Could Maryland public school students hold a voluntary Bible study or prayer group during free time in the 1980s?

Plain-English summary

The Superintendent of Baltimore County Public Schools asked the Attorney General whether student-initiated group religious practices, such as a Bible study and worship session during the lunch hour at Catonsville Senior High School, were constitutional. Rather than answering only for that one case, the opinion set out general guidelines for student religious activity during "free time," periods before or after school, or during the school day when no curriculum-related activity is scheduled. The opinion concluded that the Free Exercise Clause does not require schools to allow such meetings, since students remain free to worship outside school hours. The harder question was the Free Speech and Establishment Clauses. Drawing on Widmar v. Vincent and, especially, the Third Circuit's decision in Bender v. Williamsport Area School Dist., the opinion concluded that if a school lets students use free time however they wish, students may use that time for religious activity too, but the school must remain entirely uninvolved: no scheduling the meeting, no granting permission for a room, no using school bulletin boards or announcements, and no faculty monitor stationed in the room. The opinion also addressed the newly enacted federal Equal Access Act and concluded it was highly likely to be found unconstitutional under the Establishment Clause, because its evident purpose was to enhance the status of religious meetings in public schools.

Currency note

This opinion was issued in 1984. 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.

An editor's note on the official text records that the Supreme Court later vacated the Third Circuit's Bender decision on the ground that the appellant lacked standing to prosecute the appeal, so the Supreme Court's 1986 disposition did not reach the merits of the Establishment Clause analysis this opinion relied on. The opinion itself candidly described the underlying law as "unresolved" and at "the frontier of First Amendment law," and its prediction that the federal Equal Access Act would be found unconstitutional was exactly that, a prediction, made before any court had ruled on the Act's constitutionality. Readers should not treat this opinion's forecast about the Equal Access Act, or its case-by-case guidelines for school involvement, as a statement of how courts have since resolved these questions.

Common questions

Could a Maryland public high school let students hold a voluntary Bible study group in 1984?
Yes, according to this opinion, but only under specific conditions. If a school gave students free time to pursue activities of their own choosing, students could use that time for prayer or Bible study, as long as the school did not schedule, supervise, publicize, or otherwise involve itself with the religious meeting.

Could a teacher supervise or sit in on a student prayer meeting?
No. The opinion concluded that any faculty supervision, monitoring, or participation in a student religious meeting would violate the Establishment Clause, even if the teacher's presence was meant only to maintain order, because a monitor's presence implies school endorsement.

Did the opinion say schools had to allow student religious groups?
No. The opinion concluded schools are not required, under the Free Exercise Clause or otherwise, to provide free time at all, or to open classrooms for free time use. Whether to create any free time, and where students may use it, was left to each school's discretion.

What did the opinion say about the federal Equal Access Act, which required equal treatment of religious student groups?
The opinion predicted that the Act was highly likely to be found unconstitutional under the Establishment Clause, reasoning that Congress could not legislate away the constitutional limits on school involvement with religious activity simply by treating religious speech the same as secular speech.

What was the key line the opinion drew between permissible and impermissible school involvement?
The opinion distinguished a school's passive toleration of nondisruptive student religious activity, which it treated as constitutionally required to be allowed if other free time activities are allowed, from a school's underwriting, sponsorship, or recognition of that activity, which it said the Establishment Clause forbids.

Background and statutory framework

The inquiry arose from a specific incident, a Bible study and worship session during the lunch hour at Catonsville Senior High School, but the Superintendent noted that student-initiated religious meetings were occurring at other Baltimore County schools as well. The opinion worked through three areas of First Amendment doctrine. Under the Free Exercise Clause, it concluded students suffered no constitutional injury from a school's refusal to accommodate religious meetings, since they remained free to worship outside school hours. Under the Free Speech Clause, drawing heavily on the Supreme Court's Widmar v. Vincent decision (addressing a public university) and the Third Circuit's Bender decision (addressing a public high school's formal "activity period"), the opinion concluded that once a school creates an open forum, meaning it lets students choose their own free time activities, the school cannot exclude a group based on the religious content of its speech without a compelling interest, and compliance with the Establishment Clause can be such an interest. Under the Establishment Clause, applying the three-part test from Lemon v. Kurtzman (secular purpose, primary effect neither advancing nor inhibiting religion, no excessive entanglement), the opinion concluded a neutral free-time policy has a secular purpose and, if administered so the school remains genuinely uninvolved, would not have the forbidden effect of appearing to endorse religion or entangle the school in religious decisionmaking. Finally, the opinion analyzed the recently enacted federal Equal Access Act, Pub. L. No. 98-377, which required secondary schools with a "limited open forum" to give religious, political, and philosophical student groups equal access, and concluded that the Act's evident purpose of enhancing the status of religious meetings in public schools made it highly likely to be struck down under the Establishment Clause.

Citations

Statutes:

• Equal Access Act, Pub. L. No. 98-377, §802(a), 98 Stat. 1302 (1984) (prohibits secondary schools receiving federal aid and having a "limited open forum" from denying equal access to student groups based on the religious, political, or philosophical content of their speech)
• Equal Access Act, §802(b) (defines "limited open forum" as existing whenever a school allows one or more noncurriculum-related student groups to meet during noninstructional time)
• Equal Access Act, §803(4) (defines "noninstructional time" as time before or after actual classroom instruction)
• §7-104 of the Education Article of the Maryland Code (permits students and teachers to read scripture or pray during a daily period of silent meditation, discussed in a footnote on related Establishment Clause litigation)

Cases:

• Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948), struck down in-school religious instruction by outside religious teachers during the school day
• School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), struck down mandatory Bible reading and Lord's Prayer recitation in public schools
• Everson v. Board of Education, 330 U.S. 1 (1947), established that the Fourteenth Amendment applies the Establishment Clause to the states; upheld reimbursing parents for busing children to religious schools
• Widmar v. Vincent, 454 U.S. 263 (1981), a public university could not deny a student religious group access to an otherwise generally available open forum
• Bender v. Williamsport Area School Dist., 741 F.2d 538 (3d Cir. 1984), reversing 563 F. Supp. 697 (M.D. Pa. 1983), vacated on jurisdictional grounds, 106 S.Ct. 1326 (1986), a formal high school "activity period" open to student groups created a limited open forum, but a school-approved monitor at a student prayer group's meetings violated the Establishment Clause
• Lubbock Civil Liberties Union v. Lubbock Indep. School Dist., 669 F.2d 1038 (5th Cir. 1982), cert. denied, 459 U.S. 1155 (1983), school policy allowing supervised religious meetings near the start or end of the school day implied school endorsement
• Brandon v. Board of Educ. of Guilderland, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981), students may worship outside school hours, so denial of in-school prayer meetings does not violate free exercise; officially supervised prayer meetings create an improper appearance of official support
• McCarthy v. Hornbeck, 590 F. Supp. 936 (D. Md. 1984), the freedom to hold religious beliefs is absolute but the freedom to act on them is not
• Thomas v. Review Bd. of the Indiana Employment Security Div., 450 U.S. 707 (1981), free exercise infringement requires the state to condition a benefit on conduct forbidden, or deny a benefit for conduct mandated, by religious belief
• Wisconsin v. Yoder, 406 U.S. 205 (1972), free exercise infringement test applied to compulsory education
• Sherbert v. Verner, 374 U.S. 398 (1963), foundational free exercise conditioned-benefit case
• Forest Hills Early Learning Center v. Lukhard, 728 F.2d 230 (4th Cir. 1984), free exercise infringement test
• Palko v. Connecticut, 302 U.S. 319 (1937), free speech described as "the matrix, the indispensable condition, of nearly every other form of freedom"
• Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972), government generally may not restrict expression based on its content
• Abrams v. United States, 250 U.S. 616 (1919), Justice Holmes's "marketplace of ideas" rationale for free expression
• United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114 (1981), the First Amendment does not guarantee access to all government property; content-neutral time, place, and manner regulation permitted
• Consolidated Edison v. Public Service Comm'n, 447 U.S. 530 (1980), time, place, and manner regulation standard
• Shelton v. Tucker, 364 U.S. 479 (1960), vigilant protection of constitutional freedoms is vital in the community of American schools
• Keyishian v. Board of Regents, 385 U.S. 589 (1967), the law will not tolerate a "pall of orthodoxy" over the classroom
• Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969), students do not shed First Amendment rights at the schoolhouse gate; free speech rights follow students throughout the school day
• West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), students cannot be compelled to salute the flag or recite the pledge of allegiance
• Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971), student free speech rights may be modified to fit the needs of the school environment
• Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970), same standard for adjusting student free speech rights
• Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982), school boards have discretion to prescribe curriculum and inculcate democratic values
• Epperson v. Arkansas, 393 U.S. 97 (1968), struck down a ban on teaching evolution in public schools; recognized school board curricular discretion
• Meyer v. Nebraska, 262 U.S. 390 (1923), recognized school authorities' role in shaping educational content
• Adderley v. Florida, 385 U.S. 39 (1966), government may preserve property under its control for its lawfully dedicated use
• Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983), no absolute constitutional right to use all parts of a school building for unlimited expressive purposes
• Grayned v. City of Rockford, 408 U.S. 104 (1972), quoted in Perry on the scope of access to government property
• Seyfried v. Walton, 668 F.2d 214 (3d Cir. 1981), school officials have wide latitude to decide how to use limited resources for educational goals; no student free speech right to produce a particular school play
• Lemon v. Kurtzman, 403 U.S. 602 (1971), established the three-part Establishment Clause test: secular purpose, primary effect, and excessive entanglement
• Walz v. Tax Comm'n, 397 U.S. 664 (1970), Establishment Clause guards against sponsorship, financial support, and active government involvement in religion; "play in the joints" allows benevolent neutrality
• Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), not every indirect or incidental benefit to religion is constitutionally invalid; Establishment Clause violations do not require coercion
• Engel v. Vitale, 370 U.S. 421 (1962), struck down a state-composed nondenominational school prayer, even though student participation was voluntary
• Zorach v. Clauson, 343 U.S. 306 (1952), upheld a "released time" program letting public school students leave school for religious instruction elsewhere
• Lynch v. Donnelly, 465 U.S. 668 (1984), Establishment Clause analysis involves reconciling tension between preventing government-religion intrusion and the impossibility of total separation
• Mueller v. Allen, 463 U.S. 388 (1983), upheld a tax deduction for educational expenses available to all parents, including those with children in religious schools
• Board of Education v. Allen, 392 U.S. 236 (1968), upheld loan of secular textbooks to all schoolchildren, including those in religious schools
• Marsh v. Chambers, 463 U.S. 783 (1983), upheld legislative prayer opened by a publicly paid chaplain
• Felton v. Secretary of Education, 739 F.2d 48 (2d Cir. 1984), aff'd, 105 S.Ct. 3232 (1985), use of public school teachers for remedial instruction in religious schools held unconstitutional
• Americans United for Separation of Church and State v. School Dist. of Grand Rapids, 718 F.2d 1389 (6th Cir. 1983), aff'd, 105 S.Ct. 3216 (1985), "shared time" and "community education" programs by public teachers in religious schools held unconstitutional
• Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1983), aff'd, 105 S.Ct. 2479 (1985), statute authorizing meditation and silent prayer in public schools held unconstitutional
• Stone v. Graham, 449 U.S. 39 (1980), struck down mandatory posting of the Ten Commandments in public school classrooms
• Karen B. v. Treen, 663 F.2d 897 (5th Cir. 1981), aff'd, 466 U.S. 913 (1982), Establishment Clause bars various forms of group student religious activity in public schools
• Collins v. Chandler Unified School Dist., 644 F.2d 759 (9th Cir. 1981), cert. denied, 454 U.S. 863 (1981), same
• Stein v. Oshinsky, 348 F.2d 999 (2d Cir. 1965), same
• Hunt v. Board of Educ., 321 F. Supp. 1263 (S.D. W. Va. 1971), same
• Trietley v. Board of Educ., 409 N.Y.S.2d 912 (App. Div. 1978), same
• Johnson v. Huntington Beach Union High School Dist., 137 Cal. Rptr. 43 (1977), cert. denied, 434 U.S. 877 (1978), same
• Commissioner of Educ. v. School Committee, 267 N.E.2d 226 (Mass. 1971), cert. denied, 404 U.S. 849 (1971), same
• State Bd. of Educ. v. Bd. of Educ. of Netcong, 270 A.2d 412 (N.J. 1970), same
• Gaines v. Anderson, 421 F. Supp. 337 (D. Mass. 1976), upheld a moment-of-silence statute similar to Maryland's §7-104
• May v. Cooperman, 572 F. Supp. 1561 (D.N.J. 1983), struck down a moment-of-silence statute
• Duffy v. Las Cruces Pub. Schools, 557 F. Supp. 1013 (D.N.M. 1983), same
• Beck v. McElrath, 548 F. Supp. 1161 (M.D. Tenn. 1982), vacated, 718 F.2d 1098 (6th Cir. 1982), same
• Nartowicz v. Clayton County School Dist., 736 F.2d 646 (11th Cir. 1984), upheld an injunction barring a religious student club from meeting on school premises after hours under faculty supervision

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/1984/Volume69_1984.pdf

Original opinion text

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

CONSTITUTIONAL LAW

Education-Public Schools-Student Prayer/Bible Study Groups-Free Speech/Free Exercise/Establishment Clauses-"Open Forum"/"Free Time"-Equal Access-Student Use For Private Religious Activity Permissible Only If School Remains Wholly Uninvolved-Federal Equal Access Act Unconstitutional.

December 6, 1984

Dr. Robert Y. Dubel, Superintendent
Baltimore County Public School System

You have requested our opinion concerning the constitutionality of student-initiated group religious practices in public high schools during students' free time.1

Your inquiry initially addressed a particular student group religious activity, a Bible study and worship session, during the lunch hour at Catonsville Senior High School. However, as you later pointed out, student-initiated religious meetings occur at other high schools in Baltimore County and, one might assume, in other parts of the State as well.

We therefore believe that our response will be more useful if it provides general guidelines that can be applied to various situations. We certainly do not expect that we can anticipate every possible question or circumstance, but we hope that this opinion will serve as a constitutionally sound frame of reference for resolving specific questions as they might arise.

I

Overview

Although the question you pose requires an exploration of issues at the frontier of First Amendment law, certain historical and constitutional truths mark our way. We know, for example, that "[t]he place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind". School Dist. of Abington Township v. Schempp, 374 U.S. 203, 226 (1963). And we know that the First Amendment's guarantees of free speech and the free exercise of religion are designed to protect that place against official intrusion.2

But from centuries of "bitter experience" we also know that religious freedom, including the freedom not to practice religion, can only be insured if government does not involve itself with religion. Id. For this reason, the First Amendment, principally through its Establishment Clause, mandates our strict adherence to the bedrock principle that "[i]n the relationship between man and religion, the State is firmly committed to a position of neutrality". Id.

Put another way, First Amendment adjudication over the years has been marked by efforts to maintain a fragile balance between two goals that are frequently in tension with one another. One of them is our purpose to honor, respect, and accommodate the desire of our citizens to express and practice their religious beliefs. The other is our determination not to implicate the State in any way as an underwriter or promoter of religion. Nowhere has the need to strike this appropriate balance been more insistent than in the public school, "the symbol of our democracy and the most pervasive means for promoting our common destiny". Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 227 (1948) (Frankfurter, J., concurring). It is a task of "magnitude, intricacy and delicacy". 333 U.S. at 237.

The Supreme Court has never addressed the specific issue of whether public high school students possess a First Amendment right to hold student-initiated religious meetings, whether before, after, or during school hours. However, in Widmar v. Vincent, 454 U.S. 263 (1981), the Supreme Court held that a public university violated its students' rights to freedom of speech when it denied a student religious club access to university meeting facilities otherwise generally available for use by student organizations. The Widmar decision, though it concerned only a public university, nevertheless has spawned controversy and litigation on the issue of student religious activities in the public high schools.

