|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 STEVENS, dissenting.
The dictionary is a necessary, and sometimes sufficient, aid to the judge confronted with the task of construing an opaque [p271] act of Congress. In a case like this, however, I believe we must probe more deeply to avoid a patently bizarre result. Can Congress really have intended to issue an order to every public high school in the nation stating, in substance, that if you sponsor a chess club, a scuba diving club, or a French club -- without having formal classes in those subjects -- you must also open your doors to every religious, political, or social organization, no matter how controversial or distasteful its views may be? I think not. A fair review of the legislative history of the Equal Access Act (Act), 98 Stat. 1302, 20 U.S.C. §§ 4071-4074, discloses that Congress intended to recognize a much narrower forum than the Court has legislated into existence today.
The Act's basic design is easily summarized: when a public high school has a "limited open forum," it must not deny any student group access to that forum on the basis of the religious, political, philosophical or other content of the speech of the group. Although the consequences of having a limited open forum are thus quite clear, the definition of such a forum is less so. Nevertheless, there is considerable agreement about how this difficulty must be resolved. The Court correctly identifies three useful guides to Congress' intent. First, the text of the statute says that a school creates a limited open forum if it allows meetings on school premises by "noncurriculum related student groups," a concept that is ambiguous at best. [n1] Ante at 496 U.S. 237"]237. Second, because this concept is ambiguous, the statute must be interpreted by reference to its general purpose, as revealed by its overall structure and by the legislative history. Ante at 238-239. Third, the Act's legislative history reveals that Congress intended to guarantee student religious groups access to high school fora comparable to the college forum involved in [p272] 237. Second, because this concept is ambiguous, the statute must be interpreted by reference to its general purpose, as revealed by its overall structure and by the legislative history. Ante at 238-239. Third, the Act's legislative history reveals that Congress intended to guarantee student religious groups access to high school fora comparable to the college forum involved in [p272] Widmar v. Vincent, 454 U.S. 263 (1981). Ante at 235. 239. All of this is common ground, shared by the parties and by every Court of Appeals to have construed the Act. [n2]
A fourth agreement would seem to follow from these three. If "noncurriculum related" is an ambiguous term, and if it must therefore be interpreted in light of Congressional purpose, and if the purpose of Congress was to ensure that the rule of Widmar applied to high schools as it did to colleges, then the incidence of the Act in this case should depend upon whether, in light of Widmar, Westside would have to permit the Christian student group to meet if Westside were a college. [n3] The characteristics of the college forum in Widmar should thus provide a useful background for interpreting the meaning of the undefined term "noncurriculum related student groups." But this step the Court does not take, and it is accordingly here that I part company with it.
Our decision in Widmar encompassed two constitutional holdings. First, we interpreted the Free Speech Clause of the First Amendment to determine whether the University of Missouri at Kansas City had, by its own policies, abdicated discretion that it would otherwise have to make content-based discriminations among student groups seeking to meet on its campus. We agreed that it had. 454 U.S. at 269; see also id. at 280-281 (STEVENS, J., concurring in judgment). Next, we interpreted the Establishment Clause of the First Amendment to determine whether the University was prohibited from permitting student-initiated religious groups to participate in that forum. We agreed that it was [p273] not. Id. at 270-277; see also id. at 280-281 (STEVENS, J., concurring in judgment).
To extend Widmar to high schools, then, would require us to pose two questions. We would first ask whether a high school had established a forum comparable under our Free Speech Clause jurisprudence to that which existed in Widmar. Only if this question were answered affirmatively would we then need to test the constitutionality of the Act by asking whether the Establishment Clause has different consequences when applied to a high school's open forum than when applied to a college's. I believe that in this case the first question must instead be answered in the negative, and that this answer ultimately proves dispositive under the Act, just as it would were only constitutional considerations in play.
The forum at Westside is considerably different from that which existed at the University of Missouri. In Widmar, we held that the University had created "a generally open forum," id. at 269. Over 100 officially recognized student groups routinely participated in that forum. Id. at 265. They included groups whose activities not only were unrelated to any specific courses but also were of a kind that a state university could not properly sponsor or endorse. Thus, for example, they included such political organizations as the Young Socialist Alliance, the Women's Union, and the Young Democrats. See id. at 274; Chess v. Widmar, 635 F.2d 1310, 1312, and n. 1 (CA8 1980). The University permitted use of its facilities for speakers advocating transcendental meditation and humanism. Since the University had allowed such organizations and speakers the use of campus facilities, we concluded that the University could not discriminate against a religious group on the basis of the content of its speech. The forum established by the state university accommodated participating groups that were "noncurriculum related" not only because they did not mirror the school's classroom instruction, but also because they advocated [p274] controversial positions that a state university's obligation of neutrality prevented it from endorsing.
