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

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THE BOARD OF EDUCATION OF THE WESTSIDE

5 COMMUNITY SCHOOLS, et al.,

Petitioners, 5

V. a

BRIDGET C. MERGENS, et al., .

Respondents.

On Writ of Certiorari to United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE

UNITED STATES CATHOLIC CONFERENCE |

7 AS AMICUS CURIAE *

IN SUPPORT OF RESPONDENTS g Be:

MARK E. CRO RO“

*

2 1. +s * 1 4 1 3 ry owe “ J

= ames sre:

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PY ly ae 4 ide e

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TABLE OF CONTENTS

_ cee

INTEREST OF AMICUS .............. 3

SUMMARY OF ARGUMENT

ARGUMENT

I. SCHOOL ADMINISTRATORS CONTRAVENE

THE EQUAL ACCESS ACT WHEN THEY

DISCRIMINATE AGAINST VOLUNTARY

STUDENT GROUPS BECAUSE OF THE

RELIGIOUS NATURE OF THEIR ACTIV-

A. A Form of Remedial Civil Rights Legisla-

tion, the Equal Access Act Protects Second-

ary School Students Desiring to Meet Vol-

untarily for Religious Purposes from Dis-

criminatory and Unfair Treatment

B. Westside High School Violated the Equal Ac-

cess Act by Prohibiting a Student Bible

Study Club to Meet Voluntarily During Non-

structional Time

1.

In This Remedial Legislation, Congress

Intended and Properly Provided Broader

Protections Than Those Required Under

the First Amendment

Under the Equal Access Act a Limited

Public Forum Is Created When a Public

Secondary School in Practice Allows Stu-

dent Groups to Meet for Purposes Not

Directly Related to the School Curricu-

CR en Gp” CRATE Oy Cae

A Limited Public Forum Within the

Meaning of the Act Existed at Westside

r

10

11

13

16

TABLE OF CONTENTS—Continued

II. ALLOWING A VOLUNTARY STUDENT BI-

BLE STUDY GROUP TO MEET DURING

NONINSTRUCTIONAL TIME DOES NOT

VIOLATE THE ESTABLISHMENT CLAUSE.

THE ACT EFFECTS AN ACCOMMODATION

OF LEGITIMATE FREE EXERCISE CON-

CERNS IN A WAY THAT PROTECTS RELI-

GIOUS LIBERTY THROUGH VOLUNTARY

ACTIVITY.

A. Allowing Students to Meet Under the Act

Does Not Violate the Establishment Clouse..

B. Accommodation of Voluntary Student Reli-

gious Groups Protects Religious Liberty

Guaranteed by the First Amendment. The

Establishment Clause May Not and Should

Not Be Used As a Tool to Inhibit the Free

eC T

p — — ů ů

19

19

85

111

TABLE OF AUTHORITIES

CASES Page

Abington Township v. Schempp, 374 U.S. 203

r —V— 6

Aguilar v. Felton, 473 U.S. 402 (1985) 2, 5

Bender v. Williamsport Area School Dist., 475

U.S. 534 (1986) 22

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

eee 20

Board of Education v. Allen, 392 U.S. 236 (1968) 6

City of Rome v. United States, 446 U.S. 156

(1980) 11

Committee for Public Educ. and Religious Liberty

v. Nyquist, 413 U.S. 756 (1973) ...........................- 19

Corporation of Presiding Bishop v. Amos, 483

U.S. 327 (1987) 11

County of Allegheny v. American Civil Liberties

Union, 109 S. Ct. 3086 (1989) ...................-.......... 21, 22

Edwards v. Aguillard, 482 U.S. 578 (1987) 5, 21

Everson v. Board of Education, 330 U.S. 1 (1947).. 2

Estate of Thornton v. Caldor, Inc., 472 U.S. 703

e 6K .... 24

Guardians Ass’n v. Civ. Serv. Comm’n of New

York, 463 U.S. 582 (1983)... 11

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

i A RE EAE TR 8, 16, 18, 20

Hobbie v. Unemployment Appeals Comm’n of

Florida, 480 U.S. 186 (1987) ................................. 23

Katzenbach v. Morgan, 384 U.S. 641 (1966) 11

Lau v. Nichols, 414 U.S. 563 (1974) 9

Lemon v. Kurtzman, 403 U.S. 602 (1971) 20

Lynch v. Donnelly, 465 U.S. 668 (1984) 2, 19, 24

McDaniel v. Paty, 435 U S. 618 (1978) 5, 26

Meek v. Pittenger, 421 U.S. 349 (19757 23, 24

Mergens v. Board of Educ. of Westside Commu-

nity School, 867 F.2d 1076, cert. granted, 109

S. Ct. 3240 (1989) (No. 88-1597) passim

Mergens v. Board of Educ. of Westside Commu-

nity Schools, No. CV-85-0-426 (D. Neb. Feb. 2,

1988), printed in Pet. App. . 13, 16, 17, 22

iv

TABLE OF AUTHORITIES—Continued

Page

North Haven Board of Educ. v. Bell, 456 U.S. 512

(1982) 10-

School Dist. of Grand Rapids v. Ball, 473 U.S. 373

(1985) ..... 5

Student Coalition v. Lower Merion School Dist.

633 F. Supp. 1040 (E.D. La. Pa. 1986) 12

Thomas v. Review Board, 450 U.S. 707 (1981)... 24

Tcherepnin v. Knight, 389 U.S. 332 (1967) 10, 14

United States v. Wiley, 78 U.S. 508 (1871)........... 10

Wallace v. Jaffree, 472 U.S. 38 (1985) 20, 24

Walz v. Tax Comm’n, 397 U.S. 664 (1970) 11

Wheeler v. Barrera, 417 U.S. 402 (1974) 10

Widmar v. Vincent, 454 U.S. 263 (1981) 4, 11, 12, 20,

21, 22

Wisconsin v. Yoder, 406 U.S. 205 (1972)........... 5, 23

Zorach v. Clauson, 343 U.S. 306 (1952) .......2, 5, 23, 25, 26

CONSTITUTIONAL PROVISIONS

United States Constitution, article I, section 8 11

United States Constitution, first amendment passim

United States Constitution, fourteenth amendment,

/ (rr 11

STATUTES AND REGULATIONS

20 U.S.C. §§ 1681-1688 (1982) * 9

20 U.S.C. §§ 2701-2792 (1982 & Supp. V 1987) l 10

20 U.S.C. §§ 4071-74 (Supp. V 1987) passim

29 U.S.C. § 794 (1982 & Supp. V 1987)... 9

42 U.S.C. §§ 2000d-2000d-7 (1982 & Supp. V

1987) .....

84 C. F. R. § 104.22 (1988) .............................

eee cscs eneeee

.

