496 U.S. 226, 249-253 (1990)
Westside High School is a public secondary school in Omaha, Nebraska, that enrolls about 1,450 students in grades 10 through 12 and is part of the Westside Community Schools district.1 Under school board policy, students may join on a voluntary basis any of approximately 30 recognized student clubs and groups that meet after school hours on school premises.2 Students wishing to form a club must obtain permission from the principal and submit a statement of the club's purpose and objectives, and each club must have a faculty sponsor.3
In January 1985, respondent Bridget Mergens met with Principal Dr. Findley and requested permission to form a Christian club at the school.4 The proposed club would have the same privileges and meet on the same terms as other student groups, except that it would not have a faculty sponsor.5 The club's purposes included providing a forum for students to discuss and share their beliefs in God, study the Bible, live in accordance with their religious beliefs, and pray together, with membership open to all students regardless of religious affiliation.6
Findley denied the request, as did Associate Superintendent Tangdell and Superintendent Hanson.7 The school officials explained that school policy required all student clubs to have a faculty sponsor and that a religious club would violate the Establishment Clause.8 In March 1985, Mergens appealed the denial to the board of education, which voted to uphold the denial.9
Respondents, through their parents as next friends, filed suit in the United States District Court for the District of Nebraska seeking declaratory and injunctive relief.10 They alleged that the denial violated the Equal Access Act.11 The United States intervened to defend the constitutionality of the Act.12 The District Court entered judgment for petitioners, holding that the Act did not apply because Westside did not maintain a limited open forum as all existing student clubs were curriculum-related.13
The Court of Appeals for the Eighth Circuit reversed.14 It held that the District Court erred in concluding that all existing student clubs at Westside were curriculum-related and that many clubs, including the chess club, were noncurriculum-related.15 The Court of Appeals concluded that Westside maintained a limited open forum under the Act and that the Act did not violate the Establishment Clause.16 The Supreme Court granted certiorari.17
Whether the Equal Access Act prohibits a public secondary school from denying a student religious group permission to meet on school premises during noninstructional time?18
The Equal Access Act makes it unlawful for any public secondary school receiving federal financial assistance that maintains a limited open forum to deny equal access or discriminate against any students who wish to conduct a meeting on the basis of the religious or other content of the speech at such meetings.19 Under the statute a limited open forum exists whenever the school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.20 A student group directly relates to the curriculum and is therefore not noncurriculum related only if its subject matter is actually taught or will soon be taught in a regularly offered course.21 It also directly relates if the subject matter concerns the body of courses as a whole.22 Participation is required for a particular course or results in academic credit.23
Yes. Westside High School maintains a limited open forum because it recognizes multiple noncurriculum related student groups that meet after school hours on school premises.24 The Chess Club has no connection to any regularly offered course.25 Math teachers merely encourage participation without making it part of instruction.26
Students receive no academic credit.27 Subsurfers focuses on scuba diving, an activity not taught in physical education classes despite the presence of a swimming component in the curriculum.28 Participation is neither required nor credited.29 The Peer Advocates program works with special education classes yet is not tied to any course requirement or credit.30
These groups satisfy the statutory definition because their activities lack the direct relationship to the body of courses that would render them curriculum related.31 Consequently, the Act applies and forbids the school from denying the Christian Club the same access and privileges, including official recognition, access to the school newspaper, bulletin boards, public address system, and Club Fair, that other groups receive.32 Principal Findley, Associate Superintendent Tangdell, Superintendent Hanson, and the board of education all participated in the denial on Establishment Clause grounds.33 The statutory command overrides that rationale once a limited open forum exists.34
The Equal Access Act prohibits Westside High School from denying the Christian Club permission to meet on school premises during noninstructional time.35
Related opinions on this issue
Joined by Justice Scalia
Justice Kennedy joined the statutory holding but emphasized that the Act imposes comprehensive federal regulation on matters previously left to local discretion.36 He viewed the Court's definition of noncurriculum related groups as the most rational available given the statutory text and constitutional backdrop.37 Kennedy stressed that the Act's criteria in § 4071(c) provide a safe harbor for compliance but left open whether schools could satisfy the fair opportunity requirement through other means.38
