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

OCTOBER TERM 1989 JOSEPH F. SPANIOL,

CLERK

THE BOARD OF EDUCATION OF THE WESTSIDE

COMMUNITY SCHOOLS et al.,

- Petitioners,

BRIDGET C. MERGENS, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF

BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS,

CHRISTIAN LEGAL SOCIETY,

CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,

NATIONAL ASSOCIATION OF EVANGELICALS,

NATIONAL COUNCIL OF CHURCHES

OF CHRIST IN THE U.S.A,

AND JAMES E. ANDREWS AS STATED CLERK

OF THE GENERAL ASSEMBLY OF THE

PRESBYTERIAN CHURCH (U.S.A.),

AS AM:CI CURIAE IN SUPPORT OF RESPONDENTS

Of Counsel: DOUGLAS LAYCOCK

OLIVER 8S. THOMAS Counsel of Record

J. BRENT WALKER 727 E. 26th Street

BAPTIST JOINT COMMITTEE Austin, Texas 78705

ON PUBLIC AFFAIRS (512) 471-3275

200 Maryland Avenue SAMUEL E. ERICSSON

Washington, D.C. 20002-5797 CHRISTIAN LEGAL SOCIETY

(202) 544-4226 4208 Evergreen Lane

CAROLYN SHAIN Suite 222

PRESBYTERIAN CHURCH Annandale, Virginia 22003

(U.S.A.) (703) 642-1070

100 Witherspoon St., Rm. 4625 Forrest D. MONTGOMERY

Louisville, Kentucky 40202 NATIONAL ASSOCIATION

(502) 569-5370 OF EVANGELICALS

WILFoRD W. KIRTON, JR. 1023 15th Street, N.W.

CHURCH OF JESUS CHRIST OF Suite 500

LATTER-DAY SAINTS Washington, D.C. 20005-1922

$30 South Third East (202) 789-1011

Salt Lake City, Utah 84111

(801) 521-3680

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TABLE OF CONTENTS

Page

ae i

pT iv

INTEREST OF THE AMICI CURIAE ....W0W ww...

SUMMARY OF ARGUMENT .....

eileen cicnencetnmintnentencnsmnnemaecnmnene

I. WESTSIDE HIGH SCHOOL HAS A LIMITED

OPEN FORUM AS THAT TERM IS DEFINED

IN THE EQUAL ACCESS ACT. THE

SCHOOL’S CONTRARY INTERPRETATION

WOULD EFFECTIVELY REPEAL THE ACT.. 6

A. The Congressional Purpose Was to End a

Pattern of Content Discrimination Against

Student Religious Speech —..........0..-..00....... 6

B. WHS Claims Discretion That Is Essentially

EEE Ee ee ee 13

C. Discretion Cannot Be Entrusted to WHS, Be-

cause WHS Rejects Every Important Prem-

ise of the Congressional Policy ...................... 15

II. ENFORCEMENT OF THE EQUAL ACCESS

ACT AT WHS WOULD NOT VIOLATE THE

ESTABLISHMENT CLAUSE ......0000W....... 17

III. “XCLUSION OF PLAINTIFFS’ CLUB VIO-

LATES THEIR RIGHTS OF FREE SPEECH,

FREE EXERCISE, AND ASSOCIATION ......... 24

A. WHS’s Policy Violates Plaintiffs’ Rights to

Speech and Association —......0.00000000000000000...... 24

1. A School Is a Traditional Forum for Its

Students and Faculty .............................. 24

2. WHS’s Policy Violates Rights of Free

Speech and Association Even If the

School Is Not Characterized as a Tradi-

EE ES 26

B. WHS’s Policy Violates Plaintiffs’ Right to

Free Exercise of Religion ..............000.. 28

ES 29

iv

TABLE OF AUTHORITIES

Cases Page

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

RCC EES ON Bee eae 17, 21

ce enen 25, 27, 29

Board of Airport Commissioners v. Jews for Jesus,

Tne., 488 US. G68 (1967) ..........-.ceeccccneneceees--—---=--- 19, 27

Board of Education v. Pico, 457 U.S. 853 (1982).. 24, 25

Cornelius v. NAACP Legal Defense & Educational

Fund, Inc., 473 U.S. 788 (1985) ............-..-.---..--... 24, 26

Corporation of the Presiding Bishop v. Amos, 483

§ § fA Co OS a ee 29

County of Allegheny v. ACLU Greater Pittsburgh

Chapter, 109 S. Ct. 3086 (1989) 2... 17, 23

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 22

Epperson v. Arkansas, 393 U.S. 97 (1968) —....... 25

Hazelwood School District v. Kuhlmeier, 484 U.S.

SD Ce ccthicrittncteriien Nictitiianbinttinentitninineatiicenenanitinines 25, 26, 27

Healy v. James, 408 U.S. 169 (1972) ........ 0... 5, 20, 28

Heffron v. International Society for Krishna Con-

sciousness, Inc., 452 U.S. 640 (1981) 00... 19, 20

Hobbie v. Unemployment Appeals Commission,

EIN 29

Honig v. Doe, 484 U.S. 305 (1988) 0... 15

Kunz v. New York, 340 U.S. 290 (1951) ....00.... 20

Largent v. Texas, 318 U.S. 418 (1948) ............... 28

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............... 21

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

a RS TT ay Se 8

Niemotko v. Maryland, 340 U.S. 268 (1951).......... 20

Poulos v. New Hampshire, 345 U.S. 395 (1953).. 19, 20

School District v. Ball, 473 U.S. 373 (1985) ......... 22

Shelton v. Tucker, 364 U.S. 479 (1960) .....0 25

Stone v. Graham, 449 U.S. 39 (1980)... 21

Tinker v. Des Moines Independent Community

School District, 398 U.S. 508 (1969).................... passim

Walz v. Tax Commission, 397 U.S. 664 (1970)........ 29

Widmar v. Vincent, 454 U.S. 268 (1981) .........0....... passim

Wong Yang Sung v. McGrath, 3389 U.S.33 (1950).. 7

v

TABLE OF AUTHORITIES—Continued

Statutes and Congressional Materials Page

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

Dy cereeithiainleiclbaidinrniniiteetnentiiccnencpsemmetnsrimanncnvinntetl passim

TT a a RS 19

AT OE 8,19

S| 1 | eee 16, 19

EE nee 16, 19

i i sneeiitelliclinntinaliian 10

Equal Access Act, Report of the Senate Comm. on

the Judiciary on S. 1059, Senate Report No.

OO cei isa saecsienitaarccibansennindnmibcinmaiiiieniiignets 7, 16, 22

Equal Access Act, Report of the House Comm. on

Education and Labor on H.R. 5345, House Re-

gS ETRE See 7

Sen. Dole, 130 Cong. Rec. S 8362 (daily ed. June

iach lleciienhtnhigh Leceeinaetielasieansipininiinemante 10

Sen. Hatfield, 130 Cong. Rec. S 8342 (daily ed.

ES RE ener San 9, 10-11

Sen. Leahy, 130 Cong. Rec. S 8341 (daily ed. June

in EE aE ee ee Oe 9

The Equal Access Act Guidelines, 130 Cong. Rec.

