Board of Education of Westside Community Schools v. Mergens/Concurrence Kennedy

Justice KENNEDY, with whom Justice SCALIA joins, concurring in part and concurring in the judgment.

The Court's interpretation of the statutory term "noncurriculum related groups" is proper and correct, in my view, and I join Parts I and II of the Court's opinion. I further agree that the Act does not violate the Establishment Clause, and so I concur in the judgment; but my view of the analytic premise that controls the establishment question differs from that employed by the plurality. I write to explain why I cannot join all that is said in Part III of Justice O'CONNOR's opinion.

* A brief initial comment on the statutory issue is in order. The student clubs recognized by Westside school officials are a far cry from the groups given official recognition by university officials in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). As Justice STEVENS points out in dissent, one of the consequences of the statute, as we now interpret it, is that clubs of a most controversial character might have access to the student life of high schools that in the past have given official recognition only to clubs of a more conventional kind. See post, at 271, 276.

It must be apparent to all that the Act has made a matter once left to the discretion of local school officials the subject of comprehensive regulation by federal law. This decision, however, was for Congress to make, subject to constitutional limitations. Congress having decided in favor of legislative intervention, it faced the task of formulating general statutory standards against the background protections of the Free Speech Clause, as well as the Establishment and Free Exercise Clauses. Given the complexities of our own jurisprudence in these areas, there is no doubt that the congressional task was a difficult one. While I cannot pretend that the language Congress used in the Act is free from ambiguity in some of its vital provisions, the Court's interpretation of the phrase "noncurriculum related" seems to me to be the most rational and indeed the most plausible interpretation available, given the words and structure of the Act and the constitutional implications of the subject it addresses.

There is one structural feature of the statute that should be noted. The opinion of the Court states that "[i]f the meetings are religious, employees or agents of the school or government may attend only in a 'nonparticipatory capacity.' " Ante, at 236 (quoting 20 U.S.C. § 4071(c)(3)). This is based upon a provision in the Act in which nonparticipation is one of several statutory criteria that a school must meet in order to "be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum." § 4071(c). It is not altogether clear, however, whether satisfaction of these criteria is the sole means of meeting the statutory requirement that schools with noncurriculum related student groups provide a "fair opportunity" to religious clubs. § 4071(a). Although we need not answer it today, left open is the question whether school officials may prove that they are in compliance with the statute without satisfying all of the criteria in § 4071(c). But in the matter before us, the school has not attempted to comply with the statute through any means, and we have only to determine whether it is possible for the statute to be implemented in a constitutional manner.

I agree with the plurality that a school complying with the statute by satisfying the criteria in § 4071(c) does not violate the Establishment Clause. The accommodation of religion mandated by the Act is a neutral one, and in the context of this case it suffices to inquire whether the Act violates either one of two principles. The first is that the government cannot "give direct benefits to religion in such a degree that it in fact 'establishes a [state] religion or religious faith, or tends to do so.' " County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 659, 109 S.Ct. 3086, 3136, 106 L.Ed.2d 472 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part) (quoting Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 1361, 79 L.Ed.2d 604 (1984)). Any incidental benefits that accompany official recognition of a religious club under the criteria set forth in the § 4071(c) do not lead to the establishment of religion under this standard. See Widmar, supra, 454 U.S., at 273-274, 102 S.Ct., at 276. The second principle controlling the case now before us, in my view, is that the government cannot coerce any student to participate in a religious activity. Cf. County of Allegheny, supra, at 659, 109 S.Ct., at 3136. The Act is consistent with this standard as well. Nothing on the face of the Act or in the facts of the case as here presented demonstrates that enforcement of the statute will result in the coercion of any student to participate in a religious activity. The Act does not authorize school authorities to require, or even to encourage, students to become members of a religious club or to attend a club's meetings, see §§ 4071(c), (d), 4072(2); the meetings take place while school is not in session, see §§ 4071(b), 4072(4);  and the Act does not compel any school employee to participate in, or to attend, a club's meetings or activities, see §§ 4071(c), (d)(4).

The plurality uses a different test, one which asks whether school officials, by complying with the Act, have endorsed religion. It is true that when government gives impermissible assistance to a religion it can be said to have "endorsed" religion; but endorsement cannot be the test. The word endorsement has insufficient content to be dispositive. And for reasons I have explained elsewhere, see Allegheny County, supra, its literal application may result in neutrality in name but hostility in fact when the question is the government's proper relation to those who express some religious preference.

I should think it inevitable that a public high school "endorses" a religious club, in a commonsense use of the term, if the club happens to be one of many activities that the school permits students to choose in order to further the development of their intellect and character in an extracurricular setting. But no constitutional violation occurs if the school's action is based upon a recognition of the fact that membership in a religious club is one of many permissible ways for a student to further his or her own personal enrichment. The inquiry with respect to coercion must be whether the government imposes pressure upon a student to participate in a religious activity. This inquiry, of course, must be undertaken with sensitivity to the special circumstances that exist in a secondary school where the line between voluntary and coerced participation may be difficult to draw. No such coercion, however, has been shown to exist as a necessary result of this statute, either on its face or as respondents seek to invoke it on the facts of this case.

For these reasons, I join Parts I and II of the Court's opinion and concur in the judgment.