Even in High School

...A "public forum" or, in legalese, "a limited open forum," applied to independent student clubs...

...WHO'S ON FIRST Nat Hentoff Even in High School When I was elected to the national board of the American Civil Liberties Union some years ago, I thought I would be the most anticlerical kid on that block...

...I guess they're still deliberating...

...When I read that decision, there came to mind the deeply satisfied Edward Arnold and Claude Rains after they pulled a fast one on Jimmy Stewart in Mr...

...Because school authorities had testified that all the student clubs at Westside High were curriculum-related...

...Someone would get back to me, I was told...

...Also unremittingly opposed are the legal arms of the American Jewish Congress and the Anti-Defamation League...

...He used to worry about whether secondary-school students were as capable of exercising First Amendment rights as college students...

...Those kids would believe that the school favored religious speech...

...They have lost in the Second, Fifth, and Ninth Federal Circuits...

...And all school-mandated prayers—including organized "moments of silence"—are clear violations of the Constitution...

...The Establishment Clause, after all, prevents the state from favoring any or all religions...

...So, if a Marxist-Leninist study club can be formed in a secondary school, there can also be a Bible study club...

...I argued that since the ACLU has full confidence that secondary-school students have the maturity to put out school newspapers without being censored, how could the very same students suddenly become so immature as to be ensnared by the delusion that student religious clubs reflect the views of the principal and the school board...

...Hatfield: That is correct...

...The National Legal Foundation was founded by Pat Robertson, but the legal briefs it writes indicate it knows a hell of a lot more about the Constitution than Robertson does...

...A three-judge panel on the Eighth Circuit heard the case, and the judges agreed unanimously that Bridget Mergens is, indeed, protected by the First Amendment in her "neat" proposal to start a Christian Bible club in her school...

...However, the national board of the ACLU overruled Lynn and has been a relentless opponent of student religious groups trying to secure their First Amendment rights under the Equal Access Act...

...But high-school kids are far too impressionable to recognize the difference between school-sponsored religious speech and student-initiated religious speech...

...Finally, however, the students won one in the Eighth Circuit this year...

...The Supreme Court has been asked to review Bridget Mergens's victory in the Eighth Circuit...

...The Westside High School principal had gone so far as to testify that the Sub-surfers club was related to the goals of physical education, so therefore, it was curriculum-related too...

...For me, Thomas Jefferson's wall of separation between church and state was sacred, so to speak...

...In my last year or so on the ACLU board, there were signs that sooner or later the Supreme Court would have to decide whether students in public high schools should also have the First Amendment right to form religious clubs...

...The ploy had worked in other courts in other circuits, but it was finally exposed...

...Until this year, every court battle over student religious clubs has been lost by the students...

...But the specter of a religious thought entering the head of a public-school student—and taking root like a dybbuk—is so frightening that they try to white out part of the First Amendment to protect the innocent...

...It may be just the kind of case in which Justices Rehnquist and Brennan will be on the same side...

...Widmar, it was said, dealt with college and university students...

...On the Senate floor, there was this colloquy between Senators Slade Gorton of Washington and Mark Hatfield of Oregon, the primary sponsor of the bill: Gorton: I gather...

...He had some concerns about possible abuses, but thought its application could be monitored and misreadings of the Act could be the subject of lawsuits...

...Said the Eighth Circuit: "Allowing such a broad interpretation of 'curriculum-related' would make the Equal Access Act meaningless...

...The next step was the Eighth Circuit, and Bridget's lawyers made a point of emphasizing, in their brief, that the school officials had tried to con the court: "They permit a student activity to meet if it is curriculum-related, and an activity is curriculum-related if they permit it to meet...

...It does not restrict individuals, or groups of individuals, from expressing their religious beliefs...

...If it decides to take the case, I expect that the sometime civil libertarians who believe that student-initiated religious speech can be expelled from public schools will be disappointed...

...It was now called the Equal Access Act...

...I would still like to be a plaintiff in a suit calling for the removal of In God We Trust, root and branch, from our coins...

...Well, as it happens, part of the legislative history of the Equal Access Act specifically refers to chess clubs...

...For instance, the chess club, the principal had testified, was said to foster critical thinking and logic and therefore was connected to the curriculum...

...Casting a cold eye on the school administration, the court said further: "Congress did not intend for the Equal Access Act to be easily circumvented by administrative decree...

...on the way to the Supreme Court, Widmar v. Vincent...

...They do not believe the American Civil Liberties Union is entirely dependable in these matters, and they are not wrong...

...The Eighth Circuit ended its opinion with a fanfare...

...They are mature...