S 14,475 (daily ed. Oct. 11, 1984) ........................... 12

Constitutional Provisions

III... ranaimntiinenensennansansnasdiintl passim

TTL T LTE NN ee passim

nace inciiaccencianseneniiaiancnabiaiil passim

Secondary Sources

Laycock, Equal Access and Moments of Silence:

The Equal Status of Religious Speech by Private

Speakers, 81 Nw. U.L. Rev. 1 (1986) -........... 14, 19, 26

Laurence Tribe, American Constitutional Law (2d

ie a deiielndiibastiniohmntbiaenes 28

Note, The Constitutional Dimensions of Student-

Initiated Religious Activity in Public High

Schools, 92 Yale L.J. 499 (1983) _.........-.... 22

UE BE ee ee

OT eens

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 the United States

Court of Appeals for the Eighth Circuit

- BRIEF OF

BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS,

CHRISTIAN LEGAL SOCIETY,

CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,

NATIONAL ASSOCIATION OF EVANGELICALS,

NATIONAL COUNCIL OF CHURCHES

OF CHRIST IN THE U.S.A,

AND JAMES E. ANDREWS AS STATED CLERK

OF THE GENERAL ASSEMBLY OF THE

PRESBYTERIAN CHURCH (U.S.A.),

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

The amici joining in this brief represent more than

eighty million Americans. These amici are religious or-

ganizations that accept this Court’s decisions prohibiting

government-sponsored prayer in the public schools. Three

of these amici have consistently opposed constitutional

amendments that would have permitted school sponsored

prayer. None of these amici have supported such amend-

ments.

2

Each of these amici support the principles of the

Equal Access Act. They saw that the Act was not an

attempt to evade this Court’s decisions, but rather an at-

tempt to remove state-imposed obstacles to the speech and

religious exercise of students, extending to high schools

the sound principles of Widmar v. Vincent, 454 U.S. 263

(1981).

After the Equal Access Act was adopted, all but one of

these amici joined in an unusual work of clarification and

reconciliation, brought about by the late John Baker, Gen-

eral Counsel of the Baptist Joint Committee. Mr. Baker

convened experts from organizations that had favored

the Act and from organizations that had opposed it. To-

gether, they negotiated a set of Guidelines for implemen-

tation of the Act.

Because of their long involvement in the enactment and

implementation of the Equal Access Act, these amici

bring expertise and experience to the case. They have

joined in this brief because the positions taken by West-

side High School threaten to make the Act a dead letter.

A description of the individual amici follows.

_ The Baptist Joint Committee on Public Affairs is com-

posed of representatives from eight national cooperating

Baptist conventions and conferences in the United States:

American Baptist Churches in the U.S.A.; Baptist Gen-

eral Conference, National Baptist Convention of America;

National Baptist Convention, U.S.A.; North American

Baptist Convention, Inc.; Seventh Day Baptist General

Conference; and Southern Baptist Convention. These

constituent bodies have a total membership of approxi-

mately thirty million. This brief reflects the traditional

Baptist commitment to religious liberty and its political

corollary of church-state separation. Because of the con-

gregational autonomy of individual Baptist churches, the

Baptist Joint Committee does not purport to speak for

all Baptists.

The Christian Legal Society is a non-profit, profes-

sional association of 4,000 judges, attorneys, law profes-

———

3

sors, and law students, founded in 1961. The Society re-

ceives many complaints from high school students who

have been denied their rights to religious speech and

exercise in the public schools. As a result of such com-

plaints, the Society has been active in the controversy

over equal access from the beginning. This brief re-

flects the Society’s concern for the appropriate accom-

modation of religion and the protection of the religious

speech rights of public high school students.

The Church of Jesus Christ of Latter-day Saints (also

known as the Mormon Church) has approximately 4

million members in the United States. The Church firmly

supports the principles of religious freedom embodied in

the Equal Access Act.

The National Association of Evangelicals is a non-

profit association of evangelical Christian organizations,

colleges, and universities, as well as some 50,000 churches

from 74 denominations. The Association serves a con-

stituency of approximately fifteen million people.

The National Council of Churches of Christ in the

U.S.A. is a community of communions composed of thirty-

two religious bodies having over forty million constitu-

ents in the United States. It is commonly known as the

National Council of Churches. Its public positions are

based on policies adopted by its Governing Board, com-

posed of about two hundred fifty members selected by the

member denominations in proportion to their size and

support of the Council.

James E. Andrews, as Stated Clerk of the General

Assembly, is the continuing officer of the highest govern-

ing body of the Presbyterian Church (U.S.A.). The

Presbyterian Church (U.S.A.) is a national Christian

denomination with approximately 11,500 congregations

organized into 172 presbyteries under the jurisdiction of

16 synods. This brief does not purport to reflect the

views of all Presbyterians. The brief is based on a

comprehensive policy statement on religious liberty,

adopted by the General Assembly. The policy statement

4

specifically opposes any form of government sponsorship

for religious observance, and specifically endorses the

equal access rights of voluntary student religious clubs.

Through their counsel, the parties have given consent

to the filing of this brief.

SUMMARY OF ARGUMENT

This case is one of many similar controversies arising

over a period of many years at public schools throughout

the nation. The persistent issue arises from widespread

misunderstanding of this Court’s decisions forbidding

government-sponsored prayer in the public schools. Some

educators have come to believe that all religious speech

must be extirpated from the schools. Others will per-

mit religious speech by individual students, but forbid

students to meet as a group to discuss religion.

These educators have failed to comprehend the distinc-

tion between speech by the school and speech by the stu-

dents—between government sponsorship of religion and

government toleration of religious exercise. In their zeal

to enforce the Establishment Clause, they have trampled

on the Free Speech and Free Exercise Clauses. They

have distinguished away this Court’s clarifying decision

in Widmar v. Vincent, 454 U.S. 263 (1981), and they

now seek to eviscerate an Act of Congress.

If this Court adopts Westside High School’s interpre-

tation of the Equal Aecess Act, the Act will become a

dead letter. WHS proposes judicial deference to such un-

reviewable administrative discretion that compliance with

the Act would for al] practical purposes be voluntary.

Of course not all local school officials are hostile to

the Equal Access Act. And some who appear hostile are

honestly trying to comply with what they understand to

be the mandate of this Court’s decisions. But this case

shows that at least some local] school officials fundamen-

tally reject each and every premise on which Congress

acted. This Court should not entrust broad statutory

discretion to officials who are so hostile to the statute.

5

Rather, this Court should correct the misunderstanding

of its own decisions and vindicate the authority of

Congress.

Congress enacted an objective statutory test to trigger

application of the Equal Access Act. If one noncurric-

ulum related student group is allowed to meet, other

groups must be allowed to meet as well. Congress chose

this objective test because it feared evasion of the Act.

For this objective test to serve its purpose, “noncur-

riculum related” must be understood in its common and

objective sense. Thus the sponsors explained that cur-

riculum related groups are those groups that are directly

related to a particular course, such as the French club.

WHS would evade the Act by claiming discretion so

broad that it could designate any club as curriculum re-

lated.

Enforcing the Equal Access Act at WHS will not vio-

late the Establishment Clause. WHS has artifically cre-

ated an Establishment Clause issue by insisting that it

must sponsor every group that meets in the school, and

that it must suppress every group it does not sponsor.

This position ignores the facts, the Act, and the case law.

