Can a public high school officially recognize a Christian student club, like the Fellowship of Christian Athletes, as a school organization?

Plain-English summary

The Board of Education of Carroll County asked the Attorney General whether Westminster High School could grant "official school recognition" to the Westminster Fellowship of Christian Athletes (Westminster FCA), a religious and social group. The club was already using school facilities after hours under a state law that let the county board open facilities to civic, educational, social, recreational, or religious groups. The club wanted more: a photo in the school yearbook, announcements over the school PA system and on the regular activity bulletin boards, use of a classroom and the gym, a faculty advisor, listing in the school handbook, and coverage under the school's own liability insurance. The opinion concluded that the club's existing after-hours use of facilities was lawful, but that granting it official school-organization status would violate the Establishment Clause of the First Amendment, because a religious group's use of the school name and resources in the same manner as the basketball team or French club would advance religion and entangle the school with it.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Establishment Clause case law as it stood in 1982. Federal legislation and later Supreme Court decisions addressing student religious clubs' access to public secondary school facilities have since changed the legal landscape in ways this opinion could not have anticipated. Anyone dealing with a similar question today should research current federal and state law on student religious club access rather than relying on this opinion's 1982 analysis.

Common questions

Could a 1982 Maryland public high school let a Christian student club meet on campus after school hours?
Yes, according to this opinion. The club's existing use of school facilities under §7-108 of the Education Article, meeting after the school day ended, carrying its own insurance, and posting notices on the community bulletin board used by other outside groups, was found to be permissible.

Why did giving the club "official recognition" cross the line, if just using the building didn't?
The opinion drew a distinction between passive facility use and active incorporation into the school's own identity. Official recognition would have meant a yearbook photo, PA announcements, a faculty advisor, and coverage under the school's insurance, the same treatment as the basketball team or French club. The opinion found that this level of integration into an avowedly religious group's activities would have the effect of advancing religion and entangling school officials with it.

Did the club's free speech or free exercise rights require the school to grant recognition?
No, according to the opinion. It found that the club's free speech and free exercise rights were already satisfied by its ability to use the premises after school hours, and that denying access to the yearbook, a faculty advisor, or other trappings of official recognition did not deny free exercise rights.

What would have happened if the school recognized this one religious club but not others?
The opinion reasoned that if the school could constitutionally recognize the Westminster FCA, it would then be bound to recognize all religious groups seeking similar status, from established religions to controversial cult groups to non-theistic belief systems, a result the opinion said would threaten the constitutionally required separation of church and state.

Background and statutory framework

The Westminster FCA was already using Westminster High School's facilities under §7-108 of the Education Article, which required the county board to provide for use of school facilities for civic, educational, social, recreational, or church-affiliated civic purposes, and separately permitted the county board to allow use of facilities for religious or other lawful purposes. The club met after the school day, carried its own insurance for the activity, and posted meeting notices on a bulletin board shared with other outside community groups. In January 1982 the club asked for more: recognition as a school organization, a group photo in the yearbook, PA announcements of meetings and fundraisers, posting on the regular school activity bulletin boards, use of a classroom after hours and the gym for dances, use of the lobby for bake sales, listing in the school handbook, assignment of a faculty advisor, and coverage under the school's own liability policy.

The opinion applied the Establishment Clause framework through the lens of a recent case, Brandon v. Board of Education of the Guilderland Central School District, in which the Second Circuit upheld a school board's refusal to let a student group hold voluntary prayer meetings before classes began, on the ground that the establishment clause interest in keeping the school free of any indication of sponsoring religious activity left no room for accommodation. The opinion reasoned that the Westminster FCA's request went further than the facts in Brandon, since the club sought not just passive use of space but the active use of the school's name and identity in the same manner as other official school organizations, so official recognition would, even more than the informal prayer sessions disallowed in Brandon, advance religion and create excessive government entanglement.

The opinion distinguished the club's situation from Chess v. Widmar, later affirmed by the Supreme Court as Widmar v. Vincent, in which a public university was required to open a forum it had made generally available to student groups to religious groups as well, on free speech and association grounds rather than free exercise grounds. The opinion noted that Brandon had already explained why Widmar's university-forum holding did not carry over to secondary schools: university students are less impressionable, university students often lack alternative facilities, and elementary and secondary public schools have never been treated as public forums for student speech. The opinion closed by citing Everson v. Board of Education and James Madison's writing on religious liberty for the principle that government neutrality toward religion, protecting every citizen's own religion equally while neither favoring one sect nor letting one sect encroach on another, supported denying the recognition request while preserving the club's existing facility access.

