Johnson v. Huntington Beach Union High School District

68 Cal. App. 3d 1, 137 Cal. Rptr. 43, 1977 Cal. App. LEXIS 1295

• Court: California Court of Appeal
• Decided: March 11, 1977
• Docket: Civ. 15738
• Status: Published

Opinions

Opinion

TAMURA,

Plaintiffs (high school students) sought judicial relief from a refusal of the Huntington Beach Union High School District (district) to permit a voluntary student Bible study club to meet and conduct its activities on the school campus during the school day. The trial court sustained the district’s action and denied plaintiffs the relief sought.

The operative facts set forth in the stipulated facts on which the cause was heard and submitted may be summarized as follows: The district is charged with supervising and establishing rules and regulations for high schools within the district. Plaintiffs are students at Edison High School, a public tax-supported secondary school under the jurisdiction of the district.

Pursuant to statutory authority,¹ the district has provided for recognition of student clubs² and has prescribed regulations under which such clubs may operate on high school campuses.³ Under the district’s rules, student organizations may not have free use of classrooms or school facilities other than by applying for and receiving recognition, i.e., official approval to operate on the campus as a student club. For many years the district has permitted and still permits high schools under its jurisdiction to grant recognition to student clubs and to permit such clubs to- use classrooms and other space for club meetings and to publicize their activities through the school newspaper and school bulletin boards. The district did not, however, permit student religious clubs to meet on the school campus during the school day.⁴

On January 8, 1974, the district passed an interim policy resolution permitting student religious clubs to meet on campus during the school day pending legal clarification from the Orange County Counsel and the Attorney General. The county counsel informed the district that it could not constitutionally permit student religious clubs to meet on campus during the school day. Consequently the district rescinded its interim resolution and reinstated its long-standing policy of denying recognition to student religious groups. Subsequently the Attorney General also rendered an opinion supporting the conclusion of the county counsel and the action taken by the district. (59 Ops. Cal.Atty.Gen. 214.)

Over 100 Edison High School students responded to the district’s action with a written application seeking formal recognition of a club whose express purpose was “to enable those participating to know God better ... by prayerfully studying the Bible” and whose membership would be open only to those who “have a genuine interest in the fulfilling of the purpose of this organization.”⁵ School officials at Edison High rejected the petition and the district’s board of trustees did likewise.

Plaintiffs filed suit for injunctive and declaratory relief to establish their claimed rights to official club recognition, to use school classrooms and other space during the school day for club meetings, to use bulletin boards and similar facilities for the posting of club activities, and to have access to the school newspaper for purposes of publicizing club events. The cause was heard on the pleadings and stipulated facts. Following argument and submission, the trial judge rendered an intended decision that school recognition of plaintiffs’ Bible study club would impermissibly advance religion and would cause the state to penetrate the federal and state constitutional barriers between church and state.⁶ Judgment was entered decreeing that the district was prohibited from recognizing plaintiffs’ Bible study club or from assisting plaintiffs in their efforts to form a religious club and that the school’s posture of nonrecognition did not violate plaintiffs’ free exercise or other First Amendment guarantees. Plaintiffs appeal from that judgment.

Plaintiffs do not challenge either the district’s authority to promulgate rules for the operation of student clubs on campus or the validity of the existing rules.⁷ They attack the judgment below on the ground that there are no federal or state constitutional proscriptions against school authorities permitting plaintiffs’ Bible study club to meet and conduct its activities on campus during the school day on the same footing as other student clubs and that refusal to grant such permission violates plaintiffs’ First and Fourteenth Amendment rights. From the analysis which follows, we have concluded that the issues were correctly resolved by the trial court and that the judgment should be affirmed.

The First Amendment to the United States Constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” In erecting a wall of separation between church and state, the framers of our Constitution acted upon the belief “ ‘that a union of government and religion tends to destroy government and to degrade religion.’ [Citation.] When government . . . allies itself with one particular form of religion, the inevitable result is that it incurs ‘the hatred, disrespect and even contempt of those who hold contrary beliefs.’ ” (Abington School Dist. v. Schempp, 374 U.S. 203, 221-222 [10 L.Ed.2d 844, 857-858, 83 S.Ct. 1560] quoting Engel v. Vitale, 370 U.S. 421, 431 [8 L.Ed.2d 601, 608, 82 S.Ct. 1261].) Provisions of the First Amendment, including the establishment clause, are subsumed under the due process clause of the Fourteenth Amendment and govern state action. (Committee for Public Education v. Nyquist, 413 U.S. 756, 760, fn. 2 [37 L.Ed.2d 948, 955, 93 S.Ct. 2955].)

