Explosion,” which is devoted to telling

others about “Jesus Christ and how he has affected our life.”

Trial Transcript at 232. A Christian Bible club organized to

engage in prayer and to attract converts serves an exclusively

religious purpose.

2. The EAA Has the Primary Effect of Promoting

Religion

a. Use of School Resources atm

Though this Court has-not yet considered the constitution-

ality of school sponsored student worship in the public schools,

similar religious practices have not withstood constitutional

scrutiny. In McCollum, the Court held the establishment

clause prohibits religious groups from taking advantage of the

state’s public school machinery to further their sectarian

goals:

The operation of the state’s compulsory education system

thus assists and is integrated with the program of relig-

ious instruction carried on by separate religious sects. .. .

This is beyond all question a utilization of the tax-estab-

lished and tax-supported public school system to aid

religious groups to spread their faith. And it falls

squarely under the ban of the First Amendment.

333 U.S. at 209-210. The establishment clause bars the state

from “employ[ing] its facilities or funds in a way that gives

any church, or all churches, greater strength in our society

than it would have by relying on its members alone.” Abing-

ton, 374 US. at 229.

Westside conducts a club fair in its gym each year under the

direction of the assistant principal at which clubs aggressively

recruit new members. J.A. 422 et. seg. Requiring the school

to allow respondents to exploit a school-sponsored fair con-

ducted in the school’s gymnasium to win converts clearly

involves the “utilization of the tax-established and tax sup-

ported public school system to aid religious groups.” McCol-

lum, 333 US. at 210.

Though the EAA seeks to justify organized religious activi-

ties by characterizing prayer meetings and proselytizing as

“student-initiated,” the establishment clause proscription on

the use of public school resources to promote religion in no

way depends upon who initiates the religious activities. Under

the establishment clause, it is immaterial whether students,

teachers, or outsiders initiate the religious activities. See 12

Hast. Const. L. Q. 529, supra note 5. The religious activities

held unconstitutional in McCollum originated with private

individuals, not state officials, but the Court recognized that

the exploitation of state resources for religious purposes and

the accompanying appearance of government support for

religion violated the establishment clause.

b. The Imprimatur of Government

The EAA not only sanctions the use of public school

resources to advance religion, it also violates the establishment

clause by requiring the public schools to place their imprima-

tur on religious activities. The EAA permits the students at

Westside and at public secondary schools across the country to

obtain their school’s official sponsorship and recognition of

sectarian clubs devoted to worship and proselytizing. 20

U.S.C. §4071(b). Conducting religious activities under the

school’s formal auspices and with school approval creates the

impression that government endorses those sectarian practices

or beliefs.

More than forty years ago, the Court recognized that the

public school constitutes “the symbol of our democracy.”

McCollum, 333 U.S. at 231. In Engel, Justice Black wrote

that activities which place the government's “official stamp of

approval” on religion represent “one of the greatest dangers to

the freedom of the individual to worship in his own way.” 370

US. at 429.

More recently, this Court explained in Grand Rapids:

Our cases have recognized that the Establishment Clause

guards against more than direct, state-funded efforts to

indoctrinate youngsters in specific religious beliefs. Gov-

ernment promotes religion as effectively when it fosters a

close identification of its powers and responsibilities with

those of any—or all—religious denominations as when it

attempts to inculcate specific religious doctrines. If this

identification conveys a message of government endorse-

ment or disapproval of religion, a core purpose of the

Establishment Clause is violated.

473 U.S. at 389. In Grand Rapids, the Court concluded the

challenged programs violated the establishment clause in sev-

eral ways. Not only did they provide a government subsidy to

religion, permitting state-funded religious indoctrination, but

they also created the unconstitutional appearance of a “sym-

bolic union of church and state.” Jd. at 397. The EAA

provides for a similar union of church and state. When a

public high school provides official sponsorship to sectarian

activities, government becomes unconstitutionally allied with

religion. See Abington, 374 U.S. at 224; see also Larkin v.

Grendel's Den, 459 U.S. 116, 125-126 (1982).

Every federal appellate court to review the constitutionality

of “equal access” religious activities in the public schools, with

the sole exception of the court below, has held that such

activities violate the establishment clause by placing the gov-

ernment’s imprimatur on religion. Garnett v. Renton Sch.

Dist., 865 F.2d 1121 (9th Cir. 1989), Bender v. Williamsport

Area Sch. Dist., 741 F.2d 538 (3d Cir. 1984), vacated on

other grounds, 475 U.S. 534 (1986); Bell v. Little Axe Indep.

Sch. Dist., 766 F.2d 1391 (10th Cir. 1985); Nartowicz v.

Clayton County Sch. Dist., 736 F.2d 646 (11th Cir. 1984):

Lubbock Civil Liberties Union v. Lubbock Indep. School

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

1159 (1983); Brandon v. Bd. of Ed., 635 F.2d 971 (2d Cir.

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

In Bender, the Court of Appeals for the Third Circuit

explained:

Since it is the public schools which provide the most

prolonged and involved contact which youth enjoy with

the state, and indeed, for many, the public schools may

appear as an institutional symbol of government in gen-

eral, any practice which communicates sanction by the

school of religious activity amounts to an Establishment

Clause violation.

