Board of Education of Westside Community Schools v. Mergens - Oral Argument

Argument of Allen E. Daubman

Mr. Daubman: 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.

Justice O'Connor: Well, Mr. Daubman, is there some provision in the Federal act that at least with regard to clubs covered by the act would limit the participation of the faculty sponsor?

Mr. Daubman: The act basically provides that a school district that has a safe harbor provision, which basically provides that a school district does not have to provide a faculty sponsor, but if it does so in terms of a role of a monitor, that that is permitted under the act.

Justice O'Connor: And it goes further and says the sponsor will act as no more than a custodian, in effect?

Mr. Daubman: Yes.

Justice O'Connor: That the faculty sponsor will not be active?

Mr. Daubman: That is correct.

Justice O'Connor: Do you suppose the act would be applied so as to limit the participation of the sponsor for the scuba class, for example... the Scuba Club?

Mr. Daubman: The sponsor for the Scuba Club, in our particular case there were really... there was a faculty sponsor that was subject to the direction of the administration.

Justice O'Connor: I'm just asking whether the Federal act would apply across the board to all clubs covered by the act, whether they are religious or not?

Mr. Daubman: That's correct.

Justice O'Connor: So that the type of participation you've been describing would not be permitted under the Federal act by the faculty sponsor?

Mr. Daubman: What... the problem presented is that we did not have a forum at the high school and therefore not a forum under the Equal Access Act which provided for custodial sponsors, but rather provided for active participation.

Justice O'Connor: I thought the court below found that you did have a forum.

Mr. Daubman: The district court found otherwise.

The court below reversed that--

Justice O'Connor: Right.

Mr. Daubman: --That's correct.

Justice O'Connor: Right.

Mr. Daubman: And in that regard--

Justice O'Connor: So we're talking about the present situation.

Let me ask you one other question.

Does the school have classes in the regularly offered courses for credit in scuba and in chess?

Mr. Daubman: --No, it does not, Your Honor.

But what our school district does have... what our high school does have is an extensive physical education curriculum, mandated at least in part by state educational guidelines and the school district felt that the Scuba Diving Club, called Subsurfers in our school, was certainly related to that... the regular curriculum offerings, to no lesser extent, other than the degree of participation, than other athletic endeavors that are maintained as co-curricular activities, whether that be organized sports teams or intramural competition... all of those activities.

Justice Stevens: Yes, but am I correct, Mr. Daubman, that even if you had no classes that related to scuba diving or athletics you would still maintain that a Scuba Club would be non... would be... would not make... not convert the school into a limited public forum, wouldn't you?

Mr. Daubman: That's not entirely correct.

The... if there were no physical education classes at the school it would be difficult to say that that was one of the educational objectives of the school, and therefore the Scuba Diving Club related to that.

I don't think that--

Justice Stevens: I thought your test was a little... was one that, if the school could sponsor the activity as a curriculum activity, that it would be all right to have a club, even though it didn't have a class.

For example, supposing you had a French Club, but you had no French classes.

Would you say that would make it a... bring the act into play?

Mr. Daubman: --It would not--

Justice Stevens: Under your view.

I'm not asking you to--

Mr. Daubman: --Under my view, it would not bring the act into play.

Justice Stevens: --And the reasons?

Mr. Daubman: The absence of a French class does not mean the absence of foreign language department.

There are many education--

Justice Stevens: Well, say there's no foreign language department... let me push you... but you still want to have a French class on the theory that it's the kind of activity a school can sponsor without getting into all these sensitive issues?

Mr. Daubman: --If the club's object... goals and objectives were instruction or discourse regarding the French language, then I would agree with you.

If it was to... if the goals and objectives of that club, as developed through the faculty sponsor and the administration, dealt with French culture or French history, then there would be, I think, quite a strong relationship to the European studies programs.

Justice Scalia: Mr. Daubman, one of your clubs involves helping handicapped children.

Wasn't that one of the clubs which you related to your curriculum because you said that it's part of the responsibility... there is no class in that.

It was just a means of teaching community responsibility, as I recall.

Isn't that your justification?

Mr. Daubman: Well, the name of the club, or the activity, is Peer Advocates.

First of all, that was something that was initiated by a teacher as opposed by a student and would therefore fall outside the act.

Justice Scalia: Why is that?

Mr. Daubman: Because the act talks about clubs that are student initiated.

Unknown Speaker: Oh, that's for the club... for a club to be entitled to be admitted under the act, it has to be student initiated, but I don't read the act anywhere as saying that for purposes of the test of the act, of whether you're a limited forum, the club has to be student initiated.

Where does it say that?

Mr. Daubman: It... what it says is that the act provides that student... that it applies to student initiated clubs.

Justice Scalia: No, it says

"a public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum-related student groups. "

It does not say student initiated.

It says student initiated later, when it describes the type of club that is entitled to plead the benefit of the act.

That has to be student-initiated, but it seems to me that any act, whether it's... any club, whether it's initiated by the school itself or by a student, triggers the act.

Mr. Daubman: Quite apart from that, with respect to Peer Advocates, the situation presented there... two points: first of all, that was... purposes of the pretrial stipulation, in terms of what clubs were going to be determined to be at issue as to whether they were noncurriculum-related for purposes this... of this lawsuit, was raised for the first time on appeal in the briefs.

It was not something that was tried to the trial court and I don't believe it was even argued in the Eighth Circuit, but discussed for the first time in briefs on appeal here.

Therefore we did not have any opportunity, certainly, at trial or otherwise, to respond to that.

Justice Scalia: Did you make this point in your briefs?

I don't--

Mr. Daubman: Yes, Your Honor.

Justice Scalia: --What about the Chess Club?

What... how is that curriculum related?

That is related to math, as I recall.

Mr. Daubman: Yes, it is, and logical thought processes that are associated with that.