The plaintiff students do not seek sponsorship; ihey seek

only the opportunity to meet on a regular basis. The Act

expressly provides that WHS cannot sponsor a religious

group. And this Court has held that official recognition

of a student group is not sponsorship, but rather a con-

stitutional entitlement. Healy v. James, 408 U.S. 169,

182-84 (1972). If plaintiff’s club simply meets without

sponsorship, as the Act provides, the Establishment Clause

issue disappears.

Plaintiffs also have valid constitutional claims, although

it is unnecessary to decide them. WHS’s policies violate

plaintiffs’ right to speak and to associate for purposes of

speech. The school is a traditional forum for its students

and faculty. This is something less than a traditional

public forum, but a great deal more than a limited public

forum in which the right to speak depends on the intent

6

of the school board. Schools are peculiarly the market-

place of ideas, and they are inherently a forum for quiet

discussion.

Plaintiffs’ club is entitled to meet even if the school is

not characterized as a forum. The students are entitled

to be at the school, and they do not surrender their rights

at the schoolhouse door. The right to speak individually,

or to meet informally and irregularly, is not a substitute

for the right to meet as an organized group, guaranteed

by the constitutional right of association. This right can

be denied only for a substantial educational reason.

WHS’s misunderstanding of the Establishment Clause is

not such a reason.

Finally, WHS’s policy violates the Free Exercise

Clause. Religious speech is a part of free exercise, singled

out for the highest level of First Amendment protection.

The right of religious groups to meet is also part of the

right to free exercise. And WHS’s policy is hostile to

religion, violating the duty of neutrality imposed by both

religion clauses.

ARGUMENT

I. WESTSIDE HIGH SCHOOL HAS A LIMITED OPEN

FORUM AS THAT TERM IS DEFINED IN THE

EQUAL ACCESS ACT. THE SCHOGL’S CONTRARY

INTERPRETATION WOULD EFFECTIVELY RE-

PEAL THE ACT.

A. The Congressional Purpose Was to End a Pattern

of Content Discrimination Against Student Reli-

gious Speech.

The Congressional Committee that recommended the

Equal Access Act found a persistent pattern of discrimi-

nation against religious speech by students. The Senate

Judiciary Committee found:

Despite Widmar, many school administrators across

the country are prohibiting voluntary, student-init-

iated religious speech as an extracurricular activity.

Like the judges of the district court in Widmar, they

7

erroneously believe that the Establishment Clause

prohibits students from engaging in such speech at

all, even when other types of extracurricular student

speech are permitted. Generally, those administra-

tors act not from malevolence toward religion but

from ignorance of the law and erroneous legal ad-

vice. A primary source of their confusion has been

the lower Federal courts.

Equal Access Act, Report of the Senate Comm. on the

Judiciary on S. 1059, Senate Report No. 98-357 at 6

(reprinted in U.S. Code Cong. & Ad. News, 98th Cong.,

2d Sess. at 2348 (1984). The Committee reported many

cases of discrimination against student religious speech.

Id. at 11-18. The Committee found that many schools

prevented religious groups from meeting, and that some

schools even tried to prevent individual students from

discussing religion in the halls or in the parking lot, or

from saying grace over their meal in the cafeteria. Jd.

at 11-12, 16-18. The House Committee made similar but

less detailed findings. Equal Access Act, Report of the

House Comm. on Education and Labor on H.R. 5345,

House Report No. 98-710, at 3-4.

It was this pattern of discrimination by local school

boards that made the Equal Access Act necessary. To be

sure, the Act is not limited to religious speech. The Act

treats the pattern of discrimination against religious

speech as a special case of content discrimination. When

the Act applies, it protects religious and secular speech

alike.

But in deciding when the Act applies, courts must in-

terpret it in a way that solves the problem Congress was

trying to solve. “It is the plain duty of the courts,

regardless of their views of the wisdom or policy of the

Act, to construe this remedial legislation to eliminate,

so far as its text permits, the practices it condemns.”

Wong Yang Sung v. McGrath, 339 U.S. 33, 45 (1950).

The evil to be remedied is clearly identified in the

Committee reports. Congress found that many school

boards, left to choose a course through conflicting legal

8

advice and local pressure groups, would discriminate

against religious speech. If local school boards have un-

limited discretion to decide whether the Act applies, that

discrimination will continue. As the Court of Appeals

correctly held, broad discretion in the school boards would

lead to “exactly the result that Congress sought to pro-

hibit.” 867 F.2d at 1078.

The statutory definition of “limited open forum” must

be read in light of the Congressional findings and pur-

pose. WHS tries to equate the statutory standard with

the constitutional standard, even to the point of falsely

claiming that “Congress twice used the term of art ‘lim-

ited public forum.’” Brief of Petitioners at 59-60 n.24.

This misquotes the statute. Congress avoided the term

of art, presumably deliberately, and used its own term

with its own definition. Thus, a statutory “limited open

forum” is emphatically not the same as a constitutional

“limited public forum.” Rather, the statutory “limited

open forum” is expressly defined in 20 U.S.C. § 4071 (b) :

A public secondary school has a limited open forum

whenever such school grants an offering to or op-

portunity for one or more noncurriculum related

student groups to meet on school premises during

noninstructional time.

This definition makes the existence of a statutory

forum depend on an objective standard—one or more

noncurriculum related student groups. Unlike this

Court’s definition of a constitutional limited forum, a

statutory forum does not depend on the intent of the

school board. The judicial inquiry under the statute is

into the existence of a single noncurriculum related

group, not into the school board’s intent.

The statutory definition is sweeping as well as objec-

tive. The most striking thing about the definition is the

phrase “one or more”—a single noncurriculum related

group creates a statutory forum. This part of the defini-

tion also goes well beyond this Court’s cases on constitu-

tional limited forums.

9

This sweeping and objective standard can be under-

stood only as a remedial measure to prevent local] school

boards from continuing the content discrimination that

Congress sought to end. The standard is objective and

sweeping because its drafters feared evasion and resist-

ance. Senator Leahy, who together with Senator Hat-

field drafted the final language of the bill, explained

that the concept of thé limited open forum is “the very

heart of the bill.” 130 Cong. Rec. S 8341 (daily ed. June

27, 1984). He went on to say that the limited open

forum “should be triggered by what a school does, not by

what it says.” Id. Without the objective standard of a

single noncurriculum related group, he feared that schools

could avoid the Act with a resolution declaring a closed

forum, and then “consider any student group wanting to

meet on school premises during noninstructional time on

a case-by-case basis.” Jd. WHS’s policy fits Leahy’s pre-

diction. WHS says that nothing can meet without school

sponsorship and a relationship to the curriculum, and

then it decides which groups can meet: service clubs are

in, scuba diving is in, religion is out. The remedial pur-

pose of the statute is wholly defeated if courts are too

deferential to local school boards on the question of which

groups are curriculum related.

The explanations of other sponsoring Senators are

fully consistent with the definition’s remedial purpose.

Senator Hatfield, the principal Senate sponsor, offered

this explanation:

[I]n a number of schools, students in a class of

Spanish or French will form a French club or a

Spanish club where they get together to talk nothing

but that language, to get conversational proficiency.

