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STEVENS, J., dissenting

The civil cases upon which Chevron Oil relied, Allen v. State Bd. of Elections, 393 U. S. 544 (1969), Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968), Reynolds v. Sims, 377 U. S. 533, 585 (1964), and Simpson v. Union Oil Co. of Cal., 377 U. S. 13 (1964), as well as those cases which have relied upon it, Florida v. Long, 487 U. S. 223 (1988), Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U. S. 1073 (1983), and Lemon v. Kurtzman, 411 U. S. 192 (1973) (Lemon II), have concerned not the application of a new constitutional or statutory rule, id., at 199, but rather the relief that a federal court should award when applying the new law. 12 See also Caban v. Mohammed, 441 U. S. 380, 416 (1979) (STEVENS, J., dissenting). These cases are all remedy cases in which, as Justice Harlan explained, consideration of reliance might be appropriate. See United

12 Chevron Oil also relied upon the criminal cases that were overruled in Griffith v. Kentucky, 479 U. S. 314 (1987). The other civil cases relied on by the Court in Chevron Oil-Cipriano v. City of Houma, 395 U. S. 701 (1969), Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371 (1940), Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358 (1932), and the municipal bond cases, Gelpcke v. City of Dubuque, 1 Wall. 175 (1864); Havemeyer v. Iowa County, 3 Wall. 294 (1866); and Railroad Co. v. McClure, 10 Wall. 511 (1871), provide no support for the judgment here. On Cipriano, see supra, at 215-217. As to the other civil cases cited by Chevron Oil, Justice Harlan has explained why none of them support the result reached by the Court today: Gelpcke v. City of Dubuque, 1 Wall. 175 (1864), holds only that state courts may be compelled in some situations by particular provisions of the Federal Constitution to apply certain new rules prospectively only. . Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358 (1932), merely holds that the Federal Constitution imposes no barrier to a state court's decision to apply a new state common-law rule prospectively only. Is it not sufficient answer to the dissenters' final assertion of precedential support to point out that Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371 (1940), was a collateral attack on a civil judgment already otherwise final and entitled to res judicata effect?" Mackey v. United States, 401 U. S. 667, 698 (1971) (opinion concurring in judgment in part and dissenting in part).

STEVENS, J., dissenting

496 U. S.

case.

States v. Estate of Donnelly, 397 U. S., at 296–297 (concurring opinion). As the plurality stated in Lemon II, the problem of “the appropriate scope of federal equitable remedies” is distinct from the choice-of-law issue implicated by this

411 U. S., at 199 (emphasis added). “In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional roots.” Id., at 201; see also id., at 199–200 (citing Estate of Donnelly, 397 U. S., at 296–297 (Harlan, J., concurring)).

The Arkansas HUE tax unquestionably violates the Commerce Clause. Two results might follow from that conclusion. If the retention of taxes assessed violates the Due Process Clause under our decision today in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., ante, at 36-43, petitioners are entitled to a remedy. The State's freedom to impose various procedural requirements on the refund mechanism sufficiently meets any state interest in sound fiscal planning. Ante, at 44-45. If the retention of the taxes does not violate the Due Process Clause, but does violate the state constitutional provision governing illegal exactions, petitioners are entitled to relief as a matter of state law. The State has the right to provide relief for illegally exacted taxes and make its own judgment as to the equities free from this Court's determination that such relief would be unduly burdensome. In either event-whether we think relief from a violation of fundamental fairness to be unfair or the State's choice of remedy unjust to the State-we have no warrant to substitute our judgment for what the Due Process Clause or state law would require.

V I would hold that our decision in Scheiner need apply only where, under state law, the time for challenging the tax has not expired, or in cases brought within the time specified by

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STEVENS, J., dissenting

state law for challenging the tax, the decisions are not yet final. The Arkansas Supreme Court did not reach the issue whether a refund remedy was available under state law because of its erroneous view that federal law prevented retroactive application of our decision in Scheiner to taxes paid prior to the date of JUSTICE BLACKMUN’s escrow order. I would therefore remand the case to the Arkansas Supreme Court for consideration whether petitioners are entitled to relief under state law or under our decision today in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., ante, p. 18.