The history of the Chess Club at the high school, as shown by the record in this case, was something that was conducted in the math... before it was a club, was conducted in the math resource room at the urging, and being allowed by the head of the math department because of his feeling that it... those who participated actively in chess became, and continue to be, better math students.

In the math resource room that became disruptive, and for that reason it was relegated to a club situation--

Justice Kennedy: Could teachers at different schools take different positions about whether or not the Chess Club is curriculum related?

Suppose you have two identical schools, two identical chess clubs, but one math teacher says well, I think this is curriculum related and the other says it isn't.

Are we bound by that?

Mr. Daubman: --What we are bound by is the record presented in this case.

In terms of our factual record, that was undisputed.

The testimony--

Justice Kennedy: Well, what I'm asking is, what is the test for a curriculum-related club?

Is it what the faculty thinks, or what this Court thinks?

Mr. Daubman: --Ultimately, it is what this Court thinks, sir.

[Laughter]

But with respect to--

Justice White: Well, I don't know.

This... do you think... what is the standard of review on this issue?

Do you think it's a factual determination?

Mr. Daubman: --I think the... I think it is a factual determination.

Justice White: Well then, if it's a... it has to be clearly erroneous to overturn the district court.

Mr. Daubman: That's correct, Your Honor.

xx Eighth Circuit--

Justice White: Well, that isn't what the Eighth Circuit did.

Didn't even say that.

Mr. Daubman: --That's correct, Your Honor, and we've urged that point.

Justice White: I would think you would be arguing that.

Mr. Daubman: I'm sorry?

Justice White: I would think you would be arguing that.

Mr. Daubman: I am arguing that.

[Laughter]

What we have is the Eighth Circuit--

Justice White: But I'm not... are you sure it's a factual determination that's a--

Mr. Daubman: --What the Equal Access Act provided, quite clearly, is that there was a broad discretion granted to school officials.

The legislative history is... is full of references to that.

Congress did not choose to define what constitutes noncurriculum-related.

To do so would be tantamount to establishing a national definition of curriculum.

Justice White: But if this issue is open to de novo review by the court of appeals, I would suppose they know more about what's curriculum related in Omaha than... is this in Omaha?

Mr. Daubman: Yes, it is.

Justice White: In Omaha than we do.

I would suppose we might just accept what the court of appeals said about this issue.

Mr. Daubman: Well, certainly the district court judge knows more about what's going on and what's curriculum related in Omaha than the Eighth Circuit does.

Justice Kennedy: Well, did he make findings of fact?

Mr. Daubman: At the trial level?

Justice Kennedy: Yes.

Mr. Daubman: Yes, and those were not really discussed in the Eighth Circuit opinion.

The Eighth Circuit basically looked at some references in the legislative history, saw a Chess Club as in one part of the legislative history being characterized by one senator as noncurriculum related--

Justice Kennedy: Did he make findings of fact that all the clubs were curriculum related?

Mr. Daubman: --At the trial level, yes.

Justice Blackmun: This was Judge Beam?

Mr. Daubman: Yes, it was.

Justice Blackmun: Now on the Eighth Circuit?

Mr. Daubman: That is correct.

Chief Justice Rehnquist: You're arguing now, Mr. Daubman, that the high school did not have a limited open forum, is that right?

Mr. Daubman: That's right.

Chief Justice Rehnquist: You... are you asking us to construe the Equal Access Act to reach that conclusion?

Mr. Daubman: That's correct.

What the Equal Access Act does, as I mentioned earlier, is balance those three concerns.

It is very difficult for certainly this Court and much more certainly for school officials to determine on a case-by-case basis how close a relationship one needs for a particular club activity as it relates to one or more particular regular courses that are offered by the school.

What was done in this case, or what our practice had been at Westside High School for several years prior to the passage of the Equal Access Act, was to treat and run the co-curricular student clubs as part of the educational program of the school.

That is to be, I think, very clearly distinguished from the type of club activities which were permitted in Widmar v. Vincent.

Their access to school facilities for purposes of student meetings was allowed, but at no time did the university in that case exercise control over those student clubs and activities.

Our high school setting is much different.

Justice Scalia: I think that the Federal statute prohibits that.

That... that's why I didn't understand your sponsor argument.

You're saying since... since the state requires a faculty sponsor for all these other groups, and since it can't provide the same kind of a faculty sponsor for these groups, perhaps because of establishment reasons, therefore it doesn't have to comply with the act.

But I don't... I think the act overrides your ability to simply say, every student group will have a faculty sponsor.

Where... why do you think you have a right to do that, any more than you have a right to say every student group shall have no more than 30 people?

The act wouldn't permit you to exclude a religious group that has 50 people on the basis that we don't have any student groups with more than 30 people, would it?

Mr. Daubman: What the act does is provides a definitional framework for when you have a limited open forum triggering the applicability of that act, and it is our contention that we did not have a limited open forum under the terms of that act.

Justice Scalia: Why?

Because you had a... because you had sponsors?

Mr. Daubman: Primarily because we had... we did not have noncurriculum-related student groups.

The fact of a faculty sponsor and the control exercised by that sponsor, as well as the supervision of that sponsor and the answering to, by that sponsor, to the administration, I think clearly shows that we did not have a situation where simple access to building premises was allowed, but rather there was active sponsorship and involvement by the school district.

Justice Scalia: That's all it takes to make it faculty related, is that you have a sponsor on the faculty who directs the group, and the group can be engaged in any subject whatever.

I mean, pick whatever you want.

If you think chess is faculty related, I hesitate to suggest something that might not be.

But pick something that you think is and... and put a faculty sponsor in charge of it.

It would then be curriculum related?

Mr. Daubman: What we are urging is that the definition of curriculum-relatedness really goes to the heart of what the school officials have chosen to do with the co-curricular activities.