741 F.2d at 555. Most recently, the Ninth Circuit, addressing

a nearly identical factual setting, held the use of igh school

facilities to conduct student prayer meetinss impermissibly

advances religion because the meetings are school recognized

and thus enjoy school sponsorship. The circuit recognized the

many distinctions between the setting of a public secondary

school and the university setting presented in Widmar v.

Vincent, 454 U.S. 269 (1981):

Unlike university students, high school students are

required to attend school. The instructional format at a

high school is far more structured than at a univer-

sity.... Teachers at high school, unlike college profes-

sors, are both educators and authority figures. The same

considerations that mandate special vigilance in prevent-

ing religious establishments in public schools—the

impressionability of young students, compulsory attend-

ance laws that make students a captive audience, and the

role of public schools in inculcating democratic ideals—

distinguish public secondary schools from public universi-

ties. The religious activity proposed in this case, which

would take place at a time closely associated with a

highly structured school day, would be far more likely to

appear to enjoy school sponsorship than a group on a

college campus.

865 F.2d at 1125-1126. See Lubbock, 669 F.2d at 1045.

({A]llowing religious meetings at a time closely associated

with the beginning or the end of the school day... carries

with it the implicit approval by school officials.... This

renders the primary effect of the policy impermissible

advancement of religion).

To our nation’s students, the public school is a symbol of

government. McCollum, 333 U.S. at 231. This Court and the

overwhelming majority of federal appellate courts have held

that permitting organized religious activities in the public

schools violates the establishment clause by conferring the

government’s imprimatur upon those sectarian activities. By

requiring a school to recognize a school religious club when

the school provides for even a single “non-curricular club, 20

U.S.C. §4071(a), the EAA only exaceroates the impression of

state sponsorship of religion. In a school at which there is only

one other student club, and the school’s sanction, therefore, is

not diffused through a variety of student organizations, the

EAA-required school promotion of a religious club under-

scores the appearance of unconstitutional government spon-

sorship of religion.

c. The Effect of School-Endorsed Prayer on

Students

By requiring the public schools to endorse religious clubs,

the EAA threatens the religious liberty of all those students

who are not members of the endorsed religion. Justice

O'Connor has articulated the rationale underlying the frst

amendment’s mandate against government endorsemen! oc.

religion:

The endorsement test does not preclude government f rom

acknowledging religion or from taking religion into

account in making law and policy. It does preclude

government from conveying or attempting to convey a

message that religion or a particular religious belief is

favored or preferred.

Wallace, 472 U.S. at 70. in her concurring opinion in Lynch,

Justice O'Connor wrote:

Endorsement sends a message to nonadherents that they

are outsiders, not fuli members of the political commu-

nity, and an accompanying message to adherents that

they are insiders, favored members of the political

community.

465 US. at 669.

This Court recently reaffirmed the significance of this test

in Allegheny v. A.C.L.U, 109 S. Ct. 3086. Writing for the

Court, Justice Blackmun defined the establishment clause

inquiry in part as whether nonadherents are likely to perceive

the challenged governmental action as a disapproval of their

individual religious choices. Jd. at 3101-3103. In his dissent,

Justice Kennedy agreed the establishment clause proscribes

an activity which “would place the government's weight

behind an obvious effort to proselytize on behalf of a particu-

lar religion.” Jd. at 3137.

When a public school endorses a sectarian student group,

students will be influenced to adopt the school endorsed prayer

club's beliefs to meet what they perceive to be the school’s

expectations. As the Court of Appeals for the Second Circuit

observed in Brandon:

An adolescent may perceive “voluntary” school prayer in

a different light were he to see the captain of the schools

football team, the student body president, or the leading

actress in a dramatic production participating in commu-

nal prayer meetings in the “captive audience” setting of a

public school.

635 F.2d at 978. Justice Frankfurter expressed the same view

in McCollum, “(t]he law of imitation operates, and non-

conformity is not an outstanding characteristic of children.”

333 U.S. at 227. The EAA only increases this pressure to

conform by requiring schools to place their authority behind

student religious clubs.

In enacting the EAA, Congress did more than pass uncon-

Stitutional legislation designed specifically to advance the

religious needs of certain sectarian groups. See Larson v.

Valente, 456 U.S. 228 (1982). The EAA also threatens the

religious liberty of nonadherent students. In the public school

context, students who choose not to participate in school

sanctioned religious meetings become outsiders in their own

community. These serious social consequences are especially

problematic since secondary school students are compelled by

law to attend school. The establishment clause prohibits the

government from diminishing anyone’s stature in the commu-

nity on the basis of their religious choices. Allegheny, 109 S.

Ct. at 3102.

d. The Effect of the Christian Club at Westside:

School Sanctioned Prayer

Though respondents freely engage in informal religious

meetings at Westside, in the present action they expressly seck

the school’s formal endorsement of their sectarian activities

through the school’s official recognition and sponsorship of

their club. J.A. 141, 428. Requiring official school sponsorship

of the Christian Bible club would give rise to a blatant form of

‘state sponsorship of religion.