We explore below the constitutional principles discussed in Widmar and in earlier pertinent Supreme Court cases. We also analyze numerous cases in the federal courts of appeal that deal with student religious activities in secondary schools, especially Bender v. Williamsport Area School Dist., 741 F.2d 538 (3d Cir. 1984), reversing 563 F. Supp. 697 (M.D. Pa. 1983), [vacated on jurisdictional grounds, 106 S.Ct. 1326 (1986)], a particularly well-reasoned decision rendered after Widmar.3

We think we discern in the reported cases a constitutionally significant line of demarcation, a First Amendment meridian so to speak, that helps us respond to your inquiry and to suggest the guidelines below. It is a line that distinguishes between a school's passive toleration of nondisruptive student-initiated religious activity, on the one hand, and a school's underwriting, sponsorship, or recognition of such activity, on the other.

School authorities are not authorized, much less obliged, to police the private utterances and exchanges of students, in order to ferret out and suppress voluntary religious practices. The First Amendment does not permit, let alone impose, so perverse a duty. If a school allows its students free time at lunch to do what they wish, for example, it should no more interfere with a group of students reading and discussing the Bible in the cafeteria than it would with a group of students at the next table studying for their history exam.

Nor may a school official interfere with students who wish to worship, in their free time, in a way that does not disrupt others. And it is immaterial whether this kind of private devotion occurs individually or in groups, whether it occurs in solitude or in "common areas", such as the school cafeteria, the school yard, or even, under limited circumstances, an otherwise vacant classroom.4

What is essential, however, is that the school remain rigorously separate, even distant, from these free time religious activities. It may not allow itself to become involved in any way in the students' religious activities, whether by scheduling them, by granting permission for the use of space, by allowing use of school bulletin boards or other means of school communications to announce religious meetings, or by monitoring religious gatherings in any but the most general way necessary to assure against misconduct.

The heart of the matter is this: Precisely to the extent that students may pursue whatever free time activities they wish in whatever areas a school treats as available for free time student use, students may then engage in whatever nondisruptive religious activities they wish. But school authorities may not, consistently with the Establishment Clause's command of neutrality, go beyond this form of passive toleration. Perhaps the most succinct illustration of the distinction we draw is to suggest that the appropriate response of school officials to a student group asking permission for a religious meeting is: "What you do with your free time is for you to decide, not us."

II

Free Exercise Clause

We begin by examining whether students who wish to engage in religious practices during their free time in school have a right to do so under that part of the First Amendment which bars the government from "prohibiting the free exercise" of religion. Put another way, is a school required by the Free Exercise Clause to allow such student religious activity? We think not.

Analysis of any Free Exercise claim "begins with recognition of the fundamental proposition that the freedom to hold religious beliefs is absolute, whereas the freedom to act on those beliefs is not". McCarthy v. Hornbeck, 590 F. Supp. 936, 939 (D. Md. 1984) (Harvey, J.). To demonstrate an infringement of a free exercise right, an individual must show that the state has conditioned the receipt of an important benefit upon conduct forbidden by a religious belief or that the state has denied the individual a benefit because of conduct mandated by a religious belief. Thomas v. Review Bd. of the Indiana Employment Security Div., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963); Forest Hills Early Learning Center v. Lukhard, 728 F.2d 230 (4th Cir. 1984).

A school's refusal to permit student groups to meet for religious purposes does not force them to choose between adhering to their religious obligations or suffering possible sanctions. "While school attendance is compelled for several hours per day, five days per week, the students, presumably living at home, are free to worship together as they please before and after the school day and on weekends in a church or any other suitable place." Brandon v. Board of Educ. of Guilderland, 635 F.2d 971, 977 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1982). See also Lubbock Civil Liberties Union v. Lubbock Indep. School Dist., 669 F.2d 1038 (5th Cir. 1982), cert. denied, 459 U.S. 1155 (1983).

We recognize that there may be exceptions to this general picture of alternative religious opportunity outside school. These might include, for example, "the case of a Moslem who must prostrate himself five times daily in the direction of Mecca, or children whose beliefs require prayer before lunch, sports or other school activities". Brandon, 635 F.2d at 977. In such circumstances, a free exercise claim to religious activity at school might well prevail. Your inquiry, however, does not pose any comparable problem.5

As a general rule, therefore, a public school system that does not allow students to meet for student-initiated religious practices does not infringe on their right to the free exercise of religion.

III

Free Speech Clause

A. General Principles

The more difficult question is whether a public high school's denial of its facilities to student religious groups would "abridg[e] the freedom of speech" of those students. There is no question that the First Amendment guarantee of freedom of speech is "the matrix, the indispensible condition, of nearly every other form of freedom". Palko v. Connecticut, 302 U.S. 319, 327 (1937).6 The Supreme Court has declared that, "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content". Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (citations omitted).7 And as the Supreme Court emphasized in Widmar v. Vincent, the First Amendment guarantee of free speech encompasses religious, as well as secular, forms of expression. 454 U.S. at 269 n. 6.

Moreover, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools". Shelton v. Tucker, 364 U.S. 479, 487 (1960). Freedom of expression has been given a high place in our nation's values, and laws will not be tolerated that cast "a pall of orthodoxy over the classroom". Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). No one doubts that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate". Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506 (1969). These free speech rights "do not embrace merely the classroom hours", but follow a student when "he is in the cafeteria, or on the playing field, or on the campus during the authorized hours". 393 U.S. at 512-513.

The Supreme Court has held, for example, that a public school student's liberty of conscience may not be infringed in the name of "national unity" or "patriotism", and it has, therefore, invalidated the actions of local authorities compelling the flag salute and pledge of allegiance. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 640-41 (1943). Similarly, in Tinker v. Des Moines School Dist., the Supreme Court upheld the wearing of black arm bands protesting the Vietnam War, finding that the free speech rights of public school students could not be abridged by reliance upon an "undifferentiated fear or apprehension of disturbance" arising from such expression. 393 U.S. at 508.

Nevertheless, it has been generally recognized that the free speech rights of high school students may be modified or curtailed to some degree, if "'reasonably designed to adjust these rights to the needs of the school environment'". Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir. 1971) (quoting Antonelli v. Hammond, 308 F. Supp. 1329, 1336 (D. Mass. 1970)).8 The Supreme Court has long recognized that local school boards have broad discretion in the management of school affairs; and the Court has consistently recognized the right of school boards to prescribe their own curriculum, in acknowledgment of their function of "inculcating fundamental values necessary to the maintenance of a democratic political system". Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (plurality opinion). See also Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Meyer v. Nebraska, 262 U.S. 390, 402 (1923). In short, the First Amendment rights of public school students are subject to limitations "in light of the special characteristics of the school environment". Tinker v. Des Moines School Dist., 393 U.S. at 506; Board of Educ. v. Pico, 457 U.S. at 866.

In addition, the Supreme Court has stated that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government". United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (1981). It has long been recognized that the state, "no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated". Adderley v. Florida, 385 U.S. 39, 49 (1966).

Thus, just last year, the Supreme Court reaffirmed the proposition that the First Amendment does not require "equivalent access to all parts of a school building in which some form of communicative activity occurs. 'Nowhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for ... unlimited expressive purposes'". Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (quoting Grayned v. City of Rockford, 408 U.S. 104, 117-18 (1972)).9

B. Free Speech Right to Conduct Group Meetings

The general principles summarized above apply most clearly to individual expression, religious or otherwise. Just as a high school student has a free speech right to wear political insignia [Tinker v. Des Moines School Dist., 393 U.S. 503], so he or she has a right to wear religious insignia, or, for that matter, to pray, so long as other persons, and the instructional process, are not disturbed.

However, group expression, religious or otherwise, presents a more complex problem. By their nature, group meetings in school give rise to special concerns about appropriateness and orderliness. School authorities must have, and, constitutionally, do have, wide latitude to define the circumstances under which their students may use school facilities for group activities. "[T]hose responsible for directing a school's educational program must be allowed to decide how its limited resources can best be used to achieve the goals of educating and socializing its students." Seyfried v. Walton, 668 F.2d 214, 217 (3d Cir. 1981) (students have no free speech right to produce a certain play in a high school).

