454 U.S. at 274-75 (footnotes omitted).
As was the case in Widmar, the Williamsport Area High School activity period evinces "an important index of secular effect" in that it is open to "a broad . . . spectrum of student groups." See id. at 274. While the number of groups presently using the period is smaller than that involved in Widmar, it is not so small as to prevent the court from finding a "broad" class. Indeed, it is natural to expect that a high school would have a smaller number of these organizations, given that the student body is smaller and is drawn from a more narrow population base than usually is the case with a university. The number of groups presently using the activity period exceeds twenty-five. More importantly, these groups span a wide range of interests, including, inter alia, sports, government, social service, dramatics, journalism, language and music. The scope of the activity period at issue here is limited only by the range of students' interests. The school has expressed a great willingness to recognize and accommodate those interests. This, of course, is supported by the fact that the principal has never denied the use of school facilities to any group and has indicated that he would only do so if required by law.
Given the range of interests accommodated by the activity period, the court believes that like treatment of Petros would confer only a "general benefit" upon it rather than furthering its aims. The general benefit Petros seeks is the availability of a room during this part of the school day. In addition, it seeks the administration's passive acquiescence -- leaving them to pray and discuss matters that concern the religious aspect of their lives. In essence, these students want the government passively to acknowledge that they have religious interests, just as others are "benefiting" from the government's recognition that they are interested in sports, journalism or the theatre. By recognizing that students have these religious interests, the school would not be "advancing" religion in the Establishment Clause sense, for the Constitution itself recognizes the existence of such interests. Any advancement of religion would come from the students themselves, and this the Establishment Clause does not bar, it being a limitation on government conduct rather than on individual activity.
Although the plaintiffs seek what they call "equal access," it is important to emphasize that they really seek something less than "equal" treatment. Apparently realizing that certain government support would indeed lead to an "advancement" of religious ideals, they do not ask for all that another group might obtain. While a sports team might seek a coach, Petros does not demand an instructor. While a drama club might seek a script, Petros does not demand a Bible, the Koran, or other religious text. While a journalism club might seek paper and ink, Petros does not demand a Star of David, a cross or other religious articles. What Petros demands are the three things accorded to every student organization -- time, space and the permission to use them.
The mere fact that a small portion of public funds would be expended for the lighting and heating of the facility to be used by Petros does not, standing alone, indicate that the primary effect of an equal access policy would be to advance religion. The Supreme Court in Widmar rejected the district court's conclusion that Tilton v. Richardson, 403 U.S. 672, 29 L. Ed. 2d 790, 91 S. Ct. 2091 (1971) stood for the proposition "that state funds may not be used to provide or maintain buildings used by religious organizations." 454 U.S. at 272-73 n.12. "Nothing in Tilton suggested a limitation on the State's capacity to maintain forums equally open to religious and other discussions. Cases before and after Tilton have acknowledged the right of religious speakers to use public forums on equal terms with others. See, e.g., Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981); Saia v. New York, 334 U.S. 558, 92 L. Ed. 1574, 68 S. Ct. 1148 (1948)." Widmar v. Vincent, 454 U.S. at 272-73 n.12.
See also School District of Abington Township v. Schempp, 374 U.S. at 261-62 (Brennan, J., concurring).
Accordingly, the court concludes that the number and spectrum of student groups at the Williamsport Area High School is sufficiently broad to indicate that recognition of Petros would benefit religion only incidentally. See Public Funds for Public Schools of New Jersey v. Byrne, 590 F.2d at 522 (Weis, J., concurring) ("if a particular legislative enactment . . . provides clearly observable secular benefits, then religious institutions should not be barred solely because of their status").
The other factor relied on by the Widmar Court in concluding that an open forum does not transgress the "primary effects" test was the lack of "any imprimatur of State approval on religious sects or practices." 454 U.S. at 274. Consideration of this factor in the instant case is more difficult than in Widmar, as this case involves high school students. See id. at 274 n.14. To this task the court now turns.
It has been suggested in some cases that school-aged children lack sufficient maturity to understand that activity taking place on school premises does not always carry with it an imprimatur of state approval on these practices. See, e.g., Lubbock Civil Liberties Union v. Lubbock Independent School District, supra, 669 F.2d at 1045-47; Brandon v. Board of Education, supra, 635 F.2d at 978; Johnson v. Huntington Beach Union High School District, supra, 137 Cal. Rptr. at 49-50. In Widmar v. Vincent, supra, the Court dispelled the notion that college-aged students could not appreciate that a university's equal access policy did not imply approval -- tacit or otherwise -- of the various groups' activities.