They have chosen to treat that as part of their curricular offerings of the school, part of the educational program offered by the school.

The Equal Access Act I don't think goes that far.

I don't think it touches that far.

Chief Justice Rehnquist: Well, it would certainly... that would certainly... your construction would certainly enable any school district that felt like it to totally avoid the Equal Access Act.

Mr. Daubman: I think that certainly that risk is present.

You have a situation--

Chief Justice Rehnquist: Well, do you think that's what Congress intended?

Mr. Daubman: --I think Congress intended... I know Congress intended that what ought to be done in terms of the school district's response to the Equal Access Act is to allow school districts in their discretion to make educational decisions as to what academic and co-curricular programs they're going to sponsor.

If a school district were to just blatantly say no, everything we do here is curriculum related, therefore the act doesn't apply, I think our trial courts are well able to see a sham when one exists.

Our trial court in this particular case spent a great deal of time exploring that issue, and there was a great deal of testimony regarding the curricular nature--

Chief Justice Rehnquist: But the Eighth Circuit disagreed with the trial court.

Mr. Daubman: --The Eighth Circuit disagreed with the trial court in interpretation of the Equal Access Act.

It did not have any detail on its opinion as to a discussion of what constitutes curriculum related or not.

Justice White: It didn't define... purport to state a standard for deciding.

Mr. Daubman: It gave no guidance.

Justice White: May I interrupt?

What do you think the test is?

Mr. Daubman: I think the test is--

Justice White: Justice Kennedy asked you awhile ago... I think I... I'm afraid I interrupted before you could really answer him.

Mr. Daubman: --The test, I think... and again, balancing... keeping in mind the three concerns that the Equal Access Act addressed: free speech rights, nonestablishment of religion and school district discretion, the correct, and I think most proper way to interpret the act to satisfy those three concerns, is to determine whether or not the co-curricular activity student clubs, whatever you want to call them, do in fact relate to the curriculum of the high school and the school district officials--

Justice White: In fact.

In fact, so it's--

Mr. Daubman: --In fact, and if school district officials, in doing... in structuring their co-curricular activities in student clubs, treat it truly as co-curricular, treat it truly as part of the educational program that it offers, as the trial court found--

Justice White: --What is truly?

What is truly?

Mr. Daubman: --In fact.

A nonsham.

Not, as suggested earlier--

Justice Stevens: Well, may I ask you a question?

Supposing they have a course in government and that it would be related to government to have a Young Democrats Club or a Young Republicans or a Young Communist Club, would you say that those could be... and membership confined to those who wanted to advocate joining that particular group and supporting its policies, would that be curriculum related?

Mr. Daubman: --One of the other basic educational choices that Westside community schools made, again long prior to the passage of the Equal Access Act--

Justice Stevens: Well, they said they weren't going to do that, I know.

But my question is, suppose they did?

Would that be curriculum related, under your definition?

Mr. Daubman: --Again, we don't... keeping in mind we don't have adversary clubs.

Justice Stevens: Are you suggesting, in other words, that Congress intended to allow that kind of latitude in the clubs and not allow the religious groups to meet?

Mr. Daubman: No.

No.

The clubs... political clubs that you mentioned--

Justice Stevens: Because isn't it true that one of the costs of having a noncurriculum-related club is that you must allow not merely religious groups but political groups?

The Ku Klux Klan, perhaps, and advocacy of free use of drugs and things like that?

Mr. Daubman: --Sure, and it's those adversarial types of clubs--

Justice Stevens: And if you have a Chess Club, the price you pay for that is, you must let all these other groups in?

Mr. Daubman: --Well, if the Chess Club is--

Justice Stevens: If a Chess Club is noncurriculum related?

Mr. Daubman: --That's correct.

Justice Stevens: Yes.

But you would not say that any of the groups in the category that advocate particular points of view are curriculum related, would you, within the meaning of the statute?

Mr. Daubman: It depends on the curriculum or the... what the school district' done.

Justice Stevens: Well, you can put anything on the curriculum, under that view.

Mr. Daubman: Well, and that's what Congress did.

Congress... curriculum for one school district is not the same for another school district.

It's not the same today as it is ten years from now.

Justice Scalia: Mr. Daubman, I... tell me if I'm correct, that I think that you're using the term "curriculum" to mean not just the formal courses that are taught in the school.

Am I correct in that?

Mr. Daubman: That is correct.

Justice Scalia: That you are saying that anything becomes part of the school's curriculum if the school wants to teach it, even if the school wants to teach it only through these extracurricular activities... so-called extracurricular.

I mean, that's sort of a contradiction in terms.

You're saying that the curriculum includes the noncurriculum.

Mr. Daubman: No.

I--

Justice Scalia: Basically.

Mr. Daubman: --Well, I wouldn't phrase it that way, obviously.

Justice Scalia: Well--

[Laughter]

I think most of us who use the term "curriculum" would.

Mr. Daubman: Well, and I think as pointed out in the briefs of the Respondent and the government, the dictionaries do it that way, too, but the testimony at trial, from the students' own expert witness, defines "curriculum" in the same manner that was defined by, or used by our administration, long before passage of the act.

Justice Stevens: Well, in your answer to Justice Stevens you indicated that the Democrat or Republican Club would be noncurriculum related because it's adversarial.

I don't see why that follows.

Mr. Daubman: No.

I'm... that isn't... if I said that, it isn't what I meant.

What... what we have is, if you have a... excuse me... if you have a club system... you know, co-curricular clubs that do have... that are noncurriculum related under the act, then certainly the governmental clubs that was... that were mentioned earlier would fall under the terms of the act, and they would have to be allowed as well.

In our school district we do not have adversarial clubs.

One of the things testified to at trial and, in practice, was in existence again long before the passage of the act is that adversarial clubs that advocate a particular point of view are not allowed in the school.

The school district did not... does not... lend its name to advocating a particular view.

Not that controversial subjects are shied away from, by any means.

It's just that they are dealt with--

Chief Justice Rehnquist: Under your view, Mr. Daubman, supposing that a school, perhaps not Westside, but some similar school, said we're going to have Republican and Democratic Clubs as extensions of the curriculum, as extensions of the civics class.

Now, if that were upheld, that wouldn't give way to any other noncurricular clubs, would it?

Mr. Daubman: --The problem there is, again, that those clubs are expressing a particular point of view.

Chief Justice Rehnquist: But why should that be a limiting factor?

Mr. Daubman: It's a limiting factor in terms of the operation of our club structure is all I'm saying.

Justice Scalia: The statute doesn't require... doesn't permit you to apply that limiting factor.

It says if you have a limited public forum, which it doesn't define as a public forum that admits controversial clubs.

It just says if you have a limited public forum you have to admit all sorts of clubs, including controversial clubs.

Mr. Daubman: That's correct.

Justice Stevens: May I ask you, in your brief I thought you endorsed the test that Congressman Goodling advocated, and he's quoted on page 70 and 71 of your brief.

You seem to have walked away from that.

Or... what is... I don't really understand whether you're still advocating that position or not.

Mr. Daubman: The position being?

Justice Stevens: Well, first there's a subject matter of the meeting of the type which a public school could sponsor.

Now, obviously it couldn't sponsor Republican points of view to the exclusion of other points of view, so that would take them out.

And the second test was... was does the school or school teacher require, or directly encourage, student participation in that activity, and obviously, again, a public school couldn't encourage people to vote Republican.

But that test would take care of this hypothetical, but you seem to have abandoned that.

Whereas, it would take care of things like the Chess Club and stuff that isn't very controversial.

It would draw a line between advocacy groups that would require you to open the door to other points of view and those that are obviously neutral and perfectly proper for a school to sponsor.

But you seem to have abandoned that argument.

Mr. Daubman: I've not abandoned that argument, Your Honor, but that, Representative Goodling's test, if you will, as well as other things suggested in the legislative history--

Justice Stevens: But doesn't that test solve most of these hypotheticals?

Mr. Daubman: --It does.

I'd like to reserve the balance of my time for rebuttal.

Argument of Jay A. Sekulow

Chief Justice Rehnquist: Very well, Mr. Daubman.

Mr. Sekulow?

Mr. Sekulow: Mr. Chief Justice, and may it please the Court:

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.

Justice Stevens: May I interrupt you on that?

Mr. Sekulow: Yes, Your Honor.

Justice Stevens: Supposing the school does not teach any physical education courses at all.

Would a football team be required... trigger the act?

Mr. Sekulow: Congress discussed that and in the legislative history addressed that also.

Justice Stevens: I know they said no, but in terms of just looking at the language of the statute, why wouldn't it or would it?

What is your view?

Mr. Sekulow: I think in fact that the existence of the football team with no physical education still could have the... the... the relationship which would not trigger the act because of the... the coaches being involved to the... such a extent, the paid salary of--

Justice Stevens: Supposing you don't have coaches.

You just have a faculty sponsor who referees the games.

Mr. Sekulow: --Oh, I think then in that situation that the act could apply, in fact.

Justice Stevens: The act could or... obviously, it could--

Mr. Sekulow: It would apply, Your Honor.

Justice Stevens: --Yes.

Mr. Sekulow: And the reason that I think Congress in looking at that issue, and what they were looking at is more of the typical situation where the school has the football team and the team's a little bit different than the clubs.

Also, the act does not--

Justice Stevens: I know.

What you're saying is Congress wanted the schools to make the choice between clubs of this character and opening it up to things like sponsoring drugs and Ku Klux Klan and political advocacy and all that.

Mr. Sekulow: --No, we're--

Justice Stevens: Because that's the price, is it not, if you... if you become a public forum.

Mr. Sekulow: --My response to that is this, Your Honor, that Congress wanted to eliminate invidious discrimination against religious and political speech.

Justice Stevens: But is it not true that if you... if you say it's a limited public forum, that's the consequence.

All these other groups must also have access to the school facilities?

Mr. Sekulow: For instance, I would not think that a club for--

Justice Stevens: Is that your view or not?

Mr. Sekulow: --Not with relate to a group that would be advocating drug use and drug abuse.

I would say no.

Justice Stevens: Why not?

Mr. Sekulow: Because that is... Congress addressed that in the act and stated at... under Section D, Number 5 that to sanction meetings that are otherwise unlawful and a group that was promoting the use--

Justice Stevens: No, not the use, just the... advocating change in the law to make it permissible.

Mr. Sekulow: --That would be covered by the act.

That would... that is the price... that's the price of freedom and what... in fact, one of the early cases involving the implementation of the Equal Access Act involved political speech: Student Coalition for Peace.

They wanted to form a group to discuss nuclear freezing, and they were denied access, and they, in fact, utilized the Equal Access Act, and the Third Circuit did, in fact, grant them equal access.

But what the act also does, and as the Petitioners have conceded today, we're not... and I think the act really does protect this... Congress did not ask the schools to surrender control to the facilities.

They did not say, if you will, open the door for the parade of horribles.

For instance, in 1969 this court in the Tinker decision allowed certain expressions of speech to take place on... on the high school campuses, and there's yet to be that real parade of horribles.

Now, Congress was concerned about groups going over the line, if you will, and what I mean by the line, it's advocating illegal activity and things like that.

And Congress was specific, number one, adopted the test that this court enunciated in Tinker in saying that any type of group or organization that would be materially disruptive or interfere with other students' right to learn would, in fact, not have to take place in the school.

Also, going further than what was really addressed in Tinker, and different as well, Congress sought to make sure that school administrators, as the Petitioners in fact have stated, would be entitled to protect the well-being of students under their control.