Westside students testified they pray informally as a group

~—and discuss religious matters without interference from school

officials. J.A. 106, 136.’ Dr. Findley, Westside’s Principal,

told the students they could meet informally at school for

religious purposes. J.A. 428. Unsatisfied with such meetings,

however, respondents now demand that the school place its

formal sanction on their sectarian activities. J.A. 141, 428.

Under Westside’s policy, every student club is officially

sponsored by the school. J.A. 488. School Board Policy 5610,

which governs Westside, provides, in pertinent part:

The Board of Education regards student clubs and orga-

nizations as a vital part of the total education program as

a means of developing citizenship, wholesome attitudes,

good human relations, knowledge and skills.

School-sponsored clubs and organizations are those

directly under the control of the school administration,

and shall have faculty sponsorship. The Superintendent

shall establish guidelines for clubs and organizations

which shall function for the welfare and best interest of

the students and the school.

"In addition, they meet for fellowship and prayer in each other's homes

and at church. J.A. 140.

Such clubs and organizations shall not be sponsored by

any political or religious organization, or by any organi-

zation which denies membership on the basis of race

color, creed, sex or political belief.

Id. (emphasis added).

Dr. Findley testified that under this policy, the Christian

club would involve school sponsorship. He explained: “We've

always had a sponsor in charge of a club and . . . we've always

encouraged kids’ participation in clubs and activities. In

fact... when I talk to parents I emphasize the importance of

being involved.” J.A. 425. A sectarian club at Westside would

necessarily receive the official support of the school

administration.

Respondents do not seek the right to engage in prayer:

instead, they seek the school’s endorsement of their sectarian

activities. Nothing prevents the students at Westside from

meeting on school premises or outside of school to pray. What

the establishment clause forbids is the formal governmental

sanction of these religious meetings. The first amendment

“has never meant that a majority could use the machinery of

the state to practice its beliefs.” Engel, 374 U.S. at 226.

3. The EAA and its Application in this Case Fosters

Unconstitutional Entanglement of Government and

Religion

a. The EAA

When religious activities take place within the highly super-

vised context of a public school, the school inevitably becomes

entangled with religion. In Lemon, the Court recognized the

entanglement which flows from “putting the school in a posi-

tion of governance over religious activity.” 403 U.S. at 621-

622. Aguilar v. Felton, 473 U.S. 402, 412 (1985).

The EAA provides for the “nonparticipatory” presence of

public employees at student meetings. 20 U.S.C. §407]

(c)(3). The lower courts have consistently recognized that

faculty supervision of student religious activities creates a

level of administrative entanglement with religion which ren-

ders school-supervised student worship unconstitutional. In

Garnett, the Ninth Circuit said “the necessary supervision of

student activities by teachers” makes it likely that government

and religion will become excessively entangled. 865 F.2d at

1126. The Second Circuit has similarly concluded, . if the

state must engage in continuing administrative supervision of

nonsecular activity, church and state are excessively inter-

twined.” Brandon, 635 F.2d at 979. See also Bender, 74)

F.2d at 556-557; Lubbock, 669 F.2d at 1047; Collins v.

Chandler, 644 F.2d 759 (9th Cir. 1981); Trietley v. Board of

Ed., 65 A.2d 1, 409 N.Y.S. 912 (1978).

Under the EAA, there is added unconstitutional entangle-

ment because the schools must monitor student religious

meetings to ensure they remain “student-initiated. | 20

U.S.C. §4071(c)(1). Excessive entanglement inheres in the

constant surveillance needed to guarantee that student partici-

pation in prayer meetings remains free of coercion. Lubbock,

669 F.2d at 1047.

b. The Application of the EAA in the Present Case

Would Result In Excessive Entanglement

Between Government and Religion

Pursuant to Westside’s policy and practice, its student clubs

are an integral part of the school’s program. Policy 5610

requires that every student club have a faculty sponsor. J.A.

188. Such faculty supervision engenders entanglement

between the school and religion. “[T]he very restrictions and

surveillance necessary to ensure that teachers play a strictly

nonideological role give rise to entanglements between church

and state.” Lemon, 403 US. at 620-621.

The fundraising activities of student clubs at Westside pre-

sent added entanglement concerns. J.A. 353, 357. School

officials would have to engage in pervasive monitoring to

ensure that the funds raised by the Christian club representing

the school in the outside community are not employed for

sectarian purposes. Such close government supervision of the

daily activities of a religious organization “infringes precisely

those establishment clause values at the root of the prohibition

of excessive entanglements.” Aguilar, 473 U.S. at 412.