The Court's opinion in Widmar left open the question whether its holding would apply to a public high school that had established a similar public forum. That question has now been answered in the affirmative by the District Court, the Court of Appeals, and by this Court. I agree with that answer. Before the question was answered judicially, Congress decided to answer it legislatively in order to preclude continued unconstitutional discrimination against high school students interested in religious speech. According to Senator Hatfield, a cosponsor of the Act, "All [it] does is merely to try to protect, as I say, a right that is guaranteed under the Constitution that is being denied certain students." 130 Cong.Rec. 19218 (1984). As the Court of Appeals correctly recognized, the Act codified the decision in Widmar, "extending its holding to secondary public schools." 867 F.2d at 1076, and n. l. [n4] What the Court of Appeals failed to recognize, however, is the critical difference between the university forum in Widmar and the high school forum involved in this case. None of the clubs at the high school is even arguably controversial or partisan. [n5] [p275]
Nor would it be wise to ignore this difference. High school students may be adult enough to distinguish between those organizations that are sponsored by the school and those which lack school sponsorship even though they participate in a forum that the school does sponsor. See ante at 250. But high school students are also young enough that open fora may be less suitable for them than for college students. The need to decide whether to risk treating students as adults too soon, or alternatively to risk treating them as children too long, is an enduring problem for all educators. The youth of these students, whether described in terms of "impressionability" or "maturity," may be irrelevant to our application of the constitutional restrictions that limit educational discretion in the public schools, but it surely is not irrelevant to our interpretation of the educational policies that have been adopted. We would do no honor to Westside's administrators or the Congress by assuming that either treated casually the differences between high school and college students when formulating the policy and the statute at issue here. [n6] [p276]
For these reasons, I believe that the distinctions between Westside's program and the University of Missouri's program suggest what is the best understanding of the Act: an extracurricular student organization is "noncurriculum related" if it has as its purpose (or as part of its purpose) the advocacy of partisan theological, political, or ethical views. A school that admits at least one such club has apparently made the judgment that students are better off if the student community is permitted to, and perhaps even encouraged to, compete along ideological lines. This pedagogical strategy may be defensible or even desirable. But it is wrong to presume that Congress endorsed that strategy -- and dictated its nationwide adoption -- simply because it approved the application of Widmar to high schools. And it seems absurd to presume that Westside has invoked the same strategy by recognizing clubs like Swim Timing Team and Subsurfers which, though they may not correspond directly to anything in Westside's course offerings, are no more controversial than a grilled cheese sandwich.
Accordingly, as I would construe the Act, a high school could properly sponsor a French club, a chess club, or a scuba diving club simply because their activities are fully consistent with the school's curricular mission. It would not matter whether formal courses in any of those subjects -- or in directly related subjects -- were being offered, as long as faculty encouragement of student participation in such groups would be consistent with both the school's obligation of neutrality and its legitimate pedagogical concerns. Nothing in Widmar implies that the existence of a French club, for example, would create a constitutional obligation to allow student members of the Ku Klux Klan or the Communist Party to [p277] have access to school facilities. [n7] More importantly, nothing in that case suggests that the constitutional issue should turn on whether French is being taught in a formal course while the club is functioning.
Conversely, if a high school decides to allow political groups to use its facilities, it plainly cannot discriminate among controversial groups because it agrees with the positions of some and disagrees with the ideas advocated by others. Again, the fact that the history of the Republican party might be taught in a political science course could not justify a decision to allow the young Republicans to form a club while denying Communists, white supremacists, or Christian Scientists the same privilege. In my judgment, the political activities of the young Republicans are "noncurriculum related" for reasons that have nothing to do with the content of the political science course. The statutory definition of what is "noncurriculum related" should depend on the constitutional concern that motivated our decision in Widmar.
In this case, the district judge reviewed each of the clubs in the high school program and found that they are all "tied to the educational function of the institution." App. B to Pet. for Cert. 25-26. He correctly concluded that this club system "differs dramatically from those found to create an open forum policy in Widmar and Bender." Ibid. [n8] I agree [p278] with his conclusion that, under a proper interpretation of the Act, this dramatic difference requires a different result.
As I have already indicated, the majority, although it agrees that Congress intended by this Act to endorse the application of Widmar to high schools, does not compare this case to Widmar. Instead, the Court argues from two other propositions: first, that Congress intended to prohibit discrimination against religious groups, and, second, that the statute must not be construed in a fashion that would allow school boards to circumvent its reach by definitional fiat. I am in complete agreement with both of these principles. I do not, however, believe that either yields the conclusion which the majority adopts.
