Board of Education of Westside Community Schools v. Mergens By and Through Mergens Page 2

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Media for Board of Education of Westside Community Schools v. Mergens By and Through Mergens

Audio Transcription for Oral Argument - January 09, 1990 in Board of Education of Westside Community Schools v. Mergens By and Through Mergens

Sandra Day O'Connor:

Does the school have classes in the regularly offered courses for credit in scuba and in chess?

Allen E. Daubman:

--No, it does not, Your Honor.

But what our school district does have... what our high school does have is an extensive physical education curriculum, mandated at least in part by state educational guidelines and the school district felt that the Scuba Diving Club, called Subsurfers in our school, was certainly related to that... the regular curriculum offerings, to no lesser extent, other than the degree of participation, than other athletic endeavors that are maintained as co-curricular activities, whether that be organized sports teams or intramural competition... all of those activities.

John Paul Stevens:

Yes, but am I correct, Mr. Daubman, that even if you had no classes that related to scuba diving or athletics you would still maintain that a Scuba Club would be non... would be... would not make... not convert the school into a limited public forum, wouldn't you?

Allen E. Daubman:

That's not entirely correct.

The... if there were no physical education classes at the school it would be difficult to say that that was one of the educational objectives of the school, and therefore the Scuba Diving Club related to that.

I don't think that--

John Paul Stevens:

I thought your test was a little... was one that, if the school could sponsor the activity as a curriculum activity, that it would be all right to have a club, even though it didn't have a class.

For example, supposing you had a French Club, but you had no French classes.

Would you say that would make it a... bring the act into play?

Allen E. Daubman:

--It would not--

John Paul Stevens:

Under your view.

I'm not asking you to--

Allen E. Daubman:

--Under my view, it would not bring the act into play.

John Paul Stevens:

--And the reasons?

Allen E. Daubman:

The absence of a French class does not mean the absence of foreign language department.

There are many education--

John Paul Stevens:

Well, say there's no foreign language department... let me push you... but you still want to have a French class on the theory that it's the kind of activity a school can sponsor without getting into all these sensitive issues?

Allen E. Daubman:

--If the club's object... goals and objectives were instruction or discourse regarding the French language, then I would agree with you.

If it was to... if the goals and objectives of that club, as developed through the faculty sponsor and the administration, dealt with French culture or French history, then there would be, I think, quite a strong relationship to the European studies programs.

Antonin Scalia:

Mr. Daubman, one of your clubs involves helping handicapped children.

Wasn't that one of the clubs which you related to your curriculum because you said that it's part of the responsibility... there is no class in that.

It was just a means of teaching community responsibility, as I recall.

Isn't that your justification?

Allen E. Daubman:

Well, the name of the club, or the activity, is Peer Advocates.

First of all, that was something that was initiated by a teacher as opposed by a student and would therefore fall outside the act.

Antonin Scalia:

Why is that?

Allen E. Daubman:

Because the act talks about clubs that are student initiated.

Antonin Scalia:

Oh, that's for the club... for a club to be entitled to be admitted under the act, it has to be student initiated, but I don't read the act anywhere as saying that for purposes of the test of the act, of whether you're a limited forum, the club has to be student initiated.

Where does it say that?