|Board of Education of Westside Community Schools v. Mergens By and Through Mergens
[ O'Connor ]
[ Kennedy ]
[ Marshall ]
[ Stevens ]
Board of Education of Westside Community Schools v. Mergens By and Through Mergens
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Justice MARSHALL, with whom Justice BRENNAN joins, concurring in the judgment.
I agree with the majority that "noncurriculum" must be construed broadly to "prohibit schools from discriminating on the basis of the content of a student group's speech." Ante at 496 U.S. 241"]241. As the majority demonstrates, such a construction "is consistent with Congress' intent to provide a low threshold for triggering the Act's requirements." Ante at 240. In addition, to the extent that Congress intended the Act to track this Court's free speech jurisprudence, as the dissent argues, post at 279, n. 9, the majority's construction is faithful to our commitment to nondiscriminatory access to open fora in public schools. 241. As the majority demonstrates, such a construction "is consistent with Congress' intent to provide a low threshold for triggering the Act's requirements." Ante at 240. In addition, to the extent that Congress intended the Act to track this Court's free speech jurisprudence, as the dissent argues, post at 279, n. 9, the majority's construction is faithful to our commitment to nondiscriminatory access to open fora in public schools. Widmar v. Vincent, 454 U.S. 263, 267 (1981). When a school allows student-initiated clubs not directly tied to the school's curriculum to use school facilities, it has "created a forum generally open to student groups" and is therefore constitutionally prohibited from enforcing a "content-based exclusion" of other student speech. Id. at 277. In this respect, the Act as construed by the majority simply codifies in statute what is already constitutionally mandated: schools may not discriminate among student-initiated groups that seek access to school facilities for expressive purposes not directly related to the school's curriculum.
The Act's low threshold for triggering equal access, however, raises serious Establishment Clause concerns where secondary schools with fora that differ substantially from the forum in Widmar are required to grant access to student religious groups. Indeed, as applied in the present case, the Act mandates a religious group's access to a forum that is dedicated to promoting fundamental values and citizenship as [p263] defined by the school. The Establishment Clause does not forbid the operation of the Act in such circumstances, but it does require schools to change their relationship to their fora so as to disassociate themselves effectively from religious clubs' speech. Thus, although I agree with the plurality that the Act as applied to Westside could withstand Establishment Clause scrutiny, ante at 247-253 (O'CONNOR, J., joined by REHNQUIST, C.J., and WHITE and BLACKMUN, JJ.), I write separately to emphasize the steps Westside must take to avoid appearing to endorse the Christian Club's goals. The plurality's Establishment Clause analysis pays inadequate attention to the differences between this case and Widmar, and dismisses too lightly the distinctive pressures created by Westside's highly structured environment.
This case involves the intersection of two First Amendment guarantees -- the Free Speech Clause and the Establishment Clause. We have long regarded free and open debate over matters of controversy as necessary to the functioning of our constitutional system. See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972) ("To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship"). That the Constitution requires toleration of speech over its suppression is no less true in our Nation's schools. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 512 (1969); 408 U.S. 92, 95-96 (1972) ("To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship"). That the Constitution requires toleration of speech over its suppression is no less true in our Nation's schools. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 512 (1969); Keyishian v. Board of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967); 385 U.S. 589, 603 (1967); Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 280-281 (1988) (BRENNAN, J., dissenting).
But the Constitution also demands that the State not take action that has the primary effect of advancing religion. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). [p264] The introduction of religious speech into the public schools reveals the tension between these two constitutional commitments, because the failure of a school to stand apart from religious speech can convey a message that the school endorses, rather than merely tolerates, that speech. Recognizing the potential dangers of school-endorsed religious practice, we have shown particular "vigilan[ce] in monitoring compliance with the Establishment Clause in elementary and secondary schools." Edwards v. Aguillard, 482 U.S. 578, 583-584 (1987). See also Wallace v. Jaffree, 472 U.S. 38, 40 (1985) (invalidating statute authorizing a moment of silence in public schools for meditation or voluntary prayer); Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, 333 U.S. 203 (1948) (invalidating statute providing for voluntary religious education in the public schools). This vigilance must extend to our monitoring of the actual effects of an "equal access" policy. If public schools are perceived as conferring the imprimatur of the State on religious doctrine or practice as a result of such a policy, the nominally "neutral" character of the policy will not save it from running afoul of the Establishment Clause. [*]
We addressed at length the potential conflict between toleration and endorsement of religious speech in Widmar. There, a religious study group sought the same access to university facilities that the university afforded to over 100 [p265] officially recognized student groups, including many political organizations. In those circumstances, we concluded that granting religious organizations similar access to the public forum would have neither the purpose nor the primary effect of advancing religion. 454 U.S. at 270-275. The plurality suggests that our conclusion in Widmar controls this case. Ante at 248-253. But the plurality fails to recognize that the wide-open and independent character of the student forum in Widmar differs substantially from the forum at Westside.
