Dispatches from the Creation Wars

Another Ignorant School Official

And it’s right here in Michigan this time, at Farmington High School. The school refuses to give official recognition to a Christian student club. What makes this case more ridiculous than most is that that the school actually tries to cite legal precedent, completely distorting it in the process, to justify their position.

Policy 6141.1 of the Farmington Public Schools states, “Strict neutrality toward religion will be maintained by accommodating free exercise of religious beliefs while maintaining appropriate separation between religion and government.” Borrowing the words from Lemon v. Kurtzman, a famous Supreme Court case on the separation of church and state, the policy mandates that all practices sponsored by the schools have a “secular purpose,” the primary effects “neither advance nor inhibit religion,” and there must be no “excessive entanglements.”

If the school district actually had an attorney draw up that policy or give them this legal advice, that attorney should be fired. Immediately. The Lemon test applies to government actions, not to student groups. The law on recognition of student groups is controlled by Westside Community Bd. Of Ed. v. Mergens, which upheld the Equal Access Act. The holding could not be more clear:

Westside’s denial of respondents’ request to form a religious group constitutes a denial of “equal access” to the school’s limited open forum. Although the school apparently permits respondents to meet informally after school, they seek equal access in the form of official recognition, which allows clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, public address system, and annual Club Fair. Since denial of such recognition is based on the religious content of the meetings respondents wish to conduct within the school’s limited open forum, it violates the Act.

Not only is the case identical to the one here, but the ruling explicitly rejected the notion that such recognition violates the Lemon test:

(a) Because the Act on its face grants equal access to both secular and religious speech, it meets the secular purpose prong of the test. P. 248-249.

(b) The Act does not have the primary effect of advancing religion. There is a crucial difference between government and private speech endorsing religion, and, as Congress recognized in passing the Act, high school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis. Moreover, the Act expressly limits participation by school officials at student religious group meetings and requires that such meetings be held during “noninstructional time,” and thereby avoids the problems of the students’ emulation of teachers as role models and mandatory attendance requirements that might otherwise indicate official endorsement or coercion. Although the possibility of student peer pressure remains, there is little if any risk of government endorsement or coercion where no formal classroom activities are involved and no school officials actively participate. Pp. 249-252.

(c) Westside does not risk excessive entanglement between government and religion by complying with the Act, since the Act’s provisions prohibit faculty monitors from participating in, nonschool persons from directing, controlling, or regularly attending, and school “sponsorship” of, religious meetings. Indeed, a denial of equal access might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which it might occur. Pp. 252-253.

You could not ask for a more direct refutation of the legality of the school district’s policy, and it appears in binding Supreme Court precedent. The Thomas More Law Center, which is handling the case, no doubt cited this in their letter to the school district. Yet the school district still refused to recognize the club, resulting in a lawsuit being filed. This is absolutely a no-brainer ruling. The plaintiffs will undoubtedly win a summary judgment from the court; there is no need to even hold the trial. Why in the world is the school district wasting everyone’s time and money on this? If their attorney thinks they can win this case, it’s time to find a new attorney.


  1. #1 doctorgoo
    May 28, 2007

    From Brian Rooney of the TMLC, in the article:

    “Public schools are so afraid of the American Civil Liberties Union and other anti-Christian organizations that they can’t get it around their head that religion is allowed in the schools,” stated Rooney.

    I know that the ACLU refers to the Westside precedent when defending GSA clubs against schools that want to prohibit them. But I couldn’t find anything that specifically proves the ACLU supported it back in 1990.

    Did the ACLU defend (or file briefs in support of) the student group against the school in Westside? If so, then Rooney is being very deceptive when he blames the ALCU for scaring schools into disallowing Christian student groups.

  2. #2 Ed Brayton
    May 28, 2007

    If I recall correctly, the ACLU actually filed briefs on behalf of the school and against the student club in Westside v Mergens, and they had a really narrow argument as to why that particular group should not be allowed to meet. My recollection is that this is based on a reference to that brief in the brief the ACLU filed in Lamb’s Chapel, where they made an argument concerning what distinguished one case from the other.

  3. #3 Dan
    May 28, 2007

    Once the case is disposed of on the merits, TMLC will file a motion for its attorneys fees and costs. That motion will be granted, as it should be.

