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(a) Because the Act on its face grants equal access to both secular and religious speech, it meets the secular purpose prong of the test. P. 248-249.
(b) The Act does not have the primary effect of advancing religion. There is a crucial difference between government and private speech endorsing religion, and, as Congress recognized in passing the Act, high 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. Moreover, the Act expressly limits participation by school officials at student religious group meetings and requires that such meetings be held during "noninstructional time,” and thereby avoids the problems of the students' emulation of teachers as role models and mandatory attendance requirements that might otherwise indicate official endorsement or coercion. Although the possibility of student peer pressure remains, there is little if any risk of government endorsement or coercion where no formal classroom activities are involved and no school officials actively participate. Pp. 249–252.
(c) Westside does not risk excessive entanglement between government and religion by complying with the Act, since the Act's provisions prohibit faculty monitors from participating in, nonschool persons from directing, controlling, or regularly attending, and school “sponsorship" of, religious meetings. Indeed, a denial of equal access might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which it might occur. Pp. 252-253.
JUSTICE KENNEDY, joined by JUSTICE SCALIA, agreeing that the Act does not violate the Establishment Clause, concluded that, since the accommodation of religion mandated by the Act is a neutral one, in the context of this case it suffices to inquire whether the Act violates either of two principles. First, the government cannot give direct benefits to religion in such a degree that it in fact establishes a state religion or religious faith, or tends to do so. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655 (KENNEDY, J., concurring in judgment in part and dissenting in part). Any incidental benefits that accompany official recognition of a religious club under the Act's criteria do not lead to the establishment of religion under this standard. See Widmar v. Vincent, 454 U. S. 263, 273-274. Second, the government cannot coerce any student to participate in a religious activity. Cf. County of Allegheny, supra, at 659. The Act also satisfies this standard, since nothing on its face or in the facts of this case demonstrates that its enforcement will pressure students to participate in such an activity. Pp. 258,259, 260–262.
JUSTICE MARSHALL, joined by JUSTICE BRENNAN, although agreeing that the Act as applied to Westside could withstand Establishment
Clause scrutiny, concluded that the inclusion of the Christian club in the type of forum presently established at the school, without more, will not assure government neutrality toward religion. Pp. 263-270.
(a) The introduction of religious speech into the public schools reveals the tension between the Free Speech and Establishment Clauses, 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. Thus, the particular vigilance this Court has shown in monitoring compliance with the Establishment Clause in elementary and secondary schools, see, e. g., Edwards v. Aguillard, 482 U. S. 578, 583– 584, must extend to monitoring the actual effects of an "equal access" policy. Pp. 263-264.
(b) The plurality misplaces its reliance on Widmar v. Vincent, 454 U. S. 263, in light of the substantially different character of the student forum at issue here. In Widmar, the state university maintained a wide-open and independent forum, affording many ideological organizations access to school facilities; took concrete steps to assure that the university's name was not identified with the policies or programs of any student group; and emphasized the autonomy of its students. Here, in contrast, Westside currently does not recognize any student group that advocates a controversial viewpoint and explicitly promotes its student clubs as a vital part of its total educational program and as a means of developing citizenship, shaping character, and inculcating fundamental values. Moreover, the absence of other advocacy-oriented clubs in the highly controlled environment provides a fertile ground for peer pressure. In these circumstances, Westside's failure to disassociate itself from the activities and goals of the Christian club poses a real danger that it will be viewed by students as endorsing religious activity. Pp. 264–269.
(c) Thus, Westside must take steps to fully disassociate itself from the Christian 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 Westside sought to continue its general endorsement of those clubs that did not engage in controversial speech, it could do so if it also affirmatively disclaimed endorsement of the Christian club. Pp. 269–270.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, in which REHNQUIST, C. J., and WHITE, BLACKMUN, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part III, in which REHNQUIST, C. J., and WHITE and BLACKMUN, JJ., joined. KENNEDY, J., filed an opinion
concurring in part and concurring in the judgment, in which SCALIA, J., joined, post, p. 258. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 262. STEVENS, J., filed a dissenting opinion, post, p. 270.
Allen E. Daubman argued the cause for petitioners. With him on the briefs were Verne Moore, Jr., Marc D. Stern, and Amy Adelson.
Jay Alan Sekulow argued the cause for private respondents. With him on the brief were Douglas W. Davis, Robert K. Skolrood, Douglas Veith, and Charles E. Rice. Solicitor General Starr argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Schiffer, Deputy Solicitor General Roberts, and Anthony J. Steinmeyer. *
*Briefs of amici curiae urging reversal were filed for the American Jewish Committee et al. by Samuel Rabinove, Richard T. Foltin, and Lee Boothby; for People for the American Way by William R. Weissman, David W. Danner, and Susan M. Liss; for the Anti-Defamation League of B'nai B'rith et al. by Richard E. Shevitz, Ruti G. Teitel, Meyer Eisenberg, Jeffrey P. Sinensky, Steven M. Freeman, and Jill L. Kahn; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon.