Westside currently does not recognize any student club that advocates a controversial viewpoint. Indeed, the clubs at Westside that trigger the Act involve scuba diving, chess, and counseling for special education students. Ante at 245-246. As a matter of school policy, Westside encourages student participation in clubs based on a broad conception of its educational mission. See App. 488; ante at 231. That mission comports with the Court's acknowledgment
that public schools are vitally important "in the preparation of individuals for participation as citizens," and as vehicles for "inculcating fundamental values necessary to the maintenance of a democratic political system."
Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (plurality) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979)). Given the nature and function of student clubs at Westside, the school makes no effort to disassociate itself from the activities and goals of its student clubs.
The entry of religious clubs into such a realm poses a real danger that those clubs will be viewed as part of the school's effort to inculcate fundamental values. The school's message with respect to its existing clubs is not one of toleration but one of endorsement. As the majority concedes, the program is part of the "district's commitment to teaching academic, physical, civic, and personal skills and values." Ante at 232. But although a school may permissibly encourage its students to become well-rounded as student-athletes, student-musicians, and student-tutors, the Constitution forbids [p266] schools to encourage students to become well-rounded as student-worshippers. Neutrality toward religion, as required by the Constitution, is not advanced by requiring a school that endorses the goals of some noncontroversial secular organizations to endorse the goals of religious organizations as well.
The fact that the Act, when triggered, provides access to political as well as religious speech does not ameliorate the potential threat of endorsement. The breadth of beneficiaries under the Act does suggest that the Act may satisfy the "secular purpose" requirement of the Establishment Clause inquiry we identified in Lemon, 403 U.S. at 612-613. But see post at 284-285, n. 20 (STEVENS, J., dissenting). But the crucial question is how the Act affects each school. If a school already houses numerous ideological organizations, then the addition of a religion club will most likely not violate the Establishment Clause because the risk that students will erroneously attribute the views of the religion club to the school is minimal. To the extent a school tolerates speech by a wide range of ideological clubs, students cannot reasonably understand the school to endorse all of the groups' divergent and contradictory views. But if the religion club is the sole advocacy-oriented group in the forum, or one of a very limited number, and the school continues to promote its student-club program as instrumental to citizenship, then the school's failure to disassociate itself from the religious activity will reasonably be understood as an endorsement of that activity. That political and other advocacy-oriented groups are permitted to participate in a forum that, through school support and encouragement, is devoted to fostering a student's civic identity does not ameliorate the appearance of school endorsement unless the invitation is accepted and the forum is transformed into a forum like that in Widmar.
For this reason, the plurality's reliance on Widmar is misplaced. The University of Missouri took concrete steps to ensure
that the University's name will not "be identified in [p267] any way with the aims, policies, programs, products, or opinions of any organization or its members,"
454 U.S. at 274, n. 14 (quoting University of Missouri student handbook). Westside, in contrast, explicitly promotes its student clubs "as a vital part of the total education program [and] as a means of developing citizenship." App. 488. And while the University of Missouri recognized such clubs as the Young Socialist Alliance and the Young Democrats, Chess v. Widmar, 635 F.2d 1310, 1312, n. 1 (CA8 1980), Westside has recognized no such political clubs, App. 488.
The different approaches to student clubs embodied in these policies reflect a significant difference, for Establishment Clause purposes, between the respective roles that Westside High School and the University of Missouri attempt to play in their students' lives. To the extent that a school emphasizes the autonomy of its students, as does the University of Missouri, there is a corresponding decrease in the likelihood that student speech will be regarded as school speech. Conversely, where a school such as Westside regards its student clubs as a mechanism for defining and transmitting fundamental values, the inclusion of a religious club in the school's program will almost certainly signal school endorsement of the religious practice.
Thus, the underlying difference between this case and Widmar is not that college and high school students have varying capacities to perceive the subtle differences between toleration and endorsement, but rather that the University of Missouri and Westside actually choose to define their respective missions in different ways. That high schools tend to emphasize student autonomy less than universities may suggest that high school administrators tend to perceive a difference in the maturity of secondary and university students. But the school's behavior, not the purported immaturity of high school students, is dispositive. If Westside stood apart from its club program and expressed the view, endorsed by Congress through its passage of the Act, that high school students [p268] are capable of engaging in wide-ranging discussion of sensitive and controversial speech, the inclusion of religious groups in Westside's forum would confirm the school's commitment to nondiscrimination. Here, though, the Act requires the school to permit religious speech in a forum explicitly designed to advance the school's interest in shaping the character of its students.
