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

FILED

SEP 28 108

JOSEPH F. SPANIOL,

| CLERK

No. 88-1597 .

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

THE BOARD OF EDUCATION OF THE

WESTSIDE COMMUNITY SCHOOLS, et al.,

Petitioners,

Vv.

BRIDGET C. MERGENS, by and through her next

friend, DR. DANIEL N. MERGENS, et al.,

Respondents,

UNITED STATES OF AMERICA,

. Respondent,

KENDRA K. KELLISON, etc., by and through her next

of friends, ViCTOR KRAATZ and LINDA KRAATZ, et al.,

Respondents,

MATT SCHULZ, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL

RIGHTS AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

NANCY J. GANNON*

GEORGE W. KOCH, JR.

EDWIN R. BURKHARDT, JR.

Catholic League for Religious

and Civil Rights

1100 West Wells Street

Milwaukee, Wisconsin 53233

(414)289-0170

Counsel for Amicus Curiae

*Counsel of Record

TABLE OF CONTENTS

Page

EE iii

INTEREST OF AMICUSCURIAE .............. 1

SUMMARY OF ARGUMENT ..............-.-. 2

PP es SO be ee ec cc wes 3

I. WESTSIDE SCHOOL DISTRICT'S POLICY OF PREVENT-

ING RELIGIOUSLY-AFFILIATED GROUPS FROM USING

THE LIMITED OPEN FORUM PROVIDED BY THE HIGH

SCHOOL VIOLATES THE EQUAL ACCESS ACT .....

Il. THE EQUAL ACCESS ACT DOES NOT VIOLATE THE

FIRST AMENDMENT'S ESTABLISHMENT CLAUSE

Ill. EVEN IF THE EQUAL ACCESS ACT IS_ UN-

CONSTITUTIONAL OR DOES NOT APPLY, ALLOWING

THE BIBLE CLUB TO MEET WOULD SATISFY CON-

STITUTIONAL STANDARDS ...........54-.

- “cs, Te a. 2 ee OR

TABLE OF AUTHORITIES

CASES: Page

Bender v. Williamsport Area School District,

ST eee 10, 11

Board of Education, Island Trees Union Free

School District v. Pico, 457 U.S. 853 (1982) ...... 9

Burnside v. Byars, 363 F.2d 744 (1966) ........... 9

Carey v. Brown, 447 U.S. 455 (1980) ........... 10

Consumer Product Safety Comm’n v. GTE Sylvania, Inc.,

EES 3

Everson v. Board of Education, 330 U.S. 1 (1947) ..... 13

Heffron v. International Society for Krishna

Consciousness, Inc., 452 U.S.640 (1981) ........ 9

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...... 2, 5, 6, 8

McDaniel v. Patti, 435 U.S.618 (1978) .......... 13

Meyer v. Nebraska, 262 U.S. 390 (1923) ........4.. 9

Pierce v. Society of Sisters, 268 U.S.510 (1925) ....... 9

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

Tinker v. Des Moines Community School District,

EE 9

Widmar vy. Vincent, 454 U.S. 263 (1981) . . 2,5, 6,8, 10,11

Zorach v. Clausen, 343 U.S. 306 (1952) .......... 13

CONSTITUTIONAL PROVISIONS:

I eek ce ee ee ee ces passim

ee A ee ee ee —_— SP ga a ee

No. 88-1597

STATUTES:

20 U.S.C. §§4071- 4074 (1984) ...........4. passim IN THE

OTHER AUTHORITIES: SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

Webster's Ninth New Collegiate Dictionary, 316 (1984 ed.) 3

130 Cong. Rec. $8342 (daily ed. June 27, 1984) ‘aia e-s.s 4 THE BOARD OF EDUCATION OF THE

WESTSIDE COMMUNITY SCHOOLS, et al.,

Petitioners,

V.

