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

No. 88-1597

O9EPH F. SPANIOL, JR.

—-——< = - K

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

BOARD OF EDUCATION OF THE WESTSIDE COMMUNITY

SCHOOLS (DIST. 66), et al.,

Petitioners,

Vv.

BRIDGET C. MERGENS, et al.,

Respondents.

of Certiorari to the United States

RECEIVE Bourtf Appeals for the Eighth Circuit

HAND DELIVERED

OCT 26 1989

BRYEF AMICUS CURIAE OF

OFFICE OF THE CLERR Td KNIGHTS OF COLUMBUS

SUPREME COURT, PPORT OF RESPONDENTS

Of Counsel: KEVIN T. BAINE

W. PATRICK DONLIN KEVIN J. HASSON *

Supreme Advocate WILLIAMS & CONNOLLY

CARL A. ANDERSON 839 17th Street, N.W.

Vice President Washington, D.C. 20006

for Public Policy (202) 331-5000

KNIGHTS OF COLUMBUS Counsel for Amicus Curiae

Dated: October 26, 1989 * Counsel of Record

WILSON - Eres PRintinG Co.. Inc. - 789-0096 - WasHiIncTon. D.C. 20001

TABLE OF CONTENTS

TATE GU RUE R eet aici sinensis

INTEREST OF THE AMICUS ~..20002.0.....202.22..1.000000--

STATEMENT «cnn chin ane

ot Ga)

PEE EES One

I. THIS COURT HAS TRADITIONALLY AC-

CORDED GREAT WEIGHT TO LEGISLA-

TIVE FINDINGS OF LEGISLATIVE FACTS..

II. THERE IS NO REASON NOT TO ACCORD

SUCH WEIGHT TO CONGRESS’S FINDING

THAT HIGH SCHOOL STUDENTS CAN DIS-

TINGUISH BETWEEN STUDENTS’ RELI-

GIOUS SPEECH AND STATE-SPONSORED

BITTY seitinrttnnccnimeunee ie

A. Both Lower Courts Agreed With Congress’s

Ean 9 Sh CRA RIGA AA RAT

B. Congress’s Finding Was Made With Due

a

C. Both The Text Of The Act And Its Legisla-

tive History Demonstrate That Congress’s

Purposes Were Proper .................................

D. Congress’s Finding Is Not In Conflict With

This Court’s Precedents ...................................

E. Congress’s Finding Makes Good Sense ..........

nanan Careane

10

ii

TABLE OF AUTHORITIES

CASES:

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

Bender v. Williamsport Area School Dist., 475

5 | ee

Bose, Corp. Vv. Consumers Union of the United

States, 466 U.S. 485 (1984) ........-.-222-22----eeeeeeeneeeeee

Brotherhood of Locomotive Firemen & Engineers

v. Chicago, R.I. & P.R. Co., 393 U.S. 129 (1968) ..

Columbia Broadcasting System, Inc. v. Democratic

_ National Committee, 412 U.S. 94 (1973) -...........

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

Engel Vv. Vitale, 370 U.S. 421 (1962) _-..................

Katzenbach v. McClung, 379 U.S. 294 (1964)........

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

Lambert v. California, 355 U.S. 225 (1957) ..........

Landmark Communications, Inc. v. Virginia, 435

UB. GED (CGD ciceccencnccitineesneene

Lemon Vv. Kurtzman, 403 U.S. 602 (1971) Seca

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

(BBG) nen eccernncscsnsntinstrinmn

Meek v. Pittenger, 421 U.S. 349 (1975) -.—...............

Mueller v. Allen, 463 U.S. 388 (1983) ....................

Rostker v. Goldberg, 453 U.S. 57 (1981) .................

Sable Communications of California, Inc. Vv. F.C.C.,

Cet FF, xe eee aes

School Dist. of Abington Twp. v. Schempp, 374

eS Fy | ee

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

curiam) .........

Student Coalition “for ‘Peace Vv. “Lower Merion

School District Bd. of Directors, 633 F. Supp.

1060 CEB. Fe. 1608 ncusncnsieeeees

Texaco, Inc. v. Short, 454 U.S. 516 (1982) .............

Tinker v. DesMoines Independent School Dist.,

at E ers

Vance V. Bradley, 440 U.S. 93 (1979) 0...

