MEMORANDUM TO: June 28, 1982 Samuel E. Ericsson, National Coordinator for Religious QUESTION PRESENTED: What is the best legislative means to apply 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 more than 100 other student groups. The University denied the request pursuant to a university policy prohibiting religious meetings on campus. Id. The Supreme Court ruled against the University, holding that it could not deny use of its facilities for religious meetings if it allowed similar use by non-religious groups on a general basis. Id. at 278. 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 "contentneutrality" 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. A. 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, 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 principle 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 examples 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. 4. In Dixon, Illinois (the hometown of President Reagan), a local school board has voted to ban all voluntary religious activities of students on school grounds. Also, the same school board will allow outside community groups only four opportunities 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 incidental 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 consider 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. 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. non Therefore, the application of the Establishment Clause to 11-323 0 - 83 - 2 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. IV. A. CONGRESS HAS AUTHORITY TO PROVIDE A SOLUTION TO THE PROBLEM 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 Amendment 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 states to respect constitutional rights of free speech and free association. The content-neutrality requirement, a fundamental incident |