School authorities in one place may decide that their educational objectives are best served by closely regulating student group activities, for example, by limiting all student meetings to those that are tied to the formal curriculum of the school. On the other hand, school authorities elsewhere may decide that their educational objectives are best served by encouraging the students' own free choice of activities, for example, by generally authorizing student group meetings for any purpose during some period of free time.

The Free Speech Clause of the First Amendment does not dictate how school authorities are to decide the appropriate link between educational goals and student meetings. That is, a restrictive policy does not offend the First Amendment, because a public high school is not the kind of place where, by tradition, people are entitled to gather to exchange views and express themselves collectively, i.e., the kind of place that is called, in the jargon of the cases, a "public forum".10 Indeed, that a public high school is not, by tradition or necessity, such a public forum has been generally recognized by the courts. See Lubbock Civil Liberties Union v. Lubbock Ind. School Dist., 669 F.2d at 1046; Brandon v. Board of Educ. of Guilderland, 635 F.2d at 980. See also School Books, School Boards, and the Constitution, 80 Colum. L. Rev. 1092, 1106 (1980).

In this fundamental respect, among others, a public high school differs from the public university involved in Widmar v. Vincent. There, the Supreme Court held, when a public university has a policy of accommodating student meetings generally, the university may be said to have created a "limited open forum", that is, "a [public] forum generally open for use by student groups", but not by others. 454 U.S. at 267. By its very nature as a "marketplace of ideas", a public university is almost inevitably an open forum, albeit one that may be limited to members of the university community. 454 U.S. at 267 n. 5. In contrast, a public high school is not, by its nature, inevitably an open forum of any kind.11

But, just as school authorities are constitutionally free to restrict student group activities in high school, they are equally free to broaden the permissible scope of such activities. If a school does decide to delegate to its students the decision about which group activities are to be carried on, the school then will have created an analogue to the "limited open forum" of Widmar v. Vincent. In other words, even though the high school setting does not of itself necessarily constitute a public forum, "nothing precludes the existence of a [public] forum in a high school setting". Bender v. Williamsport Area School Dist., 741 F.2d at 548.

In Bender, the school authorities had adopted a regular "activity period" at the start of certain school days, a period during which various student groups were permitted to meet. "The only articulated qualification as to the nature of the activity allowed during this period [was] that it 'contribute to the intellectual, physical or social development of the students and is otherwise considered legal and constitutionally proper.'" 741 F.2d at 543-44 (quoting affidavit of school principal, court's emphasis omitted). Hence, a wide range of student-initiated group activities were undertaken, everything from curriculum-related groups like the Spanish Club and the school newspaper to extracurricular groups, like the Chess Club and the Aviation Club, that "ha[d] at best only tangential relation to a high school course of study". 741 F.2d at 549 n. 18. One additional student group, a "non-denominational prayer fellowship", sought permission to participate in the activity period. The threshold question before the court was whether school authorities, in having established this activity period, had created an "open forum".

The court noted that the school might have adopted no activity period at all, or one carefully restricted to curriculum-related activities. But the school instead had decided that its students would benefit from greater freedom for individual endeavor:

"Thus, the latitude allowed to student groups, and the manner in which [the school] encourages students to exercise independent judgment, supports the conclusion that the [school authorities] did indeed create a forum, albeit a limited one, restricted to high school students at Williamsport and also restricted to the extent that the proposed activity promote the intellectual, physical or social development of the students." 741 F.2d at 549 (emphasis added).

As the court observed, the "exercise of this qualified freedom to participate in the group of one's choice is quite consistent with the special purpose for which the high school is intended, the preparation of youth for adult life and adult decisions". Id.

Thus, Widmar and Bender exemplify two ways in which an "open forum" can come into existence in public educational institutions, the one because a public university in reality can be nothing else [Widmar], the other if a public high school decides to devote a portion of its school day to structured meetings of groups formed as a result of the students' own "exercise [of] independent judgment" [Bender]. The court in Bender reasoned that a public school could, and, in that case, did, create an open forum in the constitutional sense, even though it maintained some degree of substantive control through its approval of proposed student activities.

We agree with the reasoning in Bender. And, from that reasoning, we think it follows that a school would similarly be found to have created a "limited open forum" if it allowed its students some free time in which to carry out, either individually or in groups, whatever nondisruptive activities they wish. Indeed, one can scarcely imagine a more open forum than a time and place wholly devoted to the students' own choice of endeavors, devoid of any definition or approval by the school. It is, to be sure, a different, far less structured kind of forum than in Bender, but its constitutional status is the same.

C. Effect of Open Forum

Once a public high school has created a limited open forum, whether by establishing a formal activity period akin to that in Bender or, more simply, by affording students free time, it subjects itself to stringent constitutional limitations on the power to exclude a group from the forum based on the content of the group's speech, e.g., because the group engages in religious speech. As the Supreme Court stated in Widmar with regard to the limited open forum at a university:

"In order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must ... satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Widmar v. Vincent, 454 U.S. at 269-70. See also Bender v. Williamsport Area School Dist., 741 F.2d at 550.

In Widmar, however, the Supreme Court also indicated that compliance with the Establishment Clause of the First Amendment may be such a compelling interest. 454 U.S. at 271. Indeed, the courts of appeal in Brandon and Lubbock flatly held this to be so, and the court in Bender ultimately concluded that the Establishment Clause concerns involved in that case outweighed the free speech interest of the prayer group there in question. Therefore, we now turn to an analysis of the Establishment Clause and its application in the public school setting.

IV

Establishment Clause

A. Introduction

The Establishment Clause prohibits the federal government and the states from passing any law "respecting an establishment of religion". The objective of the Establishment Clause is "to prevent, as far as possible, the intrusion of either church or state into the precincts of the other". Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). The three main evils against which the Establishment Clause was intended to protect are "sponsorship, financial support, and active involvement" of the government in religious activity. Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). Its underlying principle is that the proper role of government is one of neutrality in religious theory, doctrine, and practice. Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222 (1963). And, in contrast with the Free Exercise Clause, an Establishment Clause violation does not depend on a showing of coercion of individual religious belief. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 786 (1973); Schempp, 374 U.S. at 223; Engel v. Vitale, 370 U.S. 421, 430-31 (1962).

The "first and most immediate purpose" of the Establishment Clause is the recognition that "a union of government and religion tends to destroy government and to degrade religion". Engel, 370 U.S. at 431. History has shown that, whenever government has aligned itself with any particular form of religious practice, the inevitable result has been that it has incurred "the hatred, disrespect and even contempt of those who held contrary beliefs". Id. This historical truth, as summarized by Justice Black, is worth remembering:

"A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed." Everson v. Board of Education of Ewing, 330 U.S. 1, 8-9 (1947).

The Supreme Court has sometimes described the Establishment Clause as erecting a "wall" between church and state. See, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). But it has also warned that the "wall" may be "a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship". Lemon, 403 U.S. at 614.

Thus, for example, in Zorach v. Clauson, 343 U.S. 306 (1952), the Supreme Court upheld a "released time" program in which New York City permitted its public schools to release students during the school day in order for them to leave the school grounds and receive religious instruction at various centers. A refusal to accommodate religious practice in this passive way would, according to the Court, "show a callous indifference to religious groups". Zorach, 343 U.S. at 314.12

In sum, every Establishment Clause case involves an effort to reconcile the "inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible". Lynch v. Donnelly, 465 U.S. 668, 672 (1984).

B. The Public School Setting

The Establishment Clause prohibitions have encountered "their severest test" when they have been applied in the public school setting. Schempp, 374 U.S. at 230 (Brennan, J., concurring).13 Justice Frankfurter, concurring in Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1940), articulated the reason for the Court's strict enforcement of the separation of church and state in the school setting:

"The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children ... in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered." 333 U.S. at 216.

