Dispatches from the Creation Wars

I’m surprised I hadn’t heard about this case before it reached the appeals court level. The case is Truth v Kent School District and it involves a high school’s refusal to recognize a student Bible club based on the club’s requirement that members be Christians. The district court ruled against the Bible club and the appeals court just upheld that ruling (see text of the ruling here). I think this is clearly a wrong decision based on both statutory law and Supreme Court precedent.

This is similar to the various cases going on around the country on college campuses on whether a state-funded school can refuse to recognize religious groups and clubs. But at the high school level you have a statutory law that doesn’t exist at the university level, the Equal Access Act, which requires school recognition of religious clubs if they allow any other non-curricular clubs (this same law also requires schools to recognize Gay Straight Alliance clubs, of course) and forbids viewpoint-based discrimination against such clubs.

The Equal Access Act has been upheld as constitutional by the Supreme Court, so the question is how the court manages to get around that requirement in this case? I don’t really see how they did. First of all, the court concedes that other clubs at the school are allowed to engage in precisely the same sort of belief-based criteria for inclusion in those clubs:

As of April 3, 2003, there were thirty ASB-recognized clubs at Kentridge. There is no evidence of any Policy 2153 groups at Kentridge. While the record does not contain the charters of all the clubs, it appears that many of them have selective membership criteria, restricting membership based on both beliefs and conduct. Indeed, each charter application contains a section for “Membership Criteria.”

The Earth Corps, for example, requires members to show “interest and dedication toward environmental issues.” Similarly, the Key Club requires that members be “interested in service, qualified scholastically, of good character, possessing leadership potential . . . [and] willing to perform at least fifty hours of . . . service.” The Gay-Straight Alliance requires that students “must be willing to work towards the goals of the club” to be members. These goals include “bring[ing] GLBTQ [Gay, Lesbian, Bisexual, Transgendered, and Questioning] issues into the open, while working to decrease homophobia.” Other goals include “changing stereotypes” and “fight[ing] heterosexism and other forms of oppression.” The National Honor Society selects its members based on “outstanding scholarship, character, leadership, and service,” and requires them to “behave in a courteous and respectful manner, refraining from language and actions that might bring discredit upon themselves.” It also requires members to refrain from using or possessing alcohol or illegal substances. Participation in school sports requires maintaining a certain grade point average and attendance record, not using drugs or alcohol, and complying with the “sports code.” Finally, a
Men’s Honor Club and a Girls Honor Club also operate at Kentridge as ASB-recognized groups. Each club has gender exclusive membership.

Despite this, the court bizarrely then upholds the school’s authority to tell only this one group that they may not control their own membership and set rules on belief and action that non-religious groups are allowed to set. I cannot imagine how this can possibly be justified and the court doesn’t provide anything like a compelling argument for that conclusion. They take the position that the Equal Access Act only prevents the school from refusing to recognize a club based on actual speech that goes on at the meetings:

By its plain terms, the Act prevents only denials of access or fair opportunity or discrimination “on the basis of the religious, political, philosophical, or other content of the speech at [a club’s] meetings.” 20 U.S.C. ยง 4071(a). Therefore, once it is established that the secondary school receives federal funds and has created a limited open forum, the club must demonstrate two additional elements to prevail: 1) a denial of equal access, or fair opportunity, or discrimination; 2) that is based on the “content of the speech” at its meetings.

But then in the very next paragraph, they clearly recognize that such refusal cannot be based on a flimsy pretext:

The District has denied Truth ASB status not because of the religious “content of the speech,” but rather because of its discriminatory membership criteria. The Act does not define “content of the speech,” but that phrase has a particular meaning in First Amendment jurisprudence. We have held that “whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based.” Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) (quotations and citation omitted). Similarly, a “restriction on expressive activity is content-neutral if it is . . . based on a non-pretextual reason divorced from the content of the message attempted to be conveyed.”

But what is the non-pretexual reason for the school’s refusal to recognize the club? The school certainly cannot claim that it has a compelling duty to prevent clubs from controlling their membership on the basis of belief or actions because they allow other clubs to make such rules of admission and still grant those clubs full recognition. If a school allows all non-religious clubs to make such rules and still get full recognition but refuses to allow a religious club to do so, how is this not a pretext rather than a justification? And how is it not a form of content-based discrimination itself? This is a very poor ruling. I hope they appeal to the Supreme Court and I hope the Court reverses the outcome.