BRIDGET C. MERGENS, by and through her next

friend, DR. DANIEL N. MERGENS, et al.,

Respondents,

UNITED STATES OF AMERICA,

Respondent,

KENDRA K. KELLISON, etc., by and through her next

of friends, VICTOR KRAATZ and LINDA KRAATZ, et al.,

Respondents,

MATT SCHULZ, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL

RIGHTS AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE |

The Catholic League for Religious and Civil Rights is a

non-profit voluntary association, national in membership,

organized to promote goodwill and harmonious relations in

the community, to combat all forms of religious prejudice and

discrimination, and to defend the rights and sanctity of each

human life. The League has obtained written permission to

file this brief from the counsel of record for the parties in this

case. These letters have been filed with the Clerk of Court.

SUMMARY OF ARGUMENT

The Equal Access Act (20 U.S.C. §§4071-74 (1984))

(hereinafter the EAA) prohibits public secondary schools

receiving federal funds from barring groups wishing to use

school-provided limited open forums based on the religious or

political content of the proposed group’s speech. By allowing

noncurriculum related student groups to use school facilities

after school hours, Westside School District has created a

limited open forum and, therefore, is Subject to the EAA’s

provisions. Westside School District’s policy, which prevents

groups from using the limited open forum provided by the

school if they are affiliated with a political or religious group,

violates the EAA.

Any challenge to the constitutionality of the EAA based on

the First Amendment’s Establishment Clause must be rejected

because the EAA satisfies all three prongs of the test

enunciated by the Court in Lemon v. Kurtzman, 403 U.S. 602

(1971).

Even if the Court rules that the Equal Access Act is

unconstitutional, or that it does not apply in this case,

religiously-oriented groups like the Bible club proposed by

Ms. Mergens (hereinafter Bible Club) are constitutionally

entitled to use a limited open forum provided by a secondary

school under the standards set forth by the Court in Widmar

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

institutions from discriminating against groups which wish to

use a limited open forum provided by schools based on the

religious affiliation of the proposed group. A qualifying group

may only be prevented from using a limited open forum if

denying access to the group is the least restrictive means of

furthering a compelling state interest. Because Westside

ARGUMENT

I. WESTSIDE SCHOOL DISTRICT'S POLICY OF PREVENT-

ING RELIGIOUSLY-AFFILIATED GROUPS FROM USING

THE LIMITED OPEN FORUM PROVIDED BY THE HIGH

SCHOOL VIOLATES THE EQUAL ACCESS ACT.

The EAA states in pertinent part:

(a) It shall be unlawful for any public secondary

school which receives Federal financial assistance

and which has a limited open forum to deny equal

access or a fair opportunity to, or discriminate

against, any students who wish to conduct a

meeting within that limited open forum on the basis

of the religious, political, philosophical, or other

content of the speech at such meetings.

(b) A public secondary school has a limited open

forum whenever such school grants an offering to

or opportunity for one or more noncurriculum

related student groups to meet on school premises

during noninstructional time.

Webster's Ninth New Collegiate Dictionary defines the

word “curriculum” as: (1) the courses offered by an

educational institution; (2) a set of courses constituting an

area of specialization. If the statutory language is

unambiguous, and if there is no clearly expressed legislative

intent to the contrary, that language must ordinarily be

considered to be conclusive. Consumer Product Safety Comm’n

v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Nothing in

the EAA’s language or legislative history expresses any

offered by a secondary school are “noncurriculum related

student groups” which, under the EAA, may not be excluded

from a limited open forum because of the religious content of

the group’s speech.

Several of the approximately 30 student clubs which meet

at Westside High School are “noncurriculum related student

groups”. For example:

— Subsurfers, a club designed for students interested in

learning about skin and scuba diving, permits nonstudents to

participate so they can obtain scuba certification. Because

membership and participation in Subsurfers is not limited to

the student body at Westside High School, and because

Subsurfers is not related in any way to a course offered by the

school, the inescapable conclusion must be that Subsurfers is

a noncurriculum related student group.

— Interact is a service-oriented club related to Rotary

International. Rotarians (adult members of the general

public) occasionally attend Interact meetings. Membership in

Interact is entirely voluntary; members receive no class credit

for participating. Consequently, Interact — a group which has

close connections with a national community service

organization and is absolutely unrelated to any course offered

at the high school — is also a noncurriculum related student

group.

— The Chess Club is not affiliated with or related to any

class taught at Westside High School. The legislative history

of the EAA clearly indicates that a chess club is a

“noncurriculum related student group” which falls within the

coverage of the EAA. See 130 Cong. Rec. $8342 (daily ed.