This Establishment Clause mandate of strict neutrality has resulted in the Supreme Court's consistent invalidation of various forms of religious practice in the public schools.

For example, in McCollum, the Court struck down a program that permitted religious teachers, employed by private religious groups, to enter the public schools during regular hours and teach religion for thirty minutes to students desiring religious instruction. The classes were taught by Protestant teachers, Catholic priests, and a Jewish rabbi. Students who did not choose religious instruction were required to go to some other place in their school building for pursuit of secular studies. In short, "[t]he operation of the state's compulsory education system ... assist[ed] and [was] integrated with the program of religious instruction". 333 U.S. at 209. The Court found that "[t]his is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith". 333 U.S. at 210.14

Similarly, a policy that required a brief, denominationally neutral prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day was struck down in Engel v. Vitale, 370 U.S. 421 (1962). The prayer was "voluntary" in the sense that those students who wished to do so were permitted to remain silent or be excused from the room. The Supreme Court, however, warned those who subscribed to the view that there was no "danger" given the "brief and general" nature of the prayer, to recall the words of James Madison, author of the First Amendment:

"'[I]t is proper to take alarm at the first experiment on our liberties .... [T]he same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever'." 370 U.S. at 436 (quoting Memorial and Remonstrance against Religious Assessments, II Writing of Madison 183, 185-86).

A year later, with just one dissent, the Court held that opening exercises providing for the reading of the Bible or the recitation of the Lord's Prayer violated the Establishment Clause. School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963). And more recently, the Court invalidated a statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom. Stone v. Graham, 449 U.S. 39 (1980) (per curiam).

These cases are a reminder that the Supreme Court has never condoned any form of religious observance within the public schools.15 They thus serve as a warning that student-initiated religious meetings in a high school during free time can be permissible only if the circumstances that give rise to an Establishment Clause violation are scrupulously avoided.

C. The Establishment Clause Criteria

1. Introduction

The Establishment Clause test that has evolved from the Supreme Court's decisions requires three determinations: (i) whether the challenged conduct lacks a secular purpose, (ii) whether its primary effect is to advance or inhibit religion, and (iii) whether it creates an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). If the activity meets any of these three criteria, then an Establishment Clause violation has occurred. Stone v. Graham, 449 U.S. at 40-41.

2. Purpose

The "purpose" prong of the test requires that a government's activity have a secular purpose. It asks "whether government's actual purpose is to endorse or disapprove of religion". Lynch v. Donnelly, 465 U.S. at 690 (O'Connor, J., concurring).16 A neutral policy granting to all student groups, including religious groups, access to facilities in order to encourage extracurricular activities, leadership skills, or communication skills, would, of course, have a secular purpose. Bender, 741 F.2d at 551; Brandon, 635 F.2d at 978.

On the other hand, if a school system creates an "activity period" for the primary purpose of permitting the meeting of student religious groups, then the purpose prong would be violated. Lubbock, 669 F.2d at 1044-45. In Lubbock, for example, given a long history of Establishment Clause violations by the school authorities of that city, the circuit court delved behind the facial neutrality of the school policy. The court found that, "when examined in the context of the total school policy", the policy was "more clearly designed to allow the meetings of religious groups". 669 F.2d at 1045.17

By contrast, a school administration's decision to give high school students free time during the lunch hour or at some other time has no religious purpose whatever. It is obviously intended to provide the students with a little "breathing space" during the school day. This free time is "recreational" in the broadest and most basic sense, allowing students to carry on their own personal forms of relaxation, intellectual endeavor, or spiritual sustenance. We do not believe that the secular purpose underlying such a decision is vitiated by the fact that some students might choose to use their free time for religious expression.

3. Effects

In applying the "effects" test, we must ask whether a policy under which religious groups meet in a public high school has the primary effect of advancing or inhibiting religion. See Lemon v. Kurtzman, 403 U.S. at 612-13. It is well-established "that not every law that confers an 'indirect', 'remote', or 'incidental' benefit upon religious institutions is, for that reason alone, constitutionally invalid". Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973). However, "[w]hat is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion". Lynch v. Donnelly, 465 U.S. at 692 (O'Connor, J., concurring).

In Widmar v. Vincent, a student religious group sought to meet on the university campus, that is, it sought to avail itself of the university's "open forum". The university denied permission for the group to meet, in part out of a concern that the group's use of the university's facilities would itself communicate a message of governmental endorsement. But the Supreme Court concluded that "an open forum in a public university does not confer any imprimatur of State approval on religious sects or practices", any more than the university would be understood to have endorsed the goals of the political or other secular groups that met on the campus. 454 U.S. at 274. Indeed, there were so many other, secular, groups meeting on campus that the mere addition of one group, albeit a religious one, could hardly be understood by a reasonable university student as implying the school's imprimatur. 454 U.S. at 274 n. 14.

However, this aspect of Widmar is not directly transferable to the high school setting. "[D]ifferent considerations present a more serious question of state advancement or endorsement of religion than was present in Widmar .... [T]he special circumstances inherent in a high school create heightened dangers in the context of the Establishment Clause." Bender, 741 F.2d at 552.

Because school attendance is compulsory, the public school must be especially free of religious influence, and its "machinery" must not be employed to advance religion. McCollum, 333 U.S. at 212. Moreover, because, as is generally thought, high school students are more impressionable than university students, they are "less able to appreciate the fact that permission for [a religious group] to meet would be granted out of a spirit of neutrality toward religion and not advancement". Bender, 741 F.2d at 552. Thus, the very presence of a religious group in a high school setting carries with it a greater risk of implied state imprimatur than does the presence of a religious group on a university campus.18

It is, therefore, not surprising that the leading cases on student-initiated religious meetings have all found a violation of the "effects" prong of the Establishment Clause criteria. In Brandon, for example, the proposed prayer meetings would have occurred at the beginning of the official school day, under "official supervision". The court held that such "prayer meetings would create an improper appearance of official support, and the prohibition against impermissibly advancing religion would be violated." 635 F.2d at 979. And in Lubbock, "the articulated policy of allowing [supervised] religious meetings at a time closely associated with the beginning or end of the school day implies recognition of religious activities and meetings as an integral part of the [school district's] extracurricular program and carries with it an implicit approval by school officials of those programs". 669 F.2d at 1045.19 See also Nartowicz v. Clayton County School Dist., 736 F.2d 646 (11th Cir. 1984) (per curiam), in which the court upheld a preliminary injunction prohibiting a "Youth for Christ Club", or any other religious student group, from meeting on school premises after school hours under faculty supervision.

In this regard, we examine with particular care the facts in Bender, and the court's analysis of those facts, because that case seems to us to be both especially attentive to the competing First Amendment considerations and especially painstaking in its judgment. In Bender, the court held that meetings of a nondenominational prayer group during a regularly scheduled activity period would violate the Establishment Clause.

As discussed in Part III B above, the school involved in the Bender case had set aside a regular time at the beginning of certain school days for meetings of student groups. Any group that sought to meet during this activity period needed school approval to do so. 741 F.2d at 544 n. 8. A proposed activity would be approved by the school principal only if it satisfied certain broad standards applied by the school authorities, i.e., that it "'contribute to the intellectual, physical or social development of the students'". 741 F.2d at 544 (court's emphasis omitted). Moreover, school policy required that each student group have an adult adviser, approved by the school principal, who would attend each meeting. "[G]enerally speaking, the adult supervisor participates in the student group meetings." 741 F.2d at 544 n. 10.

The court especially disapproved the presence of a school-approved monitor at meetings of the religious group in question. As the court observed:

"At the first [religious group] meeting, a monitor was present, but took no part in the proceedings. While the students in their affidavits characterized the monitor's activities as benign and neutral, designed only to maintain order, it is readily apparent that a school teacher or someone associated with the school necessarily must impart the impression to students that the school's authority and that the school's endorsement is implicated in the relevant activity, since every monitor must be approved by the school." 741 F.2d at 552.