Here the students who may "perceive approval" are not yet adults. However, this court cannot accept the notion that, under the circumstances of this case, high school students would perceive the "open forum" policy as tacit endorsement by school officials of a club's religious activity. Cases, such as Engel v. Vitale, supra, and School District of Abington Township v. Schempp, supra, in which the "imprimatur" of state approval was relied on, in part, to invalidate the activity under the Establishment Clause involved both secondary and elementary schools. Certain generalizations made in those cases involved not only the maturity levels of high school students but of elementary school students as well. While this case does not involve students at the college age, neither does it involve children in the primary grades. Moreover, in the twenty years since Engel and Abington, high school students have become more advanced. While they are not yet adults, they should not be treated as infants. As Judge Rosenn recently observed in another context:
The court can take judicial notice of the progressively higher levels of intellectual and emotional development of students in the latter grades of secondary schools. As a result, more deference should be shown school authorities' curricular decisions regarding grade school, and perhaps junior high school students, in the face of a challenge that a particular point of view has been excluded. High school students, in contrast, are at an age approaching both adulthood and franchise. As the Second Circuit has noted in a related context, "It would be foolhardy to shield our children from political debate and issues until the eve of their first venture into the voting booth. Schools must play an essential role in preparing their students to think and analyze and to recognize the demagogue." James v. Board of Education, 461 F.2d 566, 574 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 491 (1972).
Seyfried v. Walton, 668 F.2d 214, 219-20 (3d Cir. 1981) (Rosenn, J., concurring)(footnote omitted); accord, Russo v. Central School District No. 1, 469 F.2d 623, 633 (2d Cir. 1972), cert. denied, 411 U.S. 932, 36 L. Ed. 2d 391, 93 S. Ct. 1899 (1973); Wilson v. Chancellor, 418 F. Supp. 1358, 1368 (D.Ore. 1976); Bayer v. Kinzler, 383 F. Supp. 1164, 1166 (E.D.N.Y. 1974), aff'd mem., 515 F.2d 504 (2d Cir. 1975). But see Brandon v. Board of Education of the Guilderland School District, 635 F.2d at 978.
In addition to the higher level of maturity, the factual situation at bar is materially different from the facts involved in the Supreme Court's well-known "school prayer" cases. In Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 92 L. Ed. 649, 68 S. Ct. 461 (1948), for example, a school board required religious instruction periods to be held each week in the classrooms using outside religious instructors under the supervision of the school district superintendent. Although participation in the program was voluntary -- those who did not wish to participate retired elsewhere for secular instruction -- the students were, in effect, placed in two categories, i.e., those taking religious instruction and those who were not. Similarly, Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261 (1962) involved a program in the New York State schools whereby a prayer -- composed by the state -- was required to be recited in the public schools at the beginning of each day. Here again, the participation while nominally voluntary, forced students to be classified as religious or nonreligious. Finally, School District of Abington Township v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963) presented a challenge to state statutes requiring the reading of verses from the Bible at the commencement of the school day. Although participation was voluntary, the exercise was mandatory with the resultant religious/nonreligious classification.
Clearly then, Engel, Schempp and McCollum involved religious activity not merely allowed by the state but required by it. In each case, the activity took place en masse -- the students were all assembled in their respective classrooms so that those who did not wish to participate had to conspicuously absent themselves -- and the exercises were actively participated in by the teachers. Although the Supreme Court has noted that the presence or absence of state coercion is not dispositive in Establishment Clause cases, such a factor appears important in gauging the likelihood that the government will be taken to have placed its imprimatur on a given religious practice.
The situation at bar is fundamentally different from the traditional school prayer cases. Williamsport Area High School's open forum policy would not permit the type of en masse recitation of religious doctrine at the start of the school day, such as in Engel, Schempp and Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff'd mem., 455 U.S. 913, 102 S. Ct. 1267, 71 L. Ed. 2d 455 (1982) or during school assemblies, such as in Collins v. Chandler Unified School District, 644 F.2d 759 (9th Cir.), cert. denied, 454 U.S. 863, 70 L. Ed. 2d 163, 102 S. Ct. 322 (1981). Moreover, an equal access policy would not force a choice between participating in a "religious" group, such as Petros or a secular one. Cf. School District of Abington Township v. Schempp, supra, 374 U.S. at 223; Engel v. Vitale, supra, 370 U.S. at 430; Illinois ex rel. McCollum v. Board of Education, supra, 333 U.S. at 208-09; Karen B. v. Treen, supra, 653 F.2d at 899. The record in this case reveals that the students not only have a choice among many group activities but may choose not to participate in any club. Instead, the time may be used as a study period, to do homework, to read in the library or receive extra help from a teacher. Deposition of Wayne A. Newton, Document 16 of the Record at p. 10. The lack of en masse activity together with the more varied alternatives reduces any perception of state approval or student embarrassment.