Wallace v. Jaffree, 472 U.S. 38 (1985) 2.000...

Walters v. National Association of Radiation Sur-

vivors, 473 U.S. 305 (1985) .................................

West Virginia State Bd. of Educ. v. Barnette, 319

eo St 6: ee .

5, 6

15

14, 15

iii

TABLE OF AUTHORITIES—Continued

Page

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

Witters v. Washington Dept. of Serv. for the

Blind, 474 U.S. 481 (1986) .............02000000 12

Zorach Vv. Clauson, 343 U.S. 306 (1952) .......... 14

U.S. CONSTITUTIONAL PROVISIONS:

ec ceereemeee 13, 16

STATUTES AND REGULATIONS:

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

V 1987), Pub. L. No. 98-377, Tit. VIII, 98 Stat.

EE SLL passim

|__| SESE 2,12

LEGISLATIVE MATERIALS:

S. Rep. No. 357, 98th Cong., 2d Sess. 35 (1983) ....passim

Equal Access Act: Hearings on H.R. 2732 Before

the Subcomm. on Elem., Sec. and Voc. Educ. of

the House Comm. on Educ. and Labor, 98th

| 16

Equal Access—A First Amendment Question:

Hearings on S. 815 and S. 1059 Before the Sen-

ate Comm. on the Judiciary, 98th Cong., 1st

AS 16

Religious Speech Protection Act, Hearing on H.R.

4996 Before the Subdcomm. on Elem., Sec. and

Voc. Educ. of the House Comm. on Educ. and

Labor, 98th Cong., 2d Sess. 45 (1984) 0000000000... 11

130 Cong. Rec. 19,238-39, 19,239-40 (1984) 000. 11

130 Cong. Rec. A 11

MISCELLANEOUS:

Note, The Constitutional Dimensions of Student-

Initiated Religious Activity in Public High

Schools, 92 Yale L.J. 499 (1983) .............02020... 11, 16

Note, Religious Expression in the Public School

Forum: The High School Student’s Right to

Free Speech, 72 Geo. L.J. 185 (1983) ....0.00000..... 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1597

BOARD OF EDUCATION OF THE WESTSIDE COMMUNITY

SCHOOLS (DIST. 66), et al.,

Petitioners,

Vv.

BRIDGET C. MERGENS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF

THE KNIGHTS OF COLUMBUS

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS

Amicus curiae Knights of Columbus is an organiza-

tion of 1.4 million members, and has a long history of

advocating family rights and educational freedom. For

example, amicus underwrote much of the litigation in

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

over, many members of amicus are parents of children

in public schools. Amicus is therefore greatly concerned

that an erroneous ,view of this Court’s precedents is re-

.

2

sulting in public school authorities censoring students’

speech daily on the basis of its religious content.

All parties have consented to the filing of this brief.

STATEMENT

The Equal Access Act (“the Act”), 20 U.S.C. §§ 4071 -

4074 (Supp. V 1987), Pub. L. No. 98-377, Tit. VIII, 98

Stat. 1302 et seg., makes it unlawful for

any public secondary school which receives Federal

financial assistance and which has a limited open

forum to deny equal access or a fair opportunity to,

or discriminate against, any students who wish to

conduct a meeting within that limited open forum

on the basis of the religious, political, philosophical,

or other content of the speech at such meetings.

20 U.S.C. § 4071(a).’ The constitutionality of the Act

under the establishment clause was specifically considered

by the Congress prior to its enactment, and the Act is

premised on an express finding, made after extensive

hearings and debate, “that students below the college

level are capable of distinguishing between State-ini-

tiated, school-sponsored, or teacher-led religious speech

on the one hand and student-initiated, student-led, reli-

gious speech on the other.” S. Rep. No. 357, 98th Cong.,

2d Sess. 35 (1984) ; see id. at 9-10.

Neither of the lower courts in this case disagreed with

that finding. The district court found “{u]nder the facts

of this case” that students at Westside High School

1 The Act codifies, for public high schools receiving federal] funds,

the result in Widmar v. Vincent, 454 U.S. 263 (1981). In Widmar,

this Court held that permitting religiously oriented student groups

to use university facilities on the same basis as other student

groups would not violate the establishment clause. To the contrary,

the Court held that forbidding such equal access would violate

students’ rights to freedom of speech and association.

3

(“WHS”) could distinguish between school-sponsored

religious activity and student-initiated religious activity.

Appendix to the Petition for Writ of Certiorari (“Pet.

App.”) B at 11-12 n.1. And the Eighth Circuit impli-

citly agreed. That court not only “accept[ed] Congress’s —

fact-finding for purposes of the Act” (Pet. App. A at

20), it also held that “even if Congress had never passed

the Act,” Widmar v. Vincent, 454 U.S. 263 (1981),

-would require WHS not to discriminate against religious

speech. Pet. App. A at 20. In so holding, the court of

appeals necessarily resolved for itself, in the negative,

the question left open in Widmar—namely, whether high

school students are so much more “impressionable” than

college students that the rule in Widmar would not apply

to them. 454 U.S. at 274 n.14.°

SUMMARY OF ARGUMENT ~

This Court has traditionally accorded great weight to

Congress’s findings of legislative fact, even when those

findings underlie important questions of constitutional

law. The Court should accord similar weight to Con-

gress’s finding in this case that high school students are

mature enough to distinguish between the religious

speech of their fellow students and _ state-sponsored

religion.

Indeed, there is no reason for this Court to disagree

with that finding. The district court made a similar find-

ing of fact. And the court of appeals not only accepted

2In Bender vy. Williamsport Area School Dist., 475 U.S. 534

(1986), the Court was presented with, but did not reach, the ques-

tion whether Widmar applied to high schools. Four Justices, in-

cluding Justice Powell, the author of Widmar, would have held that

it did. The five Justices in the majority did not reach that question,

finding instead that the respondent lacked standing.

4

Congress’s finding, it indicated its own independent

agreement with that finding by holding, in the alterna-

tive, that Widmar v. Vincent, 475 U.S. 263 (1981), ap-

plies to high school students. Moreover, Congress’s find-

ing was made after due deliberation, and both the plain

text of the Equal Access Act and its legislative history

demonstrate that Congress’s finding was in no way pre-

textual.

Congress’s finding does not conflict with this Court’s

precedents. Although the Court has opined that high

school students are less mature than college students

for purposes of formal classroom activities, the Court has

never stated that they are so impressionable that all re-

ligious activity must be banished from public school prem-

ises. On the contrary, the Court has protected the First

Amendment rights of individual students and has ex-

pressly left room for students’ voluntary religious activi-

ties. Congress’s finding also accords with the realities

of modern public schools, which tolerate a wide variety of

behaviors and ideas. It is simply unrealistic to assume

that high school students will view all of those various,

and sometimes conflicting, activities as sponsored by the

State. In any event, it is at least as likely that students

would view denying equal access to student religious

groups as official hostility to religion, which is also for-

bidden by the establishment clause. Finally, the estab-

lishment clause cannot require the States to do the im-

possible and insulate students from the views of their

peers. On the contrary, students’ speech is affirmatively

protected by the free speech and free exercise clauses.

5

ARGUMENT

Congress’s express determination that high school stu-

dents are mature enough to distinguish between the re-

ligious speech of their fellow students and state-sponsored

religion is a finding of legislative fact, made after due

deliberation, that is well within the competence of the

Congress. As such, it should be accorded great weight.

Indeed, because there is no reason—in either the facts

of this case or the law—to disagree with that finding, it

should be accepted by this Court.

I. THIS COURT HAS TRADITIONALLY ACCORDED

GREAT WEIGHT TO LEGISLATIVE FINDINGS OF

LEGISLATIVE FACTS

“Whenever called upon to judge the constitutionality

of an Act of Congress—‘the gravest and most delicate

duty that this Court is called upon to perform’. . . the

Court accords ‘great weight to the decisions of Con-

gress.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981)

(citations omitted). This “deference . . . is certainly ap-

propriate when, as here, Congress specifically considered

the question of the Act’s constitutionality.” Jbid. It is,

of course, this Court’s “task in the end to decide whether

Congress has violated the Constitution,” and “legislative

findings” do not foreclose the Court’s “independent judg-

ment of the facts bearing on an issue of constitutional

law.” Sable Communications of California, Inc. v. F.C.C.,

109 S.Ct. 2829, 2838 (1989). Ibid. Nevertheless, Con-

gress’s factual findings are entitled to some degree of

“deference” and the Court does “not ignore” Congress’s

conclusions even on pure questions of constitutional law.