I respectfully dissent.

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BOARD OF EDUCATION OF THE WESTSIDE COMMU-
NITY SCHOOLS (DIST. 66) ET AL. v. MERGENS,
BY AND THROUGH HER NEXT FRIEND,

MERGENS, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 88–1597. Argued January 9, 1990– Decided June 4, 1990 Westside High School, a public secondary school that receives federal fi

nancial assistance, permits its students to join, on a voluntary basis, a number of recognized groups and clubs, all of which meet after school hours on school premises. Citing the Establishment Clause and a School Board policy requiring clubs to have faculty sponsorship, petitioner school officials denied the request of respondent Mergens for permission to form a Christian club that would have the same privileges and meet on the same terms and conditions as other Westside student groups, except that it would have no faculty sponsor. After the Board voted to uphold the denial, respondents, current and former Westside students, brought suit seeking declaratory and injunctive relief. They alleged, inter alia, that the refusal to permit the proposed club to meet at Westside violated the Equal Access Act, which prohibits public secondary schools that receive federal assistance and that maintain a "limited open forum” from denying “equal access” to students who wish to meet within the forum on the basis of the “religious, political, philosophical, or other content” of the speech at such meetings. In reversing the District Court's entry of judgment for petitioners, the Court of Appeals held that the Act applied to forbid discrimination against respondents' proposed club on the basis of its religious content, and that the Act did

not violate the Establishment Clause. Held: The judgment is affirmed. 867 F. 2d 1076, affirmed.

JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that petitioners violated the Equal Access Act by denying official recognition to respondents' proposed club. Pp. 234-247.

(a) The Act provides, among other things, that a "limited open forum” exists whenever a covered school “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises." Its equal access obligation is therefore triggered even if

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such a school allows only one “noncurriculum related” group to meet. Pp. 234-237.

(b) Although the Act does not define the crucial phrase “noncurriculum related student group,” that term is best interpreted in the light of the Act's language, logic, and nondiscriminatory purpose, and Congress' intent to provide a low threshold for triggering the Act's requirements, to mean any student group that does not directly relate to the body of courses offered by the school. A group directly relates to a school's curriculum if the group's subject matter is actually taught, or will soon be taught, in a regularly offered course; if that subject matter concerns the body of courses as a whole; or if participation in the group is required for a particular course or results in academic credit. Whether a specific group is “noncurriculum related” will therefore depend on the particular school's curriculum, a determination that would be subject to factual findings well within the competence of trial courts to make. Pp. 237–243.

(c) Westside's existing student clubs include one or more "noncurriculum related student group[s)" under the foregoing standard. For example, Subsurfers, a club for students interested in scuba diving, is such a group, since its subject matter is not taught in any regularly offered course; it does not directly relate to the curriculum as a whole in the same way that a student government or similar group might; and participation in it is not required by any course and does not result in extra academic credit. Thus, the school has maintained a “limited open forum” under the Act and is prohibited from discriminating, based on the content of the students' speech, against students who wish to meet on school premises during noninstructional time. Pp. 243–247.

(d) Westside's denial of respondents' request to form a religious group constitutes a denial of "equal access" to the school's limited open forum. Although the school apparently permits respondents to meet informally after school, they seek equal access in the form of official recognition, which allows clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, public address system, and annual Club Fair. Since denial of such recognition is based on the religious content of the meetings respondents wish to conduct within the school's limited open forum, it violates the Act. P. 247.

JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE BLACKMUN, concluded in Part III that the Equal Access Act does not, on its face and as applied to Westside, contravene the Establishment Clause. The logic of Widmar v. Vincent, 454 U. S. 263, 271–275—which applied the three-part test of Lemon v. Kurtzman, 403 U. S. 602, 612-613, to hold that an “equal access” policy, at the state university level, does not violate the Clause-applies with equal force to the Act. Pp. 247-253.

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