First, as the majority correctly observes, Congress intended the Act to prohibit schools from excluding -- or believing that they were legally obliged to exclude -- religious student groups solely because the groups were religious. Congress was clearly concerned with two lines of decisions in the Courts of Appeals: one line prohibiting schools that wished to admit student-initiated religious groups from doing so, see Lubbock Civil Liberties Union v. Lubbock Independent School Dist., 669 F.2d 1038, 1042-1048 (CA5 1982), cert. denied, 459 U.S. 1155 (1983), and a second line allowing schools to exclude religious groups solely because of Establishment Clause concerns, see Brandon v. Guilderland Bd. of Ed., 635 F.2d 971 (CA2 1980), cert. denied, 454 U.S. 1123 (1981); see also Bender v. Williamsport Area School Dist., 563 F.Supp. 697 (MD Pa.1983), rev'd, 741 F.2d 538 (CA3 1984), vacated on other grounds, 475 U.S. 534 (1986). [n9] See ante at 239. These cases, however, involve only schools which either desire to recognize religious student groups or [p279] schools which, like the University of Missouri at Kansas City, purport to exclude religious groups from a forum that is otherwise conceded to be open. It is obvious that Congress need go no further than our Widmar decision to redress this problem, and equally obvious that the majority's expansive reading of "noncurriculum related" is irrelevant to the Congressional objective of ending discrimination against religious student groups.
Second, the majority is surely correct that a "‘limited open forum should be triggered by what a school does, not by what it says.'" Ante at 244, quoting 130 Cong. Rec. 19222 (1984) (statement of Sen. Leahy). If, however, it is the recognition of advocacy groups that signals the creation of such a forum, I see no danger that school administrators will be able to manipulate the Act to defeat Congressional intent. [n10] Indeed, it seems to me that it is the majority's own test that is suspect on this score. [n11] It would appear that the school could alter the "noncurriculum related" status of Subsurfers, see ante at 245, simply by, for example, including one day of scuba instruction in its swimming classes, or by requiring [p280] physical education teachers to urge student participation in the club, or even by soliciting regular comments from the club about how the school could better accommodate the club's interest within coursework. [n12] This may be what the school does rather than what it says, but the "doing" is mere bureaucratic procedure unrelated to the substance of the forum or the speech it encompasses.
Not only is the Court's preferred construction subject to manipulation, but it also is exceptionally difficult to apply even in the absence of deliberate evasion. For example, the Court believes that Westside's swim team is "directly related" to the curriculum, but the scuba diving club is not. Ibid. The Court's analysis makes every high school football program a borderline case, for while many schools teach football in physical education classes, they usually teach touch football or flag football, and the varsity team usually plays tackle football. Tackle football involves more equipment and greater risk, and so arguably stands in the same relation to touch football as scuba diving does to swimming. Likewise, it would appear that high school administrators might reasonably have difficulty figuring out whether a cheerleading squad or pep club might trigger the Act's application. The answer, I suppose, might depend upon how strongly students were encouraged to support the football team. Obviously, every test will produce some hard cases, [n13] but the Court's test seems to produce nothing but hard cases. [p281]
For all of these reasons, the argument for construing "noncurriculum related" by recourse to the facts of Widmar, and so by reference to the existence of advocacy groups, seems to me overwhelming. It provides a test that is both more simple and more easily administered than what the majority has crafted. Indeed, the only plausible answer to this construction of the statute is that it could easily be achieved without reference to the exotic concept of "noncurriculum related" organizations. This point was made at length on the Senate floor by Senator Gorton. [n14] Senator Hatfield answered that the term had been recommended to him by lawyers, apparently in an effort to capture the distinctions important to the judiciary's construction of the Free Speech clause. [n15] [p282]
Congress may sometimes, however, have a clear intent with respect to the whole of a statute even when it muddles the definition of a particular part, just as, in other cases, the intent behind a particular provision may be clear though the more comprehensive purpose of the statute is obscure. In this case, Congress' general intent is -- as Senator Gorton certainly understood -- a necessary guide to the Act's more particular terms. In answer to this strategy, the Court points out that references to Widmar must be considered in context. Ante at 242-243. That is surely so. But when this is done, it becomes immediately clear that those references are neither "few" nor "passing" nor even "general," ibid.; they are instead the sheet anchors holding fast a debate that would otherwise be swept away in a gale of confused utterances. [n16] [p283]
We might wish, along with Senator Gorton, that Congress had chosen a better term to effectuate its purposes. But our own efforts to articulate "public forum" analysis have not, in my opinion, been altogether satisfactory. See Cornelius v. NAACP Legal Defense & Ed Fund Inc., 473 U.S. 788, 833 (1985) (STEVENS, J., dissenting). [n17] Lawyers and legislators seeking to capture our distinctions in legislative terminology should be forgiven if they occasionally stumble. [n18] Certainly [p284] we should not hold Congress to a standard of precision we ourselves are sometimes unable to obtain. "Our duty is to ask what Congress intended, and not to assay whether Congress might have stated that intent more naturally, more artfully, or more pithily." Sullivan v. Everhart, 494 U.S. 83 (STEVENS, J., dissenting).
