Board of Education of Westside Community Schools v. Mergens


In Board of Education of Westside Community Schools v. Mergens (1990), the U.S. Supreme Court held that, on its face, the Equal Access Act does not violate the Establishment Clause of the First Amendment. Accordingly, the Court ruled that the school board had to allow and support studentsponsored religious clubs to the same degree as they assisted nonreligious student activities. In sum, Mergens stands out as an important decision insofar as it placed noncurricular student clubs on the same footing as other student-organized groups.

Facts of the Case


In Mergens, school board officials in Nebraska granted just about the same use of school facilities to a religious club as they did to other student organizations. However, the officials did not grant the religious club all of the rights afforded other student organizations, such as the use of bulletin boards, the public address system, and the school newspaper. Educational officials maintained that they were entitled to disallow full student organization benefits to the religious club, because all of the “fully recognized” student groups were curricular. In other words, the board adopted the position that because it had not created a limited open forum under the act’s provisions, it was under no obligation to grant full status to the noncurricular religious club.

The Court’s Ruling


At the heart of its analysis in Mergens, the Supreme Court defined curriculum-related student groups as those whose intent is directly related to the course(s) currently being taught, or that will soon be taught, within the curriculum. For example, even though the school’s mathematics teachers recommended their students participate in the Chess Club to practice logical thinking skills, the Court thought that the intent of the Chess Club was not significantly related to mathematics classes to be considered a curricular club. The Court also asserted that organizations such as the Subsurfers Club and a club that consisted of students who worked with special-needs children lacked a sufficient and direct relationship to the academic curriculum to be considered curricular clubs.
The Court explained that the school board’s overly broad interpretation of which student organizations were curricular, and thereby entitled to full student organization rights, and which student groups were noncurricular and not entitled to full student organization rights, allowed officials to deny student organization status based on political, philosophical, religious, or other content speech in violation of the Equal Access Act.
At the same time, the Supreme Court recognized that the school board did have the right to prohibit student organizations that would have materially and substantially interfered with the educational activities of the school. The Court reasoned that had the board permitted only curricular student clubs, or had it chosen to forgo federal funding, then it would not have been required to meet the requirements of the Equal Access Act. The Court thus upheld the constitutionality of the act on the basis that Congress had the authority to enact such a law.
A second point of consideration in Mergens was whether the Equal Access Act had the primary effect of promoting religion and thus was in violation of the Establishment Cause. On this point, a plurality of the Supreme Court agreed that because the Equal Access Act is neutral and promotes both secular and religious speech, it did not violate the Establishment Clause violation. In addition, the Court pointed out that incidental benefits to religious organizations under the Equal Access Act were insufficient to violate the Establishment Clause.
The Court next rejected the board’s contention that granting full student organizational benefits to a religious organization would have been the imprimatur of religious endorsement while conveying a message that officials endorsed rather than “tolerated” religious activity. The Court responded that Congress specifically determined that high school students were sufficiently mature to discern the difference between during-school activities, which are supported and endorsed by the school board, and after-school activities, which are not.
The Supreme Court added that student organizations should be voluntary, student initiated, and student organized. The Court confirmed that these clubs are not considered to be school board–sponsored if government or agents of the state, more specifically, public school teachers, do not directly control, conduct, or regularly attend the meetings. Therefore, as long as the board did not sponsor the club by providing faculty that promote, direct, control, or regularly attend the religious club meetings, the Court was satisfied that it was not at risk for excessive entanglement. The Court reiterated on several occasions that while faculty may not participate in the religious activities, it is permissible for school employees to be present at religious club meetings for custodial purposes such as to assure student good behavior.
In Mergens, the Court did acknowledge the possibility that peer pressure to join a religious group might exist. Even so, the Court was of the opinion that there was little risk of official state endorsement or coercion if no school officials actively participated in the activities. On a final note, the Court assured school boards that the presence of nonparticipating agents of the state at student religious club meetings would not be considered day-to-day surveillance or administration of the religious activity.
Brenda Kallio

See also Equal Access Act; State Aid and the Establishment Clause
Legal Citations
  • Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990).
  • Equal Access Act, 20 U.S.C. §§ 4071 et seq.
  • Good News Club v. Milford Central School, 21 F. Supp. 2d 147 (N.D.N.Y. 1998); aff’d, 202 F.3d 502 (2d Cir. 2000, rev'd); 533 U.S. 98 (2001).
  • Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 839 (2d Cir. 1996).