The constitutional prohibition against entanglements

between government and religion arises from the historical

concern over social divisiveness along religious lines. Lemon,

430 US. at 624." The public schools symbolize our democ-

racy, and “[i)n no activity of the state is it more vital to keep

out divisive forces than in the schools.”” McCollum, 333 US.

at 231. Justice Brennan expressed this concern eloquently in

his concurring opinion in Abington:

[T]he American experiment in free public education

available to all children has been guided in large measure

by the dramatic evolution of the religious diversity among

the population which our public schools serve. The inter-

action of these two important forces in our national life

has placed in bold relief certain positive values in the

consistent application to public institutions generally, and

public schools particularly, of the constitutional decree

against official involvements of religion which might pro-

duce the evils the Framers meant the Establishment

Clause to forestall... .

374 U.S. at 241-242. School sponsorship of sectarian activi-

ties under the EAA fosters social divisiveness and undermines

the welfare of our country’s unparalled religious diversity.

II]. Widmar v. Vincent Does Not Apply to Public

Secondary Schools.

Widmar v. Vincent, 454 U.S. 263 (1981), held that the

establishment clause did not prevent a religious group from

meeting at the University of Missouri. The Court found that

by making its facilities “generally available” to more than 100

Student groups, the university had created a public forum.

*While the Court appears to have limited its concern over the constitu-

tional significance of societal divisiveness along religious lines to the context

of cases involving direct financial aid to religion, see Lynch, 465 US. at

685, such parameters have not been articulated in the context of the public

schools, which present unique divisiveness concerns. See Abington, 374

U.S. at 242; McCollum, 333 U.S. at 227 (Brennan J., concurring)

Absent a compelling state interest, the exclusion of a speaker

from such a forum would violate the Constitution. 454 U.S. at

270.

The EAA seeks to apply Widmar to the context of public

secondary schools.’ In the present case, the court below

simply accepted Congress’ extension of Widmar. 867 F.2d -

1080. By extending Widmar beyond its facts, however, the

EAA ignores essential constitutional distinctions between a

public secondary school and a public university under both the

establishment and free speech clauses. A comparison of the

facts of the present case with those in Widmar illustrates the

errors in extending Widmar to the vastly different setting of a

public school.

In Widmar, the Court emphasized that the student meet-

ings conducted on the campus of a state university did not

involve the government's official stamp of approval: First, an

open forum in a public university does not confer any impri-

matur of state approval on religious sects or practices. 454

U.S. at 274. While a public university may constitute a public

forum, the campus of a public secondary school rarely if ever

possesses these characteristics. Hazelwood School Dist. v.

Kuhimeier, 484 US. __, 108 S. Ct. 562 (1988); Perr)

Education Ass'n. v. Perry Local Educators’ Ass'n, 460 US.

37 (1983).

iversity i f unrestricted

The University of Missouri had a policy o :

access to campus facilities. 454 U.S. at 267. As this Court

noted, that policy effectively disassociated the university from

the message of any of the student groups which met on

campus:

[S]uch a policy “would no more commit — the

University . . .to religious goals” than it is “now

*During Congressional hearings, Senator Hatfield stated: “This oill is a

asientimaaamae to apply the Supreme Court's decision in oma

v. Vincent, 454 U.S. 263 (1981) to public schools which receive a

aid.” Hearings on S.815 and S.1059 Before the Senate mona Po the

Judiciary, 98th Cong., Ist Sess. (1983)(prepared statement of pod

Hatfield). See S. Rep. No. 357, 98th Cong., 2d Sess., reprinted in

U.S. Code Cong. & Ad. News 2348, analyzed in Stud. Coalition for Peace

v. Lower Merion School, 776 F.2d 431, 439. (3d Cir. 1985).

committed to the goals of the Students for a Democratic

Society, the Young Socialist Alliance.” or any other

group eligible to use its facilities.

Id. at 274. Public secondary schools are considered to be

public forums only if school officials have allowed them to

become open to “indiscriminate use by the general public.”

Hazelwood, 108 S. Ct. at 569.

In contrast to the policy of the University of Missouri,

which provided for indiscriminate access of student organiza-

tions, Westside’s Policy 5610 excludes clubs which embrace

discriminatory standards and those which are sponsored by

any religious organization. J.A. 488. Further, Policy 5610

provides: “student clubs and organizations [are] a vital part

of the total education program as a means of developing

citizenship, wholesome attitudes, good human relations.

knowledge and skills.’ Jd. emphasis added. Pursuant to this

policy, Westside has promoted various skills-training clubs

such as chess and photography, service clubs, such as Interact

and Zonta, and civic clubs, such as student government. The

subject matter of these clubs reflects the special educational

and civic goals of the public schools. See Hazelwood. 108 S.

Ct. at 570. Since Westside clearly regulates the use of its

facilities by students, the school does not constitute a public

forum. /d. at 562.

Furthermore, the students in Widmar were not compelled

by law to attend the University of Missouri. In contrast,

attendance for high school students is mandated by state law.

Garnett, 865 F.2d at 1125; Bender, 741 F.2d at 548. Obvi-

ously, the establishment clause prohibits government from

transporting citizens to and from worship services at a govern-

ment-owned and maintained facility at public expense. See

McCollum, 333 U.S. at 209-210. The EAA, however.

requires the public schools to provide exactly this support to

students who wish to pray at Westside.

