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June 28, 1982
Samuel E. Ericsson, National Coordinator for Religious
Freedom Services of Christian Legal Society
What is the legislative means apply principles of the Widmar v. Vincent decision to the context of public schools?
THE PRINCIPLE OF WIDMAR v.
In Widmar v. Vincent, 102 S. Ct. 269 (1981), a student group
called "Cornerstone" requested access to public facilities on the
campus of the University of Missouri, for the purpose of holding
Id. at 272.
Cornerstone sought access on
the same terms that applied to the use of university facilities by
holding that it could not deny use of its facilities for religious
meetings if it allowed similar use by non-religious groups on a
In so ruling, the Supreme Court reaffirmed the First Amendment principle that regulation of speech must be "content-neutral."
See Heffron v. International Society for Krishna Consciousness,
may not discriminate against a particular type of speech based on
the content of the speech, without offering a compelling interest
See Carey v. Brown, 447 U.S. 455 (1980).
The Widmar decision confirms that the principle of "content
neutrality" governs state action in the context of a state university. Widmar holds that once a state university creates an "open forum" for speech--for instance, by allowing student groups to meet freely on campus--it may not discriminate against meetings where the speech has religious content or any other particular content.
The Widmar Court left open, however, the question of how
the principle of content neutrality will apply to state action in the context of student meetings in public secondary and elementary
PUBLIC SCHOOL AUTHORITIES AND LOWER FEDERAL
The Supreme Court decisions on "prayer in school."
In the context of public schools, the Supreme Court has
struck down only forms of prayer and religious activity that are initiated in various ways by the state. Specifically, the Court has ruled unconstitutional state policies that initiated student
recitation of the Lord's Prayer in class,
Engel v. Vitale, 370 U.S.
421 (1962); reading from the Bible over
a school intercom,
District of Abington Township v. Schempp, 374 U.S. 203 (1963);
bringing a religious teacher on campus to do class instruction,
Board of Education, 333 U.S. 203 (1948); and posting of
the Ten Commandments on school walls, Stone v. Graham, 449 U.S. 39
The Supreme Court thought these practices violated the princi
ple of state neutrality toward religion, because the state initiated
the religious activity, the context indicated state sponsorship of
the school on the same basis as student-initiated non-religious
Actions of School Authorities and Lower Courts.
A limited sampling of public schools across the country by
the Christian Legal Society has already uncovered the following ex
amples of actions by school authorities which are contrary to the
content-neutrality principle of Widmar:
1. In Williamsport, Pennsylvania, a student group applied
to the local school board for permission to start a club called
"Petros", which planned to hold religious meetings before school,
after school, or during a school club period. The school board refused the request, forcing the students to file suit in federal district court to seek protection of their rights of freedom of
speech and freedom of assembly.
2. In Anderson, South Carolina a public high school opens its doors one-half hour early each day for peaceable student meetings in vacant rooms. For some time, a group of students has used this opportunity for voluntary meetings to pursue Bible study, prayer,
Recently, the local representative of the American
Civil Liberties Union has publicly threatened to file suit against the local school board to require it to police the content of student speech by banning any meetings with religious content.
For several years prior to the 1980-81 school year,
students at North Allegheny High School in Pittsburgh, Pennsylvania, had met on school grounds to study the Bible and pray. The meetings occurred during a twenty-five minute period of time after the
arrival of school buses and before the beginning of homeroom
When this practice was brought under question, high
school administrators and then the superintendent of the school
district denied a formal request made by the students to use a
classroom before school hours began.
In Dixon, Illinois (the home town of President Reagan),
a local school board has voted to ban all voluntary religious
per year to rent or reserve school facilities for meetings after school hours if these groups intend religious speech; non-religious
groups enjoy after-hours access without this restriction.