34 C. F. R. § 104.34 (1988

34 C. F. R. § 104.35 (1988)

eee nnn nnceseeeneee

34 C. F. R. § 106.36 (b) (1988)

34 C. F. R. § 106.41 (1988)

1

rr

14

*

TABLE OF AUTHORITIES—Continued

CONGRESSIONAL MATERIALS Page

H.R. Rep. 98-710, 98th Cong., 2d Sess. (1984). 3, 7, 14, 18

S. Rep. 98-357, 98th Cong., 2d Sess. (1984) 3, 6, 7, 12,

22, 25

130 Cong. Rec. H7723-41 (daily ed. July 25, 1984) 7

130 Cong. Rec. S8335-70 (daily ed. June 27, 1984) .. 7

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

(statement of Rep. Goodlingß ) 15

130 Cong. Rec. 88341 (daily ed. June 27, 1984)

(statement of Sen. Leahy) 14

130 Cong. Rec. 88342 (daily ed. June 27, 1984)

(statement of Sen. Hatfield)... 15

130 Cong. Rec. 88342 (daily ed. June 27, 1984)

(statement of Sen. Gor ton) 15

Hearings Before the Subcommittee on Elementary

Secondary, and Vocational Education of the

Committee on Education and Labor, House of

Representatives, on H.R. 4996, 98th Cong., 2d

Sess. (1984) ie 26

MISCELLANEOUS

American Council on Education, The Function of

the Public Schools in Dealing With Religion, 6

( 3, 25

Buzzard and Ericsson, The Battle for Religious

r nalteningineeseies 6

Gallup, Religion in America: 50 Years, 1935“

1985” (Rep. No. 236, May, 1985) ies 5

J. Jacobs, Individual Rights and Institutional Au-

r 8

Laycock, Equal Access and Moments Of Silence:

The Equal Status of Religious Speech By Private

Speakers, 81 Nw. U.L. Rev. 1 (1986) 12

McConnell, “Accommodation of Religion” in The

Supreme Court Review 1984 (1986) j 6

R. J. Neuhaus, The Naked Public Square- (1984).. 6

vi

TABLE OF AUTHORITIES—Continued

Page

Strossen, Constitutional Analysis Of the Equal Ac-

cess Act’s Standards Governing Public School

Student Religious Meetings, 24 Harv. J. on

rr alerts 12, 14, 16

L. Tribe, American Constitutional Law (2d ed.

1988) ...... 26

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1597

THE BOARD OF EDUCATION OF THE WESTSIDE

COMMUNITY SCHOOLS, et al.,

* Petitioners,

BRIDGET C. MERGENS, et al.,

Respondents.

On Writ of Certiorari to United States Court of Appeals

for the Eighth Cireuit

BRIEF OF THE

UNITED STATES CATHOLIC CONFERENCE

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS

The United States Catholic Conference (“Conference’’)

is a nonprofit corporation organized under the laws of the

District of Columbia. Its members are the active Catholic

Bishops in the United States. The Conference advocates

and promotes the pastoral teaching of the Bishops in such

diverse areas as education, family life, health and hos-

pitals, social welfare, immigrant aid, poverty assistance,

civic education, youth activities, and communications.

When permitted by court rules and practice, the Con-

ference files briefs as amicus curiae in litigation of im-

portance to the Catholic Church and its people in the

United States, particularly when the Religion Clauses of

the Constitution are implicated.

2

The Equal Access Act protects public secondary school

students who desire to exercise important First Amend-

ment rights from discriminatory treatment at the hands

of public school authorities. 20 U.S.C. §§ 4071-74 (Supp.

V 1987). Because it shares this important goal, the

Conference actively supported the Act during Congres-

sional consideration. The United States Court of Appeals

for the Eighth Circuit correctly decided that the Westside

Community Schools had discriminated against the student

Bible study club on the basis of the religious content of

its activities. This Court should confirm the Congres-

sional decision to prevent discrimination against volun-

tary student religious groups and thereby to protect the

First Amendment rights of public school students.

Through their counsel, the parties have given consent

to the filing of this brief.

SUMMARY OF ARGUMENT

The Religion Clauses of the First Amendment, prop-

erly construed in accord with their historic purposes, do

not require a rigid, absolute, separation of church and

state but rather affirmatively mandate accommodation of

religion. Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

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

naled the beginning of concerted efforts to effect a total

elimination of religion from public schools. Separationist

efforts at times smack of hostility and insensitivity, as

well as reflect dubious constitutional doctrine. Neverthe-

less, the efforts to impose an absolutist separation doc-

trine persisted, a trend reflected in this Court’s own un-

even decisions. Compare Zorach v. Clauson, 343 U.S.

306 (1952), with Aguilar v. Felton, 473 U.S. 402 (1985).

This trend was felt not only in litigation, but, more

significantly, also in the nation’s public schools where

discussion of religion and religious values was virtually

eliminated. The tragic victims were the students, as ex-

plained by the American Council on Education:

[Tlo be silent about religion may be, in effect, to

make the public school an antireligious factor in the

community. Silence creates the impression in the

minds of the young that religion is unimportant and

has nothing to contribute to the solution of the per-

ennial and ultimate problems of human life.

American Council on Education, The Function of the

Public Schools in Dealing With Religion, 6 (1953).' See

S. Rep. No. 98-357, 98th Cong., 2d Sess. 14-21 (1984).

During Congressional hearings on the scope of the prob-

lem, students from every part of the country testified

about being prohibited by school officials from engaging

in voluntary student-initiated religious discussion or ac-

tivity. “Witness after witness testified about the exist-

ence of that tragic perception [of state hostility toward

religious speech] among students and citizens.” S. Rep.

No. 98-357, 98th Cong., 2d Sess. 10 (1984).

Congress enacted the Equal Access Act (“Act’’) in

response to the established pattern of discrimination

against religious speech and student religious groups.

The Act is intended to ensure fair treatment for stu-

dents and to protect their First Amendment rights of

free speech, free association and free exercise of reli-

gion. The Act simply requires public secondary schools

that receive federal assistance to accommodate voluntary

student religious groups by allowing them to meet out-

side of regular school hours on the same basis as other

noncurriculum related student groups. 20 U.S.C. § 4071

(Supp. V 1987). As remedial legislation it is no different

from numerous other civil rights statutes that limit the

discretion of school districts which opt to participate in

1 The American Council on Education is an independent nonprofit

association which represents all accredited public and private post-

secondary institutions, as well as national and regional higher ed-

ucation associations:

2See generally S. Rep. 98-357, 98th Cong., 2d Sess. (1984);

H.R. Rep. 98-710, 98th Cong., 2d Sess. (1984).

4

federal programs and receive federal financial assistance.

In its considered judgment, Congress acted to protect

the First Amendment rights of students from discrim-

ination by public school officials. In doing so, Congress

provided broader protection than that required by the

Free Exercise and Free Speech Clauses, a legitimate and

proper exercise of Congressional authority.

In the present case, Westside High School has a policy

and practice of allowing student groups to meet after

school hours, without regard to whether the groups

are narrowly tied to the school curriculum. The School

features a chess club, a scuba club, community action

groups and others. Nonetheless, it refused to allow stu-

dents to form a voluntary Bible study club and meet on

school premises after instructional hours. The United

States Court of Appeals for the Eighth Circuit correctly

understood that Westside’s actions were patent discrim-

ination against the students in violation of the Act. Mer-

gens V. Board of Educ. of Westside Community Schools,

867 F.2d 1076, cert. granted, 109 S. Ct. 3240 (1989)

(No. 88-1597). In doing so, the Eighth Circuit rejected

an open-ended argument which would allow school au-

thorities to define away the discrimination by artificial

distinctions, and thereby rendering the Act meaningless.

Petitioners assert an Establishment Clause argument

in an attempt to justify their discriminatory treatment

of the students in this case. Allowing the student Bible

study group here to meet voluntarily after-regular schoo!

hours does not violate the Establishment Clause. This

Court made clear in Widmar v. Vincent, 454 U.S. 263

(1981), that-excluding voluntary student religious activ-

ity while permitting nonreligious groups to meet on school

premises is unconstitutional. Allowing such meetings

does not, at the same time, violate the Establishment

Clause. That same logic applies here and Widmar

controls.

5

The Eighth Circuit’s decision allowing a voluntary

student club under the Act reflects another even more

important principle. It fully comports with the princi-

ple of religious accommodation rooted in the history and

purposes of the Religion Clauses. Simply accommodating

the needs of voluntary student religious groups can hardly

be characterized as a violation of the Establishment

Clause, which serves to buttress “the right to free exer-

cise of religious beliefs.” Wisconsin v. Yoder, 406 U.S.

205, 214 (1972). The Establishment Clause cannot be

allowed to be used as “a sword to justify repression of

religion.” McDaniel v. Paty, 435 U.S. 618, 641 (1978)

(Brennan, J., concurring). Yet this is precisely the

result urged by Petitioners. This Court must reject

strained applications of the Establishment Clause, such

as suggested in this case, that undermine the accommo-

dation principle embodied in the Religion Clauses.

ARGUMENT

I. SCHOOL ADMINISTRATORS CONTRAVENE THE

EQUAL ACCESS ACT WHEN THEY DISCRIMI-

NATE AGAINST VOLUNTARY STUDENT GROUPS

BECAUSE OF THE RELIGIOUS NATURE OF

THEIR ACTIVITY.

Religion, not just as it concerns one’s own life but

as it bears on public life, is vital to most Americans. As

a people, we are among the most religious in the world.

Gallup, “Religion in America: 50 Years, 1935-1985”

(Rep. No. 236, May 1985). As a “religious people,” we

struggle in the 1980’s, as we did in the 1950’s and as we

will in the 1990’s, with the proper relationship between

religion and our public institutions, especially it seems,

our public schools. Zorach v. Clauson, 343 U.S. 306

(1951) ; Edwards v. Aguillard, 482 U.S. 578 (1987). In

recent years, and in part perhaps because this Court’s

treatment of religion in Aguilar v. Felton, 473 U.S. 402

(1985), and School Dist. of Grand Rapids v. Ball, 473

U.S. 373 (1985), so radically departed from our history

6

and tradition, the free exercise of religion has been

systematically attacked whenever it appeared in public

schools.“ These battles are being initiated by those march-

ing under a banner proclaiming a preference for a

secular society as well as a secular state, and they

threaten the shared social values necessary to a truly

pluralistic democracy. R. J. Neuhaus, The Naked Square

(1984). Even though there have been renewed calls for

an accommodation between religion and our public insti-

tutions,® some are still hostile to the legitimate exercise

of private religious choices in schools, while others are

intimidated by the threat of vexatious litigation into

denying students their right to religious expression.

During hearings on the Act, the Senate Judiciary Com-

mittee heard testimony that many school districts have

banned student-initiated extracurricular religious clubs,

student newspaper articles on religious topics, and stu-

dent art with religious themes.* School districts “have

even prohibited students from praying together in a

school parking lot, sitting together in groups of two or

more to discuss religious themes, and carrying personal

Bibles on school property.“ Numerous examples of re-

ligious discrimination were cited in both committee re-

Churches provided the vast bulk of education through the first

quarter of the Nineteenth Century. Abington Township v. Schempp,

374 U.S. 203, 238 n.7 (Brennan, J., concurring). As public schools

began to share the educational burden with church schools, there

remained, and still remain, many state involvements with church-

related education without any violation of the First Amendment.

Board of Education v. Allen, 392 U.S. 236, 245-46 (1968).

* Buzzard and Ericsson, The Battle for Religious Liberty, 9-12

(1982).

5 McConnell, “Accommodation of Religion” in The Supreme Court

Review 1985 (1986).

8. Rep. No. 98-357, 98th Cong., 2d Sess. 11-12 (1984).

7 Id.

7

ports as well as during the floor debates* in the House

and Senate on the final version of the Act. This estab-

lished pattern of discrimination against religious speech

prompted Congress to legislate equal access as a statu-

tory remedy to protect student rights.

In citing the need for national legislation, the Senate

Judiciary Committee concluded that “many school dis-

tricts are permitting extracurricular nonreligious speech

but discriminating against extracurricular religious

speech.“ Under the Act it is unlawful for any public

secondary school which receives federal financial as-

sistance and which has a limited open forum to deny

equal access to, or discriminate against, any students

who wish to conduct a meeting on the basis of the reli-

gious or other content of speech at such meeting. 20

U.S.C. § 4071 (a). A limited public forum exists when-

ever a school grants an opportunity for one or more

noncurriculum related student groups to meet on

school premises during noninstructional time. 20 U.S.C.

§ 4071(b). The House Committee on Education and La-

bor summarized that the purposes of the Act “are to

eliminate discrimination against student religious groups

that occurs when such groups are denied access to school

facilities and to establish a policy of fair, even-handed

treatment.”

8130 Cong. Rec. H7723-41 (daily ed. July 25, 1984); 130 Cong.

Rec. 88335-70 (daily ed. June 27, 1984). Although the final lan-

guage of the Act was revised after committee action, the committee

reports accurately reflect the purposes of the Act and the extent

and nature of the problem Congress sought to address.

9S. Rep. No. 98-357, 98th Cong., 2d Sess. 11 (1984).

10H. R. Rep. No. 98-710, 98th Cong., 2d Sess. 1 (1984).