And I want to state here that the only club that has been denied access based on the content of the speech in this particular case has been the proposed Bible club which was to meet--

Justice White: You don't know... you don't know whether there's been a lot of people that applied who... do you know who's applied?

Mr. Sekulow: --There was statements... and actually that was addressed, Your Honor, in the lower court, and what was discussed there was there was a club that was going to... a soccer club was actually going to be formed, and there was a lack of student interest involved.

And there was a Dungeons and Dragons club proposed which was denied, not based on content, but based on safety concerns that the school administration had with regard to allowing that particular club to exist.

Justice White: Yes, but isn't it also--

--Sounds unsafe.

Mr. Sekulow: Excuse me, Your Honor?

Justice White: Sounds unsafe.

Mr. Sekulow: It does sound unsafe, yes.

[Laughter]

We agree that that could have been an unsafe... an unsafe club.

Justice Stevens: But isn't it also true that the school policy had been rather clear that they would not permit a Young Republican or a Young Democrats club to be formed, so there was... probably nobody would bother to apply.

Mr. Sekulow: Well, Your Honor, that is correct.

However, that's... as Justice Scalia stated, that's specifically what the Equal Access Act and... granted, some of their policies, many of their policies, were before the adoption of the act.

But I would find it very difficult to have... I'm frankly perplexed by a school not allowing a Young Democrat and a Young Republican club to meet on campus.

Justice Stevens: Do you think it would be an impermissible educational decision to say we would rather have none of these groups at all and if we have to abolish all clubs, we'll do that?

Mr. Sekulow: Yes, I do.

I think that's when this Court would have to intervene because if that was--

Justice Stevens: Let me... let me just take it one step further.

Mr. Sekulow: --Yes, sir.

Justice Stevens: The government identifies four clubs that they say make it a limited club.

Supposing after the case is decided and you win and the government's position is upheld, they say well, we'll cancel those four clubs.

Mr. Sekulow: That's exactly what the school board in this particular case has stated they would do.

That if, in fact--

Justice Stevens: Would that be permissible under the act, in your view?

Mr. Sekulow: --They have the right to... there's nothing in the act that prohibits them from closing down the club forum.

There would be constitutional issues implicated at that point, as we've stated in our brief.

One of our concerns is, in fact, that the school board has stated that in the event this court or a court were to determine that under the Equal Access Act a limited open forum were to exist, that they would recommend to the school board that the clubs be cancelled.

Now, does the--

Chief Justice Rehnquist: Do you agree that could be done under the Equal Access Act?

Mr. Sekulow: --Absolutely, Your Honor.

There's no question that the schools have to... do not have to allow any type of extracurricular activity.

We take it a step further, and one of the concerns that we expressed in our brief is that there are other constitutional implications here, but under the act they certainly have that type of discretion to absolutely close down the forum if they so elect.

Yes, Your Honor?

Justice White: You... the... you... you win this case and they close down the club system, and you suggest that they constitutionally could not do that?

Mr. Sekulow: No, Your Honor.

They could close down the club system absolutely.

What they could not--

Justice White: And keep your group off the campus?

Mr. Sekulow: --Keep my group off the campus in this context, Your Honor.

Justice White: But you say there's a constitutional question?

Mr. Sekulow: Yes.

Justice White: What?

Mr. Sekulow: And that is this: The school board, and the testimony at trial stated clearly, and it's... it's really unequivocal that informal meetings on a regular basis, even so far as meeting at lunch on a regular basis with a Bible open and discussing the Bible or these students discussing each other's spiritual concerns that they had or religious concerns that they had or religious viewpoints, if that was done on a regular basis during lunch, not any kind of extracurricular activity period, that they would prohibit that activity.

Chief Justice Rehnquist: Did the school board--

Justice White: --That's a different question.

Chief Justice Rehnquist: Did the school board say... say why they would close down the clubs if this case went against them?

Mr. Sekulow: That they... yes.

Their position is that at Westside High School they desire... the rationale they gave was to present a balanced view, and that allowing this type of speech activity would not present a balanced view.

And therefore... I'm not trying to argue their position, obviously... that they would not have to allow a group that would advocate a position.

However, it's interesting that no particular group, no particular discussions took place with what exactly... prior to the denial, what exactly these students intended to do.

And what they wanted to do was read the Bible, pray and encourage one another with regard to the issues that they're going to face at Westside High School on a daily basis.

For instance, and as the Petitioners stated, the school is... does have controversial discussions on topics ranging from abortion to homosexuality to drug abuse.

But what they've really done is deny these students the right, even outside of the particular club forum here, to meet on a regular basis during lunch to discuss those concerns.

But under--

Chief Justice Rehnquist: Where were these discussions held about, you know, abortion, homosexuality?

Is that in class?

Mr. Sekulow: --Some of them, yes.

Many times they were in class with a teacher present.

However, Planned Parenthood came in for an open module section, and sometimes, as the testimony stated, sometimes the teacher was there and sometimes the teacher wasn't.

And we're not saying that the school has to surrender its control of allowing controversial subjects to be discussed in class.

What we are saying is that these students in nature of 30 other clubs existing at Westside High School, many of which on their face are not related to the curriculum as they... really to take the position that anything that relates to the missions and goals is thereby curriculum related and, therefore, it does not trigger the act really does, as it was pointed out earlier, circumvent exactly what Congress was trying to prohibit.

Justice White: Unrelated.

Mr. Sekulow: Your Honor, my test is simple, and that is, is the particular club directly related to the class and--

Justice White: Well, that just restates... that isn't very illuminating.

You've just... all you've done is put in the word "direct".

Mr. Sekulow: --Your Honor, I think... I'd... I... I would say this.

I do believe it does provide a barrier or a... a... a standard, if you will, because the clubs listed by the school in their listing of student organizations without even dealing with the Equal Access Act had no difficulty deciding which clubs were extensions of the curriculum and those that were not.