In Brandon v. Guilderland Central School District, 635
F.2d 971 (2d Cir. 1980), cert. denied, 102 S. Ct. 970 (1981), the
United States Court of Appeals for the Second Circuit upheld the decision of the Guilderland Board of Education to ban voluntary, student-initiated religious meetings from school property during, before, and after school hours with language implying that no religious activity whatsoever is permissible in public schools. The Second
Circuit said that an "adolescent may perceive 'voluntary' school
prayer in a different light if he were to see the captain of the school's football team, the student body president, or the leading
actress in a dramatic production participating in communal prayer meetings in the 'captive audience' setting of a school." 635 F.2d at 978. This language would logically lead school officials to prevent students from bowing their heads to say a prayer before lunch, carrying their Bible to school, or doing any other overt religious act of free exercise of religion within the boundaries of the school. The Supreme Court declined to review this decision in
December, 1981, shortly after deciding Widmar.
In Lubbock Civil Liberties Union v.
School District, 669 F.2d 1308 (5th Cir. 1982), the United States
Court of Appeals for the Fifth Circuit went even farther than the
Second Circuit did in Brandon, by forcing a total ban of voluntary,
student-initiated religious activity in a school district that
wanted to accommodate the free exercise of religion and freedom of
speech rights of public school students.
The Fifth Circuit upset
a carefully drafted school board policy, adopted after public deliberation, which purported only to treat all student-initiated groups
equally with regard to access to school facilities for meetings
before and after school.
CONGRESSIONAL LEGISLATION TO ADDRESS THE PROBLEM.
The basic question is whether Congress can legislate to apply
the Widmar principle of content-neutrality to public schools, without
violating the Establishment clause.
The Widmar decision held that a
content-neutral policy of equal access to state university facilities did not violate the Establishment Clause, because any religious
meetings would be student-initiated and would receive only inciden
tal benefits from the state on the same basis as non-religious
meetings, with no appearance of state sponsorship.
In a footnote, however, the Widmar Court carefully reserved the question whether the Establishment Clause prevents application of
the content-neutrality principle to protect religious speech at the
secondary and primary school levels.
102 S. Ct. at 276 n.14.
The Establishment clause As Applied to Public Schools.
In Widmar v. Vincent, the Supreme Court declined to con
sider whether an open forum policy in a public elementary or
secondary school, allowing students to meet equally in religious
and non-religious groups, is neutral toward religion vs. non
The Court suggested, however, that the neutrality of
such a policy will turn at least partly on the "impressionability"
of students in the public schools. 102 S. Ct, at 276 n.14. In other words, the Court thought that the immaturity of younger students might cause those students to perceive state sponsorship of religion from an open forum policy, even though the same policy would
connote state sponsorship in a university setting.
Therefore, the application of the Establishment Clause to
public schools will turn at least partly on the fact question of
whether the students involved are significantly less mature than
A further important question will be, given the
maturity level of the students, will they be likely to perceive an equal access policy as state favoritism or sponsorship toward religion, or will they be likely to perceive discrimination against meetings with religious content as a form of state hostility toward
The Appropriate Role for Congress.
The maturity of public school students and the relationship
of maturity to the impression of state sponsorship of religion are
factual questions that congress is well-able to resolve through its
investigatory and factfinding powers.
Congress is well-suited to
exercise its legislative fact-finding capacity to solve the problem
various types of extracurricular student group activities, both
religious and non-religious, without danger of student perception
of state sponsorship of religion.
For example, Congress might very
well decide that secondary school students are mature enough to
choose freely among the types of voluntary student activities in
which they will participate, while elementary students are not
CONGRESS HAS AUTHORITY TO PROVIDE A SOLUTION TO THE PROBLEM
Congressional Power Under Section Five of the Fourteenth
The Fourteenth Amendment's due process and equal protection clauses incorporate several individual constitutional rights as binding on the states, including the freedom of speech, Fiske v. Kansas, 274 U.S. 380 (1972), and the freedom of assembly, DeJonge v.
Oregon, 299 U.S. 353 (1937).
Section Five of the Fourteenth Amend
ment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Therefore Congress has general authority to enact legislation requiring
to respect constitutional rights of free speech and free
The content-neutrality requirement, a fundamental incident