A. A Form of Remedial] Civil Rights Legislation, the

Equal Access Act Protects Secondary School Stu-

dents Desiring to Meet Voluntarily for Religious

Purposes from Discriminatory and Unfair Treat-

ment.

Subject to constitutional restraints, the judiciary gen-

erally accords school authorities broad discretion in edu-

cation matters. J. Jacobs, Individual Rights and Institu-

tional Authority, xxiv-v (1979). In matters affecting

the educational content of the curriculum and gauging

and responding to potential disruptions in the environ-

ment conducive to education, school officials have virtu-

ally unlimited discretion. See Hazelwood School Dist. v.

Kuhlmeier, 108 S. Ct. 562 (1988). That discretion, how-

ever, may be restrained by actions of higher authorities

and by the law. Where the Congress or a state legis-

lature properly acts on a matter within the schools, ad-

ministrators are appropriately guided in the exercise of

otherwise unfettered discretion.

A familiar issue for legislative action is the protec-

tion of civil rights. By placing conditions on the re-

ceipt of federal financial aid, Congress often seeks to

eliminate discrimination and to protect the civil rights

of individuals. See, infra, notes 11-20. These numerous

federal statutes limit educators’ discretion in matters

such as the content of materials, the provision of special

educational programs, and student placement. In the

absence of such a statute and a choice by school ad-

ministrators to participate in federal programs, admin-

istrative discretion generally would control. Having

chosen otherwise, pubiic schools cannot complain about

legislation designed to correct established patterns of

discrimination, or about the Congress’ constitutional au-

thority so to legislate.

9

Under Title VI of the Civil Rights Act of 1964," a

school district may be required to provide special lan-

guage courses in its curriculum in order to eliminate

discrimination against foreign language speaking stu-

dents. Lau v. Nichols, 414 U.S. 563, 568 (1974). Sim-

ilarly, Title IX of the Education Amendments of 1972

requires school districts to scrutinize the content of tests

and other materials used in counselling and to eliminate

sex bias,“ as well as provide new programs, particularly

in the area of athletics,“ and physical plant modifica-

tions.“ Section 504 of the Rehabilitation Act of 1973

requires school districts that receive federal financial

assistance to provide a free appropriate public education

for handicapped students.“ School districts are required

to develop individualized educational programs for each

handicapped child.“ In addressing the needs of educa-

tionally deprived children, school districts that partici-

pate in Title I of the Elementary and Secondary Educa-

11 42 U.S.C. §§ 2000d-2000d-7 (1982 & Supp. V 1987). Title VI

prohibits discrimination on the basis of race, color, and national

origin in programs that receive federal financial assistance.

12 20 U.S.C. §§ 1681-1688 (1982). Title IX prohibits discrimina-

tion on the basis of sex in education programs.

18 34 C. F. R. f 106.36 (b) (1988).

14 Id. § 106.41.

15 Jd.

1629 U.S.C. 794 (1982 & Supp. V 1987). Section 504 prohibits

discrimination on the basis of handicap.

17 34 C. F. R. § 104.33 (1988).

18 Jd. § 104.35. Where necessary, physical modifications to build-

ings may be required to make them accessible. Id. 58 104.22, 104.23.

To the maximum extent possible, school districts must place handi-

capped students in regular classes with other students, id. § 104.34,

and, if necessary, must provide nonacademic services, such as

counseling and health services. Jd. § 104.37.

10

tion Act of 1965 must provide special remedial educa-

tional services to students, including educationally de-

prived students attending private schools.”

Like the above laws, the Act at issue here was designed

by Congress to eliminate discrimination against voluntary

student religious groups. Manifestly, the Act is remedial

in nature.“ Like other civil rights laws, it only requires

compliance when public secondary schools receive fed-

eral financial assistance. If they do, they must allow

student religious groups to meet voluntarily just like

other voluntary student groups. This minimal require-

ment pales in comparison to the numerous other sub-

stantive limitations placed on school districts when they

seek and receive federal financial assistance. School dis-

tricts are not required to accept federal financial assist-

ance and, if a secondary school deems the Act’s minimal

requirements too onerous, it is free to decline the assist-

ance. See Wheeler v. Barrera, 417 U.S. 402, 425 (1974).

Having made the choice, school administrators may not

discriminate against, as is pertinent here, voluntary

student religious activity.

B. Westside High School Violated the Equal Access

Act by Prohibiting a Student Bible Study Club to

Meet Voluntarily During Noninstructional Time.

In construing a statute, the starting point is the stat-

utory language itself. North Haven Board of Educ. v.

Bell, 456 U.S. 512, 520 (1982). In this case the Act only

1 20 U.S.C. §§ 2701-2792 (1982 & Supp. V 1987).

20 Id. § 2727. In the case of private school children, participating

school districts must design and deliver remedial services that in

many instances they would not normally provide.

21It is well settled that remedial statutes should be construed

liberally to effectuate their purposes, Tcherepnin v. Knight, 389 U.S

332, 336 (1967), and in favor of those whose rights are being

vindicated, United States v. Wiley, 78 U.S. 508, 515 (1871). Thus,

it is appropriate to construe the Act liberally in favor of the stu-

dents here in order to protect their First Amendment rights.

11

applies when a public secondary school “receives Fed-

eral financial assistance“ and has “a limited open forum.“

20 U.S.C. § 4071 (a). Here there is no dispute about

either the receipt of federal financial assistance or the

denial of access to the school facilities on the basis of

the religious content of student activities. The only issue

for the purpose of deciding whether the statute was

violated is whether Westside High School has a limited

public forum for the purposes of the Act.

1. In This Remedial Legislation, Congress In-

tended and Properly Provided Broader Protec-

tions Than Those Required Under the First

Amendment.

In protecting the civil rights of individuals, Congress

can impose stricter standards on states than that re-

quired by the constitutional provision pursuant to which

the statute was enacted. City of Rome v. United States,

446 U.S. 156 (1980). This is true whether Congress

is acting pursuant to the Spending Clause, Guardians

Ass’n v. Civ. Serv. Comm’n of City of New York, 463

U.S. 582 (1983), or section 5 of the Fourteenth Amend-

ment, Katzenbach v. Morgan, 384 U.S. 641 (1966), both

of which could apply to the Act here. In the area of re-

ligious liberty, it is well established that the limits of

permissible state accommodation are by no means co-

extensive with the noninterference mandated by the Free

Exercise Clause. Corporation of Presiding Bishop v.

Amos, 483 U.S. 327, 334 (1987); Walz v. Tax Comm'n,

397 U.S. 664, 673 (1970). Congress can legislate more

broadly to protect civil and religious liberties, a point

evident in the Act.

Congress utilized this Court’s decision in Widmar v.

Vincent, 454 U.S. 263 (1981), as support for the Act.

