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MEMORANDUM

June 28, 1982

TO:

Samuel E. Ericsson, National Coordinator for Religious

Freedom Services of Christian Legal Society
Members of the Staff of Christian Legal Society

FROM:

QUESTION PRESENTED:

What is the legislative means apply principles of the Widmar v. Vincent decision to the context of public schools?

I.

THE PRINCIPLE OF WIDMAR v.

VINCENT

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

religious meetings.

Id. at 272.

Cornerstone sought access on

the same terms that applied to the use of university facilities by

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holding that it could not deny use of its facilities for religious

meetings if it allowed similar use by non-religious groups on a

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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,
Inc., 101 s. Ct. 2559 (1981). This principle means that a state

may not discriminate against a particular type of speech based on

the content of the speech, without offering a compelling interest

in justification.

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

schools.

II.

THE PROBLEM:

PUBLIC SCHOOL AUTHORITIES AND LOWER FEDERAL
COURTS HAVE REFUSED TO ENFORCE THE WIDMAR
CONTENT-NEUTRALITY PRINCIPLE WITH RESPECT
TO PUBLIC SECONDARY SCHOOLS

A.

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,

School

District of Abington Township v. Schempp, 374 U.S. 203 (1963);

bringing a religious teacher on campus to do class instruction,

McCollum v.

Board of Education, 333 U.S. 203 (1948); and posting of

the Ten Commandments on school walls, Stone v. Graham, 449 U.S. 39

(1980).

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 religious activity, and the students could avoid the religious
The Supreme Court has never held against religious activity which
is purely voluntary, initiated by students, and merely allowed by

the school on the same basis as student-initiated non-religious

activities.

B.

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,

and worship.

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.

3.

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

period.

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

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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.

5.

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.

6.

In Lubbock Civil Liberties Union v.

Lubbock Independent

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.

III.

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.

A.

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

religion.

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

not

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

college students.

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

religion?

B.

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
at issue here, by investigating relevant facts and deciding at
what grade level students are mature enough to choose freely among

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

sufficiently mature.

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IV.

CONGRESS HAS AUTHORITY TO PROVIDE A SOLUTION TO THE PROBLEM

A.

Congressional Power Under Section Five of the Fourteenth

Amendment.

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

states

association.

The content-neutrality requirement, a fundamental incident

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