My construction of the Act makes it unnecessary to reach the Establishment Clause question that the Court decides. [n19] It is nevertheless appropriate to point out that the question is much more difficult than the Court assumes. [n20] [p285] The plurality focuses upon whether the Act might run afoul of the Establishment Clause because of the danger that some students will mistakenly believe that the student-initiated religious clubs are sponsored by the school. [n21] I believe that the [p286] majority's construction of the statute obliges it to answer a further question: whether the Act violates the Establishment Clause by authorizing religious organizations to meet on high school grounds even when the high school's teachers and administrators deem it unwise to admit controversial or partisan organizations of any kind.
Under the Court's interpretation of the Act, Congress has imposed a difficult choice on public high schools receiving federal financial assistance. If such a school continues to allow students to participate in such familiar and innocuous activities as a school chess or scuba diving club, it must also allow religious groups to make use of school facilities. Indeed, [p287] it is hard to see how a cheerleading squad or a pep club, among the most common student groups in American high schools, could avoid being "noncurriculum related" under the majority's test. The Act, as construed by the majority, comes perilously close to an outright command to allow organized prayer, and perhaps the kind of religious ceremonies involved in Widmar, on school premises.
We have always treated with special sensitivity the Establishment Clause problems that result when religious observances are moved into the public schools. Edwards v. Aguillard, 482 U.S. 578, 583-584 (1987).
The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools, . . .
Illinois ex rel. McCollum Board of Education, School Dist. No. 71, 333 U.S. 203, 231 (1948) (Frankfurter, J., concurring). As the majority recognizes, ante at 251, student-initiated religious groups may exert a considerable degree of pressure even without official school sponsorship. "The law of imitation operates, and nonconformity is not an outstanding characteristic of children." McCollum, 333 U.S. at 227 (Frankfurter, J., concurring); see also Abington School Dist. v. Schempp, 374 U.S. 203, 290-291 (1963) (BRENNAN, J., concurring). Testimony in this case indicated that one purpose of the proposed Bible Club was to convert students to Christianity. App. 185. The influence that could result is the product not only of the Equal Access Act and student-initiated speech but also of the compulsory attendance laws, which we have long recognized to be of special constitutional importance in this context. Id. at 252-253; Wallace v. Jaffree, 472 U.S. 38, 60, n. 51 (1985). Moreover, the speech allowed is not simply the individual expression of personal conscience, as was the case in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), or West Virginia State Bd of Ed. v. Barnette, 319 U.S. 624 (1943), but is instead the collective statement of an organization [p288] -- a "student club," with powers and responsibilities defined by that status -- that would not exist absent the state's intervention. [n22]
I tend to agree with the Court that the Constitution does not forbid a local school district, or Congress, from bringing organized religion into the schools so long as all groups, religious or not, are welcomed equally if "they do not break either the laws or the furniture." [n23] That Congress has such authority, however, does not mean that the concerns underlying the Establishment Clause are irrelevant when, and if, that authority is exercised. [n24] Certainly we should not rush to embrace the conclusion that Congress swept aside these concerns by the hurried passage of clumsily drafted legislation. [n25] [p289]
There is an additional reason, also grounded in constitutional structure, why the Court's rendering of the Act is unsatisfying: so construed, the Act alters considerably the balance between state and federal authority over education, a balance long respected by both Congress and this Court. See, e.g., Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 863-864 (1982). The traditional allocation of responsibility makes sense for pedagogical, political, and ethical reasons. [n26] We have, of course, sometimes found it necessary to limit local control over schools in order to protect the constitutional integrity of public education.
That [Boards of Education] are educating [p290] the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.
West Virginia Bd. of Educ. v. Barnette, 319 U.S. at 637; see also Brown v. Topeka Bd. of Education, 347 U.S. 483 (1954); Missouri v. Jenkins, 495 U.S. 33 (1990). Congress may make similar judgments, and has sometimes done so, finding it necessary to regulate public education in order to achieve important national goals.
The Court's construction of this Act, however, leads to a sweeping intrusion by the federal government into the operation of our public schools, and does so despite the absence of any indication that Congress intended to divest local school districts of their power to shape the educational environment. If a high school administration continues to believe that it is sound policy to exclude controversial groups, such as political clubs, the Ku Klux Klan, and perhaps gay rights advocacy groups from its facilities, it now must also close its doors to traditional extracurricular activities that are noncontroversial but not directly related to any course being offered at the school. Congress made frequent reference to the primacy of local control in public education, and the legislative history of the Act is thus inconsistent with the Court's rigid definition of "noncurriculum related groups." [n27] Indeed, [p291] the very fact that Congress omitted any definition in the statute itself is persuasive evidence of an intent to allow local officials broad discretion in deciding whether or not to create limited public fora. I see no reason -- and no evidence of congressional intent -- to constrain that discretion any more narrowly than our holding in Widmar requires.