Westside also differs from a public university in that Policy

5610 requires the presence of a faculty sponsor at student

meetings, thus placing the authority of government over stu-

dent religious activities. The circuit courts have repeatedly

noted the significance of this distinction. The Ninth Circuit

pointed out in Garnett that “the student groups allowed to

meet in Widmar, ...did not need supervision or monitoring

by government employees. 865 F.2d at 1126. In Bender, the

Third Circuit emphasized:

[ijt is readily apparent that a school teacher or somebody

associated with the school necessarily must impart the

impression to students that the school’s authority and the

school’s endorsement is implicated in the relevant activ-

ity.... Even a parent undertaking the role of monitor

would necessarily be perceived as a school authority. It

goes without saying that no such authority figure or

government endorsement was part of the Widmar activ-

ity program....

74] F.2d at 552-553. See Little Axe, 766 F.2d at 1405;

Nartowicz, 736 F.2d at 648; Lubbock, 669 F.2d at 1047;

Brandon, 635 F.2d at 978.

Most important, as this Court pointed out in Widmar:

University students are, of course, young adults. They

are less impressionable than younger students and should

be able to appreciate that the University’s policy 1s one of

neutrality toward religion.

454 US. at 275 n. 14. The distinction drawn in Widmar

reflects this Court’s emphasis on the impressionability of pub-

lic school students. In his concurring opinion in Abington,

Justice Brennan noted that the difference in student ages

“warrants a difference in constitutional results.” 374 U.S. at

253. More recently this Court said in Edwards:

Families entrust public schools with the education of

their children; but condition their trust on the under-

standing that the classroom will not purposely be used to

advance religious views that may conflict with the private

beliefs of the student and/or his or her family Students

in such institutions are impressionable and their attend-

ance is involuntary.... The State exerts great authority

and coercive pewer through mandatory attendance

requirements, and because of the students’ emulation of

teachers as role models and the children’s susceptibility

to peer pressure.

482 US. at 584 (citations omitted).

The circuit courts also have consistently evidenced this

concern. In Lubbock, the Fifth Circuit recognized that the

“impressionability of secondary and primary age school chil-

dren and the possibility that they would misapprehend the

involvement of the [school]” in religious meetings rendered

such activities unconstitutional. 669 F.2d at 1045. See also

Brandon, 635 F.2d at 978 (“To an impressionable student,

even the mere appearance of secular involvement in religious

activities might indicate that the state has placed its imprima-

tur on a particular religious creed. This inference is too

dangerous to permit’’).

Widmar simply does not apply to the vastly different setting

of a public high school. See Stone, The Equal Access Contro-

versy. The Religion Clauses and the Meaning of Neutrality.

81 Nw.U.L. Rev. 168, 172 (1986). By attempting to extend

Widmar beyond its facts, the EAA misstates the free speech

principles underlying that decision, and contravenes the estab-

lishment clause by allowing sectarian student groups to use

the public secondary schools to promote religion.

IV. The Court of Appeals Erred in Deferring to Congress’

Fact-Finding on a Matter of Constitutional Law.

Without engaging in any independent judicial inquiry, the

court below merely accepted Congress’ extension of Widmar

to the public schools. Ignoring the many distinctions between

the limited government role in the public university in

Widmar and the significant role of government at Westside.

the court below focused solely on the differing age levels of the

students, and summarily concluded, “Congress considered the

difference in the maturity levels of secondary and university

level students before passing the EAA. We accept Congress’

factfinding.” 867 F.2d at 1080.

By deferring to Congress’ “fact-finding” and its interpreta-

tions of both the free speech and establishment clauses of the

first amendment, the court of appeals departed from its

responsibility to apply the principles of ~onstitutional law

developed by this Court. While deference to Congress may be

appropriate in areas such as commercial regulation, see

United States v. Carolene Products, 304 U.S. 144 n. 4 (1938),

this Court has rejected the proposition that the judiciary

should accede to the legislature’s interpretation of the Consti-

tution: “To the extent that the government suggests that we

should defer to Congress’ conclusion about an issue of consti-

tutional law, our answer is that while we do not ignore it, it is

our task in the exd to decide whether Congress has violated

the Constitution.” Sable Communications of California, Inc.

v. F.C.C., 109 S. Ct. 2829, 2838 (1989). See also Landmark

Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978),

(“‘[djeference to a legislative finding cannot limit judicial

inquiry when First Amendment rights are at stake’’).

A constitutional determination is “in large part a legal

question to be answered on the basis of judicial interpretation

of social facts.” Lynch, 465 U.S. at 694 (O'Connor. J., concur-

ring). The inquiry is a highly fact-sensitive one which empha-

sizes the specific context of the challenged government

involvement with religion. Allegheny, 109 S. Ct. at 3102.

3103. In establishment clause cases involving educational

settings, this Court has long recognized the constitutional

distinctions presented by the divergent contexts of a university

and a public school. Compare Tilton v. Richardson, 403 U.S.

672 (1971) with Grand Rapids, 473 U.S. 373. The court

below erred in accepting without any judicial analysis Con-

gress’ “findings” concerning the EAA and its application to

the setting of a public school.

