The Decision (Westside Community Schools v. Mergens, 1990 - Part Two)

Summary of Part One:

1. The Equal Access Act of 1984 prohibited any public school which permitted “non-curricular” clubs to meet on school property from picking and choosing which clubs they allowed based on ideologies or beliefs. The trick was figuring out what counted as “non-curricular.”

2. Bridget Mergens was a student at Westside High School in Omaha, Nebraska. In 1985, she asked her principal for permission to form a Christian club at the school. 

3. The school said no, arguing that organizations like Chess Club and Scuba Club were essentially (if not directly) curriculum-related in that they were extensions of the sorts of things the school promoted as a whole, and thus inadequate to trigger the requirements of the act. Bridget didn’t buy it.  

The Decision

The Supreme Court determined that Westside’s existing activities were non-curricular enough that they had a “limited open forum,” and the Equal Access Act did not violate the Establishment Clause. The school would let the kids have their Bible Club. Justice Sandra Day O’Connor wrote most of the opinion for the majority and the rest for a plurality of justices, while several who supported the result wrote concurrences differing in some of the details or focusing on different factors. Justice John Paul Stevens was the sole voice of dissent, which at least simplified the math on that side of things.

Justice O’Connor’s mostly-majority opinion recapped the history of the case, including the role of Widmar v. Vincent (1981) and the Equal Access Act which was clearly intended to apply the standards outlined in Widmar to public schools. The sticking point, she acknowledged, was the use of the term “noncurriculum related student group” in the Act. The bill’s authors somehow overlooked that one tiny little detail – like when you forget to add coffee to your cream and sugar or bring your car with you to the gas station. O’Connor weighed several possible approaches to resolving this before arriving at the Court’s solution:

In our view, a student group directly relates to a school’s curriculum if the subject matter of the group is actually 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. We think this limited definition of groups that directly relate to the curriculum is a common sense interpretation of the Act that is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.

For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. 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…

On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be “noncurriculum related student groups” for purposes of the Act. The existence of such groups would create a “limited open forum” under the Act and would prohibit the school from denying equal access to any other student group on the basis of the content of that group’s speech…

In other words, if Westside had a Scuba Club but not a Scuba Class, they’d have to allow Bible Club as well – along with any ideological undesirables seeking similar sanctuary.

As to the Establishment Clause, the Equal Access Act passed the “Lemon Test” on all three fronts. It had a secular legislative purpose (equal access and protection of different viewpoints or beliefs), it did not substantially advance or hinder religion (it merely stayed out of the way), and it didn’t create excessive entanglement (the school wasn’t funding or regulating the meetings beyond what it would do for anything else happening on campus). “Indeed,” O’Connor explained, “the message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.”

Perhaps hoping the message would resonate more effectively if marinated in a light snark sauce, she circled back for a double tap:

{T}here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis… The proposition that schools do not endorse everything they fail to censor is not complicated.

So there you go.

Cautious Concurrence

Justice Anthony Kennedy, joined by Justice Antonin Scalia, agreed with the decision, but for slightly different reasons than those explained by Justice O’Connor. Justice Thurgood Marshall, joined by Justice William Brennan, on the other hand, had something more extensive on his mind:

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.” As the majority demonstrates, such a construction “is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.” …

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…

Justice Marshall explained that the University of Missouri—Kansas City (the institution prompting the Widmar case) had over a hundred different organizations on campus, many of which were political or issue-driven. There was little danger any reasonable person could believe that so many conflicting ideologies were simultaneously promoted by the University. The University also took great pains to ensure that none of these groups promoted themselves as official extensions of UMKC.

Westside, on the other hand, had for years openly embraced and promoted its extracurricular clubs and extolled the roles they played in the developing student character. They were part of the overall culture of the school, just like the football team or band. While Marshall and Brennan had no problem with the addition of Bible Club to the mix, this sort of enthusiastic endorsement by school officials would be inappropriate for a religious group. It would be too easy, they argued, for the average student to assume that the district was advocating this new option on the same terms as the rest.

Justice Stevens’ Dissent

The lone voice of dissent, Justice John Paul Stevens, was having none of it.

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. 

Well, gosh – when you put it that way…

Justice Stevens agreed with the majority that determining appropriate application of the Equal Access Act hinged on the definition of “noncurriculum related student group.” He agreed that the Court should look to Congress’ intent to help do so, and that Congress clearly meant to apply the principles of Widmar to schools like Westside. The Act was obviously intended to prevent discrimination against religious groups once a “limited open forum” had been established and contained language to prevent school officials from evading the Act’s requirements through sophistry – creatively redefining terms to fit their desired outcome.

At that point, however, Justice Stevens believed the majority had lost their black-robed minds.

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.

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. But high school students are also young enough that open fora may be less suitable for them than for college students…

That’s why Congress, in his understanding, left it up to school officials to decide whether to limit school clubs to those clearly supporting institutional ideals and goals – things the district could safely promote and encourage – or whether to open them up to more mature topics, as was the case in Widmar.

Once opened to political or religious ideologies, the district must honor the “limited public forum.” But, Justice Stevens insisted, neither Chess Club nor Scuba Club did that.

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… compete along ideological lines… {I}t seems absurd to presume that Westside has invoked {this} 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… 

{A} high school could properly sponsor a French club, a chess club, or a scuba diving club… because their activities are fully consistent with the school’s curricular mission… Nothing in Widmar implies that the existence of a French club… would create a constitutional obligation to allow student members of the Ku Klux Klan or the Communist Party to have access to school facilities.

Justice Stevens’ reasoning hearkened back to that of the district court which first heard the case (and wasn’t so far removed from Justices Marshall and Brennan in their concurrence). He seemed to share the same sorts of concerns which likely motivated Westside officials to turn down Bridget Mergens in the first place.


The courts have largely held to the standards established in Widmar and legislated by the Equal Access Act, in some cases extending them by inference to circumstances not specifically addressed in either.

A few years after Mergens, in Lamb’s Chapel v. Center Moriches Union Free School District (1993), the Court held that schools allowing community groups to use their facilities after hours could not deny the same access to a group based on its religious message. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Court required the University to fund religious student publications on the same terms it did for other non-curricular student periodicals. Good News Club v. Milford Central School (2001) offered a few minor variations on the theme but was otherwise a repeat of Lamb’s Chapel – with the same outcome.

Some districts have chosen to eliminate extra-curricular activities entirely rather than open their doors to kids wanting to meet under the auspices of Gay-Straight Alliance (GSA), Muslim Students Club, or any of the variations of Atheist or Satan Club. Districts are permitted to refuse groups promoting behavior or values clearly antithetical to the school’s mission (the KKK, for example, could be refused without much constitutional danger – although the Communists would probably get their club), but the boundaries of this discretion are still being tested here and there.

Local courts have also periodically confronted variations of the issue (if the district cancels all clubs to avoid allowing Teen Q-Anon to meet, does that violate the spirit of the law?) By and large, however, the principles established in Mergens have remained firm for over three decades and there’s little reason to expect them to change anytime soon.

NOTE: This post is an excerpt from "Have To" History: A Wall Of Education

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