Ibid. As the Court explained in Columbia Broadcasting

System, Inc. v. Democratic National Committee, 412 U.S.

94 (1973), the point is not that it wholly =

defer[s] to the judgment of the Congress... on a

constitutional question . . . . The point is, rather,

that when we face a complex problem with many

hard questions and few easy answers, we do well to

pay careful attention tov how the other branches of

the Government have addressed the same problem.

412 U.S. at 103. Thus, in that case, the Court stressed

that it “must afford great weight to the decision of Con-

gress and the experiences of the [Federal Communica-

tions] Commission” in regulating the broadcasting indus-

try, even though the Court was faced with an important

question under the free speech clause.* !

In practice, the Court has often relied on Congres-

sional factual findings that are dispositive of important

constitutional issues. In Katzenbach v. Morgan, 384 U.S.

641, 653 (1966), the Court upheld § 4(e) of the Voting

Rights Act of 1965, which nullified New York’s English

literacy requirement as applied to persons who had com-

pleted the sixth grade in accredited Puerto Rican schools,

but who could not speak or write English. In upholding

that statute under section five of the Fourteenth Amend-

ment, the Court deferred to Congress’s determination that

* The Court has stressed that it must give particular scrutiny to

Congressional conclusions that statutes do not violate the speech

and press clauses. Thus, in Sable Communications, supra, the

Court struck down a flat Congressional ban on all “indecent” dial-

a-porn services, despite Congress’s finding that such a ban was the

only way to prevent “enterprising adolescents” from circumventing

other barriers to their patronizing dial-a-porn services. See also

Landmark Communications, Inc. v. Virginia, 485 U.S. 829, 843

(1978) (overturning criminal conviction of newspaper under state

statute criminalizing “divulging” proceedings of commission inves-

tigating charges of judicial disability or misconduct, and stating

that “[dJeference to a legislative finding cannot limit judicial in-

quiry when First Amendment rights are at stake”). But see

Columbia Broadcasting System, Inc. v. Democratic National Com-

mittee, 412 U.S. 94 103 (1978) (“afford{ing] great weight to the

decision of Congress and the experiences of the’ FCC on First

Amendment questions). Here, of course, the Act does not limit any

rights protected by the speech and press clauses. To the contrary,

the Act affirmatively protects the free speech rights of students.

7

the “need of the Puerte Rican minority for the vote war-

ranted federal intrusion upon any state interests served

by the English literacy requirement,” and that § 4(e)

was therefore “appropriate legislation” within the mean-

ing of section five of the Fourteenth Amendment. 384

U.S. at 658.

Whether Congressional action is authorized by the

Fourteenth Amendment is, of course, quintessentially a

question of constitutional law. Nevertheless, the Court

emphasized that “[i]t was for Congress . . . to assess

and weigh” the underlying legislative facts—“the risk

or pervasiveness of the discrimination in governmental

services, the effectiveness of eliminating the state re-

striction on the right to vote as a means of dealing with

the evil, the adequacy or availability of alternative rem-

edies, and the nature and significance of the state inter-

ests that would be affected... .” Id. at 653. See also

id. at 668 (Harlan, J., dissenting) (“[t]o the extent

‘legislative facts’ are relevant to a judicial determination,

Congress is well equipped to investigate them, and such

determinations are of course entitled to respect”).

The Court has accorded similar weight to Congressional

findings under the Commerce Clause. In Katzenbach V.

McClung, 379 U.S. 294 (1964), the Court upheld the

constitutionality, under the Commerce Clause, of Title II

of the Civil Rights Act of 1964. In doing so, the Court

did not undertake its own independent evaluation of

whether a local restaurant’s refusal to serve blacks af-

fected interstate commerce—the threshold constitutional

question. Instead, the Court deferred largely to Con-

gress’s finding.

Of course, the mere fact that Congress has said when

particular activity shall be deemed to affect com-

merce does not preclude further examination by this

Court. But where we find that the legislators, in

light of the facts and testimony before them, have

a rational basis for finding a chosen regulatory

\

8

scheme necessary to the protection of commerce, our

investigation is at an end.

