Access of Religious Groups to Public Property.—Although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes those facilities available to non-religious student groups. In the case of Widmar v. Vincent169 the Court held that allowing student religious groups equal access to a public college’s facilities would further a secular purpose, would not constitute an impermissible benefit to religion, and would pose little hazard of entanglement. Subsequently, the Court has held that these principles apply to public secondary schools as well as to institutions of higher learning. In Westside Community Board of Education v. Mergens170 in 1990 the Court upheld application of the Equal Access Act171 to prevent a secondary school from denying access to school premises to a student religious club while granting access to such other “noncurriculum” related student groups as a scuba diving club, a chess club, and a service club.172 Justice O'Connor stated in a plurality opinion that “there is a crucial difference between government speech endorsing religion and private speech endorsing religion. 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.”173
169 454 U.S. 263, 270-75 (1981)
170 496 U.S. 226 (1990). The Court had noted in Widmar that university students "are less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward religion," 454 U.S. at 274 n.14. The Mergens plurality ignored this distinction, suggesting that secondary school students are also able to recognize that a school policy allowing student religious groups to meet in school facilities is one of neutrality toward religion. 496 U.S. at 252.
171 Pub. L. 98-377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. §§ 4071-74. The Act requires secondary schools that receive federal financial assistance to allow student religious groups to meet in school facilities during noncurricular time to the same extent as other student groups and had been enacted by Congress in 1984 to apply the Widmar principles to the secondary school setting.
172 There was no opinion of the Court on Establishment Clause issues, a plurality of four led by Justice O'Connor applying the three-part Lemon test, and concurring Justices Kennedy and Scalia proposing a less stringent test under which “neutral” accommodations of religion would be permissible as long as they do not in effect establish a state religion, and as long as there is no coercion of students to participate in a religious activity.
173 496 U.S. at 242.
Similarly, public schools may not rely on the Establishment Clause as grounds to discriminate against religious groups in after-hours use of school property otherwise available for non-religious social, civic, and recreational purposes. In Lamb’s Chapel v. Center Moriches School District,174 the Court held that a school district could not, consistent with the free speech clause, refuse to allow a religious group to use school facilities to show a film series on family life when the facilities were otherwise available for community use. “It discriminates on the basis of viewpoint,” the Court ruled, “to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious viewpoint.” In response to the school district’s claim that the establishment clause required it to deny use of its facilities to a religious group, the Court said that there was “no realistic danger” in this instance that “the community would think that the District was endorsing religion or any particular creed” and that such permission would satisfy the requirements of the Lemon test.175 Similarly, in Good News Club v. Milford Central School,176 the Court held the free speech clause to be violated by a school policy that barred a religious children’s club from meeting on school premises after school. Given that other groups teaching morals and character development to young children were allowed to use the school’s facilities, the exclusion, the Court said, “constitutes unconstitutional viewpoint discrimination.” Moreover, it said, the school had “no valid Establishment Clause interest” because permitting the religious club to meet would not show any favoritism toward religion but would simply “ensure neutrality.”
174 508 U.S. 384 (1993).
Finally, the Court has made clear that public colleges may not exclude student religious organizations from benefits otherwise provided to a full spectrum of student “news, information, opinion, entertainment, or academic communications media groups.” In Rosenberger v. Board of Visitors of the University of Virginia,177 the Court struck down a university policy that afforded a school subsidy to all student publications except religious ones. Once again, the Court held the denial of the subsidy to constitute viewpoint discrimination violative of the free speech clause of the First Amendment. In response to the University’s argument that the Establishment Clause required it not to subsidize an enterprise that promotes religion, the Court emphasized that the forum created by the University’s subsidy policy had neither the purpose nor the effect of advancing religion and, because it was open to a variety of viewpoints, was neutral toward religion.
These cases make clear that the Establishment Clause does not necessarily trump the First Amendment’s protection of freedom of speech. In regulating private speech in a public forum, government may not justify discrimination against religious viewpoints as necessary to avoid creating an “establishment” of religion.
175 508 U.S. at 395. Concurring opinions by Justice Scalia, joined by Justice Thomas, and by Justice Kennedy, criticized the Court’s reference to Lemon. Justice Scalia lamented that “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.” Id. at 398. Justice White pointedly noted, however, that “Lemon... has not been overruled.” Id at 395, n.7.
176 533 U.S. 98 (2001).
177 515 U.S. 819 (1995).
Last modified: June 9, 2014