Moreover, it appears that Petros is willing to occupy a less favorable position among the various other organizations using school facilities. For instance, the exhibits submitted to the court demonstrate that many of the student activities are described in the school yearbook. The yearbook names the individuals associated with each activity, sets forth pictures depicting various functions and describes the successes achieved by the groups during the previous school year. The plaintiffs have represented that they are willing to do without these benefits. They have advised the court that they would not complain if they are also left out of the school newspaper. Finally, they have represented through counsel that they will not request access to the school's public address system to announce the times and places of their meetings to the student body. These factors support the conclusion that the students in this high school are not likely to view the Petros meetings as an endorsement of religion by the school. The defendants have offered no evidence tending to show that Petros would be viewed as an organization that is being granted anything more than an accommodation by the school administration. Hence, the school's policy of providing a forum to be used in common by all student groups "may fairly be viewed as reflect[ing] a neutral posture toward religio[n]." Committee for Public Education v. Nyquist, 413 U.S. 756, 782, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973). See also id. at 782 n.38 (distinguishing Nyquist from Board of Education v. Allen, 392 U.S. 236, 20 L. Ed. 2d 1060, 88 S. Ct. 1923 (1968) and Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 504 (1947) on the basis that the class of beneficiaries in those cases included all school children). Indeed, to say that Petros alone is barred from utilizing the forum created by the Williamsport Area High School could manifest a hostility toward religion. See Lubbock Civil Liberties Union v. Lubbock Independent School District, 680 F.2d 424, 426 (5th Cir. 1982) (Reavley, J., dissenting from a Denial of Rehearing En Banc). The Establishment Clause acts as a proscription against hostility to, as well as advancement of, religion. See Committee for Public Education v. Regan, 444 U.S. at 653; Epperson v. Arkansas, 393 U.S. at 104; School District of Abington Township v. Schempp, 374 U.S. at 218-19.
Another factor militating against a finding that the school will place its imprimatur upon Petros' activities is that, unlike Engel and Schempp, the policy herein has a clear secular purpose. While the existence of a secular purpose does not, of course, foreclose a finding of "advancement of religion," it diminishes the risk that the public will perceive the state policy as an "advancement" or "approval" of a particular religion or religious practice. Cf. Florey v. Sioux Falls School District, 619 F.2d at 1316 (when primary purpose of a given school activity is secular, the activity does not have the primary effect of advancing religion by the inclusion of some religious content); Gilfillan v. City of Philadelphia, 637 F.2d at 931 n.6 (design of platform for papal visit to include cross relevant both to purpose and effect of city's action). For example, in School District of Abington Township v. Schempp, supra, the Court focused on the nonsecular purpose of the Bible reading exercise in striking the law down. While the Court also spoke in terms of the primary effect of the law, 374 U.S. at 222, the imprimatur of state approval in Schempp could not be totally divorced from the patently nonsecular purpose of the law. See generally id. at 288 (Brennan, J., concurring)("excusal or exemption simply has no relevance to the establishment question, if it is once found that these practices are essentially religious exercises designed at least in part to achieve religious aims ")(emphasis added).
The Supreme Court has recognized that within the confines of the Establishment Clause "there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." Walz v. Tax Commission, 397 U.S. at 669. This court believes that the present case falls within that "room of neutrality." To paraphrase the Widmar Court: "It is possible -- perhaps even foreseeable -- that [Petros] will benefit from access to [high school] facilities. [But] . . . a religious organization's enjoyment of merely 'incidental' benefits does not violate the prohibition against the 'primary advancement' of religion." 454 U.S. at 273. The direct and immediate effect of allowing Petros to meet would not be an endorsement of religion but rather a furtherance of the students' noncurricular development. Not unlike the bus transportation reimbursement in Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 504 (1947) and the textbook loan program in Meek v. Pittenger, 421 U.S. 349, 44 L. Ed. 2d 217, 95 S. Ct. 1753 (1975), an equal access policy affords to all students the benefit of using school facilities. The benefit in this case furthers the students' personal development by allowing them to convene in the pursuit of a common interest.
See generally Widmar v. Vincent, supra, 454 U.S. at 273.
The final inquiry is whether the policy at issue involves "excessive entanglement." See, e.g., Larson v. Valente, 456 U.S. at 255; Roemer v. Board of Public Works of Maryland, 426 U.S. at 762; Walz v. Tax Commission, 397 U.S. 664 at 674-75, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970). In support of their contention that recognizing and allowing Petros to meet would require excessive entanglement with religion, defendants point to two factors: the expenditure of public funds in providing a place for Petros to meet and the necessity of a teacher to monitor the meetings. The Court has previously examined the defendants' expenditure of funds argument and the reasons for its rejection need not be repeated. It suffices to say that the Establishment Clause does not prohibit a de minimis expenditure from the public fisc to incidentally aid religion.