In a... for instance, as I stated earlier, the Distributive Education Class is listed as an extension of the distributive education course.

However, the Chess Club is listed as a club for students interested in chess, and the Interact is listed as a club--

Justice White: So, is it just going to be a formal thing because a logic is sort of a... an extension of the mathematics course?

Mr. Sekulow: --I don't think you could take it that--

Justice White: Or logic?

Mr. Sekulow: --Your Honor, I don't think--

Justice White: We teach logic in the school, and the best way... one of the best... one of the... one of the ways of stirring up interest in it is a chess club.

Mr. Sekulow: --Your Honor, number one, in this particular class... club setting in the class function there is no class in logic.

There was a--

Justice White: Mathematics?

Mr. Sekulow: --Thee was a mathematics class, but that... the chess club, for instance, was exactly what Congress was... one of the clubs frequently discussed in reviewing the act, the history of the act, that would trigger the existence of a noncurriculum club, therefore the limited open forum under the act.

Justice Kennedy: Under your test could two math professors at two different schools disagree as to whether or not a chess course was directly related, assuming their textbook is the same?

Mr. Sekulow: I would defer to Congress on that, and I would say that in that particular situation since the chess club did come up fairly frequently in the debates going back and forth, that that would trigger the act.

If we look at one--

Justice Kennedy: I... I'm not sure.

So... so, you're saying that as... as... as a matter of law chess clubs are directly related to the math curriculum?

Mr. Sekulow: --No, they're not.

I would... I know I would not say that they were directly related to the math curriculum.

That's in fact the opposite of what I would say, that the Chess Club is the... one of the main bases upon which in the legislative history that Congress uses the example triggering noncurriculum related at this particular school.

Justice Kennedy: Even if a math professor disagrees with that?

Mr. Sekulow: I would think so because even if the math professor would disagree, I think... I believe that that would still present the same problem, and that is if, in fact, we take a posture... if this Court were to take a posture that anything related to the missions and goals, which is what the district court stated, which the Eighth Circuit rejected entirely, would circumvent the act.

The act would become a nullity really by administrative fiat, if you will.

Yes, sir.

Justice White: The act doesn't list chess clubs or anything like that.

That's just legislative history.

Mr. Sekulow: That's correct, Your Honor, the act does not.

But what the act does show is that... and in fact I think you can even draw an analogy to the directly related test--

Justice White: You still haven't given me much help on... what is your standard?

The only thing you've said so far is that it has to be sort of a direct relationship, and then you look at the legislative history and you're bound by the legislative history.

Mr. Sekulow: --No, Your Honor, absolutely not.

What I'm saying is this, and let me do this by example.

For instance--

Justice Scalia: Justice White doesn't think much of legislative history, Mr. Sekulow.

Mr. Sekulow: --I've heard that.

[Laughter]

There are other members of the Court that don't, as well.

Justice White: I've been reading subversive literature.

Mr. Sekulow: Oh, you have?

[Laughter]

Our position would be, Your Honor, that the best way to take a look at it was one of the examples that the Court addressed to the Petitioners in the... during their argument, and that is, what if there's no French class, but there is a French Club?

Here... especially, no form of French, or any type of foreign activities.

What Congress meant by curriculum related in that context, and why I do use the term, "directly related to curriculum" is, when you have the situation where you've got a French class and a French Club, or Latin class and a Latin Club, but you cannot... I think the line is easy to draw, Your Honor, or not impossible to draw, when you have a situation where the school administrators acknowledge and admit that a pure advocate club exists and they state on the record it does not relate to curriculum.

Justice O'Connor: Well, are you saying that the subject has to be taught in a regular class, in essence?

Mr. Sekulow: Yes, Your Honor, that that would be a part of the school's curriculum, that credit would be given.

I'm not--

Justice O'Connor: If in the math class some time were devoted to teaching chess, then it's curriculum related?

Mr. Sekulow: --Yes.

In that type of situation, I think then you have... that argument could be made.

What we have in this particular case is a whole listing of clubs that do not address the directly related, or even come close to it.

For instance, in addition to the Peer Advocates, which is acknowledged not to be related to curriculum by the principal himself, we have the Interact Club, which is an affiliate of Rotary International, and there isn't a view being espoused there, and that club... the school's only basis to tie that into curriculum related would be in fact whether there was an overall interest in the missions and goals of the particular school--

Justice White: Well, you're... the more you spell this out, the more it sounds like the court of appeals missed the boat.

I don't read anything like that in the court of appeals test.

Mr. Sekulow: --Well, I think that the court of appeals response, Your Honor, was twofold.

Number one, that the definition of noncurriculum related that the district court approved and that the school utilized totally circumvents the act.

Now, there is not a great deal of discussion in the Eighth Circuit's opinion with regard to the various tests.

They did state that there was a Chess Club--

Justice White: No, there isn't any.

There isn't any.

Mr. Sekulow: --Well, they stated that the Chess Club, for instance, was not related to curriculum as well as other clubs, and they did not spell out what those other clubs were.

So that's clear, but as I was saying--

Justice White: Well, suppose we arrive at some... which it sounds like we have to, or might, anyway, some definition of that "curriculum related".

Don't you think we ought to remand to see if the... have the court of appeals apply it, which it never did?

Mr. Sekulow: --No, Your Honor.

I think in the court of appeals' opinion they, in effect, applied more of the directly-related test because of their statements with regard to Chess Club and as it related to the logic situation in the district court.

For instance, the judge... Judge Beam stated that the Logic Club would... be a growth out of the Math Club, but there is no direct tie-in.

The Logic Club, for instance, doesn't even really function in that fashion, and I think what the district court... or the court of appeals was concerned with was the administrative deference that was being paid to the school officials in their interpretation of what, in fact, curriculum related meant.