Citations

Statutes:

• §7-108 of the Education Article
• Ed §7-108(b)(l)(iv)
• Ed §7-108(d)

Cases:

• Brandon v. Board of Education of the Guilderland Central School District, 635 F.2d 971 (2nd Cir. 1980), cert. denied, 454 U.S. 1123 (1981)
• Chess v. Widmar, 480 F.Supp. 907 (W.D. Mo. 1979), rev'd, 635 F.2d. 1310 (8th Cir. 1980), aff'd sub nom. Widmar v. Vincent, 454 U.S. 263 (1981)
• Everson v. Board of Education, 330 U.S. 1, 63 app. (1947)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law—First Amendment—Establishment Clause — Free Exercise/Free Speech Clauses—"Official Public School Recognition" of Christian Athletic Group Would Violate Establishment Clause

April 23, 1982

Edward J. Gutman, Esquire
Counsel to the Board of
Education of Carroll County

On behalf of the Board of Education of Carroll County, you have requested our opinion on whether Westminster High School may grant "official school recognition" to the Westminster Fellowship of Christian Athletes, a religious and social group.

For the reasons given below, we believe that such "official recognition", taking the form described below, would violate the Establishment Clause of the First Amendment.

I
Background

We understand that the Westminster Fellowship of Christian Athletes ("Westminster FCA") is now using school facilities under the authority of §7-108 of the Education Article ("Ed" Article). This statute provides that "the county board shall provide for the use of a public school facility for . . . civic, educational, social, or recreational purposes or church affiliated civic purposes" [Ed §7-108(b)(l)(iv)] and, further, that the county board may permit the use of school facilities for "religious or other lawful purposes" [Ed §7-108(d)].

The Westminster FCA sought and received the approval of the school board to use the facilities in precisely the way any other nonschool affiliated organization would: it meets after the end of the school day, it has purchased insurance covering its use of the facilities, and it posts its meeting notices on a separate bulletin board used by other community organizations.

In its request for recognition of January 13, 1982, the Westminster FCA sought the following additional privileges: recognition as a school organization; inclusion of a group photograph in the school year book; announcement of meetings and fund raising events over the school public address system; posting of announcements on the school bulletin boards in the same manner as other school activities; use of a classroom for meetings after regular school hours; use of the school gymnasium for dances; use of the school lobby for bake sales.

In addition to these benefits, school recognition would include listing in the school handbook, the assignment of a faculty member to serve as advisor for the group, and, we understand, coverage under the school's own liability insurance policy.

II
Analysis

In our view, the present use of facilities by the Westminster FCA is permissible under §7-108. However, it is also our view that an avowed religious group such as the Westminster FCA cannot be granted the further "official" recognition that it seeks without violating the Establishment Clause of the First Amendment.1

A. Religious Nature of Fellowship

There is little doubt that the Westminster FCA is a religious group. It is a part of a national organization, the Fellowship of Christian Athletes, which exists to "present to athletes and coaches, and all whom they influence, the challenge and adventure of receiving Jesus Christ as Savior and Lord, serving him in their relationships and in the fellowship of the church".

1 We have previously discussed the meaning and application of the "religious clauses" of the First Amendment in a variety of contexts. See 67 Opinions of the Attorney General 26 (1982) (statute requiring "balanced" presentation of "creation-science" and "evolution-science" in public schools would violate Establishment Clause); 67 Opinions of the Attorney General 37 (1982) (statute requiring public elementary school students to participate in period of prayer, Bible reading, or meditation would violate Establishment Clause); 65 Opinions of the Attorney General 186 (1980) (distributing Gideon Bibles to public elementary school students violates the Establishment Clause); 64 Opinions of the Attorney General 134 (1979) (teaching ethical values in the public schools is constitutionally permissible).

The national organization's literature states:

"The Fellowship of Christian Athletes' approach might well be termed 'evangelism through fellowship', centering on the person of Jesus Christ, the Bible, and the institution of the Church. In its ministry to the greats and unsung heroes of the sports world, FCA is a fellowship through which ordinary people help each other become better persons, and better examples of what God can do with a yielded life." Fellowship of Christian Athletes, Pamphlet, at 2.

The Westminster group, in its Constitution and Bylaws, states that one of its purposes is "to provide a forum for the exchange of ideas, concepts and beliefs pertaining to religion". In addition:

"[T]he Westminster Fellowship of Christian Athletes will serve to broaden the members' religious views and to provide a better understanding of their beliefs. It will also serve as a fraternal organization aimed at meeting to discuss contemporary issues of interest among its members."