We fully agree with the conclusion of the Third Circuit that, given these facts about a school system's student activity policy, the grant of permission for a religious group to meet "would be perceived as endorsing and encouraging religious practice". 741 F.2d at 553. If a school system in Maryland adopted a comparable policy, it too would violate this aspect of the Establishment Clause.

However, it does not follow from Bender or the other cases that the "effects" test is necessarily violated merely by any religious activity occurring on the premises of a public high school.20 Rather, the constitutional vice identified in these cases is the governmental sponsorship that attached to the proposed religious meetings. If there were no "appearance of official support" [Brandon], "implicit approval by school officials" [Lubbock], or "school[] endorsement" [Bender], there would be no breach of the "effects" test.21

The basic constitutional lesson, as we see it, is that school officials may not grant permission for religious activity at the behest of a student group. To do so is to mark that activity with the school's endorsement. The Establishment Clause forbids this.

A school nonetheless may choose to adopt a neutral, free time policy under which students are free to engage in activities of their own choice during specified time periods. And if it has done so, the Establishment Clause would not necessarily preclude student-initiated religious activity during such periods. However, in order for religious activity to be constitutionally permissible during a period of free time, that period must differ in its fundamental character from the kind of formal "activity period" involved in Bender. "Free time" must be just that: a general policy under which students may engage in any nondisruptive activity without school approval, so that school authorities need not get involved in decisionmaking about proposed religious activities. Under such a policy, the students' choice of their activities would be wholly a matter of their own discretion, without any necessary link to goals articulated by the school authorities.22

The absence of school involvement, under such a constitutionally permissible policy, is easiest to see when students carry out their free time pursuits in the cafeteria or on the school grounds. If students at a table in the cafeteria decide to read the Bible together or to pray after eating, they simply go ahead and do so, just as they might proceed freely to form a study group on some secular subject. Unlike the situation in Bender, the school plays no role whatever.

Of course, no faculty or other school staff member may supervise or participate in student religious activity.23 Any such participation would clearly violate the Establishment Clause. Indeed, for the reasons stated in Bender, even the silent presence of a school monitor at a student religious meeting impliedly endorses the activity. Therefore, if students do undertake their own free time religious activity in a common area, such as the cafeteria or the school yard, any faculty presence required for the maintenance of security or decorum must not be focused on the religious meeting.

The risk of implied official endorsement is greater when use of a classroom is involved. We emphasize that, just as a school may decline to provide free time for its students in the first place, it may restrict the places in which free time activities are to be carried out. A school is not required to open up its classrooms for free time activity. If it chooses to do so, however, then it must treat any classroom space that is available for religious meetings as simply a physical extension of other common areas like the cafeteria. That is, the school must play no greater role in religious meetings that students happen to hold in classrooms than it would, or could, in religious meetings that students happen to hold at tables in the cafeteria or under a tree in the school yard.

In the final analysis, then, it is not really the place of the activity that makes the critical difference; it is the school's noninvolvement that is crucial. In particular, the school may not reserve time or classroom space for religious activity; it may not announce religious activity over the public address system or through other means of communication that it controls; and it may not station a faculty or staff monitor in a classroom used for a religious meeting, although we see no legal problem with a monitor who merely patrols the hallway to assure that discipline is maintained.24

If a school system were to implement a policy regarding free time that adhered to these ground rules, the schools and their employees would remain sufficiently divorced from student religious activities to avoid the impermissible advancement of religion. Under these circumstances, the conduct of a student religious meeting during that time would pose no significant likelihood "that [the school would] communicat[e] a message of government endorsement of such activity". Bender, 741 F.2d at 555.25

The result we reach has its wellspring in the distinction between the in-school religious instruction held to be unconstitutional by the Supreme Court in McCollum and the "released time" program held to be constitutional by the Supreme Court in Zorach. These two cases "spotlight[] the zone of permissible accommodation" [L. Tribe, American Constitutional Law §14-5 at 824]: The state may not use its schools to actively assist private religious endeavors or to imbue them with an aura of official approval, but it may passively accommodate those who wish to take part in religious activity.

As the Supreme Court has said of the interaction among the Religion Clauses generally: "[T]here 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 Comm'n., 397 U.S. 664, 669 (1970) (emphasis added). See also Widmar v. Vincent, 454 U.S. at 271 n. 10. In our view, if a school system were to implement a policy that adheres to the constraints outlined above, it would remain on the constitutional side of the "effects" line.

4. Entanglement

The "entanglement" prong of the Establishment Clause test examines the extent to which there is "continuing state surveillance" over religious matters. Lemon v. Kurtzman, 403 U.S. at 619. See also Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 675-76 (1970); Note, The Unconstitutionality of State Statutes Authorizing Moments of Silence in the Public Schools, 96 Harv. L. Rev. 1874, 1878 (1983). "The usual setting for an entanglement [test] violation is when a state official, in order to avoid giving state aid to religion, must make determinations as to what activity or material is religious in nature, and what is secular, and therefore permissible." Bender, 741 F.2d at 555.

In Widmar v. Vincent, the Supreme Court found that, at a college or university level, there is no real entanglement issue; in most instances, there is no need for faculty supervision of student extracurricular meetings held on the campus. At the high school level, however, some monitoring of the activities of student groups is essential. Even for student meetings held during free time, a degree of faculty supervision is needed to "ensure the smooth functioning of the school's secular schedule and the maintenance of the school's safety and order". Brandon, 635 F.2d at 979.

If such monitoring is regarded by school officials as requiring a constant supervisory presence in any room where a religious meeting is held, excessive school entanglement with religion is nearly unavoidable. As the court in Bender observed:

"The discharge of [supervisory] functions by the school not only gives the appearance of official state endorsement of religion, but, in practice, would require involvement by school officials in activities proscribed by the Establishment Clause. If, for example, a student member [of a religious group] objected that a prayer would violate his or her religious beliefs, the school monitor could very well be put in a position of settling such a controversy and thereby involve the school's authority in reaching a determination with respect to the validity of various religious beliefs and practices". Bender, 741 F.2d at 557.

If, however, a school's interest in the maintenance of safety and order can be satisfied without a monitor present in the room where a religious meeting is held, we perceive no excessive school entanglement with religion. For example, the policy might direct that a teacher would merely patrol the corridor and would enter any classroom in which a student religious meeting is being held only to preserve order.

A policy governing free time must, in other respects, also be administered so as to avoid entanglement with religious issues. For example, if a school chooses to permit free time activities in classrooms, it cannot put itself in the position of granting or denying permission for a specific religious group to use a specific room, just as it cannot set priorities among different religious groups who seek classroom space. Cf. 65 Opinions of the Attorney General 186, 196 (1980) (permitting the distribution of religious literature in school would create serious entanglement problems because the school would be forced to decide what is a bona fide "religion"). But, if the school can assiduously keep its involvement in student religious activity to no more than passive accommodation, it will not violate the Establishment Clause bar to excessive entanglement with religion.

V

The Equal Access Act

The status of student-initiated religious activity in high schools is now affected not only by the Constitution but also by a new federal statute, the Equal Access Act. The gist of the Act is as follows:

"It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings." Pub. L. No. 98-377, §802(a), 98 Stat. 1302 (1984).26

Thus, if a secondary school voluntarily creates an open forum, the Act provides equal access to religious groups, as well as all those espousing any political or philosophical perspective.27

There are numerous interpretive questions concerning this statute. For example, it probably does not apply to lunch hour activities, although this point is somewhat muddled by the legislative history.28

Beyond these problems of statutory construction, we think it highly likely that the Act will be found to violate the Establishment Clause and, accordingly, to be unenforceable.29 The clear tenor of the legislative history is that the Act was designed with a specific, sectarian purpose in mind: to enhance the status of religious meetings in public secondary schools. It does so by requiring these schools to grant religious groups the same privileges now accorded secular, noncurricular groups. So, for example, if a school reserves a room for a meeting of the chess club or publicizes a meeting of a student community service organization, the Act requires the school to provide reserved space and publicity for student religious groups. See generally, e.g., 130 Cong. Rec. S8334-36 (daily ed. June 27, 1984) (statements of Sen. Hatch and Sen. Denton); Equal Access: A First Amendment Question: Hearings on S.815 and S.1050 Before the Senate Comm. on the Judiciary, 98th Cong. 1st Sess. 1 (1983) (statement of Sen. Denton).