June 27, 1984). Therefore, because the Chess Club is not

Subsurfers, Interact and the Chess Club — three

refusal to allow the Bible Club to use the limited

open forum provided by the school because of the group’s

relizious speech violates the EAA.

Il. THE EQUAL ACCESS ACT DOES NOT VIOLATE THE

FIRST AMENDMENT'S ESTABLISHMENT CLAUSE.

When determining whether a statute or regulation violates

the First Amendment's Establishment Clause, the

constitutional analysis is controlled by the three-pronged test

set forth by the Court in Lemon v. Kurtzman, 403 U.S. 602

(1971). To satisfy constitutional standards, the statute in

question must:

(1) Have primarily a secular purpose;

(2) Have a primary effect which neither advances nor

inhibits religion; and

(3) Not foster excessive government entanglement with

religion.

403 U.S. at 612-13.

The EAA satisfies all three prongs of the Lemon test. First,

the purpose of any type of open or limited open forum is to

foster the free exchange of ideas. Widmar v. Vincent, 454 U.S.

263, 272 n. 10 (1981). This is a perfectly legitimate and

laudable secular purpose. The fact that a forum is made

. available to all qualifying groups — regardless of a group’s

religious, political or secular orientation — effectively refutes

any allegation that the statute was improperly designed to

further religious concerns. Even though Widmar involved a

university rather than a secondary school, the observation

made by the Court in that case is equally applicable here:

[Bly creating a forum the University does not

thereby endorse or promote any of the particular

ideas aired there. Undoubtedly many views are

advocated in the forum with which the University

desires no association.

454 U.S. 263, 272 n. 10.

In summary, because the EAA has a secular purpose —

promoting the free exchange of ideas — the EAA satisfies the

first prong of the Lemon test.

The EAA also satisfies the second prong of the Lemon test,

which bars regulations having a primary effect of either

advancing or inhibiting religion. The EAA clearly does not

either advance or inhibit religious interests. Merely incidentai

religious benefits do not violate the Establishment Clause. 454

U.S. at 273. Because allowing the Bible Club to use the

limited open forum provided by the school district would

grant the club no special treatment or privileges denied to the

other clubs eligible to use the forum, any benefits enjoyed by

the Bible Club would be merely incidental and, therefore,

would not violate the second prong of the Lemon test.

The school district argues that the EAA impermissibly

advances religion because high school students will view the

district’s provision of a limited open forum at the school as a

state endorsement or sanction of the views expressed therein.

This argument lacks merit.

First, Westside School District’s creation of a limited open

forum for use by student groups makes it very similar to other

organizations which provide forums for public commentary. A

charged with sharing the views expressed. Certainly, no one

attributes to the state the views of people who take advantage

of state-provided opportunities to exercise their First

Amendment rights by picketing or marching on the streets, or

by making their voices heard at legislative hearings. In none

of these instances can organizations which provide a public

forum fairly be accused of endorsing the ideas of those who

choose to avail themselves of the opportunity for public

expression.

Here, however, Westside School District argues that, if the

district allows the Bible Club to meet on school premises,

students will consider this to be a school sanction of religion.

Generally, people do not attribute reader opinions on the

editorial page in the newspaper, or listener comments on the

airwaves, or those made before governmental bodies, to the

respective organizations which provide these forums for

public expression. It is reasonable to conclude that students

will not assume that a school district — merely by providing a

forum for public expression — endorses the views expressed

therein.

It is also important to remember that the forum provided by

the school district is open to all qualifying groups, both

religious and nonreligious, political and nonpolitical. It is

difficult to fathom how a school district can be charged with

supporting the viewpoints of a group using a limited open

forum when it affords other groups which may advocate an

inconsistent — possibly even diametrically opposite —

viewpoint the same opportunity for free expression in the

same forum.

their speech. Widmar, 454 U.S. at 272, n. 11. Therefore,

because the EAA was designed in part to avoid entanglement

between secondary schools and the state, any claim that the

EAA violates the Establishment Clause by excessively

entangling the state in religion must be rejected.