We are recognizing that as really a kind of exten-

sion of the classroom. That is the kind of category

of clubs that we are trying to incorporate as cur-

riculum related.” Jd. at S 8342.

The French club is related to the curriculum in the

sense that it directly serves a particular course that is

offered for credit as part of the ordinary curriculum.

10

That is what Hatfield appears to have meant by “an ex-

tension of the classroom.” Brief of Petitioners at 72.

Senator Dole, another sponsor, offered the example of

“extracurricular field trips taken by a science class” as

curricululum related, and he said that the limited open

forum included “those student group meetings that are

not directly related to the school’s curriculum.” Jd. at

S 8362 (emphasis added). The need for a direct link to

curriculum is also suggested by the statutory definition

of “meeting”: an activity of a student group that is not

“directly related to the school curriculum.” 20 U.S.C.

§ 4072(3). WHS claims that all its clubs are “an exten-

sion of the classroom,” Brief of Petitioners at 72, but it

ignores the illustrations that give meaning to the phrase.

The sponsors’ explanations of “curriculum related’ fit

the common sense understanding of curriculum, the sense

in which the word would be used by legislators who are

not educational theorists. Their explanations are consist-

ent with the common distinctions among “curricular,”

“co-curricular,” and “extra-curricular,” distinctions that

WHS would obliterate. Even WHS occasionally slips into

more sensible usage, when it says that curriculum is

“part of the ‘total learning experience,’” Brief of Peti-

tioners at 20 (emphasis added), and when it distinguishes

“the School’s curriculum” from “its overall program.”

Id. at 15. Of course extra-curricular activities are educa-

tional, useful, and related to the total learning experi-

ence. But that does not make them part of the curriculum

in ordinary speech or in the meaning of the Equal Access

Act.

Following Senator Hatfield’s initial explanation, Sena-

tor Gorton skillfully cross-examined him about the mean-

ing of curriculum related. In response to this unfriendly

interrogation, Hatfield predicted that school board law-

yers would find ways to evade the statute: “I cannot

readily conceive of a criterion that could be used at this

time to establish [a chess club] as a curriculum related

activity. I am not saying it could not be, because as long

11

as you have lawyers, they can find ways of doing things

one way or another.” 130 Cong. Rec. at S 8342.

WHS seizes on this prediction about chess clubs, stop-

ping its quotation just before Hatfield’s despairing de-

scription of lawyers. Brief of Petitioners at 65. And of

course WHS claims what Hatfield could not readily con-

ceive of—that its chess club is curriculum related.

This same interrogation produced Hatfield’s statement

that the statute would not limit school board discretion to

define what is curriculum related. Jd. at 64. The only

meaning of this statement consistent with the purpose of

the statute is entirely uncontroversial: the Act does not

interfere with local control of curriculum. The Act does

not speak to the meaning of “curriculum related” for any

purpose other than determining the Act’s applicability.

The Act does not control the school board’s theory of cur-

riculum; the board can continue to teach anything it

wants, to sponsor any clubs it wants, and to consider

them part of the curriculum if it wants.

But WHS cannot apply its infinitely elastic concepts of

curriculum to the interpretation of a federal statute.

Gorton’s cross-examination attempted to apply Hatfield’s

answer about local control to the question of when the

statute applies, and this effort led to Hatfield’s statement

that chess clubs are not curriculum related but that a

clever lawyer might seek to make them so. Gorton was

trying to make Hatfield explain the statute in a way that

would destroy it. The whole point of the statute was to

restrict the discretion of local school boards on one nar-

row but important issue—the recognition of voluntary

student groups.

One ambiguous answer to a hostile question cannot

control unambiguous evidence of Congressional purpose.

The issue need not depend on speculation about Hatfield’s

state of mind, or on any preference for one snippet of

floor debate over another. The issue is more reliably re-

solved by considering the evil the statute was designed

to cure, the role of the definition of “limited open form”

12

in curing that evil, and the meaning of “noncurriculum

related” necessary to cure that evil. The entire purpose

of the statute depends on a narrow definition of curricu-

lum related, committed in the first instance to local school

boards but subject to substantial judicial review in light

of the statutory purpose. A sweeping and largely un-

reviewable discretion, committed to the officials whose be-

havior Congress was trying to control, would make the

statute nugatory.

After the statute was enacted, a very broad set of in-

terested organizations agreed that “curriculum related”

requires a direct relationship to curriculum. In their

carefully negotiated Guidelines on the Act, the groups

agreed as follows:

A noncurriculum related student group is a group

or club which is interested in a subject matter not

directly related to the school curriculum. The math

club, the Spanish club, the drama club and athletic

teams would normally be curriculum related. A

religious club, political club or service club would be

considered noncurriculum related.

130 Cong. Record S 14,475 (daily ed. Oct. 11, 1984) (em-

phasis added).

Of course these Guidelines are not part of the legisla-

tive history. But they were negotiated by the American

Association of School Administrators, the National Edu-

cation Association, the American Civil Liberties Union,

and several religious groups, and accepted by the Ameri-

can Federation of Teachers, Americans United for Sepa-

ration of Church and State, and People for the American

Way. All but one of the amici joining in this brief sub-

scribed to these Guidelines, as did many of the amici

now supporting WHS. Senator Hatfield inserted these

Guidelines into the Congressional Record, explaining that

supporters and opponents of the Act had at least been

able to agree on what the Act meant.

The broad acceptance of these Guidelines by educational

associations indicates the unreasonableness of WHS’s

13

claim that its several service clubs are curriculum re-

lated. WHS also claims that its chess club is curriculum

related, even though the chess club was one of the most

commonly offered Congressional examples of a club that

is not curriculum related. Similarly, WHS claims that its

scuba diving club is curriculum related, even though

there is no course in scuba diving and the club is both

attended and taught by outsiders who are neither students

nor faculty. J.A. 167-68 (Tr. 174); J.A. 175 (Tr. 185-

86) ; J.A. 236-39 (Tr. 282-85).

If the Act does not apply to WHS, it is hard to imagine

a school where the Act would apply. If WHS had political

clubs, it would say that they are related to courses in

social studies, government, and sociology. There is no

club that cannot be related to the curriculum with suffi-

cient imagination. As Senator Hatfield said, “as long as

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

way or another.” But that is not an interpretation of

the statute; it is a formula for evading the statute.

B. WHS Claims Discretion That Is Essentially Un-

limited.

It is revealing to examine the language in which WHS

couches its claims of curriculum relatedness. WHS says

that each of the clubs was “intended to further either

the goals and objectives of specific aspects of the School’s

curriculum or of its overall program.” Brief of Petition-

ers at 15 (emphasis added). Several of the clubs are

said to be “related with the functioning of the School as

an institution.” Jd. The curriculum is “part of the ‘total

learning experience.’” Jd. at 20. Curriculum includes

“all the school-related experiences provided for the growth

and development of pupils.” Jd.

The clubs are “part of the School’s educational pro-

gram.” Id. at 49. Welcome to Westside is a vehicle “for

furthering institutiona! needs.” Jd. at 79. “WHS has an

interest” in the work of this club, and “it is surely rea-

sonable” to delegate its work to students instead of staff.