379 U.S. at 303-304.

And in Walters v. National Association of Radiation

Survivors, 473 U.S. 305 (1985), the Court upheld, under

the Due Process Clause, a ten-dollar ceiling on attorneys’

fee awards for veterans claiming certain benefits from

the Veterans Administration. The Court noted that the

Senate had previously found that VA claim procedures

were quite informal and generally did not require an

attorney’s assistance and that the ten-dollar ceiling was

adequate. In Walters, as in the present case, Congress’s

findings coincided with those of the district court, and

this Court therefore did not have to “determine what def-

erence must be afforded” them. 473 U.S. at 30 n.12.

Nevertheless, the Court stressed that

[w]hen Congress makes findings on essentially fac-

tual issues such as these, those findings are of course

entitled to a great deal of deference, inasmuch as

Congress is an institution better equipped to amass

and evaluate the vast amounts of data bearing on

such an issue.

Ibid. See also Rostker, supra (upholding, under Due

Process Clause, Congressional decision to require men,

but not women, to register for the draft); Vance v.

Bradley, 440 U.S. 93, 111 (1979) (in equal protection

ease, “those challenging the legislative judgment must

convince the Court that the legislative facts on which

the classification is apparently based could not reasonably

be conceived to be true’’).

Indeed, this Court has accorded great weight even to

state legislative findings underlying constitutional issues.

In Texaco, Inc. v. Short, 454 U.S. 516 (1982), the Court

upheld a state statute that established a new time limit

for when certain mineral rights would be considered

abandoned. Texaco argued that a two-year grace period

provided in the statute gave insufficient notice of such

9

a~drastic change in the law, and thus violated the Due

Process Clause. Whether a statute affords sufficient no-

tice is inescapably a question of constitutional law. See

Lambert v. California, 355 U.S. 225 (1957). Neverthe-

less, the Texaco Court stressed that it “shows the greatest

deference to the judgment of state legislatures” on the

question whether a given statute provides adequate notice

of a change in the law. 454 U.S. at 532. Such deference

is appropriate, the Court explained, because “[a] legisla-

tive body is in a far better position than a court to form

a correct judgment” of the underlying legislative facts,

such as “the number of persons affected by a change in

the law, the means by which information concerning the

law is disseminated in the community, and the likelihood

that innocent persons may be harmed by the failure to

receive adequate notice.” Ibid. See also Brotherhood of

Locomotive Firemen & Engineers v. Chicago, R.I. & P.R.

Co., 393 U.S. 129, 138-39 (1968) (“The District Court’s

responsibility for making ‘findings of fact’ certainly does

not authorize it to resolve conflicts in the evidence against

the legislature’s conclusion.” ).

II. THERE IS NO REASON NOT TO ACCORD SUCH

WEIGHT TO CONGRESS’S FINDING THAT HIGH

SCHOOL STUDENTS CAN DISTINGUISH BE-

TWEEN STUDENTS’ RELIGIOUS SPEECH AND

STATE-SPONSORED RELIGION

In the present case, Congress found that “students below

the college level are capable of distinguishing between

State-initiated, school-sponsored, or teacher-led, religious

speech on the one hand and student-initiated, student-led

religious speech on the other,” S. Rep. No. 357, supra, at

35. That factual determination was no less within the com-

petence of a legislature than the legislative determina-

tions to which this Court gave great weight in Texaco,

Morgan and McClung—whether citizens were given ade-

quate notice of a change in the law (Texaco), whether

literacy tests in voting were related to discrimination in

10

day-to-day governmental services (Morgan), and whether

racial discrimination in local restaurants had an effect

on interstate commerce (McClung). Accordingly, Con-

gress’s findings in this case should be accorded similar

weight. And since there is no evidence that that finding

was at all improper, it should be accepted by this Court.

A. Both Lower Courts Agreed With Congress’s Finding.

The district court, “{u]nder the facts of this case,”

specifically rejected the argument “that high school stu-

dents, as-compared with college students . ... are more

impressionable and more susceptible to believing that the

school approves and promotes the religious activity” of

some of its students. Pet. App. B at 11 n.1. The Eighth

Circuit expressly “accept[ed] Congress’s fact-finding” to

the same effect. Pet. App. A at 20. The court of appeals

also, however, noted its own independent agreement with

Congress’s finding. It held that “even if Congress had

never passed the EAA, our decision would be the same

under Widmar alone.” Jbid. It thus resolved the ques-

tion, left open in Widmar, whether high school students

are too “impressionable” for the same rule to apply to

them. 454 U.S. at 274 n.14. And it also noted and re-

jected the Ninth Circuit’s contrary view that high school

students’ “impressionability,” among other things, distin-

guished them from university students. /d. at 20, n.3.*

B. Congress’s Finding Was Made With Due Deliberation.

The Congress’s finding that high school students are

capable of distinguishing between state-sponsored, and

student-initiated religious speech was an express “exer-

cise of [the Senate Committee’s] fact-finding powers,”