V. Westside is Not Compelled by the Free Speech

Clause of the First Amendment To Sponsor

the Christian Bible Club.

A. The Free Speech Clause Does Not Require the Pub-

lic Schools to Sponsor Religious Expression

In an effort to buttress their statutory claim, respondents

attempt to cast this case in free speech terms. Yet as respon-

dents readily concede, school officials have expressly permit-

ted them to meet at the school. J.A. 450; 428. School officials

have never attempted to dictate either the form «r substance

of their meetings. Respondents’ only complaint, therefore, is

that their meetings have not received the official imprimatur

of school sponsorship that other clubs receive. What is at

stake in this case is whether or not respondents have a consti-

tutional right to become the Westside High School Christian

Bible Club.

Nothing in the first amendment guarantees that right. To

the contrary, the use of the school’s name in connection with

an inherently religious activity would raise obvious and

profound establishment clause problems. See Section |,

supra. These constitutional problems are not vitiated by the

Eighth Circuit’s erroneous application of Widmar’s public

forum analysis to this case. None of the student clubs at the

University of Missouri were school sponsored; accordingly,

Widmar is entirely silent on the question of school sponsorship

of student clubs, the issue now before this Court. Widmar

holds that a state university cannot selectively deny access to

Student groups wishing to meet for purposes of religious

expression. Westside has provided such access in this case.

Whether Westside created “‘a limited open forum” by sponsor-

ing certain student clubs pursuant to school board policy is

inapposite.

B. Westside’s Sponsorship of a Christian Club Would

Constitute Government Speech and Would Promote

a Religious Viewpoint

. This Court has affirmed there is no first amendment right to

incorporate religious doctrine in the public school curriculum.

Smith v. Board of School Com'rs, 827 F.2d 684 (11th Cir.

1987), affd, __ U.S. __ (1988). In regard to other school

activities, this Court has recognized the distinction between

the constitutional protection of student free speech rights and

“whether the First Amendment requires a school affirmatively

to promote particular student speech.” Hazelwood, 108 S.Ct.

at 569."° If the Hazelwood School District has discretion over

the contents of its school newspaper in order to avoid the

impression of official school sponsorship, given the express

prohibition on religious endorsement contained in the estab-

lishment clause, Westside cannot be constitutionally com-

pelled to sponsor a student Christian club.

"See generally Yudof, When Government Speaks: Toward a Theory of

—* Expression and the First Amendment, 57 Tex. L. Rev. 863

(1979).

In eschewing sponsorship of religious clubs, Westside main-

tains a policy of religious neutrality, and not hostility toward

religion." There is no basis for respondents’ allegations that

the school has discriminated against their particular religious

viewpoint. Neither Westside’s curriculum nor any of its clubs

express any viewpoint whatsoever on religion. Cf. Tinker v.

Des Moines, 393 U.S. 503 (1969).

C. Non-Recognition of the Christian Club Does Not

Infringe Student Free Speech Rights

1. Equal Endorsement v. Equal Access

Respondents do not seek “equal access” to school facilities.

Instead, they seek “equal status” to become the Westside

High School Christian Club. See J.A. at 157, 244, 454. They

want Westside to express their private sectarian messages as

the school’s message. While neither students nor teachers

check their first amendment rights at the school house door,

neither do they there obtain the right to commandeer the

state’s imprimatur and resources in support of their personal

sectarian views. See, e.g., Mary May v. Vanderburgh, 787

F.2d 1105 (7th Cir. 1986). Such government endorsement has

no analogue in the larger community. Stewart, The First

Amendment, the Public Schools and the Inculcation of Com-

munity Values, 18 Journal of Law and Education 23, 28

(1989). In fact, the establishment clause forbids such govern-

mental support for religious messages. There is a constitu-

tional difference between a private religious club and a school

sanctioned one. See, e.g., Perumal v. Saddlebrook, 243 Cal.

Rptr. 545 (Cal. App. 4 Dist.), cert. denied, 109 S.Ct. 327

(1988). Respondents would blur that distinction. Respon-

dents want to compel Westside to express their personal relig-

ious viewpoints as the message of the public school.

"To suggest otherwise is to overrule longstanding court precedent man-

dating separation of church and state in the public schools. See, e.g.

Wallace, 472 U.S. at 60. The principle of separation of church and state

does not constitute hostility toward religion. See Abington, 374 US. at

215. See also Smith v. Board of Commissioners, 827 F.2d 684 (11th Cir.

1987).

2. Respondents’ Religious Expression

Furthermore, the students are not deprived of the means of

religious expression. They are free to meet as a group for

religious purposes at school, J.A. 428,450, and they meet

several nights each week in their homes. They also worship in

the neighboring Westside Community Church. J.A. 140-141.

As Justice Brennan pointed out in his concurring opinion in

Abington, “(t]he student’s compelled presence in school for

five days a week in no way renders the regular religious

facilities of the community less accessible to him than they are

to others.” 374 U.S. at 299. The constitutional barrier to the

use of public school facilities to promote religious activity does

not impair the students’ ability to engage in prayer “outside of

the school premises and at times other than during school

hours.” Bender, 741 F.2d at 560. Westside’s policy in no way

prevents respondents from practicing their religion.