Against all these arguments, the Court interposes Noah Webster's famous dictionary. It is a massive tome, but no match for the weight the Court would put upon it. The Court relies heavily on the dictionary's definition of "curriculum." See ante at 237. That word, of course, is not the Act's; moreover, the word "noncurriculum" is not in the dictionary. Neither Webster nor Congress has authorized us to assume that "noncurriculum" is a precise antonym of the word "curriculum." "Nonplus," for example, does not mean "minus," and it would be incorrect to assume that a "nonentity" is not an "entity" at all. Purely as a matter of defining a newly-coined word, the term "noncurriculum" could fairly be construed to describe either the subjects that are "not a part of the current curriculum" or the subjects that "cannot properly be included in a public school curriculum." Either of those definitions is perfectly "sensible," because both describe subjects "that are not related to the body of courses offered by the school." See ante at 237. When one considers the basic purpose of the Act and its unquestioned linkage to our decision in Widmar, the latter definition surely is the more "sensible."
I respectfully dissent.
1. For an extensive discussion of the phrase and its ambiguity, see Laycock, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 Nw.U.L.Rev. 1, 36-41 (1986).
2. Brief for Petitioners 58-59, Brief for Respondents 34-40; Brief for the United States as Amicus Curiae 17-19, and nn. 21-22 (Act codifies Widmar), id. at 22 ("noncurriculum related" is an undefined term); id. at 25 ("noncurriculum related" should be construed by reference to the "larger objectives" of the Act); 867 F.2d 1076, 1078-1079 (CA8 1989); Garnett v. Renton School Dist. No. 403, 874 F.2d 608, 613-614 (CA9 1989).
3. We would, of course, then have to consider, as the Court does now, whether the Establishment Clause permits Congress to apply Widmar's reasoning to secondary schools.
4. The Court of Appeals quoted the following comment by Senator Levin:
[T]he pending amendment is constitutional in light of the Supreme Court's decision in Widmar against Vincent. This amendment merely extends a similar constitutional rule as enunciated by the Court in Widmar to secondary schools.
130 Cong.Rec. 19236 (1984) (statement of Sen. Levin).
Other Senators agreed. See id. at 19221 (statement of Sen. Leahy); id, at 19237 (" . . . the Court was right in Widmar, and this bill seeks only to clarify and extend the law of that case a bit. . . . What we seek to do by this amendment is make clear that the same rule of law applies to students in our public secondary schools") (statement of Sen. Bumpers); id. at 19239 (statement of Sen. Biden). See also Brief for United States as Amicus Curiae 17-19, nn. 21-22 (collecting references to Widmar from Senate and House debates).
5. The Court of Appeals also put too much weight upon the existence of a chess club at Westside. The court quoted an exchange between Senator Gorton and Senator Hatfield in which Senator Hatfield, a cosponsor of the Act, told Senator Gorton that a chess club would be "noncurriculum related" under the Act. 867 F.2d at 1078-1079. The exchange is completely inconclusive, however, when read in context. Senator Gorton's questions were designed to show that Senator Hatfield could not offer any satisfactory definition of "noncurriculum related." Senator Gorton's strategy succeeded, and in the course of the exchange, Senator "Hatfield offered just about every possible interpretation in less than two columns of the Congressional Record" Laycock, 81 Nw.U.L.Rev. at 37. Senator Hatfield eventually conceded that whether a chess club was "noncurriculum related" would depend upon what the school district's lawyers had to say about it. 130 Cong.Rec. 19225. This Court's majority does not place any special emphasis upon Senator Hatfield's reference to chess clubs, see ante at 245-246 (discussing chess clubs without reference to the legislative history), and I agree that it deserves none.
6. What I have said before of universities is true a fortiori with respect to high schools: a school's extracurricular activities constitute a part of the school's teaching mission, and the school accordingly must make "decisions concerning the content of those activities." Widmar v. Vincent, 454 U.S. at 278 (STEVENS, J., concurring in judgment). Absent good reason to hold otherwise, these decisions should be left to teachers. Id. at 279 and n. 2. See also Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 691, and n. 1 (STEVENS, J., dissenting).
7. Although I recognize that Justice MARSHALL reads Widmar more broadly, I respectfully disagree with that reading. Moreover, even if language in Widmar supported that reading, the language would be dictum, given the distinction -- acknowledged to be critical -- between "the wide open and independent character of the student forum in Widmar" and the substantially different character of Westside's program. See ante at 285 (MARSHALL, J., concurring).