B. First Amendment Considerations

Recently, the Supreme Court let stand a decision of the U.S. Court of Appeals for the Second Circuit, upholding a local school board's refusal to allow a student group to hold voluntary prayer meetings at the start of the school day, before classes began. Brandon v. Board of Education of the Guilderland Central School District, 635 F.2d 971 (2nd Cir. 1980), cert. denied, 454 U.S. 1123 (1981).

That case is very pertinent to this situation. There, as here, the student group challenged the denial on free speech and free exercise grounds; it asserted that it was not seeking supervision or faculty involvement and that its activities were voluntary and would not conflict with other school functions.

Notwithstanding these arguments, the Second Circuit found that the group's use of the facilities would have the impermissible effect of advancing religion and creating excessive government entanglement: "[T]he state's compelling establishment clause interest in removing from the school any indication of sponsoring religious activity leads to the inescapable conclusion that no alternative accommodations were possible." 635 F.2d at 979.

It is noteworthy that, while Brandon involved mere passive permission to use school facilities, the Westminster FCA's request contemplates far more, namely, use of the school name and active participation in school activities, in the same manner as the basketball team, French club, or other "official" school organizations. It is evident that official school recognition of the Westminster FCA, an organization with an avowed religious purpose, would, even more so than the informal prayer sessions disallowed in Brandon, have the impermissible effect of advancing religion and creating excessive government entanglement.2

With regard to free speech and free association claims, the Second Circuit in Brandon stated that a high school is not a public forum where religious views can be freely aired. The court thus distinguished this set of facts before it from those in another recent case, Chess v. Widmar, 480 F.Supp. 907 (W.D. Mo. 1979), rev'd, 635 F.2d. 1310 (8th Cir. 1980), aff'd sub nom. Widmar v. Vincent, 454 U.S. 263 (1981), which challenged a university regulation banning religious groups from using its facilities. In Widmar, the Eighth Circuit found that the university had established, by practice, a public forum; it concluded that the university must open this forum to all groups, without discrimination or distinction. In affirming this decision, the Supreme Court stated that its decision was not based on Free Exercise Clause grounds but, rather, on free speech and free association grounds.

2 In Brandon, the Second Circuit noted that:

"Our nation's elementary and secondary schools play a unique role in transmitting basic and fundamental values to our youth. To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit." 635 F.2d. at 978 (citations omitted).

And, in 65 Opinions of the Attorney General 186 (1980), we noted how assisting one religious group in the distribution of its teachings would necessitate similar assistance to all religious groups, requiring school officials to decide what constitutes a bona fide religion:

"The strain placed on school authorities by requiring them to make such religious judgments and to monitor their enforcement would entangle them in conflicts among religious groups, with the schoolhouse as the field of battle." 65 Opinions of the Attorney General at 196.

Assuming it were constitutional for the School Board to recognize a Christian organization, the Board would then be bound to recognize all religious groups, from established religions to controversial cult groups to non-theistic teachings, a result that would clearly threaten the constitutionally mandated separation between Church and State.

As explained in Brandon, there are several distinctions between high schools and universities that make the Widmar holding inapplicable to the instant case. The chief distinctions are that university students are less impressionable than younger students, university students often have no alternative facilities available to them, and public elementary and secondary schools have never been viewed as public forums. Therefore, the speech rights of religious groups may be limited in non-university or non-college settings.

In any event, it seems evident to us that the free speech/free exercise rights of the Westminster FCA members already have been fully met by their present ability to use the premises after school hours. Even read broadly, Widmar does not suggest that denying a group access to the yearbook, insurance coverage, a faculty advisor, or other benefits of school recognition would constitute a denial of free exercise rights.

III
Conclusion

In summary, we agree with the position taken by the Board of Education of Carroll County to deny the request for "official school recognition" of the Westminster Fellowship of Christian Athletes. On the other hand, we do believe that the group's current use of school facilities, in the same manner as any other civic, educational, social, recreational, or religious group, is constitutionally acceptable.

In our view, the value our government places upon official neutrality toward religion requires such a result. In the words of James Madison, a just government "will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another." J. Madison, "Memorial and Remonstrances Against Religious Assessments" ¶8, reprinted in Everson v. Board of Education, 330 U.S. 1, 63 app. (1947).

Stephen H. Sachs, Attorney General
Christine Steiner, Assistant Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because of the importance of the issues addressed, it is published here in a slightly revised format.