The plaintiffs have requested that "a faculty advisor . . . be present at [Petros'] meetings solely for purposes of ensuring good order and not for any purpose related to the religious content of the meetings." See Complaint para. 57(C), Document 1 of the Record. The court does not believe that this would involve excessive entanglement. Inasmuch as the teacher would be present only to ensure orderly meetings,
the instant situation would involve no more entanglement than when a state provides for "the safety, security and general convenience" for persons attending the celebration of a Mass at the National Mall, see O'Hair v. Andrus, supra, 613 F.2d at 935, or provides police and fire protection to a church, see Roemer v. Board of Public Works of Maryland, 426 U.S. at 747; Everson v. Board of Education, 330 U.S. at 17. The teacher chosen to "monitor" the meetings would be the functional equivalent of a policeman at a religious rally held in a public park, see generally id.; O'Hair v. Andrus, 613 F.2d at 935. Just as the policeman in the above situation is acting to fulfill an obligation to society by ensuring peaceful discussion, so too would a teacher acting as a monitor during Petros' meetings be fulfilling an obligation to the school by maintaining order among the students. While the teacher's presence certainly would involve some "entanglement" with the meetings, such "limited and incidental entanglement between church and state authority is inevitable in a complex modern society." Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S. Ct. 505, 510, 74 L. Ed. 2d 297 (1982) (citing Lemon v. Kurtzman, 403 U.S. 602, 614, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971); Walz v. Tax Commission, 397 U.S. 664, 670, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970)). In short, the "entanglement" would not be "excessive."
Moreover, the court has been informed by plaintiffs that they would be willing to withdraw the request for an "advisor" if necessary to avoid an excessive entanglement problem. It appears then that the request for a monitor was prompted by the defendants' "unwritten policy" that an adult must be present at student meetings. There being no problem of entanglement in any event, it is unnecessary to address the plaintiffs' proposal.
The court having reviewed each prong of the tripartite Lemon test, and having found no potential violation thereof, the defendants' "Establishment Clause defense" must fail. Accordingly, the defendants have not enunciated a constitutionally-acceptable justification for their content-based exclusion of the plaintiffs from the benefits of the activity period. Therefore, the plaintiffs are entitled to summary judgment.
The court is fully aware that the result reached in this case will not be free from doubt unless and until the Supreme Court clarifies two very important areas of the law -- the extent to which there can be a "forum" for students in our high schools and the status of prayer in those institutions when initiated by students acting independently of outside influences. It may seem unusual that this case is so difficult to resolve, for Widmar appears nearly "on point." But for the fact that the present dispute involved a high school, Widmar clearly would have controlled. By the same token, it can be argued that Engel and Schempp should have governed the disposition of this case. But for the fact that the instant situation involved a purely student-initiated request to use a forum created by the school, the "school prayer" cases may very well have been dispositive. As noted at the outset of this opinion, the facts of this case are crucial. Under these facts, the court believes that the scales have tipped in the direction of applying Widmar rather than the "school prayer" cases.
The instant decision is a narrow one. The court does not hold that the Establishment Clause can never provide the "compelling state interest" necessary to defeat an otherwise valid free speech claim. That question is an open one. The court does not hold that public high school students have an indefeasible right to form prayer groups in these institutions. They do not. The court does not hold that all high school activity periods are "limited forums" conferring the full panoply of free speech rights upon students. That question depends upon the facts presented. The court does not hold that "voluntary school prayer" is, in all instances exempt from the scope of the Establishment Clause. It is not.
The court merely holds that under the precise set of undisputed facts presented, the defendants have created an open forum for the students' use, have excluded the plaintiffs by reason of the content of their speech, and have not demonstrated that the Establishment Clause requires such discrimination. Chief Justice Burger once made a salient observation concerning the difficult task of reconciling the sometimes competing values embodied in the religion clauses of the Constitution. His words are well worth repeating in the present context, for another constitutional value has been drawn into the fray -- freedom of speech:
The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated; but the purpose was to state an objective, not to write a statute. In attempting to articulate the scope of the two Religion Clauses, the Court's opinions reflect the limitations inherent in formulating general principles on a case-by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.
The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if extended to a logical extreme, would tend to clash with the other. For example, in Zorach v. Clauson, 343 U.S. 306, 96 L. Ed. 954, 72 S. Ct. 679 (1952), MR. JUSTICE DOUGLAS, writing for the Court, noted: