The Everson decision of 1947 articulated the idea of a "wall of separation between church and state." In the decades following Everson, the Supreme Court handed down several major decisions which transformed the culture of American public schools by removing religious observance from them completely. A trio of cases in particular—Engel, Schempp, and Murray in 1962 and 1963—divorced public education from religious observance. Subsequent decisions established clear guidelines for observing "the wall of separation." With the Wallace v. Jaffree decision in 1985, the Court once again upheld the need for government to take a "neutral position"—neither fostering religious observance nor inhibiting it.
In upholding these precedents, successive Court decisions derived their opinions on the separation of church and state primarily from the Establishment Clause of the 1st Amendment. This part of the amendment prevents government from establishing an official religion and from favoring one religion over another. In 1990 the Rehnquist Court was asked to consider the possibility of an unintended effect of these decisions. Could neutrality toward religion actually result in discrimination against it? Calling for the separation of church and state could include a call to eliminate all references to religion in schools. Neutrality toward religion by school officials could be interpreted as disinterest or suppression.
Should religious groups have any access to students at a public school? Could a religious group be included in the extracurricular interest groups that students often form? Could a prayer group be permitted in school? Should a school building be open after school hours for such groups, as it is for many others? Would prohibiting such groups be a denial of the Free Exercise Clause of the 1st Amendment?
In 1985, Bridget Mergens requested permission to form a Christian student organization at the Westside High School in Omaha, Nebraska. James Finley, the school principal, denied Mergens's request.
Mergens appealed the principal's decision in the federal courts, claiming that the school's denial was a violation of a 1984 federal law requiring "equal access" for student religious groups. The 8th U.S. Circuit Court of Appeals found that the principal had denied Mergens her free exercise rights as guaranteed by the 1st Amendment. The school district appealed to the Supreme Court.
The doctrine of separation of church and state holds that schools must adopt a neutral position in regard to religion. But what is meant by "neutral position"? Would student religious clubs meeting in the school building, perhaps during school hours, violate that neutrality? If stamp clubs, political clubs, and chess clubs are allowed, was prohibiting a Bible study group discriminatory? Was the equal access law constitutional? If so, had Mergens been denied her free exercise rights? Does the equal access law put schools in a position in which they would have to provide access to any group?
For Westside Community School District: The Westside Community School District and the high school principal did not fear a few dedicated students forming a prayer or Bible study group. What was feared was a loss of the school's ability to prevent any group from demanding "equal access" to school facilities once the door was opened to a religious group. How does a school keep out Satanists if it allows access to a Christian prayer group? Can a ruling be fashioned to admit "accepted" religious groups and exclude groups having unpopular beliefs?
For Bridget Mergens: Mergens was denied her right of free exercise when she was not permitted to meet and pray with other students on a voluntary basis. "Neutrality toward religion" in the public schools had become "discrimination against religion." Student religious groups that did not interfere with the school program should be allowed the same access to facilities given to other interest groups. If a school district permits clubs and activities not related to the school program on campus, it must also permit religious interest groups.
The Court decided by an 8–1 margin that Mergens had been denied her free exercise rights and that the school would have to accommodate her request to form a prayer group. Writing for the majority, Justice Sandra Day O'Connor declared, "A high school does not have to permit extracurricular activities, but when it does, the school is bound by the Equal Access Act of 1984." When the public schools allow clubs—including non-curricular, student interest clubs—on the school campus, then the schools must also permit student religious clubs.
O'Connor wrote, "There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion…. Allowing students to meet on campus and discuss religion is constitutional because it does not amount to 'state sponsorship of a religion.'"
The Court has almost certainly not handed down its last ruling on this subject, as many questions regarding the separation of church and state remain unanswered. Some school officials still fear the position they are placed in, guaranteeing equal access. Groups that school officials believe are inappropriate may, in fact, challenge the schools if access is denied them. Issues relating to mainstream religious groups remain to be answered as well. These issues include faculty sponsorship, use of the school's public address system to announce the meetings, and photos in the school yearbook and other publications. School administrators are also concerned about creating an "appropriate neutral position" toward religious groups and possible evangelizing by such groups on school campuses.