‘Under this Court’s “two court rule” the lower courts’ factual

findings might thus be dispositive in their own right. But see Bose,

Corp. v. Consumers Union of the United States, 466 U.S. 485

(1984).

XN

11

made only after it held extensive hearings, received much

evidence, and heard the testimony of many witnesses, in-

cluding several high school students. S. Rep. No. 357,

supra, at 10. For example, Professor Tribe testified that

Widmar should protect high school students’ religious

speech. Jd. at 8. See also Religious Speech Protection

Act: Hearing on H.R. 4996 Before the Subcomm. on

Elem. Sec. and Voc. Educ. of the House Comm. on Educ.

and Labor, 98th Cong., 2d Sess. 45 (1984) (statement of

Prof. Laurence H. Tribe). Professor Tribe added that he

had “no doubt that Congress has the constitutional au-

thority—and may even have a real . . . constitutional

duty—to withhold federally appropriated funds” from

school districts that discriminate against students’ reli-

gious speech, [bid.

A broad spectrum of individual supporters of the legis-

lation agreed. For example, Rep. Roukema, who is a

former high school teacher and school board member, dis-

puted the notion that “allowing religious groups to meet

in the school under any circumstances will have the effect

of advancing religion because of the impressionability of

high school students.” To the contrary, she noted that

“studies of adolescent psychology * * * have shown that

it is a time of increased cognitive capacity, marked by an

ability of the adolescent to differentiate himself from

authority figures... .” 130 Cong. Rec. 20,396 (1984).

See also id. at 19,238-39 (remarks of Sen. Durenberger) ;

id. at 19,239-40 (remarks by Sen. Biden) .®

° There is ample support for Congress’s conclusion in the psycho-

logica’ ‘iterature. One survey of such literature, which was cited

by the Senate Committee, concluded “[g]iven the increased cogni-

tive capacity and the psychological separation between the self

and authority figures that occurs during adolescence, high school

may in fact be a time when the distinction between tolerance based

on mutual respect and explicit approval of student expression is

particularly clear—even more clear, perhaps, than in later stages

of life.” Note, The Constitutional Dimensions of Student-Initiated

12

C. Both The Text Of The Act And Its Legislative His-

tory Demonstrate That Congress’s Purposes Were

Proper.

Both the text and the legislative history of the Equal

Access Act demonstrate that in passing that Act, Con-

gress was concerned only with vindicating students’

rights, not with secretly establishing a religion. On its

face, the Act protects not only religious speech, but also

speech with “political, philosophical, or other content

....” 20 U.S.C. §4071(a) (Supp. V 1987). And in

practice, the Equal Access Act has been successfully in-

voked by non-religious student groups. See Student Coali-

tion for Peace v. Lower Merion School District Bd. of

Directors, 633 F. Supp. 1040 (E.D. Pa. 1986) (ordering

school to permit use of gymnasium by student group pro-

moting nuclear freeze).

This Court has frequently noted that a broad and

facially neutral class of beneficiaries of a given statute

dispels any notion that it constitutes an establishment of

religion, even if a majority of those who choose to take

advantage of the statute are religiously affiliated. The

Court has stressed that it is “loath to adopt a rule ground-

ing the constitutionality of a facially neutral law on an-

nual reports reciting the extent to which various classes

of private citizens claimed benefits under the law.”

Mueller v. Allen, 463 U.S. 388, 401 (1983). See also Wit-

ters v. Washington Dept. of Serv. for the Blind, 474 U.S.

481, 493 (1986) (O’Connor, J., concurring in the judg-

ment and concurring in part) (where tuition assistance

is available for study at a variety of schools, any result-

ing “aid to religion . . . is the result of [a student’s] pri-

vate choice. No reasonable observer is likely to draw... .

an inference that the State itself is endorsing a religious

practice or belief.”); Widmar, 454 U.S. at 274 (state

Religious Activity in Public High Schools, 92 Yale L.J. 499, 509

(1988) (citing psychological studies), cited in S. Rep. No. 357,

supra, at 35.

