John Paul Stevens

“ If a high school administration continues to believe that it is sound policy to exclude controversial groups, such as political clubs, the Ku Klux Klan, and perhaps gay rights advocacy groups, from its facilities, it now must also close its doors to traditional extracurricular activities that are noncontroversial but not directly related to any course being offered at the school. ”

“ Conversely, if a high school decides to allow political groups to use its facilities, it plainly cannot discriminate among controversial groups because it agrees with the positions of some and disagrees with the ideas advocated by others. ”

“ I tend to agree with the plurality that the Constitution does not forbid a local school district, or Congress, to bring organized religion into the schools so long as all groups, religious or not, are welcomed equally if "they do not break either the laws or the furniture." That Congress has such authority, however, does not mean that the concerns underlying the Establishment Clause are irrelevant when, and if, that authority is exercised. ”

“ For example, the Court believes that Westside's swim team is "directly related" to the curriculum, but the scuba diving club is not. Ibid. The Court's analysis makes every high school football program a borderline case, for while many schools teach football in physical education classes, they usually teach touch football or flag football, and the varsity team usually plays tackle football. Tackle football involves more equipment and greater risk, and so arguably stands in the same relation to touch football as scuba diving does to swimming. ”

“ Congress may sometimes, however, have a clear intent with respect to the whole of a statute even when it muddles the definition of a particular part, just as, in other cases, the intent behind a particular provision may be clear though the more comprehensive purpose of the statute is obscure. In this case, Congress' general intent is-as Senator Gorton certainly understood a necessary guide to the Act's more particular terms. In answer to this strategy, the Court points out that references to Widmar must be considered in context. ”

“ A school that admits at least one such club has apparently made the judgment that students are better off if the student community is permitted to, and perhaps even encouraged to, compete along ideological lines. This pedagogical strategy may be defensible or even desirable. But it is wrong to presume that Congress endorsed that strategy-and dictated its nationwide adoption-simply because it approved the application of Widmar to high schools. ”

“ These cases, however, involve only schools which either desire to recognize religious student groups, or schools which, like the University of Missouri at Kansas City, purport to exclude religious groups from a forum that is otherwise conceded to be open. It is obvious that Congress need go no further than our Widmar decision to redress this problem, and equally obvious that the majority's expansive reading of "noncurriculum related" is irrelevant to the congressional objective of ending discrimination against religious student groups. ”

“ What the Court of Appeals failed to recognize, however, is the critical difference between the university forum in Widmar and the high school forum involved in this case. None of the clubs at the high school are even arguably controversial or partisan.
Nor would it be wise to ignore this difference. High school students may be adult enough to distinguish between those organizations that are sponsored by the school and those which lack school sponsorship even though they participate in a forum that the school does sponsor. ”

“ But high school students are also young enough that open fora may be less suitable for them than for college students. The need to decide whether to risk treating students as adults too soon, or alternatively to risk treating them as children too long, is an enduring problem for all educators. ”

“ As the plurality recognizes, ante, at 2372, student-initiated religious groups may exert a considerable degree of pressure even without official school sponsorship. "The law of imitation operates, and nonconformity is not an outstanding characteristic of children." ”