The comprehensiveness of the access afforded by the Act further highlights the Establishment Clause dangers posed by the Act's application to fora such as Westside's. The Court holds that
[o]fficial recognition allows student clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair.
Ante at 247 (citing App. 434-435). Students would be alerted to the meetings of the religion club over the public address system; they would see religion club material posted on the official school bulletin board and club notices in the school newspaper; they would be recruited to join the religion club at the school-sponsored Club Fair. If a school has a variety of ideological clubs, as in Widmar, I agree with the plurality that a student is likely to understand that "a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis." Ante at 250. When a school has a religion club but no other political or ideological organizations, however, that relatively fine distinction may be lost.
Moreover, in the absence of a truly robust forum that includes the participation of more than one advocacy-oriented group, the presence of a religious club could provide a fertile ground for peer pressure, especially if the club commanded support from a substantial portion of the student body. Indeed, it is precisely in a school without such a forum that intolerance for different religious and other views would be most dangerous and that a student who does not share the religious beliefs of his classmates would perceive "that religion or a particular religious belief is favored or preferred." [p269] Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'CONNOR, J., concurring in judgment).
The plurality concedes that there is a "possibility of student peer pressure," ante at 251, but maintains that this does not amount to "official state endorsement." Ibid. This dismissal is too facile. We must remain sensitive, especially in the public schools, to "the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others." County of Allegheny v. ACLU, 492 U.S. 573, 627-628 (1989) (O'CONNOR, J., concurring in part and in judgment). When the government, through mandatory attendance laws, brings students together in a highly controlled environment every day for the better part of their waking hours and regulates virtually every aspect of their existence during that time, we should not be so quick to dismiss the problem of peer pressure as if the school environment had nothing to do with creating and fostering it. The State has structured an environment in which students holding mainstream views may be able to coerce adherents of minority religions to attend club meetings or to adhere to club beliefs. Thus, the State cannot disclaim its responsibility for those resulting pressures.
Given these substantial risks posed by the inclusion of the proposed Christian Club within Westside's present forum, Westside must redefine its relationship to its club program. The plurality recognizes that such redefinition is necessary to avoid the risk of endorsement and construes the Act accordingly. The plurality holds that the Act "limits participation by school officials at meetings of student religious groups," ante at 251 (citing § 4071(c)(2) and (3)), and requires religious club meetings to be held during noninstructional time, ibid. (citing § 4071(b)). It also holds that schools may not sponsor any religious meetings. Ante at 253 (citing § 4072(2)). Finally, [p270] and perhaps most importantly, the plurality states that schools bear the responsibility for taking whatever further steps are necessary to make clear that their recognition of a religious club does not reflect their endorsement of the views of the club's participants. Ante at 251.
Westside thus must do more than merely prohibit faculty members from actively participating in the Christian Club's meetings. It must fully disassociate itself from the Club's religious speech and avoid appearing to sponsor or endorse the Club's goals. It could, for example, entirely discontinue encouraging student participation in clubs and clarify that the clubs are not instrumentally related to the school's overall mission. Or, if the school sought to continue its general endorsement of those student clubs that did not engage in controversial speech, it could do so if it also affirmatively disclaimed any endorsement of the Christian Club.
The inclusion of the Christian Club in the type of forum presently established at Westside, without more, will not assure government neutrality toward religion. Rather, because the school endorses the extracurricular program as part of its educational mission, the inclusion of the Christian Club in that program will convey to students the school-sanctioned message that involvement in religion develops "citizenship, wholesome attitudes, good human relations, knowledge and skills." App. 488. We need not question the value of that message to affirm that it is not the place of schools to issue it. Accordingly, schools such as Westside must be responsive not only to the broad terms of the Act's coverage but also to this Court's mandate that they effectively disassociate themselves from the religious speech that now may become commonplace in their facilities.
* As a majority of this Court today holds, see ante at 496 U.S. 249"]249-250 (O'CONNOR, J., joined by REHNQUIST, C.J., and WHITE and BLACKMUN, JJ.); infra at 270, the Establishment Clause proscribes public schools from "conveying a message ‘that religion or a particular religious belief is preferred,'" County of Allegheny v. ACLU, 492 U.S. 573, 627 (1989) (quoting 249-250 (O'CONNOR, J., joined by REHNQUIST, C.J., and WHITE and BLACKMUN, JJ.); infra at 270, the Establishment Clause proscribes public schools from "conveying a message ‘that religion or a particular religious belief is preferred,'" County of Allegheny v. ACLU, 492 U.S. 573, 627 (1989) (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'CONNOR, J., concurring in part and concurring in judgment)), even if such schools do not actually "impos[e] pressure upon a student to participate in a religious activity," ante at 261 (KENNEDY, J., concurring in part and concurring in judgment).