That the Equal Access Act, if you will, becomes a nullity.

That anything that's related to missions and goals, which was the test that was decided by Judge Beam in the lower court.

And I think the Eighth Circuit specifically, albeit not as detailed as we would like, rejected that proposal by stating that the Chess Club, as well as other curriculum clubs, were in fact not related to curriculum and therefore the Equal Access Act would have applied.

And in the context of this particular forum, with the 30 other clubs there's a... and again, in the joint appendix, if we're looking for the test, the school officials had no trouble in doing... in implementing the test in this context.

Their own listing of clubs does state, for instance, that the Band Club is a part of the curriculum of band.

So these types of delineations are made all the times.

What we're saying is that educators and school officials should be given deference with regard to setting forth what their curriculum is, but if in fact they're going to allow student-initiated clubs, which this club does... the school does, that they, then, if a noncurriculum-related club does exist, they in fact have to open that forum up under the act.

Justice Scalia: Mr. Sekulow, but you would make this exception to your curriculum related... you would consider it to be part of the curriculum if the student... if the school is devoting a substantial amount of its resources specifically to running or directing the club?

For instance, if it doesn't have a music course but has a school band and pays a conductor of the school band?

Mr. Sekulow: Your Honor, I see my time has expired.

May I respond?

Chief Justice Rehnquist: You may answer the question.

Mr. Sekulow: Thank you, Chief Justice.

In that particular situation, I think it would have to go beyond just expending resources.

There would have to be something more where there was instruction going on, or else in fact it would just not be more than, if you will, another club.

That there would have to be something during the curriculum where academic credit was given, supervision of a teacher and these types of things.

Thank you, Your Honor.

Argument of Kenneth W. Starr

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

General Starr, we'll hear now from you.

Mr. Starr: Mr. Chief Justice, and may it please the Court:

In the view of the United States, careful study of this statute and of the record compiled by the Congress in the course of considering, of vigorously debating and enacting this measure, reveals two overriding concerns or values.

The value of fairness and evenhandedness, of equality, in the treatment of public secondary school students.

And the value of liberty, especially First Amendment the liberties assured to all of our citizens, those who are deeply religious and those who are not.

As one of the co-sponsors of this overwhelmingly bipartisan measure, Senator Leahy of Vermont put it, this bill makes an important statement about ideas.

It says that ideas are sacred to Americans, whether or not they concern religion.

It says that student-initiated religious groups have the same rights to meet on school property during noninstructional time as any other groups.

Justice Stevens: But also these other groups we've talked about also have the same right, like the Ku Klux Klan and so forth?

Mr. Starr: Yes.

Certainly groups cannot be discriminated against on the basis of--

Justice Stevens: And... and Congress was motivated by treating all of them equally with one... one another.

Mr. Starr: --Of treating them equally, subject to--

Justice Stevens: You don't find in the legislative history a predominant interest in the religious groups?

Mr. Starr: --I beg your pardon?

Justice Stevens: You don't find in the legislative history a predominant interest in protecting the religious groups?

Mr. Starr: Oh, I think the primary thrust was to protect religious liberty, because the problem that presented itself to Congress was one of discrimination that was visited on the heads of students who wanted to participate in religious discussion.

It is quite clear, it could not be clearer, that the purpose of this statute was to eliminate discrimination against students who were religious and who wanted to engage in religious discussion voluntarily.

I quite agree with that.

Justice Scalia: And the other groups may have been included, the Ku Klux Klan and... and whatever, because of our establishment clause jurisprudence suggesting that you cannot accommodate religion without accommodating everybody else.

Mr. Starr: The bill was originally drafted so as to provided protection only to religious groups.

There was concern that, by virtue of constitutional interpretations of this Court and other courts, the statute should speak neutrally, to include political, philosophical and other grounds.

I hasten to add, however, that Congress was quite clear with respect to the authority of schools to maintain order and discipline.

Subsection F of Section 4071 was inserted for the very purpose of achieving Tinker kinds of concerns with respect to disruption.

This measure was not only intended to eliminate discrimination, but it was intended to achieve a sensitive balancing, a sensitive balancing of rights, and what was recognized to be a very difficult and sensitive area for the country.

Chief Justice Rehnquist: Mr. Starr, is the authority of Congress in this case derived from its control over funds?

Mr. Starr: I believe its authority derives under the spending powers of Article 1, Section 8, and also by virtue of the statement with respect to any number of members of the House and the Senate, its authority under Section 5 of the Fourteenth Amendment to eliminate discrimination.

Justice Stevens: Well, it can't be the spending power, because there is no... no remedy of the cut off of funds here.

It has to be the latter, I think.

Mr. Starr: Well, however, Justice Stevens, that the Congress saw fit to apply this statute only to schools that receive federal financial assistance, I suppose if we had a Grove City kind, as it were, of public school system that eschewed any federal funds, this would not apply.

Although I would think that under this Court's decisions under section 5 of the Fourteenth Amendment, there might very well be power to reach that school [inaudible].

But Congress saw fit not to exercise the entirety of its power in that respect.

The discussion has been not about Congress' purposes and intentions and motives at all, but rather with respect to the meaning of curriculum related.

There are three reasons why we would urge to the Court not to embrace the school district's open-ended approach.

We believe, first, that its approach is quite inconsistent with the ordinary meaning of the word curriculum.

The word curriculum means the aggregate of courses... courses offered by the institution.

It was that common meaning, secondly, that one most readily discerns in reading the legislative history.

In particular, the description by Senator Hatfield, one of the co-sponsors of the Senate, who described curriculum-related clubs as those that are, in effect, extensions of the classroom.

And by the express admission at trial of the principal of Westside High School, Dr. Findley, Peer Advocates... it was discussed at trial; it was the subject of testimony at trial.