    Then, of course, all the religious groups will scream loudly about how attorneys fees should not be awarded to prevailing plaintiffs in relig — wait…

    Never mind.

  4. #4 Eveningsun
    May 28, 2007

    Perhaps Rooney should have said that public schools are afraid of the caricature of the ACLU that has been created by people like Rooney?

  5. #5 raj
    May 28, 2007

    It strikes me that school recognition of a student group is somewhat different from the remedies provided by the equal access law.

    Is there any indication that the Farmington MI school system is forbidding groups that are not recognized the schools from “allow(ing) clubs (that are not recognized by the school district) to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, public address system, and annual Club Fair”?

    As far as I’m concerned, school recognition of student groups should be limited to those groups who provide service to the school (“AV” clubs, for example), and those fairly related to school curriculum. But lack of recognition wouldn’t mean that access to bulletin boards, etc., would be denied.

  6. #6 Ed Brayton
    May 28, 2007


    The Equal Access Act is quite clear on this. If the school is going to give official status or recognition to any non-curricular student groups, they can’t pick and choose which ones to recognize based on viewpoint or ideology. A school that had no officially recognized non-curricular clubs would not be required to do so. If they set up a two-tiered system such as you suggest, where they allowed all student groups to meet but only gave official status (and therefore access to bulletin boards and so forth) to those directly related to curriculum, then that would be legal – as long as they really do use relation to the curriculum as the distinction.

  7. #7 Dan
    May 28, 2007

    Ed writes:

    …as long as they really do use relation to the curriculum as the distinction.

    As is so often the case, the devil’s in the details (no pun intended). Is the chess club related to the curriculum? What about the stamp club? The student diversity club? That’s one tough line to draw, so the safest thing to do is to make the circle as big as possible so that nearly all student groups are included. That’s a good thing in my book. Teach them at an early age that everyone enjoys the benefits of freedom of expression and conscience, and that the way to oppose speech is with more speech.

  8. #8 Ed Brayton
    May 28, 2007


    I agree with you that the allowed groups should be as wide as possible, of course. But I think if a school really drew a serious line and gave official recognition to, say, a German club, a math club, a science club and a literature club but when it came to a chess club, a stamp club and a student diversity club they allowed them to meet but did not give them official recognition, I think a court would accept that. The officially recognized clubs are all tied directly to actual courses offered by the school, the non-recognized clubs are not, so the school has a strong argument that they are treating all curricular clubs one way and all non-curricular clubs another way. But there really has to be a clear and consistent line there, which may well never happen in the real world.

  9. #9 Dan
    May 28, 2007

    Ed: It’s an interesting idea, one that I’d have to think about more carefully to decide where I come down on it. At first glance, here are a couple of issues that strike me.

    First, what benefits would “official recognition” entail that “non-recognition” would not? Access to the school mail system? Participating in school gatherings like assemblies, where students can discuss and debate particular subjects? Would officially-recognized groups share in, say, student activity fees, but non-recognized groups be excluded? I’m not saying that any of these differences would be constitutionally offensive; there is, I think, some support for it under Hazelwood, which ties content regulation, at least nominally, to curricular activities. I’m just trying to get a handle on what the distinction would entail, and whether any differences might cross the constitutional line.

    Second, how would this square with the Good News and Lamb’s Chapel reasoning, which suggests that one reason such groups must be permitted access is precisely because they offer a religious viewpoint, in contradistinction to the secular viewpoint that is represented already? In other words, is a curricular versus non-curricular distinction compatible with a religious versus secular distinction?

    OK, enough of this diversion for now. Back to the dormant Commerce Clause article I’m writing. Sounds like fun on a holiday, huh?

  10. #10 Ed Brayton
    May 28, 2007


    I think under the Equal Access Act, my scenario would pass. Whether a constitutional argument such as you suggest, based on Lamb’s Chapel and that line of cases, might succeed – my initial reaction is that I doubt it, but only because the scenario I drew out requires a clear and coherent standard that would rule out discrimination between like groups. Still, it may well be true that in the real world, there is no school that follows such a standard so it may all be hypothetical. Of course, you con law profs love hypotheticals….

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