...There was, for example, the ACLU chapter in Washington state that threatened to sue a public school district because a high school was about to present a student production of Jesus Christ Superstar...

...But in 1986, Powell said, "I do not believe, particularly in this age of massive media information, that the few years difference in age between high school and college students justifies departing from Widmar...

...Back then, there was just such a case Nat Hentoff is the author of "The First Freedom" and many other books...

...But, the American Civil Liberties Union keeps saying, Widmar had to do with college students...

...For a moment, there appeared to be a break in the ACLU's own wall of separation between permissible and impermissible speech in public schools...

...I never came close to winning any of those debates, and I finally figured out that to the majority of the board—and to many ACLU members around the country—the power of religious speech is so insidiously infectious that every whisper of it must be kept away from the public schools lest the fundamentalist preachers harvest bushels upon bushels of innocent youthful souls...

...The constitutional question was whether a public university could prevent student religious groups from meeting if it already allowed other student groups to use its facilities...

...Allowing this rock musical in a public school, the ACLU chapter claimed, would be an egregious violation of the First Amendment's Establishment Clause, which holds that the State shall not prefer any or all religions...

...The principal consulted with his superiors, and all agreed that permitting a Bible Study club in a public school would do irreparable harm to the separation of church and state...

...Nor do I believe that creches—even when smothered in artificial reindeer and candy canes—can constitutionally be put in a public place or supported by public funds...

...In February 1988, a Federal District Court judge told Bridget Mergens that so far as her lawsuit was concerned, the Equal Access Act was pie in the sky...

...The court looked with profound skepticism on the school's claim that every one of the thirty student clubs was curriculum-related...

...that the definition of these noncurriculum-related student groups is fairly broad...

...Pressure by various civil-liberties groups, including the ACLU, resulted in amending the bill to protect not only religious student clubs but all student groups—political and philosophical as well as religious...

...A public secondary school cannot simply declare that it maintains a [forum] and then discriminate against a particular student group on the basis of the content of the speech of that group...

...There was no such species at this high school...

...In 1984, the bill passed...

...In 1983, a bill initially called the Religious Speech Protection Act was introduced in Congress...

...Barry Lynn, the ACLU's Washington expert on church-state matters, did not oppose the new statute...

...How come...

...On the national ACLU board itself, the fiercest debates I got into concerned the rights of students to engage in religious speech in a public school or university— not religious speech mandated by the administration, but in student-initiated clubs...

...I called the director of the affiliate and asked whether this meant that Beethoven's "Missa Solemnis" or Duke Ellington's "Sacred Concert" would be barred from the school...

...And I agree with Jefferson that official chaplains have no business in the secular halls of Congress...

...His column on First Amendment issues appears four times a year...

...As it happens, the majority decision in Widmar was written by Justice Lewis Powell...

...The chess club would be such a group...

...Bridget Mergens went to the National Legal Foundation, one of a number of Christian legal organizations that have been founded in recent years to protect religious speech and practices under the First Amendment...

...If the school permits a chess club, it has thereby created the limited open forum which brings into effect the proscriptions of the act...

...An "open forum" had been created...

...In 1981, the Supreme Court came to the same conclusion: Once a public university allowed other student clubs to meet on the premises, it could not bar a student organization on the basis of the content of its speech...

...The vote on the ACLU board as to which side to take was very close, and the free-speech rights of religious students finally squeaked through...

...Smith Goes to Washington...

...Usually, the lawyers in those shops are devoted to expanding and strengthening the Bill of Rights, particularly the First Amendment, and particularly religious speech...

...And maybe they'll have occasional joint meetings with an abundance of "robust, uninhibited" free speech...

...If a school allowed at least one student club that was not related to the curriculum to meet before or after classes, it could not discriminate against any others on grounds of the content of their interest...

...I believed then—as I do now—that it is unconstitutional to give an advantage to religious institutions by exempting them from taxes...

...Nonetheless, by the time I left the national board of the ACLU after three years, I had discovered that there are members of that board—and of the far-flung affiliates of the ACLU-who see the separation of church and state as so absolute that not a single religious word must be allowed to pass a schoolhouse door...

...Based on the Supreme Court's Widmar decision concerning First Amendment rights of public university students to form religious clubs, these judges ruled: "Even if Congress had never passed the Equal Access Act, our decisions would be the same under Widmar alone...

...There was intense opposition to this concept on the board...

...These are impressionable high-school kids...

...A big one...

...At Westside High School in Omaha, Nebraska, seventeen-year-old Bridget Mergens decided, in September 1984, that "it would be neat if we could get some kids together at school and study the Bible...