In Widmar this Court held that a public university vio-

lated the free speech rights of a student religious group

by refusing to allow it to use facilities that were gener-

ally available for use by other student groups. Assuming

12

arguendo that Widmar set the initial standards for re-

solving equal access disputes, the Act, in pertinent part,

extends beyond Widmar. Stated simply, in Widmar the

university recognized over 100 student groups; a failure

to recognize one more group was held unfair. Under

the Act the equal access requirement applies when a

public secondary school allows even “one or more non-

curriculum student groups to meet on school premises

during noninstructional time.” 20 U.S.C. § 4071 (b).

At least one lower court has held that the Act con-

tains a different and broader concept of limited pub-

lie forum than required by Widmar. Student Coali-

tion v. Lower Merion School Dist., 633 F. Supp. 1040,

1043 (E.D. Pa. 1986). This conclusion is shared by

commentators.* “The statutory ‘limited open forum’ is

an artificial construct, and comparisons with the consti-

tutional cases can be misleading.” * The statutory defini-

tion is rigorous in preventing discrimination.

22In Argument II, we note that under Widmar the Act is con-

stitutional.

23 Congress incorporated a definition that on its face sweeps more

broadly than Widmar and offers protection for student rights

beyond those necessarily decided in that case. The statutory defi-

nition of limited open forum differs in several respects from the

“forum” found in Widmar. Besides the distinction noted in the

text, curriculum relatedness is a critical limiting factor in the stat-

ute, an issue on which Widmar did not focus. 20 U.S.C. § 4071(b),

4072(3). Finally, the Court in Widmar did not resolve the free

exercise issue, 454 U.S. at 273 n. 18, while the Act here has the

protection of free exercise rights as one of its primary purposes.

S. Rep. No. 98-357, 98th Cong., 2d Sess. 3 (1984).

24 See Strossen, Constitutional Analysis Of The Equal Access

Act’s Standards Governing Public School Student Religious Meet-

ings, 24 Harv. J. on Legis. 119, 162 (1987); Laycock, Equal Ac-

cess And Moments Of Silence: The Equal Status of Religious

Speech By Private Speakers, 81 Nw. U.L. Rev. 1, 36 (1986).

25 Laycock, supra note 24, at 36.

er

13

2. Under the Equal Access Act a Limited Public

Forum Is Created When a Public Secondary

School in Practice Allows Student Groups to

Meet for Purposes Not Directly Related to the

School Curriculum.

The triggering mechanism for application of the Act

is the existence of a limited public forum as defined in

section 4071(b) of the Act. Under that section a limited

public forum exists whenever a public secondary school

grants an offering to or opportunity for one or more non-

curriculum related student groups to meet on school prem-

ises during noninstructional time. Even one such activ-

ity would mandate “equal access” for religious clubs.

If there are no such groups, that is, if all clubs are

tied to the curriculum, no forum is created that would

encompass religious clubs under the Act. The school

district here, therefore, attempts to define away its prob-

lem by expanding its notion of curriculum relatedness.

In Petitioners’ view, a student group would be con-

sidered curriculum related (and not trigger the Act)

if it touched in any remote way on any subjects dis-

cussed during regular instruction or if it related in any

way to some vaguely defined general educational goal,

such as “developing citizenship, wholesome attitudes,

good human relations, knowledge and skills“ that is

found in School Board Policy 5680. Mergens v. Board

of Educ. of Westside Community Schools, No. CV 85-

0-426 (D. Neb. Feb. 2, 1988), printed in Pet. App.

B 19. Under this approach school officials would effec-

tively have unfettered discretion to decide what is or

is not curriculum related for the purposes of the Act.

Not only is this at odds with the construction of civil

rights laws generally, but, as the Eighth Circuit held,

“falllowing such a broad interpretation of ‘curriculum-

related’ would make the [Act] meaningless.” Mergens,

867 F. 2d at 1078.

14

It is clear that Congress was concerned that school

officials not be allowed to “circumvent the intent and ap-

plication of [the] Act by officially sponsoring all similar

but nonreligious student-initiated groups.“ Senator

Leahy, cosponsor of the final version of the Act that

passed in the Senate, expressed concern during floor

debate that school boards could avoid the Act’s require-

ments by simply adopting a resolution declaring that the

school does not have a limited public forum.“ Senator

Leahy noted:

The point is that a limited open forum should be

triggered by what a school does, not by what is says.

The careful wording of the current draft will protect

both religious and secular interests because it speaks

with clarity about what a limited open forum

means.

Although the Act does not define “noncurriculum re-

lated,” the term on which. the Petitioners rely, the leg-

islative history of the Act indicates that the term “non-

curriculum related” was intended to be quite broad.”

This is consistent with the general rule that remedial

legislation should be construed liberally. Tcherepnin v.

Knight, 389 U.S. 332, 336 (1967). Conversely stated,

curriculum related clubs are to be viewed narrowly, for

example, as those which are essentially extensions of the

curriculum and aid students in learning substantive

course material.“ Senator Hatfield, a cosponsor of the

final version of the Act, explained during floor debate

that a limited open forum “means that the school permits

26H. R. Rep. No. 98-710, 98 Cong., 2d Sess. 6 (1984).

27130 Cong. Rec. 88341 (daily ed. June 27, 1984) (statement of

Sen. Leahy).

28 Id.

29 “Meeting[s],”” used twelve times in section 4071, is defined to

include activities. . not directly related to the school curricu-

lum.” 20 U.S.C. § 4072(3).

30 See discussion in Strossen, supra note 24, at 161-62.

15

legitimate activities outside of the instructional activ-

ities of the school.“ 1 Later in the debate Senator Hat-

field again referred to periods of “noninstructional activ-

ity” and went on to describe curriculum related clubs as

those that are “really a kind of extension of the class-

room.“ Congressman Goodling, a former educator and

floor manager of the Act, during debate in the House

explained noncurriculum related to require that “the

school or a school teacher require or directly encourage

student participation in such group in connection with

curriculum course work.” *

Significantly, for the purposes of this case where a

chess club exists, the legislative history of the Act clearly

indicates that the existence of chess clubs at a school

would trigger application of the Act.** Senator Hatfield

stated: “I cannot readily conceive of a criterion that

could be used at this time to establish that [a chess club]

as a curriculum related activity. I am not saying it could

not be, because as long as you have lawyers, they can

find ways of doing things one way or another.”* The

latter sentence further illustrates Congressional concern

with the potential manipulation of the Act by school offi-

cials in order to circumvent its intended purposes.

Interpreting “noncurriculum related” in terms of

whether or not there is a direct relationship with a

school’s curriculum courses is fully consistent with the

language of the Act and its legislative history. The rela-

tively broad definition of the types of student clubs that

1 130 Cong. Rec. 88342 (daily ed. June 27, 1984) (statement of

Sen. Hatfield).