Id. at 78-79. -

14

Taken together, these formulations equate “curriculum

related” with useful. WHS expands “curriculum related”

first to “educational,” then to the “total learning experi-

ence,” then to its “overall program,” and finally to

“school-related.” ‘“School-related” is not limited to cur-

riculum, or even to “educational” programs; it includes

“institutional needs” as well. Indeed, “school-related” is

broad enough to include anything in which the school has

“an interest,” or anything which is “reasonable.” These

are no standards at all, and they are not plausible

synonyms for “curriculum related.” These are labels for

letting the school do anything it wants.

Dr. Findlay, the school principal, made this claim more

directly in his testimony at trial. For him, the question

whether a club is curriculum related is wholly tautologi-

cal. If it is a club, then it is curriculum related:

Curriculum to me includes all of our required

courses, our elective courses, all the activities and

clubs, [and a number of other things as well), but

definitely I’ve always though of activities as part of

our curriculum.

J.A. 220 (Tr. 263).

His response to a question about Cheerleaders was even

more tautological: ’

Q. And what curriculum is it related to?

A. Activities and clubs.

Q. I beg your pardon?

A. Activities and clubs.

Q. Is it your testimony that Cheerleaders is cur-

riculum-related because it is part of the clubs and

activities at Westside High School?

A. That’s right.

Q. That’s the reason it is?

A. It’s part of the curriculum. I think the cur-

riculum at Westside High. School includes activities.

J.A. at 222-23 (Tr. at 266).

1 Amici do not claim that Cheerleaders alone would trigger appli-

cation of the Equal Access Act. It may be that cheerleaders are

15

This is not the testimony of a school administrator

who has considered in good faith how the Equal Access

Act applies to his school. Rather, he believes that it is

tautologically impossible for the Equal Access Act ever

to apply. If a club exists, it is curriculum related, and

no matter how many clubs exist, no new club can be

created without his permission. The school licenses group

speech, and its discretion is absolutely unfettered. That

is the school’s position. Its lawyers have dressed it up a

little in the brief, but they claim a discretion broad

enough to let the principal adhere to his own theory.

On most issues of educational policy, WHS does have

broad discretion. But on a few issues, where there is an

overriding federal policy, the Supremacy Clause requires

compliance. This Court has unhesitatingly enforced the

law on occasions when Congress directed far greater in-

trusions into far more central educational decisions. See,

e.g, Honig v. Doe, 489 U.S. 305 (1988) (refusing to

imply a dangerousness exception into the Education of

the Handicapped Act). The Equal Access Act is nar-

rower, but it also declares an overriding federal policy.

It restricts the school’s discretion to exclude student

speech and association. For purposes of the Act, this

Court must interpret “curriculum related” in a way that

serves the Congressional purpose.

C. Discretion Cannot Be Entrusted to WHS, Because

WHS Rejects Every Important Premise of the Con-

gressional Policy.

WHS believes that the statute is unconstitutional,

wrongheaded, self-contradictory, and bad policy. WHS

can hardly be expected to make discretionary judgments

that actually implement the statute.

such official spokespersons for their school that they are not a

student group at all for purposes of the Act. See Laycock, Equal

Access and Moments of Silence: The Equal Status of Religious

Speech by Private Speakers, 81 Nw. U. L. Rev. 1, 41 (1986)

(discussing debate team, school play, and school chorus). The

testimony in text is quoted to show Dr. Findlay’s all-inclusive defi-

nition of curriculum.

16

Most obviously, WHS believes that “The Constitution

forbids incorporating a religious club into an officially

sponsored student activities program.” Brief of Peti-

tioners at 81. This is precisely the belief that Congress

found objectionable because it discriminated against re-

ligious speech.

But the school’s rejection of Congressiona! judgment

is not limited to this legal conclusion; it extends as well

to every related issue of fact, policy, and characteriza-

tion. WHS believes that its students are incapable of

comprehending that the school does not endorse religion

when it allows a religious group to meet. Jd. at 24, 89.

Congress expressly found to the contrary. Senate Report

at 10, 34-36.

Congress also found that a school could permit a group

to meet without thereby sponsoring the group. Congress

expressly provided for meetings at which there would be

“no sponsorship of the meeting by the school, the govern-

ment, or its agents or employees.” 20 U.S.C. § 4071(c)

_ (2). WHS believes that such a state of affairs is con-

ceptually impossible—that any group that meets regularly

on campus is thereby sponsored by the school. The plain-

tiff students have asked merely for equal access to a

meeting room and to the routine channels of communica-

tion within the school. WHS equates this request with

a demand for sponsorship. Brief of Petitioners at 13,

82-84.

Congress believed that a policy of equal access could

be implemented with faculty sponsors for those groups

the school was willing and able to sponsor, and without

faculty sponsors for those groups the school was unwilling

or unable to sponsor. It expressly provided that the

school could not sponsor a religious group; “employees or

agents of the school or government” can be “present at

religious meetings only in a nonparticipatory capacity.”

20 U.S.C. § 4701 (c) (3).

WHS rejects this judgment as well. WHS apparently

believes that either it must sponsor a. groups or no

17

groups. It claims that if religious clubs can waive a

sponsor, so can any other club, including curriculum re-

lated clubs, so that its “forum” would be radically re-

structured. Brief of Petitioners at 54-55.

Amici will respond to some of these arguments later in

this brief. The point here is that WHS rejects the Con-

gressional view of the First Amendment, it rejects the

Congressional view of student capacity to understand, it

rejects the Congressional view of sponsorship, and it re-

jects the Congressional conception of equal treatment.

WHS rejects every aspect of the Congressional policy.

Yet it claims unlimited discretion in implementing that

policy. This combination is a sure formula for de facto

repeal of the statute. If WHS has its way, content dis-

crimination against student speech will continue unim-

peded, in the guise of defining what is curriculum related.

Of course this Court defers to local school boards where

- appropriate. But this Court also defers to Congress. In

the face of such fundamental conflict between the judg-

ments of Congress and the judgments of a local school

board, this Court cannot defer to both. But the mandate |

of the Supremacy Clause is clear: Congress’s resolution

of these questions must prevail.

Il. ENFORCEMENT OF THE EQUAL ACCESS ACT

AT WHS WOULD NOT VIOLATE THE ESTAB-

LISHMENT CLAUSE.

WHS’s Establishment Clause argument depends on two

legal errors: its refusal to comply with the sponsorship

provisions of the Equal Access Act, and its profound mis-

understanding of this Court’s decisions. WHS would cre-

ate the latent or passive hostility to religion against which

this Court has repeatedly warned. See, e.g., County of

Allegheny v. ACLU Greater Pittsburgh Chapter, 109 S.

Ct. 3086, 3110 (1989); Abington School District v.

Schempp, 374 U.S. 208, 225 (1963); id. at 295 (Bren-

nan, J., concurring).

It is common ground that WHS cannot sponsor a reli-

gion club. To do so would endorse religion in violation

18

of a long line of decisions from this Court. See County

of Allegheny, 109 S. Ct. 3086, 3099-3101 (1989). School

sponsorship is also objectionable because it would invade

the autonomy of the religious club, inevitably influencing

choices within the club and changing the religious experi-

ence of its members. When government undertakes to

direct religious activity, believers as well as nonbelievers

are the victims. Thus, amici’s disagreement with WHS is

not over the permissibility or the desirability of school

sponsorship.

