Category Archives: Equal Access Act

West Side Community Schools v. Mergens: Equal Access Act (06/04/1990)

West Side Community Schools v. Mergens

Was Westside’s prohibition against the formation of a Christian club consistent with the Establishment Clause, thereby rendering the Equal Access Act unconstitutional?

Argued: 01/09/1990

Decision Date: 06/04/1990

Decision Record: 8-1; no

Justices in Favor: John Paul Stevens

Justices Dissenting: William Rehnquist, William Brennan, Byron White, Thurgood Marshall, Harry Blackmun, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy

Effect of the Decision

This case ruled that refusing to allow the Christian club was a violation of the Equal Access Act.

In Favor

In the favoring side of this case, on the side of the West Side, attorney Allen E. Daubman argued, “This case presents issues central to the operation of co-curricular activities in the public secondary schools in this country.

Of critical importance in that regard, obviously, is the equal access act, which was enacted by Congress in the fall of 1984.

The act basically provides that a school which conducts, or has a limited open forum, may not deny access to that forum on the basis of the political, philosophical or religious content of speech.

In that regard, the Congress defined “limited open forum” to mean when a school district grants an opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time.

It is that statutory framework which causes difficulty in school districts in trying to comply with the act and meet their educational obligations.

The Equal Access Act, as we see it, basically balances three concerns: certainly the free speech rights of students in our public schools; certainly also it balances a concern of nonestablishment of religion; and certainly also it affords deference to school officials, affords them the autonomy and discretion to make educational decisions.

In that context, we urge the Court to interpret the act, interpret noncurriculum-related, as that term is used in the act, to encompass a situation which is not found at Westside High School.

All of the student clubs and organizations at Westside High School were under, by school board policy, the direct control and supervision of the administration and shall have a faculty sponsor.

The record is replete with testimony that the school officials maintained an active role in practice, in determining the goals and objectives of student clubs and organizations and the manner in which those clubs and organizations operated in their school.”


In the opposition, on the side of the city of Mergens, attorney Jay Alan Sekulow argued, “The students of Westside High School who desire to form a student-initiated, student-led and voluntary Bible club do acknowledge that the school officials have important and oftentime delicate functions to perform with regard to the operation of schools under their control.

However, these concerns do not justify the prohibition of these students’ Bible club from the Westside High School campus.

At issue at Westside High School, and what is before the court today is whether one or more noncurriculum-related clubs existed, which would then trigger Congress’ Equal Access Act.

The Peer Advocates Club, which was discussed at trial, was an admission by the principal himself that that particular club was not related to any of the curriculum activities of Westside High School.

The pretrial stipulation that was discussed by the Petitioners’ attorney related to ten clubs that were designated to be discussed.

However, and I think it’s important to note that that same stipulation did not state that they would… that the Respondents would in any way not challenge other club activities.

The school officials themselves have set forth, if you will, the way in which to make the determination of whether a particular club is related to the curriculum.

And our test for whether the act would be triggered would be whether there is a direct relationship between the club and a core curriculum course or a curriculum course.

For instance, in defining the clubs, as it has in its… in the Joint Appendix there is a listing of the various student groups and student clubs that meet at Westside High School.

One of the clubs, Distributive Education Club, is listed by the schools as, in fact, an extension of the course in distributive education.”


On the side of the majority, Justice Sandra Day O’Connor wrote the opinion for the court. She wrote, “Under the Act, however, faculty monitors may not participate in any religious meetings, and nonschool persons may not direct, control, or regularly attend activities of student groups. §§ 4071(c)(3) and (5). Moreover, the Act prohibits school “sponsorship” of any religious meetings, § 4071(c)(2), which means that school officials may not promote, lead, or participate in any such meeting, § 4072(2). Although the Act permits “[t]he assignment of a teacher, administrator, or other school employee to the meeting for custodial purposes,” ibid., such custodial oversight of the student-initiated religious group, merely to ensure order and good behavior, does not impermissibly entangle government in the day-to-day surveillance or administration of religious activities. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 305-306 (1985). Indeed, as the Court noted in Widmar, a denial of equal access to religious speech might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which such speech might occur.See Widmar, 454 U.S. at 272, n. 11.

Accordingly, we hold that the Equal Access Act does not on its face contravene the Establishment Clause. Because we hold that petitioners have violated the Act, we do not decide respondents’ claims under the Free Speech and Free Exercise Clauses. For the foregoing reasons, the judgment of the Court of Appeals is affirmed.”

Then in dissent, Justice John Paul Stevens wrote, “Against all these arguments, the Court interposes Noah Webster’s famous dictionary. It is a massive tome, but no match for the weight the Court would put upon it. The Court relies heavily on the dictionary’s definition of “curriculum.” See ante at 237. That word, of course, is not the Act’s; moreover, the word “noncurriculum” is not in the dictionary. Neither Webster nor Congress has authorized us to assume that “noncurriculum” is a precise antonym of the word “curriculum.” “Nonplus,” for example, does not mean “minus,” and it would be incorrect to assume that a “nonentity” is not an “entity” at all. Purely as a matter of defining a newly-coined word, the term “noncurriculum” could fairly be construed to describe either the subjects that are “not a part of the current curriculum” or the subjects that “cannot properly be included in a public school curriculum.” Either of those definitions is perfectly “sensible,” because both describe subjects “that are not related to the body of courses offered by the school.” See ante at 237. When one considers the basic purpose of the Act and its unquestioned linkage to our decision in Widmar, the latter definition surely is the more “sensible.””

My Opinion:

In this case, I agree with the majority decision. By refusing to fund for or allow a Christian club, not only are you violating the Equal Access Act, which requires “federally funded secondary schools to provide ‘equal access’ to extracurricular clubs,” according to Google, you are also violating one’s right to the freedom of religious expression, which is stated clearly of the First Amendment. The school should not have refused the club because they violated the students’ constitutional rights.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right