3. The School Cannot Disclaim a Religious

Endorsement

Finally, if Westside endorses a Christian club as a school

club, as a constitutional] matter, that endorsement cannot be

disclaimed. In Allegheny, this Court recognized that such a

disclaimer would simply demonstrate that, rather than com-

municating a message of its own, “the government is endors-

“ing the religious message of that organization.” 109 S. Ct. at

3105. “But the establishment clause does not limit only the

religious content of the government’s own communications. It

also prohibits the government's support and promotion of

religious communication by religious organizations.” Jd. If

respondents succeed in establishing the Westside High School -

Christian Bible Club, they will have succeeded in compelling

the school to endorse their religious views, without any free

speech basis and contrary to the establishment clause.

D. School Religious Clubs Undermine the Public School's

Ability to Foster Democratic Values of Equality and

Tolerance.

To “prepar(e] .. . individuals for participation as citizens.”

our nation’s public schools bear “the obligation to promote

civic virtues.” Ambach v. Norwick, 441 U.S. 68, 76 (1979).

These “civic virtues” are those democratic principles which

enable us to coexist as citizens in a pluralistic society. See

Bethel v. Fraser, 478 U.S. 679, 682 (1986); Bd. of Educ. v.

Pico, 457 U.S. 853 (1982). See generally Yudof, supra

note 10. To this end, the school’s educational purpose is not

value-free. Principles of racial and religious equality as well as

religious tolerance are fundamental to our system. See, e.g.,

The Declaration of Independence, Art. 1. This Court has

emphasized repeatedly that it is the function of the public

schools to promote these values. See, e.g., Brown v. Bd. of

Ed., 347 U.S. 483 (1954); see Abington, 374 U.S. 203.

There is no basis in either law or policy for respondents’

claim to an “equal access” right to compel Westside to pro-

mote a particular religious message. See Hazelwood, 108 S.

Ct. at 570; Smith v. Bd. of Commissioners, 827 F.2d 684. For

example, nothing compels a school to sponsor an apartheid

club in order to balance out the principles of nondiscrimina-

tion taught in the classroom. See, e.g., Smith v. St. Tammany

Parish Board, 316 F. Supp. 1174 (E.D. La. 1970), aff'd, 448

F. 2d 414 (8th Cir. 1971)."

The public schools foster those values which allow students

of different races and religions to study, work, and live

together in harmony. In order to foster the habits of citizen-

ship, it is essential to maintain separation of church and state

in our public schools. Our nation’s unparalleled religious

diversity and freedom flourishes when personal religious

choices are made free of pressure from governmental institu-

tions.” Allowing a sectarian group to use the public school

system to promote its beliefs and to proselytize interferes with

an individual's freedom of conscience, and impedes the public

schools’ ability to promote “cohesion among a heterogeneous

democratic people.” McCollum, 333 U.S. at 216 (Frank-

furter, J. concurring).

“While the first amendment may protect the right of the Ku Klux Klan

to meet at public schools when they are functioning as forums open to the

community, see, e.g., Knights of the KKK v. East Baton Rouge Parish

School Board, §78 F.2d 1122 (Sth Cir. 1978), the EAA goes much further

Under the EAA, schools could be required to permit a student-initiated

chapter of the Ku Klux Klan to meet on school premises during the schoo!

day. See 130 Cong. Rec. $.8340, 8343 (June 27, 1984).

"There are over 1200 religions and religious sects in this country. J.

Melton, A Directory of Religious Bodies in the United States, xiii (1977).

CONCLUSION

In his concurring opinion in Abington, Justice Brennan

declared:

It is implicit in the history and character of American

public education that the public schools serve a uniquely

public function: the training of American citizens in an

atmosphere free of parochial, divisive, or separatist influ-

ences of any sori—an atmosphere in which children may

assimilate a heritage common to all American groups and

religions.

374 U.S. at 241-242 (emphasis in original). The EAA and its

application in this case violate the establishment clause of the

first amendment; by sanctioning sectarian religious activities

in our nation’s public schools, it interferes with the right of the

individual to believe as he or she sees fit and it undermines the

school’s ability to instill in students the vital democratic values

of respect and tolerance.

For the reasons stated herein, amici respectfully urge that

the decision of the court of appeals be reversed.

Respectfully submitted,

RICHARD E. SHEVITZ

Anti-Defamation League

of B'nai B'rith

823 United Nations Plaza

New York, NY 10017

(212) 490-2525

Counsel of Record

Of Counsel

<i RuTi G. TEITEL

MEYER EISENBERG | New York Law School

JEFFREY P. SINENSKY 57 Worth Street

STEVEN M. FREEMAN New York. NY 10013

Jitt L. KAHN

Anti-Defamation League

of B'nai B'rith

823 United Nations Plaza

New York, NY 10017

(212) 490-2525 .

