Mergens

​Facts about the case

The school administration at Westside High School denied permission to a group of students to form a Christian club with the same privileges and meeting terms as other Westside after-school student clubs. In addition to citing the Establishment Clause, Westside refused the club's formation because it lacked a faculty sponsor. When the school board upheld the administration's denial, Mergens and several other students sued. The students alleged that Westside's refusal violated the Equal Access Act, which requires that schools in receipt of federal funds provide "equal access" to student groups seeking to express "religious, political, philosophical, or other content" messages. On appeal from an adverse District Court ruling, the Court of Appeals found in favor of the students. The Supreme Court granted Westside certiorari.

​Equal Access Act requires schools to provide equal access to all student groups

l.The Equal Access Act requires all schools that receive federal funds and that host a “limited open forum” to provide equal access to all student groups, without regard to the groups’ focus or interest.

Nebraska high school student Bridget Mergens had requested permission to form a Christian club at her school with all the rights and privileges of access and under the same terms and conditions as other student groups, with the exception that it would not have a faculty sponsor. The school denied Mergens’s request, arguing that to allow the formation of such a group would violate the First Amendment’s establishment clause, which prohibits the government from establishing or promoting religion.

The Supreme Court ruled that Westside Community Schools operated a limited open forum, which exists when a public school “grants an offering to or opportunity for one or more non curriculum related student groups to meet on school premises during school time.” A non curriculum group is one not directly related to a course taught by the school

​Religious neutrality does not create entanglement

Responding to the school’s contention that allowing the group would cause an excessive entanglement in violation of the third prong of the Lemon test, outlawing “excessive entanglement” between church and state, Justice Sandra Day O’Connor led a plurality in noting that in Widmar v. Vincent (1981), a college equal-access case, the Court had held that the open-forum policy actually avoided entanglement by treating religion neutrally. So long as neutral treatment existed, the act could not be viewed as impermissibly advancing religion.

Justice Anthony M. Kennedy concurred in an opinion joined by Justice Antonin Scalia, parting only on the issue of establishment. Kennedy focused on the fact that the program did not provide a direct benefit to religion and did not coerce students into participating in religious activities.

Although also concurring in the judgment, Justice Thurgood Marshall argued that the school must take greater steps to disassociate itself from religious speech so that students, who are compelled to attend school, did not get the impression that the school endorsed the religious speech of a Christian club.

In dissent, Justice John Paul Stevens argued that no open forum existed in this case and advocated safe-guarding a school’s right to exclude controversial groups while still allowing extracurricular activities.

Alan Tauber is a constitutional law attorney in Washington. In addition to a law degree from George Washington University School of Law, Tauber has a master’s degree in political science. This article was originally published in 2009.

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