82 Id.

33 130 Cong. Rec. H7732 (daily ed. July 25, 1984) (statement of

Rep. Goodling).

34 130 Cong. Rec. 88342 (daily ed. June 27, 1984) (statements of

Sens. Gorton and Hatfield).

35 Id.

16

will trigger an equal access obligation under the Act dif-

fers significantly from the constitutional decisions,“ most

notably Hazelwood School Dist. v. Kuhlmeier, supra, on

which Petitioners and the district court below so heavily

rely.

3. A Limited Public Forum Within the Meaning

of the Act Existed at Westside High School.

Pursuant to a broad general policy which recognizes

student clubs as a “vital part of the total education pro-

gram as a means of developing citizenship, wholesome at-

titudes, good human relations, knowledge and skills,”

Westside High School allows its students to form their

own clubs. Mergens, 867 F.2d at 1077. At the time of

the students’ request to form a Bible study club a variety

of student clubs (approximately 30) existed at Westside

High School, including the chess club, Interact (a service

club connected to Rotary International), Zonta (the fe-

male counterpart to Interact), Subsurfers (a club for

students and community members interested in scuba div-

ing), a Student Advisory Board and a Student Forum.

Id. If any one of these clubs is noncurriculum related, a

limited public forum exists for the purposes of the Act.

20 U.S.C. § 4071 (b).

As discussed above, noncurriculum related student

groups are those that do not have a direct relationship

to the curriculum course work of the school. Although

the clubs cited above arguably are consistent with the

broad educational goal of “developing citizenship, whole-

some attitudes, good human relations, knowledge, and

36 Strossen, supra note 24 at 162.

87 Referring to Hazelwood School Dist. v. Kuhlmeier, 108 S. Ct.

562 (1988), the district court found that the facts in this case did

not establish that Westside High School has a policy or practice

of “indiscriminate use” of its facilities by student organizations

or the general public. Mergens, Pet. App. B 25. This reasoning is

not relevant to the application of the Act, which does not incorpo-

rate the “indiscriminate use” standard suggested in Hazelwood.

17

skills” which may indirectly be helpful in some course

work, this is not enough to avoid the réquirements of the

Act. “Meeting” is defined in the Act to include “those

activities of student groups which . . . are not directly

related to the school curriculum.” 20 U.S.C. § 4072(3).

Therefore unless there is a more direct relationship be-

tween the clubs and the school’s curriculum course work,

Westside High School may not avoid its obligation to

allow nondiscriminatory equal access under the Act.

In the district court school officials here attempted to

justify their actions by explaining that (i) Interact and

Zonta are related to sociology and psychology, and that

participation can result in better grades; (ii) the chess

club provides an arena for logical thinking and is, there-

fore, an extension of a logic elass;“ (iii) Subsurfers is

related to the goals of the physical education department;

and (iv) the Student Advisory Board and Student

Forum are generally related to democracy, citizenship

and indirectly to the classes on government. Mergens,

Pet. App. B 21-22. The principal of Westside High

School testified that, in his opinion, all clubs and activi-

ties at the school are curriculum related and are impor-

tant to the overall goals and mission of the school be-

cause children who partake of activities seem to be more

successful in later life. Jd. at 23. The district court

found that all of the clubs “apparently have sponsors”

although “the involvement of sponsors varies from club

to club.” Id. at 22.

It is not hard to understand why the Eighth Circuit

found unpersuasive the district court’s reasoning that

the Act did not apply. Mergens, 867 F.2d at 1078. The

expansive approach to curriculum relatedness espoused by

the Westside school officials, and adopted by the district

court, provides “a vaporous non-standard .. . that in-

The Eighth Circuit concluded that Westside High School does

not have a logic class. Mergens, 867 F. 2d at 1078,

18

vites manipulation to achieve ends that cannot permis-

sibly be achieved through blatant viewpoint discrimina-

tion. Hazelwood School Dist., 108 S. Ct. at 578

(Brennan, J., dissenting). As the Eighth Circuit recog-

nized, a broad interpretation of “curriculum-related”

renders the Act meaningless. Mergens, 867 F.2d at 1078.

The result urged by Petitioners is precisely that which

Congress sought to avoid, i.e., school officials could easily

circumvent the intent and application of the Act by

simply requiring sponsors for voluntary student groups

and proclaiming the groups to be part of the curriculum

(and therefore curriculum related).* “A public sec-

ondary school cannot simply declare that it maintains

a closed forum and then discriminate against a particular

student group on the basis of the content of the speech of

that group.” Id.

The activities of several clubs were not directly related

to the school curriculum course work and thus a limited

public forum under the Act existed at Westside High

School. 20 U.S.C. §§ 4071(b), 4072(3). Having created

a limited public forum, Westside High school violated the

Equal Access Act by prohibiting students from forming a

Bible study club and meeting voluntarily after regular

school hours. The Eighth Circuit held that [Westside

High School] maintains a limited open forum, and the

[Equal Access Act] forbids discrimination against ap-

pellants’ proposed club on the basis of its religious con-

tent.” Mergens, 867 F.2d at 1079. This conclusion is

entirely consistent with the statutory language of the

Act and the legislative intent to prohibit discrimination

and to accommodate religious discussion by students.

39 “School officials, however, may not circumvent the intent and

application of this Act by officially sponsoring all similar but non-

religious student-initiated groups.” H. R. Rep. No. 98-710, 98th

Cong., 2d Sess, 6 (1984).

19

II. ALLOWING A VOLUNTARY STUDENT BIBLE

STUDY GROUP TO MEET DURING NONINSTRUC-

TIONAL TIME DOES NOT VIOLATE THE ESTAB-

LISHMENT CLAUSE. THE ACT EFFECTS AN

ACCOMMODATION OF LEGITIMATE FREE EX-

ERCISE CONCERNS IN A WAY THAT PROTECTS

RELIGIOUS LIBERTY THROUGH VOLUNTARY

ACTIVITY.

Congress intended to combat the national problem of

discrimination against voluntary student religious groups

when it adopted the Act. The Act requires only that

public secondary schools accommodate student religious

groups by allowing them to meet voluntarily after school

on the same basis as other noncurriculum related student

groups. 20 U.S.C. § 4071. The Act’s affirmative require-

ment is consistent with the bedrock accomodation princi-

ple enshrined in this Court’s decisions. The “Constitution

. affirmatively mandates accommodation, not merely

tolerance, of all religions, and forbids hostility toward

any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

Notwithstanding this constitutional directive, petitioners

complain that avoiding discrimination through the mini-

mal accommodation required by the Act is violative of

the Establishment Clause. Effectively, Petitioners seek

“to enforce a regime of total separation,” Committee for

Public Educ. and Religious Liberty v. Nyquist, 413 U.S.