Briefs of amici curiae urging affirmance were filed for the Baptist Joint Committee on Public Affairs et al. by Douglas Laycock, Samuel E. Ericsson, Forest D. Montgomery, Oliver S. Thomas, J. Brent Walker, and Wilford W. Kirton, Jr.; for the Catholic League for Religious and Civil Rights by Nancy J. Gannon; for Concerned Women for America by Jordan W. Lorence, Cimron Campbell, and Wendell R. Bird; for Christian Advocates Serving Evangelism by Wendell R. Bird; for the Knights of Columbus by Kevin T. Baine and Kevin J. Hasson; for the Rutherford Institute et al. by John W. Whitehead; for the Southern Center for Law & Ethics by Albert L. Jordan; for the United States Catholic Conference by Mark E. Chopko and John A. Liekweg; for Tara Lynn Burr et al. by Michael W. McConnell, Robert Hale, Michael J. Woodruff, Kimberlee W. Colby, Edward McGlynn Gaffney, Jr., Thomas C. Hill, Robert J. Cynkar, and David L. White; for Richard Collin Mangrum, pro se; and for Dr. David Moshman by Andrew J. Ekonomou.
Briefs of amici curiae were filed for the Campus Crusade for Christ, Inc., by Robert R. Thompson; and for Specialty Research Associates, Inc., by Thomas Patrick Monaghan.
JUSTICE O'CONNOR delivered the opinion of the Court, except as to Part III.
This case requires us to decide whether the Equal Access Act, 98 Stat. 1302, 20 U. S. C. $$4071-4074, prohibits Westside High School from denying a student religious group permission to meet on school premises during noninstructional time, and if so, whether the Act, so construed, violates the Establishment Clause of the First Amendment.
Respondents are current and former students at Westside High School, a public secondary school in Omaha, Nebraska. At the time this suit was filed, the school enrolled about 1,450 students and included grades 10 to 12; in the 1987–1988 school year, ninth graders were added. Westside High School is part of the Westside Community Schools system, an independent public school district. Petitioners are the Board of Education of Westside Community Schools (District 66); Wayne W. Meier, the president of the school board; James E. Findley, the principal of Westside High School; Kenneth K. Hanson, the superintendent of schools for the school district; and James A. Tangdell, the associate superintendent of schools for the school district.
Students at Westside High School are permitted to join various student groups and clubs, all of which meet after school hours on school premises. The students may choose from approximately 30 recognized groups on a voluntary basis. A list of student groups, together with a brief description of each provided by the school, appears in the Appendix to this opinion.
School Board Policy 5610 concerning “Student Clubs and Organizations” recognizes these student clubs as a “vital part of the total education program as a means of developing citizenship, wholesome attitudes, good human relations, knowledge and skills.” App. 488. Board Policy 5610 also provides that each club shall have faculty sponsorship and that
"clubs and organizations shall not be sponsored by any political or religious organization, or by any organization which denies membership on the basis of race, color, creed, sex or political belief.” App. 488. Board Policy 6180 on “Recognition of Religious Beliefs and Customs” requires that “[s]tudents adhering to a specific set of religious beliefs or holding to little or no belief shall be alike respected.” App. 462. In addition, Board Policy 5450 recognizes its students' “Freedom of Expression,” consistent with the authority of the board. App. 489.
There is no written school board policy concerning the formation of student clubs. Rather, students wishing to form a club present their request to a school official who determines whether the proposed club's goals and objectives are consistent with school board policies and with the school district's “Mission and Goals”—a broadly worded "blueprint" that expresses the district's commitment to teaching academic, physical, civic, and personal skills and values. Id., at 473-478.
In January 1985, respondent Bridget Mergens met with Westside's Principal, Dr. Findley, and requested permission to form a Christian club at the school. The proposed club would have the same privileges and meet on the same terms and conditions as other Westside student groups, except that the proposed club would not have a faculty sponsor. According to the students' testimony at trial, the club's purpose would have been, among other things, to permit the students to read and discuss the Bible, to have fellowship, and to pray together. Membership would have been voluntary and open to all students regardless of religious affiliation.
Findley denied the request, as did Associate Superintendent Tangdell. In February 1985, Findley and Tangdell informed Mergens that they had discussed the matter with Superintendent Hanson and that he had agreed that her request should be denied. The school officials explained that school policy required all student clubs to have a faculty sponsor,