However, as we have discussed in detail in Part IV above, a school may not involve itself constitutionally with religious groups in the ways that it traditionally has with secular groups. When a school goes beyond a neutral policy of passive accommodation of religion, it violates the Establishment Clause, notwithstanding what the Act purports to require.

The Act's simplistic rationale is that religious expression, as constitutionally protected "free speech", must be treated by the state as if it were no different than secular speech. But in the public school setting especially, religious expression is profoundly different from secular speech. It is the Establishment Clause that makes it so, and Congress cannot legislatively define away the constitutional commands of the Establishment Clause. The Act's apparent effort to do so is a constitutionally intolerable exercise in legislative nominalism.30

VI

Conclusion

As the preceding discussion has suggested, your inquiry touches unresolved questions of constitutional law. The issue of student-initiated religious meetings in the public schools stands at the confluence of First Amendment principles that are of vital importance and yet in fundamental tension with one another. We are in an area of the law when it often seems necessary to say two contradictory things at once. But the abiding principle is that the price of religious liberty is official neutrality.

In summary, then, we conclude that school authorities would comply with their constitutional obligations if they adhere to the following guidelines:

School authorities should decide, as a general matter and in advance of any request from a student religious group, whether to adopt a period of "free time" for public high school students, that is, a time when students may use specified school facilities for activities of their own free choice.

If a public high school does adopt a policy allowing free time, student groups may engage in student-initiated religious activity in any area open to general student use during that time. However, the school must remain wholly uninvolved in that religious activity. To assure that the school's role is in fact limited to passive accommodation of religion, certain safeguards are necessary:

1. The space being used for any religious activity, that is, the cafeteria, school yard, and (in the school's discretion) vacant classrooms, must be available to all individual students and student groups for any lawful, nondisruptive purpose.31

2. The policy must eliminate any need for school authorities to grant or refuse permission for a religious activity in a particular place or at a particular time.

3. No teacher or other staff member may supervise, monitor, or participate in any religious activity, although school personnel may monitor the general vicinity against disorder.

4. Neither religious activities nor meetings of religious groups may be announced through any medium of communications controlled by the school.

5. Persons other than students may not be permitted to participate in a religious activity.

A school that crosses the line from the passive accommodation reflected in these guidelines to active assistance or approval breaches its constitutional duty.

Stephen H. Sachs, Attorney General

Dennis M. Sweeney
Deputy Attorney General

Charles O. Monk, II
Deputy Attorney General

Ellen M. Heller
Assistant Attorney General

Avery Aisenstark
Chief Counsel, Opinions and Advice

Jack Schwartz
Deputy Counsel, Opinions and Advice

Editor's Note: Since the issuance of this Opinion, the Supreme Court vacated the Third Circuit's decision in Bender, on the ground that the appellant lacked standing to prosecute an appeal. Bender v. Williamsport Area School Dist., 106 S.Ct. 1326 (1986). The Supreme Court's decision, accordingly, did not reach the merits.

1 The "free time" that is the focus of your inquiry refers to periods immediately before and after school hours, as well as during school hours when there are no prescribed curriculum-related activities for a student. The lunch hour is perhaps the clearest example of such free time. Indeed, the focus could hardly be otherwise, because religious practices (as distinct from, for example, comparative religion study) may not constitutionally be incorporated into instructional time under any circumstances whatever. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948).

2 The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech". The Fourteenth Amendment makes the First Amendment binding on the states. Everson v. Board of Education, 330 U.S. 1, 15 (1947).

3 In addition to Bender, the principal recent cases involving student religious activities in public high schools are Lubbock Civil Liberties Union v. Lubbock Indep. School Dist., 669 F.2d 1038 (5th Cir. 1982), cert. denied, 459 U.S. 1155 (1983) and Brandon v. Board of Educ. of Guilderland, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981). We have also reviewed all other pertinent cases, whether or not decided after Widmar. Examples of these are cited in note 15 below. However, we believe that the applicable constitutional principles can best be distilled from Supreme Court jurisprudence and from these recent decisions of the courts of appeal.

4 As explained below, religious activity may occur in unused classrooms if, but only if, a school's policy is to treat such classrooms as extensions of the school's common areas, such as school grounds and cafeterias, and the school routinely leaves those classrooms available for free time, unscheduled student activity.

5 Nor is this a situation similar to instances where an isolated member of the armed forces or a prison inmate has no access to the regular religious facilities of a community. "Since government has deprived such persons of the opportunity to practice their faith at places of their choice, ... government may, in order to avoid infringing the free exercise guarantees, provide substitutes where it requires such persons to be." School Dist. of Abington Township v. Schempp, 374 U.S. at 297 (Brennan, J., concurring). But there is no comparable deprivation imposed by the State in the public high school setting.

6 In Abrams v. United States, 250 U.S. 616 (1919), Justice Holmes articulated best the "marketplace of ideas" justification for free expression:

"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." 250 U.S. at 630.

7 The government is, however, permitted to enforce regulations of time, place and manner of expression, so long as these regulations are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 132 (1981); Consolidated Edison v. Public Service Comm'n, 447 U.S. 530, 535-36 (1980).

8 As one legal commentator has observed:

"The assumptions of the 'free marketplace of ideas' on which freedom of speech rests do not apply to school-aged children, especially in the classroom where the word of the teacher may carry great authority. It seems unwise to assume as a matter of constitutional doctrine that school children possess sufficient sophistication or experience to distinguish 'truth' from 'falsity'. Furthermore, since one function of elementary and even secondary education is indoctrinative, to transmit to succeeding generations the body of knowledge and set of values shared by members of the community, some measure of public regulation of classroom speech is inherent in the very provision of public education." Note, Developments In the Law: Academic Freedom, 81 Harv. L. Rev. 1046, 1053 (1968).

But see note 18 below.

9 Perry involved a claimed right of access to an internal school mail system by a union.

10 "[C]ertain places, such as public streets, sidewalks, and parks, have achieved a special status in our law. Their classification as public forums serves as constitutional shorthand for the proposition that, in addition to its usual obligation of content-neutrality (an obligation that exists whether or not a public forum in involved), government cannot regulate speech-related conduct in such places except in narrow ways shown to be necessary to serve significant governmental interests." L. Tribe, American Constitutional Law §12-21, at 689 (1978).

11 In Widmar, the Supreme Court carefully avoided any intimation that its holding about a university forum necessarily applied to public elementary or secondary schools. See 454 U.S. at 268 n. 5 and 274 n. 14.

12 The Supreme Court has also upheld benefits to parochial schools when the beneficiaries include all school children, those in public as well as in private schools. See, e.g., Mueller v. Allen, 463 U.S. 388 (1983) (permitting taxpayers to deduct expenses incurred in providing tuition, text books, and transportation for their children attending elementary or secondary schools); Board of Education v. Allen, 392 U.S. 236 (1968) (permitting the loan of secular text books to all school children within the state); Everson v. Board of Education, 330 U.S. 1 (1947) (permitting the reimbursement to parents for expenses incurred in transporting their children to school). Most recently, the Supreme Court has permitted the display of a creche or nativity scene by a city, Lynch v. Donnelly, 465 U.S. 668 (1984), and it has upheld the practice of a state legislature of opening each session with a prayer by a chaplain paid with public funds, Marsh v. Chambers, 463 U.S. 783 (1983).

This term, the Court will review at least three other cases that raise significant Establishment Clause issues: Felton v. Secretary of Education, 739 F.2d 48 (2d Cir. 1984) [aff'd 105 S.Ct. 3232 (1985)] (use of public school teachers to provide certain remedial instruction in religious schools held to be unconstitutional); Americans United for Separation of Church and State v. School Dist. of Grand Rapids, 718 F.2d 1389 (6th Cir. 1983) [aff'd, 105 S.Ct. 3216 (1985)] ("shared time" and "community education" programs carried out by public school teachers in religious schools held to be unconstitutional); and Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1984) [aff'd, 105 S.Ct. 2479 (1985)] (statute authorizing meditation and silent prayer held to be unconstitutional).