At page 277 of the trial transcript, Dr. Findley stated that Peer Advocates was not related to any course at Westside.

That, in our view, is sufficient to trigger the act.

Third, the school board's approach--

Justice Stevens: Mr.... Mr. Solicitor General, then you say a football team would do it if there's no athletic program?

Mr. Starr: --I don't think Congress contemplated that if we're guided by the legislative history--

Justice Stevens: Yeah, but I mean your reading of the statute, what would that do?

I know Congress didn't think that; that's perfectly clear.

But under your reading of the statute.

Mr. Starr: --I believe that is a matter of considerable confusion.

I would not--

Justice Stevens: I thought you had a bright line test for reading this.

Mr. Starr: --If... if... I were... if I were interpreting this statute, I would say it would not, because, Justice Stevens, it seems to me that it's rather odd to describe the school football team as a student group wishing to conduct a meeting.

That's not--

Unknown Speaker: xxx.

Mr. Starr: --They certainly have meetings--

Justice Stevens: They have an awful lot of meetings to do before they can play.

[Laughter]

Mr. Starr: --But it's not the ordinary way.

Justice Stevens: Why is that different from... why is that different from chess?

Why is that different from chess?

You've got no athletic program, you've got no chess program in your regular class.

Mr. Starr: Oh, if there is no athletic program at all--

Justice Stevens: No formal classes, no curriculum... no athletic curriculum.

And no physical education courses.

No physical education classes.

Justice White: And you don't get credit or anything else.

That's right.

Mr. Starr: --Yes, then it might very well be.

Unknown Speaker: xxx.

Was it might or--

Mr. Starr: It might very well be.

It is--

Justice Stevens: --Is your test, the literal one, the same one, and if you don't have a French class but you have a French club, that triggers the act, too?

Mr. Starr: --It is certainly clear that Congress was focusing on what the course work was.

However, it also was mindful of the fact that there is a history of competitive athletics... and I think it's quite clear in the legislative history that Congress did view the athletic teams as not creating a limited open forum.

Justice Stevens: And... and is that legislative history sufficient, in your view, to overcome the plain language of the act?

Mr. Starr: Oh, I don't think that the plain language, with respect to a student group wishing to conduct a meeting, is crystal clear with respect to the football team.

I think it is clear with respect to the--

Justice Stevens: How about the chess club?

Mr. Starr: --to the history of student activities in the United States.

There is considerable testimony at trial that student activities were in fact student initiated.

I'm not sure that football teams have that same history.

They may.

But the history of student activities is that students coming together in school wanted to pursue areas and activities of interest to the students; administrators were resistant to that.

And ultimately, in the fullness of time, school administrators began permitting students to pursue their interests just as Westside and other high schools across the country have seen fit to do here.

Justice White: Well, I gather if you... you say there has to be some connection with some particular part of the curriculum.

I suppose that would vary then from semester to semester as to whether the French Club was or wasn't within the act, or whether some of these other things would--

Mr. Starr: I don't believe that the course would have to be offered every single semester.

But it would have to relate to course work.

Justice White: --Or every year?

Or every year?

Mr. Starr: It might not even have to be offered every year.

But it does seem to me, in light of Congress' use of the term curriculum and its discussion of any number of groups... the Chess Club, which does exist at Westside was considered the quintessential noncurriculum-related club, even though it obvious--

Justice Stevens: With all due respect, I think the colloquy on the Chess Club was much more ambiguous than you portrayed it, between Senator Gorton and Senator Hatfield.

Mr. Starr: --Quite right.

Justice Stevens, I completely agree.

In fact, Senator Gorton conducted extremely skillful cross examination of Senator Hatfield.

It will be recalled that Senator Gorton thought that the act would be much clearer if you eliminated political and philosophical and made it quite clear that all you were trying to protect were religious groups by virtue of the discrimination that was being visited upon religious students.

I thank the Court.

Rebuttal of Allen E. Daubman

Chief Justice Rehnquist: Thank you, General Starr.

Mr. Daubman, you have four minutes remaining.

Mr. Daubman: The test proposed by the Respondents and by the government is contrary to the act and is educationally unworkable.

To suggest that having students work with the handicapped at school, our regular ed students, so they can learn to be sensitive to the handicapped to characterize that as noncurriculum related, but to say that a football team, even in the absence of a physical education program at the high school is curriculum related creates unworkable and--

Justice Scalia: I assume moral formation is part of your school... what the schools try to teach as well and... and I suppose religious groups are as closely related to moral formation as your... your helping the handicapped club is to sensitivity or whatever you... whatever value you said was being taught by that.

Mr. Daubman: --That's correct.

Justice Scalia: So then if you allowed the one, you should have been allowing the other.

Mr. Daubman: Again, the act isn't triggered unless we have noncurriculum related.

What the school has chosen to do is in structuring their co-curricular activities is those groups that advocate a particular point of view are not included in the curricular or co-curricular activities of the school.

And that was not the case with the club that was requested in this case.

Another example of the unworkability of the test advocated by the other side, Photography Club, which was identified as a suspect club in this case was alternatively taught.

Photography was, as a club or as a class, depending upon the availability of a state-certified teacher who could teach photography.

To suggest that we cannot have... that we create a limited open forum by having a photography club when a state-certified teacher is unavailable to teach it as a regular class I think presents an unworkable problem, a dilemma that school districts would not be able to work with.

Service clubs also indicated by the legislative history to perhaps in some circumstances be noncurriculum related.

In our school district the record is clear that service clubs in many of those... in the sociology class activities with service clubs could constitute... in some cases required over the years, in other cases could be used as extra credit in some of the sociology classes.

Again, to say that a particular type of club is noncurriculum related for all purposes I think really stifles the efforts of educators to deal with curriculum issues as they're constantly being called upon to do, in structuring a program that is relevant and provides educational benefit to its students.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Daubman.

The case is submitted.