756, 760 (1973), a result this Court has consistently re-

jected. Lynch v. Donnelly, 465 U.S. at 673. Such an

approach violates the accommodation principle, and is

not required under traditional Establishment Clause

analysis.

A. Allowing Students to Meet Under the Act Does

Not Violate the Establishment Clause.

Petitioners assert as a defense to application of the

Act that allowing students to form a Bible study club and

to meet would violate the Establishment Clause. This

assertion is flatly contrary to settled authority and analy-

20

sis under this Court’s most recent decisions. Widmar

held that providing equal access did not violate the

Establishment Clause, 454 U.S. at 272-75, and further

concluded that the state’s interest in avoiding the promo-

tion of religion at state expense, even if it applied in

those circumstances, was not sufficiently compelling to

justify content-based discrimination against students’ re-

ligious speech.“ 454 U.S. at 276. The Court’s reasoning

in Widmar applies with equal force in the present case.

Assuming that it should apply at all (see Argument

II.B, infra), the three-part Lemon Establishment Clause

test 1 is satisfied. An equal access policy at Westside

40 This brief does not address the free speech and free associa-

tion issues presented in this case in detail except to note that the

facts of the present case distinguish it from Hazelwood School Dist.

v. Kuhlmeier, 108 S. Ct. 562 (1988), and Bethel School Dist. No.

403 v. Fraser, 478 U.S. 675 (1986), where closed forums existed.

Both of those cases involved school initiated activities, a school

newspaper published in connection with a journalism class in Hazel-

wood and an assembly that was part of a school sponsored educa-

tional program in self-government in Fraser. These activities may

fairly be characterized as part of the school curriculum .. . so long

as they are supervised by faculty members and designed to impart

particular knowledge or skills to student participants and audi-

ences.” Hazelwood, 108 S. Ct. at 570. This amicus does agree that

the Eighth Circuit, relying on Widmar, correctly decided these is-

sues.

41 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). In the past

this amicus has criticized the test in briefs amicus curiae as being

fraught with imprecision and difficulty. Although the most com-

mon decisional tool in the last two decades, it is unwieldly and has

led to results inconsistent with each other as well as our nation’s

history and traditions.

Beginning in Lemon itself, Justice White criticized the “exces-

sive entanglement” prong of the test on the grounds that it creates

an “insoluble paradox.” 403 U.S. at 668. In her concurrence in

Wallace v. Jaffree, Justice O’Connor noted that Lemon’s standards

should be “reexamined and refined” to make them more useful in

achieving First Amendment goals. 472 U.S. 38, 68-70 (1985). Chief

Justice Rehnquist sharply criticized each prong of the Lemon test,

and highlighted its paradoxical results. 472 U.S. at 108-13. Jus-

21

High School is entirely consistent with the school’s secu-

lar purpose of “developing wholesome attitudes, good

human relations, knowledge and skill.” Mergens, 867

F. 2d at 1077. Such a policy would not have the pri-

mary effect of advancing religion. That the benefits are

available to a variety of nonreligious student groups

(approximately 30) at the high school indicates a pri-

mary secular, not religious effect. See Widmar, 454 U.S.

at 273-74. A limited open forum at a public secondary

school “does not confer any imprimatur of state approval

on religious sects or activities.” Id. at 274. The stu-

dents here do not seek the school’s active sponsorship or

involvement in their activities,“ but in effect only its

recognition and the ability to use school facilities to meet.

Finally, an equal access policy is less likely to entangle

Westside High School with religion than a policy of

religious censorship and discrimination which would re-

quire the school not only to define religious speech but

also to engage in continued monitoring of voluntary stu-

dent groups to ensure that no religious speech or dis-

cussion. See id. at 272 n.11.

Factually, the only real distinction between this case

and Widmar is the difference in ages between high

school and university students. This is a distinction with-

tice Scalia was sharply critical of the test in Edwards v. Aguillard,

107 S. Ct. 2573, 2593-96 (1987). Justice Kennedy has recently ques-

tioned th’: validity of the test in his dissent in County of Alle-

gheny v. American Civil Liberties Union, 109 S. Ct. 3086, 3134

(1989). Whether this case is the vehicle for a reevaluation is de-

batable, because there is a more straightforward way to dispose of

the case under an alternative accommodation analysis.

See County of Allegheny v. American Civil Liberties Union,

109 S. Ct. 3086 (1989) (plurality). A challenged governmental

action can violate the Establishment Clause if it “has the effect

of endorsing or disapproving religious beliefs.” Jd. at 3103.

The students stressed to the School Board that they were not

requesting a faculty sponsor unless required by school policy. If

one were required, it would only be needed for custodial purposes.

Mergens, 867 F. ad at 1077.

22

out a legal or social difference because the district court

below agreed with the expert testimony that “there is

no significant differences [sic] between high school and

college students in their abilities to understand endorse-

ment or nonendorsement by the school.” Mergens, Pet.

App. B 12.

The argument that high school students are likely to

confuse equal access with state sponsorship of religion

was explicitly rejected by the Senate Judiciary Commit-

tee. “Authors writing in leading legal periodicals have

considered the issue and agree that students below the

college age can understand that an equal access policy is

one of State neutrality toward religion, not one of State

favoritism.” S. Rep. No. 98-357, 98th Cong., 2d Sess.

8 (1984). Given the Congressional judgment and the

findings of the district court, simply allowing students to

meet voluntarily on their own after instructional time

to study the Bible among themselves does not convey, and

may not be reasonably perceived as, an official endorse-

ment of religion by the school. In addition, the district

court also found that “the proposed format protects

against the conferring of an imprimatur or school ap-

proval.” Pet. App. B 11 n.1. Ironically, in order to

avoid what they perceive to be an Establishment Clause

problem, the actions of the school officials here have

instead created the Establishment Clause problem by in-

hibiting religious activity and conveying a message of

disapproval of religious activity to both the students in-

volved and the community at large.“

On the question of impressionability of students, Justice

Powell, author of the majority opinion in Widmar, noted in Ben-

der v. Williamsport Area School Dist., that “I do not believe—

particularly in this age of massive media information—that the

few years difference in age between high school and college stu-

dents justifies departing from Widmar.” 475 U.S. 534, 556 (1986)

(Powell, J., dissenting).

45 See County of Allegheny v. American Civil Liberties Union,

supra note 42.

B. Accommodation of Voluntary Student Religious

Groups Protects Religious Liberty Guaranteed by

the First Amendment. The Establishment Clause

May Not and Should Not Be Used As a Tool to

Inhibit the Free Exercise of Religion.

