In Westside Community Schools v. Mergens, the Supreme Court ruled 8-1 in 1990 that a public high school allowing any non-curricular student club to meet on campus after hours must give religious student groups the same access. The decision enforced the Equal Access Act, a 1984 federal law requiring schools that receive federal funding to treat student-led groups equally regardless of whether their speech is religious, political, or philosophical. It remains the leading authority on student religious clubs in public schools.
What Happened at Westside High School
Westside High School in Omaha, Nebraska let students join roughly 30 voluntary clubs that met on campus after school. The lineup ran from student government and a community service group called Interact to the chess club and a scuba diving group called Subsurfers. Student Bridget Mergens asked to form a Christian Bible study club on the same terms as every other student group. The school said no.
Administrators gave two reasons. Allowing a religious club on public school grounds, they said, would violate the Establishment Clause of the First Amendment. They also pointed to a school board policy requiring every club to have a faculty sponsor, and Mergens had specified her group would not have one. The school board stood by the denial, and Mergens sued in federal court under the Equal Access Act.
The federal district court sided with the school, concluding that every club at Westside was tied to the curriculum, so no “limited open forum” existed and the Act did not apply. The Eighth Circuit reversed. The appeals court found that reading would gut the statute: the chess club, for one, had no direct tie to any course in the catalog. Because at least some clubs were plainly non-curricular, Westside had opened a limited forum and could not exclude the Bible study group because of its religious content.
The Equal Access Act and the “Limited Open Forum”
The Equal Access Act bars any public secondary school receiving federal funding from discriminating against student groups based on the content of their speech. If a school lets even one club that is not tied to its curriculum meet on campus outside of class time, the school has created a “limited open forum” and must let other student groups in on the same terms.
A club counts as non-curriculum-related when its subject matter is not directly connected to courses the school teaches. A French club at a school offering French classes would be curriculum-related. A scuba diving club would not be, because no class covers scuba diving. One non-curricular club is enough to trigger the Act.
Once the forum exists, the school cannot pick and choose among student groups based on whether their discussions are religious, political, or philosophical. Every qualifying group gets the same access to meeting space and the same opportunity to take part in school life that other clubs enjoy. The Act reaches public schools that provide secondary education as determined by state law, which in most states clearly covers high schools and may reach middle schools depending on how the state classifies grade levels.
How the Supreme Court Ruled
The Supreme Court affirmed the Eighth Circuit 8-1, holding that Westside violated the Equal Access Act by refusing to recognize Mergens’s club. The majority rejected the school’s attempt to describe every existing club as curriculum-related. Reading “curriculum-related” that broadly, the Court said, would let any school dodge the law by dressing its clubs in academic-sounding language, and would leave the Act with nothing to do.
Several Westside clubs were plainly non-curricular. The chess club was not an extension of any math or science course. Subsurfers was not part of the physical education department in any formal sense. Because those groups met on campus after school, Westside had created a limited open forum, and the Act required equal treatment for the proposed Christian club.
The Establishment Clause Defense
Westside’s main constitutional argument was that recognizing a religious club amounted to government endorsement of religion. Justice O’Connor’s opinion for the Court drew a line between the government promoting religion and the government stepping out of the way so students can speak freely. High school students, the opinion reasoned, are mature enough to understand that a school does not endorse every idea discussed in its after-school clubs.
The Court found the Act served a secular purpose: preventing discrimination based on the content of student speech. Treating a Bible study group the same as a chess club or a scuba diving group is neutrality, not favoritism. Singling out religious groups for exclusion would show more hostility toward religion than letting them participate on equal footing.
The Dissent
Justice Stevens was the lone dissenter. He argued that the majority defined “non-curriculum-related” too broadly and that many Westside clubs had genuine, if indirect, connections to the school’s educational program. On a narrower reading, the school might not have had a limited open forum at all, and the Act would not have been triggered.
Rules the Act Imposes on Qualifying Clubs
The Act gives student groups a right of access, but it comes with conditions the school must enforce uniformly:
- The club must be started by students, and attendance cannot be mandatory.
- The school, the government, and their employees cannot sponsor the meetings. A faculty member may sit in on a religious club’s meeting for custodial or supervisory purposes, but only in a nonparticipatory role.
- People who are not students at the school cannot direct, run, or regularly attend the group’s activities.
- The meetings cannot materially and substantially interfere with the school’s educational activities.
That last condition carries weight. The Act preserves a school’s authority to maintain order and discipline, protect the well-being of students and staff, and keep club attendance voluntary. Administrators do not have to tolerate meetings that are causing real disruption. The operative word is “materially”: the school needs an actual problem, not discomfort with the group’s message.
Impact Beyond Religious Clubs
Mergens is best known for protecting student religious clubs, but the Equal Access Act it enforced is viewpoint-neutral by design. The statute covers religious, political, philosophical, and “other” speech, so schools cannot single out any student group based on its ideas.
Gay-Straight Alliances have been among the prominent beneficiaries. When schools have tried to block these groups, students have successfully invoked the same logic: if the school allows a chess club, it cannot exclude a group because administrators disagree with its message. A federal appeals court applied the Act in 2016 to a Florida middle school that sought to block a Gay-Straight Alliance, finding the school qualified as a secondary institution under Florida law.
The practical result for any public secondary school that takes federal money is a straightforward choice. It can decline to allow any non-curricular clubs at all and avoid opening a limited forum. Or it can permit extracurricular clubs and accept that it must treat all of them equally, whether they study the Bible, debate politics, or organize around a social cause. What it cannot do is open the door selectively.