BOARD OF EDUCATION OF THE WESTSIDE COMMUNITY SCHOOLS v. MERGENS 496 U.S. 226 (1990)

In widmar v. vincent (1981) the Supreme Court held that a state university had denied a student religious group's freedom of speech by barring the group from holding a worship meeting on campus. Concluding that the university had created a limited public forum, the Court rejected the university's argument that allowing the meeting would amount to an unconstitutional establishment of religion. In 1984, Congress adopted the Equal Access Act, prohibiting a public high school that receives federal aid from denying religious, philosophical, or political student groups access to its facilities if it allows access by other "noncurriculum related" student groups. The lower federal courts disagreed about the law's constitutionality, and some commentators expected the Supreme Court's resolution of the conflict to illuminate the future path of establishment clause jurisprudence. In the event, the light failed.

In Mergens the Supreme Court upheld the act, 8–1, against an establishment clause challenge. Justice sandra day o'connor, writing for herself and three other Justices, found the case closely similar to Widmar—as far as the establishment clause question was concerned—and applied the three-part lemon test. First, Congress had a secular purpose of preventing discrimination against religious speech. Second, the primary effect of the law was not to advance religion. Neither Congress nor the school district had endorsed or sponsored any religious group's speech. Furthermore, the act had forbidden school officials to participate in religious groups' meetings and required that any such meetings be held during noninstructional time. Third, the school's requirement of a faculty sponsor did not amount to excessive entanglement of the school with religion.

Justice anthony m. kennedy, joined by Justice antonin scalia, concurred. Following his opinion in county of allegheny v. american civil liberties union (1989), Kennedy rejected the "endorsement" gloss on the lemon test. He would uphold a law against an establishment clause challenge if it did not directly benefit religion to the degree of establishing a state religion, or coerce someone into participating in a religious activity. Here, Congress and the school board had done neither.

Justice thurgood marshall, joined by Justice william j. brennan, also concurred. For him, the law raised more serious establishment clause problems than had Widmar; the school had not simply opened a forum, but had treated its after-school clubs as serving educational functions. He concurred on the assumption that the school would be required to redefine its club program to negate the appearance of sponsorship. Justice john paul stevens dissented on statutory grounds, arguing that the school's existing club program was "curriculum related," so that the act did not require access for a religious group.

Kenneth L. Karst
(1992)

(see also: Bender v. Williamsport; Equal Access; Religious Fundamentalism.)