Bender v. Williamsport Area School District

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*551Chief Justice Burger,

with whom Justice White and Justice Rehnquist join, dissenting.

I agree with the Court that the judgment of the District Court allowing Petros to meet during the student extracurricular activity period must be reinstated. Because respondent Youngman had standing to appeal, however, I would reach the merits of this dispute and reverse the judgment of the Court of Appeals.

1 — I

Mr. Youngman is a parent of a student at Williamsport High School; as a matter of conscience he is opposed to prayer activities on school premises during school hours. As this Court has repeatedly held, parents have standing to challenge conditions in public schools that their children attend. See Engel v. Vitale, 370 U. S. 421 (1962); Zorach v. Clauson, 343 U. S. 306 (1952). The Court’s principal objection to Youngman’s standing as a parent stems from his failure “ ‘to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.’” Ante, at 545-547, and n. 8 (quoting Warth v. Seldin, 422 U. S. 490, 518 (1975)). It is, of course, perfectly sensible to impose such pleading burdens upon the plaintiff who initiates the litigation. These burdens, however, need not be placed upon a properly named defendant, like Mr. Youngman, who seeks to invoke the jurisdiction of the Court of Appeals. Once the jurisdiction of the district court over a particular dispute is established, it seems clear that the same dispute between the same parties will remain within the Article III powers of the courts on appeal. To be sure, we require that the case or controversy requirement be met throughout the course of the litigation. But the method for determining whether the case or controversy exists and the burdens placed on the parties should not, indeed cannot, be the same on appeal as in the district court. At the district court stage, the facts required by *552Warth, supra, should normally appear on the face of the complaint. At the appellate stage, however, the “complaining party” does not allege any facts but merely identifies himself as a party to the case in the district court and challenges the validity of that decision. Only if the appellant’s standing is challenged must he allege facts sufficient to convince the court of appeals that he is a proper party to pursue the appeal. Here, petitioners not only failed to challenge Young-man’s standing before the Court of Appeals, they also conceded that, had they challenged Youngman’s standing, he would have satisfied the Warth standing test. Tr. of Oral Arg. 5.

II

I would reach the issue the Court granted certiorari to address: whether the Establishment Clause requires a public high school to prevent a student-initiated, student-led group from meeting during an extracurricular activity period.

The Establishment Clause prohibits Congress and, through the Fourteenth Amendment, the States from passing any law “respecting an establishment of religion.” As we have observed on other occasions, the precise contours of this prohibition remain unclear. But it is common ground that nothing in the Establishment Clause requires the State to suppress a person’s speech merely because the content of the speech is religious in character. In McDaniel v. Paty, 435 U. S. 618, 641 (1978), Justice Brennan emphasized in his opinion concurring in the judgment that “[t]he Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.” And more recently, in Widmar v. Vincent, 454 U. S. 263 (1981), we held that the Establishment Clause did not justify a university’s content-based exclusion of religious speech from a forum generally open to student groups.

*553Widmar clearly controls the resolution of this case. Petros is á student-initiated and student-led group seeking the same forum available to other student extracurricular activity groups. The students would have been allowed to meet to discuss moral philosophy or Marxism, to practice French, or to play chess; but, since they chose to worship, the school decided that it could not allow the group to meet without violating the Establishment Clause.

The Court of Appeals agreed that the Establishment Clause prohibited Petros from meeting on school premises because to allow it to meet could have been misinterpreted by other students as active state support of religion. Under that analysis, because an individual’s discussion of religious beliefs may be confused by others as being that of the State, both must be viewed as the same. Yet the several commands of the First Amendment require vision capable of distinguishing between state establishment of religion, which is prohibited by the Establishment Clause, and individual participation and advocacy of religion which, far from being prohibited by the Establishment Clause, is affirmatively protected by the Free Exercise and Free Speech Clauses of the First Amendment. If the latter two commands are to retain any vitality, utterly unproven, subjective impressions of some hypothetical students should not be allowed to transform individual expression of religious belief into state advancement of religion.

No one would contend that the State would be authorized to dismantle a church erected by private persons on private property because overwhelming evidence showed that other members of the community thought the church was owned and operated by the State. That the “primary effect” of state inaction might turn out to advance the cause of organized religion has no bearing upon the threshold question of whether the challenged activity is conducted by the State or by individuals.

*554The Establishment Clause mandates state neutrality, not hostility, toward religion. As Justice Black stated for the Court in Everson v. Board of Education, 330 U. S. 1, 18 (1947), the First Amendment “requires the state to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.” In Zorach v. Clauson, 343 U. S. 306 (1952), the Court upheld a state law allowing schools to release students, during school hours, so that they could receive religious instruction elsewhere. Although the State did not compel students to go to religious classes, the program undoubtedly advanced the cause of religion. Justice Douglas, writing for the Court, eloquently rejected the suggestion that the program thereby violated the Establishment Clause:

“We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.” Id., at 313-314.

By granting the student prayer group equal access to the student activity forum, the order of the District Court “follows the best of our traditions,” id., at 314, and is wholly *555consistent with the Constitution. Although I would have reached this issue on the merits, it is appropriate that the Court, by vacating the judgment of the Court of Appeals, restores the sound analysis and judgment of the District Court.