High Court Hears Case on Access of Religious Groups to Schools

The Supreme Court heard oral argument Tuesday on whether a Nebraska high school receiving federal aid can refuse official recognition to religious groups wanting to use its facilities.

The case, Board of Education of the West-side Community Schools et al. vs. Bridget C. Mergens et al., pits an Omaha high school against Mergens, who as a high school senior tried unsuccessfully in 1985 to win official recognition from the school for a Bible-study group she wanted to hold after school hours.

Mergens and other students had been meeting informally during lunchtime at the school when the request was made and then refused by school authorities. Official recognition would have allowed the group to meet on school grounds after regular hours.

The case essentially tests the constitutionality of the Equal Access Act of 1984, which Congress passed, despite strong objections from Jewish groups. The law is aimed at preventing public schools from discriminating against religious clubs wanting to meet on school premises.

Most Jewish groups believe that such meetings violate the First Amendment’s prohibition against government endorsement of religion.

In the Mergens case, the American Jewish Congress served as co-counsel to the school and largely wrote the brief filed on its behalf, although the school attorney argued it before the court Tuesday.

Submitting friend-of-the-court briefs backing the school were the American Jewish Committee and the Anti-Defamation League of B’nai B’rith, which did so in conjunction with the National Jewish Community Relations Advisory Council and the American Civil Liberties Union.

IS LAW UNCONSTITUTIONAL?

The Equal Access Act requires public schools that allow “one or more non-curriculum-related student groups to meet on school premises during non-instructional time” to grant the same access to religiously oriented groups.

Those schools that do not allow extra-curricular activities to take place on school grounds do not have to grant access to religious clubs.

In 1988, the federal district court in Nebraska ruled that the high school in question did not maintain such a “limited open forum,” since it refused recognition of proposed activities not related to school curriculum. The school therefore did not violate the Equal Access Act.

But last February, the 8th U.S. Circuit Court of Appeals in St. Louis reversed the district court, arguing that the school did maintain a “limited open forum” by granting recognition to a chess club.

The appeals court viewed the chess club as an extra-curricular activity. The lower court had considered the chess club an extension of the math curriculum.

In its brief, AJCongress and the school argued that the Equal Access Act “unconstitutionally establishes religion, particularly when enforced against a school which permits informal religious meetings, but refuses to grant them official sanction.”

But Michael Lieberman, associate director and counsel at ADL, said it “seems unlikely” that the Supreme Court will rule that the act is unconstitutional.

Lieberman said he would be satisfied if the court upheld the right of the Nebraska school to refuse official recognition to religious groups wanting access to school grounds.

GROUPS ADOPT ‘NARROWER APPROACH’

Amy Adelson, staff attorney for AJCongress, said a tactical decision was made to focus on the specific facts of the case, and not on the overall act, given the “conservative” nature of the Supreme Court.

“We were hoping for more success on a narrower approach” that would “eliminate a lot of Bible clubs from schools,” she said.

Oral argument Tuesday focused on the distinction between “curriculum related” and “non-curriculum related,” as included in the Equal Access Act.

Jay Sekulow, Mergens’ Washington lawyer, told the Supreme Court that schools should allow students to meet after school to “read the Bible, pray and encourage each other,” to gain greater insight into “issues of the day,” such as abortion, homosexuality and drug abuse.

Lieberman of ADL said in an interview that moral training should not be considered an extension of a school’s curriculum, because it constitutes “indoctrination.”

The Supreme Court is expected to issue a ruling before it adjourns for the term in June.