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Board
of Education v. Mergens
496
U.S. 226 (1990)
The
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
The
political argument over public school prayer triggered by
the Supreme Court's 1962 decision in Engel v. Vitale
led in 1984 to passage of the Equal Access Act. In 1990
the Supreme Court ruled that the law does not violate the
First Amendment. The Equal Access Act prohibits public secondary
schools that receive federal funds and that maintain a "limited
open forum" (i.e., "one or more noncurriculum related student
groups" are allowed to meet on school premises before or
after classes) from denying "equal access" to student groups
on the basis of the "religious, political, philosophical,
or other content" of the speech at their meetings. In 1985
Bridget Mergens, a student at Westside High School in Omaha,
Nebraska, asked permission to form a Christian club that
would have the same privileges and meet on the same terms
as other Westside student groups, except that it would not
have a faculty sponsor. The members would read and discuss
the Bible and pray. The club would be open to all students
regardless of religious affiliation. Mergens's request was
denied on the grounds that school policy required all student
clubs to have faculty sponsors, and that a religious club
would violate the ban on establishment. She sued, charging
Westside with violating the Equal Access Act. The school
responded that the Act did not apply to Westside and that,
even if it did apply, it constituted an establishment of
religion.
The
district court held that the Act did not apply because Westside
did not have a "limited open forum" as the Act specifies.
The U.S. Court of Appeals for the Eighth Circuit reversed,
holding that Westside did have such a forum and therefore
could not discriminate against Bridget Mergens and other
members of the proposed club. The appeals court then ruled
that the Equal Access Act did not violate the Constitution.
On appeal, the Supreme Court affirmed.
Board
of Education v. Mergens produced four opinions. Justice
Sandra Day O'Connor wrote for the Court; five justices joined
Parts I and II of her opinion, but two of’the five did not
join Part III. Those two, Justice Anthony Kennedy and Justice
Thurgood Marshall, concurred in the judgment; each wrote
separately, joined by another justice. Justice John Paul
Stevens dissented. The Court's opinion and the two concurring
opinions are presented here, followed by editorial responses
from the Washington Post and the New York Times.
Participating
in Board of Education v. Mergens, decided June 4,
1990, were Chief Justice William H. Rehnquist and Associate
Justices Harry A. Blackmun, William J. Brennan, Jr., Anthony
M. Kennedy, Thurgood Marshall, Sandra Day O'Connor, Antonin
Scalia, John Paul Stevens, and Byron R. White.
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