(212) 431-2322

Counsel for Amici Curiae

A-]

APPENDIX A

MEMBER ORGANIZATIONS OF THE NATIONAL

JEWISH COMMUNITY RELATIONS ADVISORY

COUNCIL

Birmingham JCC

Greater Phoenix Jewish Federation

Tucson Jewish Federation of Southern Arizona

Greater Long Beach and West Orange County Jewish

Community Federation

Los Angeles CRC of Jewish Federation-Council

Oakland Greater East Bay JCRC

Orange County Jewish Federation

Sacramento JCRC a

San Diego CRC of United Jewish Federation

San Francisco JCRC

Greater San Jose JCRC

Greater Bridgeport Jewish Federation

Greater Danbury CRC of Jewish Federation

Eastern Conn. Jewish Federation

Greater Hartford CRC of Jewish Federation

New Haven Jewish Federation:

Greater Norwalk Jewish Federation

Stamford United Jewish Federation

Waterbury Jewish Federation

JCRC of Connecticut

Wilmington Jewish Federation of Delaware

Greater Washington JCC

South Broward Jewish Federation

Greater Fort Lauderdale Jewish Federation

Jacksonville Jewish Federation

Greater Miami Jewish Federation

Greater Orlando Jewish Federation

A-2

Palm Beach County Jewish Federation

Pinellas County Jewish Federation

Sarasota-Manatee Jewish Federation

South County Jewish Federation

Atlanta Jewish Federation

Savannah Jewish Council

Metropolitan Chicago JCRC of the Jewish United Fund

Peoria Jewish Federation

Springfield Jewish Federation

Indianapolis JCRC

South Bend Jewish Federation of St. Joseph Valley

JCRC of Indiana

Greater Des Moines Jewish Federation

Lexington Central Kentucky Jewish Federation

Louisville Jewish Community Federation

Greater Baton Rouge Jewish Federation

Greater New Orleans Jewish Federation

Shreveport Jewish Federation

Portland Southern Maine Jewish Federation-Community

Council

Baltimore JCRC

Greater Boston JCRC

Marblehead North Shore Jewish Federation

Greater New Bedford Jewish Feder tion

Springfield Jewish Federation

Worcester Jewish Federation

Metropolitan Detroit JCC

Flint Jewish Federation

Minneapolis Minnesota and Dakotas JCRC-Anti-

Defamation League

Greater Kansas City Jewish Community Relations Bureau

St. Louis JCRC

Omaha JCR Committee of Jewish Federation

A-3

Atlantic County Federation of Jewish Agencies

Central New Jersey Jewish Federation

Clifton-Passaic Jewish Federation

Delaware Valley Jewish Federation

Metrowest United Jewish Federation

Greater Middlesex County Jewish Federation

Northern New Jersey JCRC

Southern New Jersey JCRC of Jewish Federation

Albuquerque JCC

Binghamton Jewish Federation of Broome County

Greater Buffalo Jewish Federation

Elmira CRC of Jewish Welfare Fund

Greater Kingston Jewish Federation

New York JCRC

Northeastern New York United Jewish Federation

Greater Orange County Jewish Federation

Rochester Jewish Community

Syracuse Jewish Federation

Utica Jewish Federation

Akron Jewish Community Federation

Canton Jewish Community Federation

Cincinnati JCRC —

Cleveland Jewish Community Federation

Columbus CRC of Jewish Federation

Greater Dayton CRC of Jewish Federation

Greater Toledo CRC of Jewish Federation

Youngstown JCRC of Jewish Federation

Oklahoma City JCC

Tulsa JCC

Portland Jewish Federation

Allentown CRC of Jewish Fede ration

Erie JCC

Greater Philadelphia JCRC

pe B-|

Pittsburgh CRC of United Jewish Federation APPENDIX B

Scranton-Lackawanna Jewish Federation MEMBER ORGANIZATIONS OF THE NATIONAL

Greater Wilkes-Barre Jewish Federation COALITION FOR PUBLIC EDUCATION AND

Providence CRC of Rhode Island Jewish Federation RELIGIOUS LIBERTY JOINING IN THIS BRIEFS

Charleston JCR Committee

Columbia CRC of Jewish Welfare Federation American Association of School Administrators

Memphis JCRC The National Education Association

Nashville and Middle Tennessee Jewish Federation National P.T.A.

Austin JCC The Committee for Public Education and Religious Liberty

Greater Dallas JCRC of Jewish Federation Americans for Religious Liberty

E] Paso JCR Committee The American Civil Liberties Union

Fort Worth Jewish Federation The Minnesota Civil Liberties Union

Greater Houston Jewish Federation The American Ethical Union

San Antonio JCR of Jewish Federation The National Service Conference of the American Ethical

Newport News-Hampton United Jewish Community of the Union

Virginia Peninsula American Hum. Association

Richmond Jewish Community Federation 7 Council for Democratic and Secular Humanism

Tidewater United Jewish Federation Ohio Association for Education and Religious Lib.

Greater Seattle Jewish Federation os Michigan Council Against Parochaid

Madison JCC Public Funds for Public Schools of New Jersey

Milwaukee Jewish Council Munroe County PEARL

Central Conference of American Rabbis

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.