Because the EAA does not involve the state in an excessive

government entanglement in religion, it satisfies the third

prong of the Lemon test. |

The three-pronged test enunciated by the Court in Lemon

controls the constitutional analysis of cases involving claimed

violations of the Establishment Clause. Because the EAA

satisfies all three prongs of the Lemon test, the EAA does not

violate the Establishment Clause.

Ill. EVEN IF THE EQUAL ACCESS ACT IS_ UN-

CONSTITUTIONAL OR DOES NOT APPLY, ALLOWING

THE BIBLE CLUB TO MEET WOULD SATISFY CON-

STITUTIONAL STANDARDS.

Even if the Court decides that the Equal Access Act is

unconstitutional, or that it does not apply in this case,

allowing the Bible Club to use the limited open forum

provided at Westside High School comports with

constitutional standards.

Local school boards are generally afforded broad discretion

in managing school affairs. Meyer v. Nebraska, 262 U.S. 390

(1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

However, the Court, while noting that states and local school

boards have considerable discretion in operating public

schools, has recently observed:

At the same time...we have necessarily recognized

that the discretion of the States and local school

boards in matters of education must be exercised in

a manner that comports with the transcendent

imperatives of the First Amendment.

Board of Education, Island Trees Union Free School District v.

Pico, 457 U.S. 853, 864 (1982).

The importance of protecting constitutional rights inside

the school setting has long been recognized by the Court. In

Shelton v. Tucker, 364 U.S. 479, 487 (1960), the Court stated

that it was more important to vigilantly safeguard

constitutional freedoms in the schools than anyplace else. In

Tinker v. Des Moines Community School District, 393 U.S. 503,

512 (1969), the Court described the classroom as a

“marketplace of ideas” within which the free expression of

various viewpoints was to be encouraged. Students have a

right to express their opinions if they can do so without

substantially interfering with the requirements of school

discipline and without violating the rights of others. Burnside

v. Byars, 363 F.2d 744, 749 (1966). In fact, it is clear that

neither students nor teachers shed their constitutional rights

to freedom of speech or expression at the schoolhouse gate.

393 U.S. at 506.

Religious worship and discussion are forms of speech and

association protected by the First Amendment. Heffron v.

International Society for Krishna Consciousness, Inc., 452 U.S.

10

640, 647 (1981). Nothing in the Establishment Clause

requires the state to suppress a person’s speech merely

because the content of the speech is religious in character.

Bender v. Williamsport Area School District, 475 U.S. 534, 552

(1986) (Burger, C. J., dissenting). The Court has expressly

schools to ban groups which would otherwise qualify from

using an open forum merely because of the religious content

of their proposed speech. Widmar, 454 U.S. at 270-71. In

short, it is clear that religious speech and expression enjoy

just as much First Amendment protection as any other form of

speech.

In order to justify discriminatory exclusion from a public

forum based on the religious content of a group’s speech, the

state (or any entity acting on its behalf) must show that the

regulation is both absolutely necessary to serve a compelling

state interest and that it is narrowly drawn to achieve that

end. Carey v. Brown, 447 U.S. 455, 461-62, 465 (1980); 454

U.S. at 270.

In Widmar, the Court held that a university had, by

adopting a policy of opening campus facilities for use by

student groups, created a limited open forum (the forum was

a limited open, rather than a public, forum because it was

available for use only by student groups). Once the school

created a limited open forum, it was permitted to exclude a

qualifying group from the forum on the basis of the content

of the group’s speech only if it could prove that the

prohibition was necessary to further a compelling state

interest and was the least restrictive means of accomplishing

this. 454 U.S. at 267-68. In Widmar, the university failed to

demonstrate that excluding a religiously-oriented group from

its limited open forum was the least restrictive means of

achieving a compelling state interest.

Bender involved a fact situation virtually identical to the

one in Widmar except for one minor difference: the

U.S. at 553 (Burger, C. J., dissenting); 475 U.S. at 555

(Powell, J., dissenting).