8. In Bender v. Williamsport Area School Dist., 563 F.Supp. 697 (MD Pa.1983), the school officials conceded that any organization conducive to the intellectual or moral growth of students could meet during the activities period. Unlike the school officials in this case, the Williamsport officials had not claimed that the forum was limited on the basis of whether a group presented a one-sided view of controversial subjects. Id. at 706-707.
9. The Bender litigation was pending before the Court of Appeals for the Third Circuit when the Act was drafted, and was much discussed by the Act's sponsors.
10. Since the statute as I construe it would track our own Free Speech Clause jurisprudence, administrators could no more escape the Act's restrictions by mere labeling than they could escape the First Amendment itself by such means.
11. According to the Court,
In our view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit.
Ante at 239-240. The Court clarifies the meaning of the second part of this test by suggesting that
[a] school's student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school.
Ibid. Likewise, the fact that the International Club is "‘developed through our foreign language classes'" suffices to satisfy the Court's test, presumably as a result of its first prong. See ante at 246.
12. The club's membership might have a special interest in seeing more attention devoted to icthyological topics in biology classes, in adding oceanographic examples to physics classes, and in allowing advanced students in the school shops to design snorkeling gear. As I understand the majority's test, Subsurfers would not be "noncurriculum related" so long as the club made such suggestions as these on a regular basis, even if the Westside administration regularly thanked the club and rejected every suggestion it made. See ante at 240 (discussing the student government).
13. Under my reading of the statute, for example, a difficult case might be posed if a district court were forced to decide whether a high school's Nietzsche Club were concerned with philology or doctrine. None of the very common clubs at Westside, however, causes any difficulties for this test, while nearly all of them present close questions if examined pursuant to the Court's rubric. The Nietzsche Club is a problem that can be dealt with when it actually arises.
14. Senator Gorton proposed replacing the Act with another, which read:
No public secondary school receiving Federal financial assistance shall prohibit the use of school facilities for meetings during noninstructional time by voluntary student groups solely on the basis that some or all of the speech engaged in by members of such groups during their meetings is or will be religious in nature.
130 Cong.Rec. 19225 (1984).
15. Senator Hatfield attributed the Act's complex terminology to
too many lawyers wanting to put something down to satisfy one particular legal point of view, one legal school, or one precedent, or one court decision, or one experience.
In light of this admission and similar statements, it is astonishing that the United States asks us to believe that Congress, by using the phrase "noncurriculum related," intended to reject Widmar's definition of an "open forum" in favor of a definition that would be "highly specific" and less confusing. See Brief for United States as Amicus Curiae 20-21. I am instead inclined to agree with Professor Laycock, who observes that "[a] House opponent [of the Act] was surely correct when he said that not even the sponsors of the bill knew what it meant." Laycock, 81 Nw.U.L.Rev. at 38. The bill's supporters admitted that its language was murky, but suggested that something was better than nothing. See 130 Cong.Rec. 20946 (statement of Rep. Hyde). If Congress really intended to depart from Widmar for reasons of administrative clarity, Congress kept its intent well hidden, both in the statute and in the debates preceding its passage.
16. The Court makes a gallant and commendable effort to vindicate Congress' peculiar diction. But I fear that, in the end, the Court's dogged persistence leads it to miss the forest for the trees. The Court quite properly points out that Congress' general intent cannot be established by a single reference, or even several statements, sundered from context. One can, of course, no more deduce the meaning of legislative history by quoting one randomly chosen Senator than one can capture the meaning of a play by quoting one randomly chosen character. To say that Polonius, Claudius, and Gertrude express differing views about Hamlet's "antic disposition" is not to say that Hamlet has no meaning. No reader of the congressional drama in this case can come away unimpressed by its focus upon Widmar: the congressional actors quite clearly agreed that Widmar's rule should be extended to high schools, but were confused about how to draft a statute that did so. Nothing quoted by the Court so much as hints at a contrary reading.
The Court's discussion of Senator Levin's speech, ante at 243, is especially puzzling. The Court says that this dissent "plac[es] great reliance on a comment by Senator Levin." Ibid. In fact, Senator Levin's remark is one among four specific citations in a single footnote, and is further buttressed by the more than twenty additional citations collected in the Brief of the United States as Amicus Curiae. See n. 4, supra. The footnote singles out Senator Levin for special attention not because his views are of unique importance, but because his remarks were quoted by the Court of Appeals. Ibid. Still odder is the Court's own use of Senator Levin. The Court quotes the Senator as saying,
The pending amendment will allow students equal access to secondary schools student-initiated religious meetings before and after school where the school generally allows groups of secondary school students to meet during those times.
130 Cong.Rec. 19236 (1984). The Court emphasizes the word "generally." This word, however, puts Senator Levin in square opposition to the Court's reading of the Act. I agree with the Senator that the Act authorizes meetings by religious student-initiated groups in schools that permit meetings by student groups in general; the Court, however, must show that the Act authorizes such meetings even in schools that have a less generally open forum, one defined specifically enough to exclude partisan ideological organizations. Senator Levin's statement does not help the Court.
