Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, June 10, 1990 TAG: 9006110189
SECTION: EDITORIAL PAGE: F-2 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
But in upholding the act's constitutionality this week, the U.S. Supreme Court on balance gave a boost to First Amendment freedoms. Despite the claims of the shriller of its critics, the decision does not open a perilous crack in the wall between church and state. And despite the claims of the more fevered of its admirers, the decision does not mean that anything goes.
The court's decision was 8-1; the majority included the court's civil-liberties stalwarts. Similarly, enactment of the law six years ago was supported by a broad congressional coalition that included backers of church-state separation as well as those who would use the powers of the state to stuff religion (presumably their own) down others' gullets.
The act won wide support, in the court and in Congress, because it reaffirms the free-speech guarantee of the First Amendment without committing violence against the same amendment's ban on state-sponsored religion.
The church-state issue occupied the court's attention. The law, said the justices, meets the court's 1971 test for constitutionality: It treats religious and secular speech equally, it does not have the primary effect of advancing religion, and it does not cause excessive entanglement between government and religion.
The free-speech issue occupied the attention of many in Congress in 1984: If a high school opens its doors before or after classes to non-curricular student groups, they asked, how could the school then bar religious groups without putting itself in the untenable position of suppressing free speech?
The question is a good one because it recognizes the truth that public schools are an enterprise of the state, and their employees agents of the state. It's a truth usually on the side of church-state separation, but not always: Just as the schools should not be in the business of propagating religious doctrines, so should they not be in the business of determining which truly voluntary student groups are OK and which are not simply on the basis of what those groups talk about.
Congress' answer was a good one because it walks the line carefully between free-speech affirmation and church-state separation.
Thus, under the Equal Access Act, a high school must allow a student religious group to meet only if the school has an "open-forum" policy under which other non-curriculum-related student groups can meet before or after classes. The group must be genuinely student-initiated and unsponsored by the school or other government agency, with school officials present only as monitors and not participants. No person can be required to participate, and no public funds expended beyond the cost of providing space.
The lone dissenting justice was John Paul Stevens, who raised the spectre of schools' being forced to allow, say, a Ku Klux Klan group to meet. But both the statute and Justice Sandra Day O'Connor's majority opinion note that schools can bar disruptive groups.
A more substantial danger than the tiny Klan is the possibility of abuse by religious groups bent on capturing the powers of the state for their own ends. Scrupulous attention to the Equal Access Act, to Supreme Court precedent and to the Constitution would prevent such activity. But as practices in parts of Western Virginia - Bible classes on school grounds, state-sponsored prayers at school events - have shown, such scrupulousness cannot always be expected.
Sectarianism is virtually impossible to avoid. And when the attempt is made, the result often is namby-pamby, lowest-common-denominator religion that ought to be as offensive to people of faith as to agnostics. The separation principle protects the church as well as the state.
School officials get caught in the middle of all this. They're forced to play politician and constitutional lawyer as well as educator. In a way, the court's decision is an aid. It redraws attention to a law that offers reasonably specific church-state guidelines; school officials now can follow those guidelines in the sure knowledge they've passed constitutional muster.
But it's not hard to imagine some religious groups being inspired by the decision to try to stretch the guidelines, to exploit any ambiguity in the law, to portray as student-initiated that which in fact is not, to fudge the curricular/non-curricular distinction. Understanding the guidelines isn't particularly difficult. But the task remains of maintaining vigilance in the face of likely efforts to abuse them.
by CNB