He concurred in the judgment because the school made no attempt at compliance and because the Act's safeguards prevent coercion of students into religious activity.39
Joined by Justice Brennan
Justice Marshall agreed that noncurriculum related must be read broadly to prohibit content discrimination.40 He stressed that the Act's low threshold raises distinct Establishment Clause concerns when applied to a highly structured high school forum unlike the open university forum in Widmar.41 He argued that Westside must take affirmative steps to disassociate itself from religious clubs' speech.42
Such steps include discontinuing its general endorsement of the club program or issuing clear disclaimers.43 This avoids conveying a message of endorsement in a setting where clubs are promoted as developing citizenship and wholesome attitudes.44
Justice Stevens dissented from the statutory holding.45 He contended that Congress intended the Act to extend Widmar only to high schools that had created a forum comparable to the university forum.46 That forum already included advocacy groups advocating controversial or partisan views.47
Under his reading, a group is noncurriculum related only if it advocates partisan theological, political, or ethical views.48 Because Westside's clubs such as Chess Club and Subsurfers are innocuous and consistent with the school's educational mission, they do not trigger the Act.49 The school may therefore exclude the Christian Club without violating the statute.50
Whether the Equal Access Act, as applied to this case, violates the Establishment Clause of the First Amendment?51
Under Lemon v. Kurtzman a statute survives Establishment Clause scrutiny if it has a secular legislative purpose.52 Its principal or primary effect neither advances nor inhibits religion.53 It does not foster excessive government entanglement with religion.54 In the equal access context, the inquiry focuses on whether the government endorses religion or coerces participation.55 Secondary school students are presumed capable of distinguishing between school endorsement and mere permission of private speech on a nondiscriminatory basis.56
No. The Act possesses a secular purpose of ending discrimination against religious speech and ensuring equal treatment for all student groups regardless of content. Its primary effect does not advance religion because the statute requires only nondiscriminatory access.57 The statute prohibits school sponsorship of religious meetings.58 It limits employee participation to nonparticipatory custodial roles.59
It mandates that meetings occur during noninstructional time.60 Schools retain authority to clarify that recognition does not constitute endorsement.61 The broad spectrum of clubs at Westside, including service, hobby, and government groups, prevents any reasonable perception that the school favors religion.62 There is no excessive entanglement because administrators need only review speech content to classify groups.63
The Act forbids school officials from directing or controlling religious meetings.64 The possibility of student peer pressure does not equate to official endorsement, particularly where no formal classroom activities or mandatory attendance are involved.65
The Equal Access Act, as applied to this case, does not violate the Establishment Clause of the First Amendment.66
Related opinions on this issue
Joined by Justice Scalia
Justice Kennedy concurred in the judgment but applied a different Establishment Clause framework focused on whether the government gives direct benefits that establish religion or coerces participation.67 He found the Act neutral and lacking any coercive element because meetings occur outside instructional time.68 Attendance is voluntary.69
The statute prohibits schools from requiring or encouraging religious membership.70 Kennedy rejected endorsement as the controlling test.71 He argued that it lacks sufficient content and can produce hostility rather than neutrality when applied to private religious speech.72
Joined by Justice Brennan
Justice Marshall agreed the Act could be applied constitutionally at Westside but insisted the school must redefine its relationship to its club program.73 Because Westside promotes clubs as vital to developing citizenship and wholesome attitudes, the addition of a religious club without affirmative disclaimers would convey endorsement.74 Marshall required the school either to cease encouraging participation in all clubs or to issue clear statements that recognition of the Christian Club does not reflect school endorsement of its religious goals.75
Justice Stevens did not reach the constitutional question because he concluded the Act did not apply.76 He noted that the plurality's construction brings the Act perilously close to commanding organized prayer in schools that permit only noncontroversial clubs.77 He emphasized the special sensitivity of moving religious observances into public schools through compulsory attendance laws.78
He warned that the Act, as interpreted, risks authorizing religious ceremonies on school premises even when educators deem such access unwise.79