Nor can the Court claim any assistance from the reservations expressed by Senators Chiles and Denton about the legislative history, ante at 243; when their remarks are considered in context, it becomes immediately apparent that both men were addressing specific problems completely unrelated to the Act's connection with Widmar.
17. See also Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 Va.L.Rev. 1219, 1223-1225 (1984), L. Tribe, American Constitutional Law § 12-24 (2d ed. 1988).
18. The Court would have us believe that the step is not a stumble, but a pirouette: the Court declares that any possible interpretation of the Act must concede that Congress intended to draw a subtle distinction between a "limited public forum" and a "limited open forum." Ante at 242. For the reasons given in n. 15, supra, I find this suggestion implausible: the drafting of this legislation was not so finely choreographed.
Moreover, this Court's own opinion in Widmar refers, in quick succession and without apparent distinction, to "a forum generally open to the public," 454 U.S. at 268; "a generally open forum," id. at 269; and "a public forum," id. at 270. The District Court opinion in Bender -- an opinion of great concern to Congress when it passed this Act -- observed that "a university which accommodates student organizations by making its facilities ‘generally open' for their meetings will have created a ‘limited' public forum." 563 F.Supp., at 705. In the same month the Act was passed, the Court of Appeals' opinion in Bender closed the circle by using "limited open forum" to describe the First Amendment status of both the college forum in Widmar and the high school forum in Bender. Bender v. Williamsport Area School Dist., 741 F.2d 538, 547, n. 12 (CA3 1984); id. at 550. It would be wrong to say that the Court today slices these distinctions too thin: there is in fact no distinction for the slicing.
Even were I to accept the Court's premise, however, it would not lead me to the Court's conclusion. It does not seem that a "limited open forum" would be, as the Court must suppose, narrower in scope than a "limited public forum." Dictionary definitions, which the Court seems to favor, point in the opposite direction.
19. We consider Establishment Clause questions under the three-part analysis set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971):
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, . . . ; finally, the statute must not foster "an excessive government entanglement with religion."
20. The difficulty of the constitutional question compounds the problems with the Court's treatment of the statutory issue. In light of the ambiguity which it concedes to exist in both the statutory text and the legislative history, the Court has an obligation to adopt an equally reasonable construction of the Act that will avoid the constitutional issue. Cf. NLRB v. Catholic Bishops of Chicago, 440 U.S. 490, 500 (1979).
21. The Court also considers briefly, and then rejects, the possibility that the Act may lack the "secular purpose" required by the Establishment Clause. See ante at 248-249. In my view, that question, too, is closer than the Court suggests. There is no doubt that the purpose of this Act is to facilitate meetings by religious student organizations at public high schools. See, e.g., 130 Cong.Rec. 19216 (statement of Sen. Denton). There would nevertheless be no problem with the Act if it did no more than redress discrimination against religion. See Corporation of Presiding Bishop, Church of Latterday Saints v. Amos, 483 U.S. 327, 338 (1987) (characterizing as "proper" the statutory "purpose of lifting a regulation that burdens the exercise of religion," even if the resulting exemption does not "come packaged with benefits to secular entities"). Under the Court's reading of the Act, however, Congress had a considerably more expansive purpose: that of authorizing religious groups to meet even in schools that prohibit assembly of all partisan organizations and thus do not single out religious groups in particular. The Act also authorizes meetings of political or philosophic as well as religious groups, but it is clear that Congress was principally interested in religious speech. Ante at 239. The application of Lemon's secular purpose requirement to the Act thus becomes more complicated.
When examining this issue, the Court quite properly recognizes that we must distinguish between religious motives and religious purposes. See ante at 249. The Court, however, misapplies the distinction. If a particular legislator were to vote for a bill on the basis of a personal, religious belief that free speech is a good thing, the legislator would have a religious motive. That motive would present no problem under the Establishment Clause. If, however, the legislator were to vote for the bill on the basis of a prediction that the resulting speech would be religious in character, then the legislator would have a religious purpose. That would present a problem under the Establishment Clause. It is, moreover, entirely possible that this religious purpose might exist even absent a religious motive, as would be the case if the legislator's only reason for favoring religious speech was a belief that it would tend to produce cooperative behavior and so reduce the crime rate. It is the latter, not the former, kind of religious intention that is at issue here. As such, the Court's analysis of Lemon's purpose requirement presupposes that having a religious purpose for enacting a statute becomes analogous to having a religious motive for enacting the statute whenever the statute confers some incidental benefit upon secular activity. With this I cannot agree.