13

forum “available to a broad class of nonreligious as well

as religious speakers” does not “confer any imprimatur

of state approval” on religious speech).

The legislative history of the Act is likewise clear.

Congress passed the Equal Access Act not to establish a

religion, but to “resolve the dilemma” many school ad-

ministrators perceived in trying to reconcile the free

speech and religious liberty guarantees of the First

Amendment. S. Rep. No. 357, supra, at 3, 21. The Con-

gress found that “many school administrators across the

country are prohibiting voluntary, student-initiated re-

ligious speech as an extracurricular activity.” S. Rep.

No. 357, 98th Cong., 2d Sess. 6 (1984). These prohibi-

tions, Congress found, were rooted in school administra-

tors’ “erroneous[] belie[f] that the establishment clause

prohibits students from ergaging in [religious] speech

at all, even when other types of extracurricular student

speech are permitted.” S. Rep. No. 357, supra, at 6.

As the Senate Report noted, this situation was resulting

in both a widespread restraint of student speech, id., at

14-15, and the diversion of scarce resources to litigation.

Id. at 21.

D. Congress’s Finding Is Not In Conflict With This

Court’s Precedents.

Congress’s finding does not conflict with any decisions

of this Court. While the Court has said that high school

students are in general somewhat more “impressionable”

than college students, it has never said that they are so

impressionable that they must (or, indeed, constitution-

ally may) be hermetically sealed off from all aspects of

religion. Quite the contrary, the Court has affirmatively

left room for religion in public schools.

In striking down Alabama’s moment of silence statute,

the Court was careful to stress that a State’s “intent to

return prayer to the public schools is, of course, quite

different from merely protecting every student’s right to

engage in voluntary prayer during an appropriate mo-

14

ment of silence during the school day.” Wallace v. Jaffree,

472 U.S. 38, 59 (1985) (emphasis added). Similarly,

in Bender v. Williamsport Area School District, 475 U.S.

534 (1986), the four Justices who reached the merits

would have held that the establishment clause permitted

_ (and the free speech clause required) public schools to

allow student-led Bible studies on the same basis as

other extracurricular groups. Justice Powell, the author

of Widmar, wrote, “I do not believe—particularly in

this age of massive media information—that the few

years difference in age between high school and college

students justifies departing from Widmar.” 475 U.S. at

556 (Powell, J., dissenting). And three other Justices

stressed that “utterly unproven, subjective impressions

of some hypothetical students should not be allowed to

transform individual expression of religious belief into

state advancement of religion.” Jd. at 553 (Burger, C.J.,

dissenting) (joined by White and Rehnquist, J.J.) (em-

phasis omitted).

The Court was likewise confident that the “released

time” program approved in Zorach v. Clauson, 343

U.S. 306 (1952), would not constitute an improper en-

dorsement of religion. In Zorach, the Court upheld pro-

grams for releasing students, who were otherwise sub-

ject to compulsory attendance laws, from public schools

for the sole purpose of attending religious instruction.

The Court rejected a claim that such programs were

necessarily coercive, noting that a “student need not take

religious instruction. He is left to his own desires as

to the manner or time of his religious devotions, if any.”

343 U.S. at 311. “[{T]he school authorities are neutral

* * * and do no more than release students whose parents

so request.” Ibid.

By contrast, where the Court has sought to protect stu-

dents’ impressionability has been in formal classroom

activities. Thus, the Court has prohibited public school

teachers from affirmatively leading classroom prayer or

Bible reading, Jaffree, supra; School Dist. of Abington

15.

Twp. Vv. Schempp, 374 U.S. 203 (1963); Engel v. Vitale,

370 U.S. 421 (1962), from posting copies of the Ten

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

(per curiam), or from teaching religious dogma them-

selves or in concert with visiting teachers, Edwards v.

