Abstract

In Board of Education of the Westside Community Schools v. Mergens, the United States Supreme Court ruled that sectarian student groups must be afforded the same benefits, opportunities, and considerations as secular clubs under the Equal Access Act. The Equal Access Act forbids public secondary schools receiving federal funds to deny student groups a fair opportunity to meet on school premises based upon the content of those meetings. Thus, religion is reserved a place in the public schools.

The Mergens decision represents a dramatic shift in the Supreme Court's interpretation of the First Amendment's Establishment Clause. Mergens weakens considerably the previously strict limitations on the presence and role of organized religion in the public schools. As a result of this ruling, school authorities will have less discretion to exclude religious groups from existing extracurricular programming.

This Note argues that the Mergens result contravenes the First Amendment. The terms of the Equal Access Act, when viewed against the backdrop of the Court's Establishment Clause precedent, mandate this conclusion. The analysis begins with a study of the Lemon v. Kurtzman test for Establishment Clause violations and the Court's application of it over the past twenty years. What follows is an assessment of the Mergens decision and its use of the Lemon test. This Note continues with an inquiry into free speech jurisprudence arising in the public school context, and suggests that the students' claim against the school board could have been rejected on those grounds. The discussion concludes that, in light of Mergens' broad interpretation of the Equal Access Act, the Court will be required to clarify the scope of permissible government regulation in the public schools.

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