Rather, our disagreement is over the meaning of spons-

orship, and more fundamentally, over the role of un-

sponsored groups in a free society. WHS insists that it

must sponsor every group that meets on campus, and

therefore, WHS concludes that it does sponsor every

group that meets on campus. Because it insists on sup-

pressing everything it does not sponsor, it concludes that

mere failure to suppress is sponsorship. Only in this

way could WHS repeatedly characterize the plaintiffs’

request for permission to meet and to use the routine

channels of school communication as a request for spons-

orship. Brief of Petitioners 31-32, 83-89, 91.

WHS says that students are free to discuss religion

informally, and even to meet informally, id. at 6, 13, 51,

so it must be sponsorship that the plaintiffs are seeking.

But this claim about informal meetings ignores the sig-

nificance of a critical undisputed fact. Informal meet-

ings could not be “so regular that they were simply a

form of club, without faculty sponsorship.” Jd. at 13.

A club without faculty sponsorship is exactly what plain-

tiffs want, and exactly what WHS forbids. The school

principal “would not allow any group, not even a check-

ers club, to meet regularly without official sponsorship.”

Id. at 13.

WHS’s Establishment Clause argument thus amounts

to a self-imposed Catch-22. Plaintiffs do not want school

sponsorship, Congress does not want them to have school

sponsorship, the Establishment Clause will not permit

them to have school sponsorship, but WHS insists that

19

they must have school sponsorship and that school spon-

sorship makes the students’ meetings unconstitutional.

The Establishment Clause issue is manufactured out of

nothing by WHS’s insistence that it must sponsor every

group that meets on campus.

WHS’s rule that no group can meet without official

sponsorship is precluded by the Equal Access Act. The

Act provides that if the school permits one or more non-

curriculum related groups on campus, it must permit

other groups to meet as well, 20 U.S.C. § 4071(a) and

(b). The Act further provides that WHS cannot sponsor

or participate in any religious group. § 4071(c) (2) and

(ce) (3).7 It is therefore unnecessary to decide whether

WHS’s policy of suppressing all it does not sponsor is

unconstitutional. WHS can comply with the Act only

by permitting plaintiffs’ club to meet without sponsor-

ship. If WHS would simply accept this statutory direc-

tive, the establishment clause issue would disappear.

An unsponsored religion club presents no serious Estab-

lishment Clause issue. Such a club would be wholly vol-

untary, initiated and run by students. Its speech and

activities would be the speech and activities of private

citizens, not the speech and activities of government.

Private speech is not converted to government speech

simply because it takes place on government property,

and this Court has long upheld the rights of religious

speakers to speak on public property. See Widmar v.

Vincent, 454 U.S. 263 (1981) (directing state univer-

sity to allow religious club to meet on campus) ; Board of

Airport Commissioners v. Jews for Jesus, Inc., 482

U.S. 569 (1987) (permitting religious proselytizing in

public airport); Heffron v. International Society for

Krishna Consciousness, Inc., 452 U.S. 640 (1981) (ap-

plying same standards to religious and secular solicita-

tion from booths at state fair); Poulos v. New Hamp-

1 It is not seriously disputed that this is what the statute means.

Certain syntactical ambiguities in the literal text are analyzed and

explained in Laycock, supra note 1, at 42-45.

20

shire, 345 U.S. 395 (1953) (holding that persons desir-

ing to hold church service in public park may be re-

quired to obtain license, where licensing authority acts

under reasonable and nondiscriminatory standards) ;

Niemotko v. Maryland, 340 U.S. 268 (1951) (protecting

church service in public park); Kunz v. New York, 340

U.S. 290 (1951) (protecting church service in public

street).

These cases were not decided in ignorance of the Estab-

lishment Clause implications. The Establishment Clause

issue was squarely decided in Widmar. It was also

briefed in Niemotko, see Joint Brief for Appellants at 18-

24, Join‘ Brief for Appellees at 17-20, and it was raised

in dissent in Kunz, 340 U.S. at 311 n.10 (Jackson, J.,

dissenting). Opponents of religious speech in the other

cases did not find it worthwhile even to argue the Es-

tablishment Clause issue.

Nor is it sponsorship for government to recognize that

religious speech is occurring or to subject it to nondis-

criminatory allocation of space. No one suggested that

government’s nondiscriminatory allocation of a booth at

the -state fair in Heffron, or of a license to meet in the

park in Poulos, would be a form of sponsorship that con-

verted private religious speech into a violation of the

Establishment Clause. The student request for recogni-

tion as a club entitled to use school facilities on an equal

basis with other clubs seeks no more. Official recogni-

tion is merely a grant of permission to function; it is not

sponsorship unless WHS makes it so. a

This Court decided the meaning of sponsorship in the

context of student organizations in Healy v. James, 408

U.S. 169 (1972). Healy was not decided under the Estab-

lishment Clause, and it involved a university instead of

a high school. But the arguments actually presented and

decided were quite similar to the arguments here. Plain-

tiffs in Healy sought to have the university officially rec-

ognize their chapter of Students for a Democratic Society.

As at WHS, official recognition was prerequisite to the

right to meet on campus and to use the campus channels

21

of communication. Jd. at 176. And like WHS, school

officials argued that the students could meet off campus,

and even “meet together informally on campus—as in-

dividuals, but not as” an organized group. Id. at 182-83.

Thus, the school concluded, what the students really

sought was the “college’s stamp of approval,” the “ad-

ministrative seal of official college respectability.” Jd. at

182. This Court unanimously rejected the argument,

holding instead that “the College’s denial of recognition

was a form of prior restraint.” Jd. at 184. The same

analysis applies here.

An unsponsored religion club readily meets the three

part test of Lemon v. Kurtzman, 403 U.S. 602 (1971).

The secular purpose of permitting an unsponsored re-

ligion club is to implement the constitutional require-

ment of neutrality—to avoid discriminating against re-

ligious speech, and thus to avoid both the appearance and

the reality of hostility to religion. When the school per-

mits a wide range of other clubs and forbids a religion

club, it sends an unambiguous message of hostility to

religion. Just as discrimination in favor of religion

would send an improper message of endorsement, dis-

crimination against religion sends an improper message

of hostility. Equal access is not endorsement, but un-

equal eyclusion is repudiation.

The primary secular effect of permitting an unspon-

sored religion club is to implement the secular purpose of

neutrality. Because the club would be unsponsored, there

would be no religious effect of school endorsement or

sponsorship. Interested students would have to seek out

the club’s meetings; unlike the school-sponsored religious

activities that this Court has properly struck down, un-

interested students would not be socially pressured to

participate in religious observances or displays in their

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

(display of Ten Commandments on classroom bulletin

board) ; Abington School District v. Schempp, 374 U.S.

203 (1968) (teacher-led prayer and Bible reading).

22

Without a faculty sponsor, there would be no entangle-

ment between state and religion. If the school chooses

to send a nonparticipating room monitor on occasion, the

monitor’s only role is to preserve order. That role is un-

related to the subject matter of the meeting, and un-

affected by it. He must enforce the same disciplinary

rules he would enforce if the club did not exist, or if it

met to discuss philosophy, social studies, or football. The

nonparticipating room monitor is not excessively entan-

gled in religion.