13 We have analyzed and discussed those cases in previous opinions dealing with the interplay of the Religion Clauses in the public school environment. See 67 Opinions of the Attorney General 58 (1982) (official recognition of a student religious group violates the 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); 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); 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 (teaching ethical values in the public school is constitutionally permissible).

14 This holding should be contrasted with that in Zorach v. Clauson, 343 U.S. 306 (1952). As discussed in Part IV A above, Zorach upheld a "released time" program in which public school students were permitted to leave school during the school day and receive religious instruction elsewhere. The difference between a school's active involvement, condemned in McCollum, and a school's passive accommodation, approved in Zorach, is highly instructive in the present context as well. See Part IV C 3 below.

15 Many lower court decisions have also found that the Establishment Clause prohibits various forms of group religious activities by students in the public school setting. See, e.g., Karen B. v. Treen, 663 F.2d 897 (5th Cir. 1981), aff'd, 466 U.S. 913 (1982); Collins v. Chandler Unified School Dist., 644 F.2d 759 (9th Cir. 1981), cert. denied, 454 U.S. 863 (1981); Stein v. Oshinsky, 348 F.2d 999 (2d Cir. 1965); Hunt v. Board of Educ., 321 F. Supp. 1263 (S.D. W. Va. 1971); Trietley v. Board of Educ., 409 N.Y.S.2d 912 (App. Div. 1978); Johnson v. Huntington Beach Union High School Dist., 137 Cal. Rptr. 43 (1977), cert. denied, 434 U.S. 877 (1978); Commissioner of Educ. v. School Committee, 267 N.E.2d 226 (Mass. 1971), cert. denied, 404 U.S. 849 (1971); State Bd. of Educ. v. Bd. of Educ. of Netcong, 270 A.2d 412 (N.J. 1970) (per curiam).

The lower courts have divided over the constitutionality of statutes such as §7-104 of the Education Article of the Maryland Code, which permits students and teachers to "read the holy scripture or pray" during a daily period of silent meditation. Compare Gaines v. Anderson, 421 F. Supp. 337, 344 (D. Mass. 1976) (statute held to be constitutional) with Jaffree v. Wallace, 705 F.2d 1526, 1535-36 (11th Cir. 1983) [aff'd, 105 S.Ct. 2479 (1985)]; May v. Cooperman, 572 F. Supp. 1561, 1574-76 (D.N.J. 1983); Duffy v. Las Cruces Pub. Schools, 557 F. Supp. 1013, 1020-21 (D.N.M. 1983); and Beck v. McElrath, 548 F. Supp. 1161, 1164-65 (M.D. Tenn. 1982), vacated, 718 F.2d 1098 (6th Cir. 1982) (statutes held unconstitutional).

16 The Court has regularly invalidated statutes having a "pre-eminent purpose" that is religious in nature. See, e.g., Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam) (posting Ten Commandments in public school classrooms); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 205 (1963) (Bible readings and recitation of the Lord's Prayer in public schools); Epperson v. Arkansas, 393 U.S. 97, 103 (1968) (prohibition of the teaching of evolution in public schools).

17 The policy at issue in Lubbock, in the paragraph specifically addressing student gatherings, provided as follows:

"'The School Board permits students to gather at the school with supervision either before or after regular school hours on the same basis as other groups as determined by the school administration to meet for any educational, moral, religious or ethical purposes so long as attendance at such meetings is voluntary.'" 669 F.2d at 1041.

This seemingly neutral statement, however, "appear[ed] in the middle of a policy concerned with religious activities in the schools. The preamble to the policy [was] obviously concerned with religious beliefs and the place of religion in the public schools." 669 F.2d at 1044 (emphasis in original).

18 See also note 8 above and accompanying text. Some commentators, however, disagree with this conclusion. See, e.g., Note, The Constitutional Dimensions of Student-Initiated Religious Activity in Public High Schools, 92 Yale L. J. 499 (1983). In this Note, the author concludes that courts have invalidated student-initiated religious expression in the public schools because of their assumption that high school students lack sufficient intellectual and emotional maturity to distinguish between neutral accommodation and official endorsement. 92 Yale L. J. at 503-04. The author argues that recent psychological research concludes otherwise. 92 Yale L. J. at 507-09. See also Buchanan, Accommodation of Religion In The Public Schools: A Plea for Careful Balancing of Competing Constitutional Values, 28 UCLA L. Rev. 1000 (1981).

19 The court in Lubbock, however, was also cognizant of, and gave substantial weight to, the school district's tenacious "desire to continue religious activities". 669 F.2d at 1046. See note 17 above and accompanying text.

20 Bender did not purport to address the applicability of the Establishment Clause in all conceivable school settings. Rather, the court carefully limited its holding to "group prayer activity, held on school premises, conducted as part of an organized high school activity program, at which a school monitor must be present, and which takes place during the hours of compulsory school attendance". 741 F.2d at 560 n. 30 (emphasis in original).

21 For this reason, nondisruptive prayer or other religious expression by an individual in school poses no constitutional problem. It is the element of school involvement and approval that is ordinarily a prerequisite to all group expression which raises serious constitutional problems when applied to group religious expression.

22 We reiterate that the creation and scope of such a free time period is a matter left to the discretion of school authorities. They are entirely free, for example, to limit student activities to only those that are closely tied to the curriculum, in which case no group religious activity could occur. See generally Part III B above.

23 Such faculty involvement is already expressly prohibited in Baltimore County public schools. Board of Education of Baltimore County Rule No. 6113.1 (approved Oct. 31, 1969).

24 Any direct monitoring also poses serious difficulties under the "entanglement" prong of the Establishment Clause criteria. See Part IV C 4 below.

25 We nevertheless caution that even so neutral a free-time policy as we discuss would run afoul of the "effects" test if, in the facts of a particular case, it were to produce a religious atmosphere through a predominance of religious meetings. See Widmar v. Vincent, 454 U.S. at 275.

26 The Act provides that a "public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more non-curriculum related student groups to meet on school premises during noninstructional time". §802(b).

27 During the Senate debate on the bill, there was an acknowledgment that the bill opened student activity periods to such groups as the Ku Klux Klan, the American Nazi Party, the Young Communist League, and "bizarre cults", as long as those groups agreed not to engage in violent activity. 130 Cong. Rec. S8343-44; S8345-46 (daily ed. June 27, 1984). One Senator predicted that, if the legislation were enacted, "the cult groups will utilize the provisions of this proposal far more proportionately than any religious group in this country." 130 Cong. Rec. at S8346 (statement of Sen. Metzenbaum).

28 The Act applies to activities during "a limited open forum" at a secondary school. The Act states that "[a] public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time". §802(b). "Noninstructional time" is defined as "time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends". §803(4). This would seem to exclude the lunch hour. However, the Senate co-sponsor of the bill said that the definition included lunch periods. 130 Cong. Rec. S8356 (daily ed. June 27, 1984) (statement of Sen. Denton).

29 It is not clear how the Act is to be enforced in any event. A private right of action provision in the predecessor bill was dropped from the version finally enacted into law. The Act itself stipulates that violations may not lead to the cut-off of federal funds.

30 It is at least conceivable that the Act might be found constitutional were it read to require that schools reduce their traditional degree of involvement with secular, noncurricular activities to equal the degree of noninvolvement with religious activities that is mandated by the Establishment Clause. See 130 Cong. Rec. at S8343 (statement of Sen. Hatfield). But such a reading would ignore the evident purpose of the Act, to produce an enhanced role for religious activities. It would also lead to the ludicrous result that a school would be obliged by the Act to remain wholly uninvolved with the chess club or a student charity organization simply because it is constitutionally obliged to remain wholly uninvolved with the Bible club. We doubt that a court would bring about such an absurdity.

31 If a school allows classrooms to be used for free time activities, it may permissibly restrict access to those classrooms to groups of a specific size.