Mergens Case Summary

Case Summary:
Board of Education of Westside Community Schools v. Mergens (1990)

In January 1985, several high school students in Omaha wanted to form a Bible club that would meet after school. They were surprised when the principal denied their request. He said that, while he thought a Bible-discussion group was a good idea, it could not be held at the school. That would be a violation of the Establishment Clause of the First Amendment, which requires separation of church and state activities. A public school is considered a state activity.

Bridget Mergens, who had come up with the idea for a Bible group, discussed the principal’s decision with a lawyer she knew. The lawyer, Douglas Veith, thought the principal was wrong. The federal Equal Access Act passed in 1984 had said that as long as schools allowed any groups not related to the curriculum to exist, they must provide a “limited open forum.” Under this policy, they could not bar meetings of their student-initiated and controlled groups on the basis of the “religious, political, philosophical, or other content of the speech at such meetings.” Since Bridget’s school had clubs that were not related to the school’s curriculum — scuba diving and chess clubs, for example — the school could not discriminate against a religious club. Doing so would be a violation of the Free Exercise Clause of the First Amendment. The alternative would be to create a closed forum — restricting clubs to those that were directly related to the curriculum.

Bridget took her case to court. After five years and two appeals, the case was heard by the Supreme Court in 1990. The Court ruled 8-1 in Bridget’s favor, upholding the constitutionality of the Equal Access Act.

Excerpts From Four Opinions Issued in the Mergens Case

Justice Sandra Day O’Connor wrote the opinion of the majority: “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary 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.” However, to ensure that the school does not give the appearance of endorsing religion, school employees, including teachers, can be present only in a “nonparticipating capacity.”

In the opinion, Justice O’Connor distinguished curriculum-related clubs from non-curricular clubs: “In our view, a student group directly relates to a school’s curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; or if participating in the group results in academic credit.” O’Connor said that the law would allow schools to ban meetings that would interfere with orderly activities. Schools could escape the obligation to have religious clubs by having a closed forum –– tailoring clubs and courses to fit the definition of the Equal Access Act.

Justice Thurgood Marshall, joined by Justice Brennan, wrote a concurring opinion stating that while schools could not discriminate against religious clubs, they should be careful to ensure that students realize the school is not endorsing the goals of such clubs. Taking such care would be important, because members of the club could exert peer pressure on others to join by suggesting that the school was in favor of the club. He wrote, “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.”

Justice Marshall also argued that “given the nature and function of student clubs at Westside, the school makes no effort to disassociate itself from the activities and goals of its student clubs.” The school considered clubs as ways to inculcate fundamental values. While in this case, there is not an Establishment Clause violation, he raised concerns “when a school has a religion club but no other political or ideological organizations.” Would that relatively fine distinction between neutrality and endorsement be lost?

Justice Anthony M. Kennedy, with whom Justice Scalia joined, wrote a concurring opinion. When Congress passed the Equal Access Act, it had used legislative intervention rather than allow the discretion of local school officials to determine whether religious clubs would be allowed. He wrote that the legislative branch faced the difficult task “of formulating general statutory standards against the background protections of the Free Speech Clause, as well as the Establishment and Free Exercise Clauses.” He agreed with the majority opinion that religious clubs are permissible if they do not give direct benefit to the religion or coerce students into participating in religious activity. Kennedy added, “No constitutional violation occurs if the school's action is based upon a recognition of the fact that membership in a religious club is one of many permissible ways for a student to further his or her own personal enrichment.”

Justice John Paul Stevens wrote the one dissenting opinion. He argued that the Equal Access Act allowed too much federal interference with local schools. He also warned that in order to ban “the Ku Klux Klan and perhaps gay rights advocacy groups from its facilities,” a school would have to close the doors to groups “no more controversial than a grilled cheese sandwich.” He went on to say that the decision “makes every high school football program a borderline case, for while many schools teach football in physical education classes, they usually teach touch football or flag football, and the varsity team usually plays tackle football.”

Questions for Discussion and Understanding

  1. When does a school have a limited open forum? What restrictions are placed on clubs if a school has a closed forum?

  2. Is it considered “sponsorship” for a school to allow students to announce meetings through the school media?

    • Assume the role of lawyer for the religious club. What arguments from Mergens would you use to support your case for use of the school’s public address system?

    • Assume the role of lawyer for the school district. What arguments from Mergens would you use to support your case against allowing the use of the school’s public address system?

  3. Why is student initiation of the meetings important?

  4. Prayer is likely to occur at a religious club meeting. Is prayer on school grounds allowed within the perimeters of the Equal Access Act? May the form or content of the prayer be influenced?

  5. All but one of the Supreme Court justices agreed that the Equal Access Act is constitutional and that the religious club at Westside should be allowed to exist. There are fine lines of distinction and concern expressed by the concurring justices. Which of the four opinions best reflects your views on how the Constitution should be interpreted on this issue?


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