WHS offers one final objection to equal access, while

insisting that the Court need not decide it. This is the

claim that high school students will misunderstand and

think that the school sponsors the religion club if it fails

to suppress it. Brief of Petitioners at 24, 89-91. This

claim that high school students are too “impressionable”

to understand free speech and free exercise is inconsistent

with the Congressional findings, Senate Report at 10, 34-

36, with the testimony of the expert educational psycholo-

gist below, J.A. 379-400 (Tr. 540-61), and with the domi-

nant scholarly understanding of human development.

Citations to the scholarly literature are collected in Note,

The Constitutional Dimensions of Student-Initiated Reli-

gious Activity in Public High Schools, 92 Yale L.J. 499,

507-09 (1983).

The claim that high school students will misunderstand

is also inconsistent with this Court’s holding that high

school students are mature enough to exercise their rights

to free speech in and about the school. Tinker v. Des

Moines Independent Community School District, 393 U.S.

503 (1969). This Court’s holdings to the effect that high

school students are more impressionable than college stu-

dents all came in the very different context of govern-

ment speech. See, e.g., Edwards v. Aguillard, 482 US.

578, 587 (1987) (teaching of creation science in sci-

ence courses in public schools) ; School District v. Ball,

473 U.S. 373, 383, 385 (1985) (public school teachers

teaching at public expense in parochial schools). These

cases assume that high school students are likely to be-

23

lieve what their teachers say, so that government sponsor-

ship of religion is likely to influence them. These cases

are irrelevant to the issue here, which is whether high

school students can tell the difference between what their

teachers and administrators say and what their class-

mates say.

But most important, WHS’s claim that high school stu-

dents cannot understand is self-defeating. If high school

students cannot understand that letting a religion club

meet is not sponsorship, then they certainly cannot under-

stand that driving a religion club off campus is not hos-

tility. What students at WHS see now is that their school

officials will spend large sums of money and years of liti-

gation to keep a religion club off campus. Whatever

motivations exist in the minds of WHS officials are far

more difficult to understand than the difference between

student speech and official school speech.

The solution to possible student misunderstanding is

not to act on the misunderstanding, but to educate those

who misunderstand. With appropriate disclaimers and

explanations, the school can easily enough make clear

that it does not sponsor the religion club. This Court re-

cently held that an explanatory plaque may adequately

disclaim government endorsement of religion even when

government itself displays religious symbols. County of

Allegheny v. ACLU Greater Pittsburgh Chapter, 109

S. Ct. 3086, 3115 (1989). Some of these amici would not

have gone so far. But certainly disclaimers can ade

quately deal with erroneous attributions to government of

private religious speech. WHS would ignore its duty to

educate, and instead hold religious speech hostage to the

misunderstanding of the least informed or least sophisti-

cated high school student. P

Congress correctly judged that voluntary religious clubs

can meet without sponsorship. Because WHS rejects

even the possibility of an unsponsored club, it asks this

Court to hold the Equal Access Act unconstitutional. But

the constitutional problem is in WHS’s rigidity, not in

24

the Act. If the Act is enforced as Congress wrote it,

the Establishment Clause issue disappears.

IIL EXCLUSION OF PLAINTIFFS’ CLUB VIOLATES

THEIR RIGHTS OF FREE SPEECH, FREE EXER-

CISE, AND ASSOCIATION.

Because plaintiffs are plainly entitled to prevail on

their statutory claim, there is no need to decide their

constitutional claims. But even if there were no Equal

Access Act, plaintiffs’ club would be entitled to meet un-

der the First Amendment.

A. WHS’s Policy Violates Plaintiffs’ Rights to Speech

and Association.

1. A School Is a Traditional Forum for Its Stu-

dents and Faculty.

A school is not a traditional public forum, because it

is not open to the general public. But neither is it a lim-

ited public forum or a nonpublic forum, where speech

rights depend wholly on the school board’s intention.

Rather, a school is a traditional forum for its own stu-

dents and faculty. As this Court said with respect to uni-

versity campuses in Widmar v. Vincent, and again in

Cornelius v. NAACP Legal Defense & Educational Fund,

Inc., a campus, “at least as to its students, possesses

many of the characteristics of a traditional public forum.”

Cornelius, 473 U.S. 788, 803 (1985), quoting Widmar,

454 U.S. 263, 267 n.5 (1981).

Because Widmar involved a university campus, the

Court’s characterization of the forum naturally refers to

a university campus. But this characterization of the

campus as a traditional forum follows from a long line

of cases, many of which involved high schools. This Court

has repeatedly held that the “classroom is peculiarly the

marketplace of ideas.” Board of Education v. Pico, 457

U.S. 853, 877 (Blackmun, J., concurring) (1982); Tinker

v. Des Moines Independent Community School District,

393 U.S. 503, 512 (1969). “The vigilant protection of

25

constitutional freedoms is nowhere more vital than in the

community of American schools.” Epperson v. Arkansas,

393 U.S. 97, 104-05 (1968) ; Shelton v. Tucker, 364 U.S.

479, 487 (1960). See also, Hazelwood School District v.

Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 567 (1988)

(high school students “cannot be punished for expressing

their personal views on the school premises”) ; Board of

Education v. Pico, 457 U.S. 858, 864-71 (1982) (plural-

ity opinion).

Schools are one of the traditional places for debate and

discussion, just as the streets and parks are one of the

traditional places for parades, rallies, and protests. Of

course a school is not the same kind of forum as the

streets and parks. Rallies and demonstrations that would

be entirely appropriate in a park will often be entirely

inconsistent with the educational functions of a school.

But a school is inherently a forum for the quiet exchange

of ideas. That is what is at issue in this case.

The existence of this forum does not depend on the

intention of the school officials. School officials can in-

struct students in the proper means of debate, Bethel

School District No. 403 v. Fraser, 478 U.S. 675 (1986),

and they can control the speech that the school sponsors,

such as articles in the official school newspaper, Hazel-

wood School District v. Kuhlmeier, 484 U.S. 260 (1988).

But neither of these cases questioned “the undoubted free-

dom to advocate unpopular and controversial views in

schools and classrooms.” Bethel, 475 U.S. at 681.

WHS denies that it has a traditional public forum,

relying principally on evidence that the whole public does

not have access to the school for purposes of speech. Brief

of Petitioners 33-37. It also cites dictum in Hazelwood

for the proposition that a high school is not a traditional

public forum. 108 S. Ct. at 568. But Hazelwood is not

at all in point. The only forum issue there was “whether

Spectrum may appropriately be characterized as a forum

for public expression.” Jd. at 567 {emphasis added).

Spectrum of course was an officially sponsored school

newspaper produced for academic credit in a journalism

26

class. In the context of that forum, it was entirely ap-

propriate to focus on the school’s intention to create “a

supervised learning experience for journalism students.”

Id. at 569. Here the constitutional forum is the school’s

buildings and empty classrooms.

WHS assumes, and some of the dictum in Hazelwood

may be read to assume, that if a school is not a tradi-

tional forum for the whole public, then it can be only a

limited forum, so that the openness of the forum depends

wholly on the school’s intent. But the exclusion of the

general public does not entail, either as a matter of logic

or policy, that the speech rights of the students and fac-

ulty be wholly subjected to the will of the school board.