To survive scrutiny under the Lemon test, it is not enough that a statute's sponsors identify some secular goals allegedly served by the Act. We have held that a statute is unconstitutional if it "does not have a clearly secular purpose," Wallace v. Jaffree, 472 U.S. 38, 56, or if its "primary purpose was to . . . provide persuasive advantage to a particular religious doctrine." 472 U.S. 38, 56, or if its "primary purpose was to . . . provide persuasive advantage to a particular religious doctrine." Edwards v. Aguillard, 482 U.S. 578, 592 (1987). A law requiring that the Ten Commandments be posted in school classrooms is not vindicated by the possibility that reading it would teach students about a "fundamental legal code," 482 U.S. 578, 592 (1987). A law requiring that the Ten Commandments be posted in school classrooms is not vindicated by the possibility that reading it would teach students about a "fundamental legal code," Stone v. Graham, 449 U.S. 39, 41 (1980), and a law requiring recitation of the Lord's Prayer is likewise not saved by assertions -- true or not -- that such a practice serves the
promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature.
Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963).
In sum, the crucial question, under the purpose requirement of the Lemon test, is whether the challenged statute reflects a judgment that it would be desirable for people to be religious, or to adhere to a particular religion. The Court is correct to observe that it is irrelevant whether the legislature itself behaved religiously when it made (or abstained from making) that judgment. The Court's observation, however, is likewise irrelevant to the question before us. The Equal Access Act may nevertheless comply with the purpose requirement of the Lemon test by encompassing political and philosophic as well as religious speech, but that conclusion requires more explanation than the Court provides.
22. Respondents have sought not merely access to school meeting rooms, but also "the same rights, privileges, terms, and conditions accorded to other clubs" at Westside. Brief for Respondents 1, and n. 2. In this respect, at least this case resembles Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), more than it does Tinker, supra. Cf. Stewart, The First Amendment, The Public Schools, and the Inculcation of Community Values, 18 J.Law & Ed. 23, 36 (1989) (stressing distinction between "cases . . . in which students seek only to prevent state interference with their communicative activities, and cases . . . in which students seek active assistance in the dissemination of their ideas").
23. The quotation is from Congressman Frank, who spoke in support of the bill on the House floor. 130 Cong.Rec. 20933 (1984).
24. The bill enjoyed "wide, bipartisan" support in both Houses, ante at 239, but it likewise provoked thoughtful, bipartisan opposition in each body. Senator Chafee was among those who opposed the bill; he warned his colleagues that passing it might secure religious access to the schools only at the price of educational quality:
Legislation to encourage religious and political activity in the schools will do little to resolve our problems in education, but could lead to discord between those whose cooperation in the drive for excellence in education is more important than ever.
130 Cong.Rec. 19248.
25. Professor Laycock summarizes the circumstances of the Act's passage as follows:
The bill was completely rewritten in a series of multilateral negotiations after it was passed by the House and reported out of committee in the Senate. Thus, the committee reports cast no light on the language actually adopted. Senator Hatfield offered the negotiated compromise as a floor amendment in the midst of the Senate's rush to adjourn for the Fourth of July. He repeatedly emphasized that as many as 1,000 people had been involved in the negotiations that produced the compromise version, and that not all the senators sponsoring the compromise agreed with everything in it. Senator Gorton accurately observed that too many cooks had spoiled the broth. But Hatfield had a large majority committed to his compromise, and he resisted any change that might have caused the deal to fall apart. The Hatfield compromise later passed the House under a special rule that precluded amendments and limited debate to one hour.
Laycock, 81 Nw.U.L.Rev. at 37 (footnotes omitted).
26. As a matter of pedagogy, delicate decisions about immersing young students in ideological cross-currents ought to be made by educators familiar with the experience and needs of the particular children affected, and with the culture of the community in which they are likely to live as adults. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. at 271-272. As a matter of politics, public schools are often dependent for financial support upon local communities. The schools may be better able to retain local favor if they are free to shape their policies in response to local preferences. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 49-53 (1973). As a matter of ethics, it is sensible to respect the desire of parents to guide the education of their children without surrendering control to distant politicians. See Meyer v. Nebraska, 262 U.S. 390, 399-403 (1923).
27. See e.g., 130 Cong.Rec. 19217 (1984) ("I am fully committed to the proposition that schools and education in general must be under the guidance and control of local school districts local school boards, State school boards, and so forth. But where there is an action that is taken by such an official body, representing the public schools, which denies a right that is guaranteed under the Constitution, then the Congress of the United States, I think, has a duty and an obligation to step in and remedy that violated right") (statement of Sen. Hatfield). The Court does not suggest that Westside has deprived its students of any constitutionally guaranteed rights in this case. See also id. at 20941 ("The bill only applies if the school voluntarily creates a limited open forum. Everything is left to the local option. Everything is left to the local administrators and the local school board") (statement of Rep. Goodling).