The present case is analogous to Bender. In both instances,

a school district which made a limited open forum available to

other student groups unconstitutionally denied a student

group use of the forum because of the religious content of the

proposed group’s speech. In Bender, the Court did not reach

the merits; in this case, the Court has an opportunity to make

a decision on the merits. Because Westside School District has

failed to offer a compelling justification for banning the Bible

Club and has not demonstrated that banning the Bible Club is

the least restrictive means of advancing a compelling interest,

the Court should rule that Westside School District has

unconstitutionally prevented Mergens and her companions

from exercising their right to meet in the limited open forum

provided by Westside High School.

Westside School District has offered no compelling reason

for denying access to the Bible Club. The high school defends

its abridgement of Mergens’ and her companions’

constitutional rights by alleging that high school students will

view a policy which permits the Bible Club to meet on school

property as a state endorsement of religion. This is merely

speculation. The school district erroneously considers high

school age students to be incapable of distinguishing between

12

activity occurring on school grounds which is sanctioned by

the school and activity occurring on school grounds which is

not school-sanctioned.

Young adults of high school age are held responsible for

their behavior and performance at school, at work, while

operating a motor vehicle, and while engaging in other social

activities. When young adults fail to conduct themselves in a

mature manner, they are made to bear the consequences: they

are usually subject to sanctions or punishment whenever they

fail to meet behavioral or performance expectations. In short,

it defies logic to assume that young adults — who are

required to bear adult-like responsibility every day — are

incapable of distinguishing between school-sanctioned and

nonschool-sanctioned activity occurring on school grounds

after school hours.

Westside School District has also either neglected to

consider, or has consciously disregarded, the possibility of

choosing a less restrictive means of alleviating its concerns.

Westside High School could publicize the fact that it does not

necessarily endorse or agree with the views expressed by the

groups using the limited open forum provided by the school

by communicating this to students via school mail, school

newspaper, public address announcement, poster, or whatever

other method may be appropriate. The school district has

chosen not to do this.

In summary, even if the Equal Access Act is ruled by the

Court to be unconstitutional or not to apply in this case,

Westside School District’s denial of the Bible Club’s request to

use the limited open forum created by the school district is

unconstitutional because the state has failed to demonstrate

either that there is a compelling justification which mandates

such a denial, or that a total ban of the Bible Club is the least

restrictive means of furthering a compelling state interest.

Sel FY we rre bg all

13

CONCLUSION

When considering whether allowing a Bible club to use

school property during noninstructional hours violates the

Establishment Clause, the Court should recall that it has long

recognized the importance of accommodating the religious

choices of the nation’s citizenry. In Everson v. Board of

Education, 330 U.S. 1, 18 (1947), the Court pointed out that

the First Amendment:

[Rjequires the state to be neutral in its relations |

with groups of religious believers and nonbelievers;

it does not require the state to be their adversary.

State power is no more to be used so as to handicap

religions than it is to favor them.

In another early frequently-cited case, Zorach v. Clausen,

343 U.S. 306, 314 (1952), the Court said:

When the state encourages religious instruction or

cooperates with religious authorities by adjusting

- the schedule of events to sectarian needs, it follows

the best of our traditions. For it then respects the

religious nature of our people and accommodates

the public service to their spiritual needs. To hold

that it may not would be to find in the Constitution

a requirement that the government show callous

indifference to religious groups. That would be

preferring those who believe in no religion over

those who do believe.

More recently, Justice Brennan, concurring in the judgment

in McDaniel v. Patti, 435 U.S. 618, 638 (1978), noted that:

[T]he limits of permissible governmental action

with respect to religion under the Establishment

Clause must reflect an appropriate accommodation

of our heritage as a religious people whose freedom

14

to develop and preach religious ideas and practices

is protected by the Free Exercise Clause.

Allowing religious groups an equal opportunity to use a

forum made available to other groups confers upon them no

unique benefit; rather, it merely permits the state to

accommodate those who wish to exercise their religious

freedom rights. The Court should affirm the decision of the

Eighth Circuit Court of Appeals and rule that the Bible Club is

constitutionally entitled to use the limited open forum at

Westside High School.

Respectfully submitted,

NANCY J. GANNON*

GEORGE W. KOCH, JR.

EDWIN R. BURKHARDT, JR.

Catholic League for Religious

and Civil Rights

1100 West Wells Street

Milwaukee, WI 53233

(414) 289-0170

Counsel for Amicus Curiae

*Counsel of Record

September 27, 1989