See Laycock, supra note 1, at 45-51. Restrictions on the

persons who have access to the property is a wholly sep-

arate issue from restrictions on the speech rights of those

who do have access. The three categories of forums recog-

nized in Cornelius cannot be understood to have collapsed

these two issues into one, because Cornelius itself recog-

nized the possibility of a traditional public forum limited

to students. 473 U.S. at 803. Nor can Hazelwood be un-

derstood to have overruled all the earlier cases on the

speech rights of students and faculty, because the news-

paper at issue there was so unambiguously sponsored by

the school.

2. WHS’s Policy Violates Rights of Free Speech

and Association Even If the School Is Not Char-

acterized as a Traditional Forum.

The speech and association issues in this case can also

be decided without characterizing the school as a forum.

The absence of a forum means restrictions on access: on

who can come to the property, or who can publish in the

official school paper. But it does not follow merely from °

the absence of a forum that the school can censor the

speech of students who are in a place where they have a

right to be. The presence of a forum may create speech

rights that did not previously exist, but the absence of a

27

forum is not a license to censor everyone who has a right

to be there. The Court recognized this distinction and

held the issue open in Board of Airport Commissioners

v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987).

The students here seek to meet only when the school is

open, when they are entitled to be on campus, and when

they are not required to be in class. The school recog-

nizes their right to use empty meeting spaces so long as

the use is not regular. Brief of Petitioners at 13. Thus,

the students seek to speak and to associate for the pur-

pose of group speech in a place where they have a right

to be. They seek to speak “on the campus during the

authorized hours.” Hazelwood, 108 S. Ct. at 567, quoting

Tinker, 393 U.S. at 512-13. The school cannot suppress

the exercise of that right except to protect disruption of

the educational process, Tinker, or to teach a lesson it is

entitled to teach, as in Bethel and Hazelwood.

WHS’s suppression of voluntary associations goes much

further. School officials claim a monopoly over the initia-

tion of topics for group discussion. No organized group

can meet to discuss any topic not sponsored by the school.

No organized group can meet to advocate anything. Brief

of Petitioners at 11. WHS’s insistence that no group can

meet without school sponsorship violates the most basic

tenets of a free society. “In our system, students may

not be regarded as closed-circuit recipients of only that

which the State chooses to communicate.” Tinker, 393

U.S. at 511. But that is how WHS regards them.

Apparently recognizing that these policies would be

wholly indefensible if applied to individual speech, WHS

emphasizes that individual students can discuss whatever

they want. Brief of Petitioners at 6, 13, 51. But WHS

draws the line at an organized group. It is as though

speech were a purely individual right, and this Court had

never decided a case on freedom of association.

But of course that is not the law. The right to asso-

ciate for political and religious speech is fundamental.

As Professor Tribe has noted, one can imagine a legal

28

system in which only individual speech was protected,

and association for group speech was a punishable con-

spiracy, but that is not our system. Laurence Tribe

AMERICAN CONSTITUTIONAL LAW 1014 (2d ed. 1988).

The mere fact that the students want to meet as a

group does not distinguish this case from other high

school free speech cases, such as Tinker. As this Court

held in Healy v. James, 408 U.S. 169, 181-82 (1972),

students’ right to association includes the right to meet

in campus facilities and use the school’s channels of com-

munication. And if the school makes those rights de-

pendent on official recognition as a student organization,

then the right to association includes the right to official

recognition. Id.

Here there is no claim that the plaintiffs’ club would

be disruptive. There is no claim that suppression of

plaintiffs’ club teaches any valuable lesson. There are

only legal claims that misunderstand the law. WHS re-

lies on the Establishment Clause, but the Establishment

Clause will not be violated. It relies on its policy of sup-

pressing every group it does not sponsor, but that is sim-

ply a negation of the constitutional right of association.

Once these legal claims are rejected, there remains no

legitimate educational interest in suppressing the plain-

tiffs’ club.

B. WHS’s Policy Violates Plaintiffs’ Right to Free

Exercise of Religion.

Restrictions on religious speech violate the Free Exer-

cise Clause as well as the Free Speech Clause. Largent

v. Texas, 318 U.S. 418, 422 (1943). This is no mere

formalistic redundancy. Religious speech is singled out

for special protection in the constitutional text. The

Free Exercise Clause makes clear what would otherwise

be left to implication: that religious speech is at the very

core of the First Amendment, one of the most protected

categories of speech. The religious speech at issue here

is not minimally protected, like the vulgar speech in

29

Bethel. Rather, it is maximally protected, like the polit-

ical speech in Tinker.

Similarly, religious association is protected by the Free

Exercise Clause. “For many individuals, religious ac-

tivity derives meaning in large measure from participa-

tion in a larger religious community.” Corporation of

the Presiding Bishop v. Amos, 483 U.S. 327, 342 (1987)

(Brennan, J., concurring). Simple meetings of religious

groups—meeting in a place where each member of the

group has a right to be—cannot be suppressed without

some substantial reason. WHS’s reasons consist only of

its misunderstanding of the Establishment Clause and its

unconstitutional desire to sponsor and control every group

that meets on campus.

WHS’s policy also violates the Free Exercise Clause

because it discriminates against religion. Part of the cen-

tral message of the religion clauses is that government

must be neutral toward religion. “Neither sponsorship

nor hostility” is permitted. Walz v. Tax Commission,

397 U.S. 664, 672 (1970). Discrimination against re-

ligion violates the Free Exercise Clause because it evi-

dences hostility. Hobbie v. Unemployment Appeals Com-

mission, 480 U.S. 136, 142 n.7 (1986).

CONCLUSION

This Court should affirm the judgment of the Court of

Appeals on statutory grounds. The Equal Access Act:

applies and is dispositive; WHS’s contrary interpreta-

tion would eviscerate the Act.

The Act is constitutional. It requires that WHS al-

low the plaintiffs’ club to meet without sponsorship.

Without sponsorship, there is no Establishment Clause

issue.

Construing the Act in this way makes it unnecessary to

decide plaintiffs’ constitutional claims, but those claims

are also sufficient to support the judgment below.

Of Counsel:

OLIVER S. THOMAS

J. BRENT WALKER

BAPTIST JOINT COMMITTEE

ON PUBLIC AFFAIRS

200 Maryland Avenue

Washington, D.C. 20002-5797

(202) 544-4226

CAROLYN SHAIN

PRESBYTERIAN CHURCH

(U.S.A.)

100 Witherspoon St., Rm. 4625

Louisviile, Kentucky 40202

(502) 569-5370

WILFORD W. KIRTON, JR.

CHURCH OF JESUS CHRIST OF

LATTER-Day SAINTS

KIRTON, MCCONKIE &

BUSHNELL

330 South Third East

Salt Lake City, Utah 84111

(801) 521-3680

30

Respectfully submitted,

DOUGLAS LAYCOCK

Counsel of Record

727 E. 26th Street

Austin, Texas 78705

(512) 471-3275

SAMUEL E. ERICSSON

CHRISTIAN LEGAL SOCIETY

4208 Evergreen Lane

Suite 222

Annandale, Virginia 22003

(703) 642-1070

ForREST D. MONTGOMERY

NATIONAL ASSOCIATION

OF EVANGELICALS

1023 15th Street, N.W.

Suite 500

Washington, D.C. 20005-1922

(202) 789-1011