The two Religion Clauses must be construed har-

moniously to further their common goal of ensuring

religious liberty. “(T]he Religion Clauses had specifi-

cally and firmly fixed the right to free exercise of

religious beliefs, and buttressing this fundamental right

was an equally firm, even if less explicit, prohibition

against the establishment of any religion by govern-

ment.” Wisconsin v. Yoder, 406 U.S. at 214. Accom-

modation was firmly established as a constitutional

principle in Zorach v. Clauson where the Court held

that when the state accommodates the public service to

the spiritual needs of its citizens, it follows the best of

this country’s traditions—“[t]o hold that it may not

would be to find in the Constitution a requirement that

the government show a callous indifference to religious

groups.” 343 U.S. 306, 314 (1952). “Government may

(and sometimes must) accommodate religious practices

and that it may do so without violating the Establish-

ment Clause.” Hobbie v. Unemployment Appeals Comm’n

of Florida, 480 U.S. 136, 144-45 (1987). “Any inter-

pretation of [the Establishment Clause] and the consti-

tutional values it serves must also take into account the

free exercise clause and the values it serves. P. Kauper,

Religion and the Constitution, 79 (1964).” Meek v.

Pittenger, 421 U.S. 349, 395 (1975) (Rehnquist, J.,

dissenting) .

Without more, simply accommodating the religious be-

liefs of religious groups can hardly be characterized as

sponsorship or endorsement of, or active involvement

with, religion violative of the Establishment Clause. See

Wisconsin v. Yoder, 406 U.S. at 234 n. 22. “[T]he Free

Exercise Clause . , by its terms, gives special protection

24

to the exercise of religion.” Thomas v. Review Board,

450 U.S. 707, 713 (1980). The right to free exercise of

religion undoubtedly includes scripture reading and study

of the Bible. Congress was concerned that for public

school authorities to discriminate on the basis of the

religious content of speech at voluntary student-initiated

meetings would constitute a violation of the right to free

exercise of religion of the students involved. Thus, the

Act had as its core the accommodation of religion.“

This amicus has been concerned for some time with the

danger that the Establishment Clause can and has been

used to undermine the accommodation principle. This

danger stems in part from the unfortunate incorporation

of “Jefferson’s misleading [wall of separation] meta-

phor” into constitutional adjudication. Wallace v. Jaf-

free, 472 U.S. 38, 92 (1985) (Rehnquist, C.J., dissent-

ing). The “Constitution [does not] require complete

separation of church and state; it affirmatively mandates

accommodation, not merely tolerance, of all religions, and

forbids hostility toward any.” Lynch v. Donnelly, 465

U.S. at 673. Unfortunately the impression has been

created for some that “the Establishment Clause not

only mandates religious neutrality but also requires that

this Court go further and throw its weight on the side

of those who believe that our society as a whole should

be a purely secular one. Nothing in the First Amend-

ment . requires such an extreme result.” Meek v.

Pittenger, 421 U.S. at 395.

46 Although the Court need not decide it here, accommodation

is not boundless and in some situations efforts to accommodate

religious beliefs are found to violate the Establishment Clause.

See Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), where

a state statute which provided Sabbath observers with an absolute

and unqualified right not to work on their Sabbath was held to

violate the Establishment Clause. That is, however, clearly dis-

tinguishable from mandating equal treatment for religious and non-

religious groups.

25

The Establishment Clause cannot be read to include

“a [governmental] philosophy of hostility to religion,”

Zorach v. Clauson, 343 U.S. at 315, yet it has been used

in such a way to create just that impression. Certain

groups routinely threaten public school officials with ex-

pensive and protracted litigation over almost every mat-

ter involving religion and public schools. It is no wonder

that the Senate Judiciary Committee found that the

“critical rights of freedom of speech and free exercise of

religion are being denied in the very places where they

should be taught, our Nation’s schools, not because school

authorities are hostile to religion, but because they fear

expensive lawsuits.” *7 Witness after witness testified

before the Senate Judiciary Committee about the exist-

ence of the tragic perception of state hostility toward

religious speech among students and eitizens.“ This is

an especially dangerous trend because it isolates religion

from the educational process at a time when values are

formed and conscience is molded:

[Tjo be silent about religion may be, in effect, to

make the public school an antireligious factor in the

community. Silence creates the impression in the

minds of the young that religion is unimportant and

has nothing to contribute to the solution of the pe-

rennial and ultimate problems of human life.“

Whether the almost phobic treatment of religious

speech and religious groups by some public school officials

results from a genuine fear of Establishment Clause liti-

gation, or indifference or outright hostility to religion,

is not the issue. Whatever the reason the result is the

same—students are subjected to discrimination and their

7 8. Rep. 98-357, 98th Cong., 2d Sess. 14 (1984).

48 Jd. at 10.

49 American Council on Education, The Function of the Public

Schools in Dealing With Religion, 6 (1953). See S. Rep. No. 357,

98th Cong., 2d Sess, 14-21 (1984),

First Amendment rights are being trampled, often times

in the name of the Establishment Clause as happened

in this case at Westside High School. This is precisely

what Congress sought to remedy when it enacted the

Equal Access Act.

The Establishment Clause does not license government

to treat religion and those who teach or practice it,

simply by virtue of their status, as subversive of Ameri-

can ideals and therefore subject to unique disabilities.

McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan,

J., concurring). Not “a sword to justify repression of

religion, the Establishment Clause, properly understood

[as buttressing the Free Exercise Clause], acts as a

shield against any attempt to inhibit religion,” id., as

the public school officials attempted in this case. “[I]t

seems doubtful that sacrificing religious freedom on the

altar of anti-establishment would do justice to the hopes

of the framers.” L. Tribe, American Constitutional Law,

§ 14-8, p. 1204 (2d ed. 1988)"

By denying the students here the opportunity to meet

voluntarily after regular school hours, Petitioners have

demonstrated precisely the “callous indifference” and

“hostility to religion” against which Zorach warned. 343

U.S. 314-315. This Court should not and cannot allow

government actions, such as those of Petitioners, to per-

vert the Establishment Clause into a tool against re-

ligion and thereby erode the accommodation principle

which is at the core of the Religion Clauses and our

public life.

80 During consideration of the Act Professor Tribe testified that

for public school authorities to discriminate on the basis of the

religious content of speech at voluntary student-initiated meetings

would constitute a violation of the right to free exercise of re-

ligion of the students involved. Hearings Before the Subcommittee

on Elementary, Secondary, and Vocational Education of the Com-

mittee on Education and Labor, House of Representatives, on H.R.

4996, 98th Cong., 2d Sess. 45 (1984).

27

CONCLUSION

For the foregoing reasons, the judgment of the Eighth

Circuit should be affirmed.

Respectfully submitted,

MARK E. CHOPKo*

General Counsel

JOHN A. LIEKWEG

Associate General Counsel

UNITED STATES CATHOLIC

CONFERENCE

3211 4th Street, N.E.

Washington, D.C. 20017

(202) 541-3300

*Counsel of Record