Aguillard, 482 U.S. 578 (1987); McCollum v. Board of

Education, 333 U.S. 203 (1948). The Court has also

been exceedingly cautious about the use of state-supplied

teachers or materials in religiously affiliated schools. See,

e.g., Aguilar v. Felton, 473 U.S. 402 (1985) ; Meek v. Pit-

tenger, 421 U.S. 349 (1975); Lemon v. Kurtzman, 403

U.S. 602 (1971). But none of these cases is properly at

issue here. Congress found only that high school students

are mature enough to be able to distinguish the ezrtra-

curricular religious speech of fellow students from reli-

gious coercion by the state. It did not address—one way

or the other—whether high school students differ signifi-

cantly from college students for purposes of formal class-

room activities.

E. Congress’s Finding Makes Good Sense.

Finally, Congress’s finding accords with common sense.

For better or worse, high school students must face a

far more complex school environment than that which

existed even twenty years ago. It is simply unrealistic

to assume that they will view all of the various—and

conflicting—behaviors and ideas tolerated in public

schools as being endorsed by the State. As one high school

student testified before Congress: “They also have a

smoking section in our school. Does that mean that the

school sanctions, supports and encourages smoking? I

doubt it, just because the school allows a group to meet,

doesn’t mean it approves of and supports their activities.

® Even so, however, the Court has presumed that courses in the

history of religion or in the Bible as literature may be taught in

public schools without fear that students will misperceive their

purpose. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203,

225 (1963).

16

The same should hold for religious groups.” Equal Ac-

cess—A First Amendment Question: Hearings on S. 815

and S. 1059 Before the Senate Comm. on the Judiciary,

98th Cong., 1st Sess. 64 (1983) (testimony of Sarah

Scanlon). See also id. at 60 (testimony of Bonnie

Bailey) ; ibid. (testimony of Lisa Bender) ; Equal Access

Act: Hearings on H.R. 2732 Before the Subcomm. on

Elem., Sec. and Voc. Educ. of the House Comm. on Educ.

and Labor, 98th Cong., 1st Sess. 39 (1983) (testimony of

C. Luke Thornton, Principal of John I. Leonard High

School, Lake Worth, Fla.).

If high school students do manifest a particular sus-

ceptibility to others’ ideas, it is generally not to the views

of authority figures, but rather to those of their peers.

And the establishment clause surely cannot require gov-

ernment to do the impossible—to insulate students from

the ideas of their peers. Indeed, to the extent the state

attempts to forbid students’ private speech, it violates

both the free speech clause and the free exercise clause.

See Tinker v. DesMoines Independent School Dist., 291

U.S. 503 (1969) (student’s right to wear black armband

protected under speech clause) ; West Virginia State Bd.

of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (stu-

dents’ refusal to salute flag due to religious convictions

protected under the First Amendment).’

Finally, even if some high school students would view

affording equal access to student religious clubs as en-

dorsement of religion, at least as many, if not more,

would surely construe forbidding such meetings as offi-

cial hostility to religion. And that, of course, is also pro-

hibited by the establishment clause. In fact, the Senate

Committee found that “students reasonably perceive the

7™See also Note, The Constitutional Dimensions of Student-

Initiated Religious Activity in Public High Schools, 92 Yale L.J.

499 (1983); Note, Religious Expression in the Public School

Forum: The High School Student’s Right to Free Speech, 72 Geo.

L.J. 1385 (1983).

ee -

17

denial of access for religious speech as State hostility to-

ward religion,” S. Rep. No. 357, supra, at 36, and stressed

that “its findings” were supported “by the testimony of

the students themselves.” Jd. at 11, 19-20.

In sum, there is no factual, legal, or logical basis for

questioning Congress’s finding, and it should therefore

be embraced by the Court.

CONCLUSION

The Equal Access Act does not establish a religion. It

does nothing more than guarantee that students’ extra-

curricular speech will not be censored for its political,

religious or philosophical content. Moreover, as the Con-

gress and both lower courts found, there is no constitu-

tionally significant difference between high school and

college students for purposes of the rule announced in

Widmar v. Vineent. Accordingly, the Eighth Circuit’s

judgment should be affirmed.

Respectfully submitted,

Of Counsel: KEVIN T. BAINE

W. PATRICK DONLIN KEVIN J. HASSON *

Supreme Advocate WILLIAMS & CONNOLLY

CARL A. ANDERSON 839 17th Street, N.W.

Vice President Washington, D.C. 20006

for Public Policy (202) 331-5000

KNIGHTS OF COLUMBUS Counsel for Amicus Curiae

Dated: October 26, 1989 * Counsel of Record