Preservation of religious liberty and the maintenance of governmental neutrality have undergone their severest test in the context of religious exercises within school corridors. In quick succession the Supreme Court of the United States passed upon two “release time” programs which were challenged as violative of the establishment clause. McCollum v. Board of Education, 333 U.S. 203 [92 L.Ed. 649, 68 S.Ct. 461], put before the court a program whereby the school turned over its classrooms during the school day to religious groups which, one day a week for 30 minutes, substituted religious training for the secular education provided under the compulsory education law. The court held that the use of tax-supported property for religious instruction during a time when students were compelled by law to attend school resulted in the state becoming an active participant in religious affairs and thereby violated its constitutional obligation of neutrality. (333 U.S. at pp. 209-210 [92 L.Ed. at pp. 657-658].)

Sensitive to the religious needs of its pupils but cognizant of its constitutional duties, New York devised a release time program whereby students were released from school to receive spiritual training at the church of their belief. Students were released only upon written request of their parents; those not released remained in the classroom. This program withstood constitutional scrutiny in Zorach v. Clauson, 343 U.S. 306 [96 L.Ed. 954, 72 S.Ct. 679]; Justices Black, Jackson and Frankfurter dissenting. The court noted that while it is the philosophy of the First Amendment to erect a citadel where neither state nor church would invade the precinct of the other, not all cooperation between the secular and the religious is condemned. (343 U.S. at pp. 312-313 [96 L.Ed. at pp. 961-962].) As much as the state must remain neutral in the affairs of religion, neither can it assume a posture of hostility. (343 U.S. at pp. 313-314 [96 L.Ed at pp. 961-962].) Thus, a course of accommodation involving nothing more than school officials adjusting educational schedules to meet sectarian needs of its students was found consistent with constitutional precepts. (343 U.S. at p. 314 [96 L.Ed. at p. 962].)⁸

A state policy of accommodation, however, can overstep constitutional limits and becomes an impermissible form of aid to religion. In Abington School Dist. v. Schempp, supra, 374 U.S. 203, school officials instituted a practice whereby passages of the Bible were read without comment at the beginning of each school day. Those students not wishing to participate were permitted to absent themselves. The court noted that although our heritage and culture is in part grounded in the belief in the Almighty (374 U.S. at pp. 212-213 [10 L.Ed.2d at pp. 852-853]), the Constitution mandates governmental neutrality which neither prefers one religion over another nor advances all religion but instead creates a sanctuary where all religions may flourish without governmental interference. (374 U.S. at pp. 217-219 [10 L.Ed.2d at pp. 855-856].) Governmental neutrality and religious freedom, the court observed, can be preserved only by the segregation of secular activity from religious pursuit through the banishment of all governmental allegiance with religion. (374 U.S. at pp. 216-217 [10 L.Ed.2d at pp. 854-855].) The court concluded that state sponsorship of Bible reading during the school day violated the principle of neutrality, placed the state behind religious inculcation and infringed the free exercise rights of nonbelievers. (374 U.S. at pp. 222-227 [10 L.Ed.2d at pp. 858-861]; see also: Engel v. Vitale, supra, 370 U.S. 421 [prohibiting the recitation of prayer at the beginning of the school day].)

In Lemon v. Kurtzman, 403 U.S. 602, 612-613 [29 L.Ed.2d 745, 755-756, 91 S.Ct. 2105], the high court announced a tripartite test, synthesized from criteria developed by prior decisions, for determining whether state action involves a violation of the establishment clause. To pass constitutional muster the state activity must satisfy three conditions: (1) It must have a secular legislative purpose; (2) its primary effect must neither advance nor inhibit religion; and (3) it must not foster excessive governmental entanglement with religion. (See also: Meek v. Pittenger, 421 U.S. 349, 358 [44 L.Ed.2d 217, 227-228, 95 S.Ct. 1753] [upholding school textbooks loans to nonpublic school children but invalidating loans of other instructional material made directly to nonpublic schools]; Committee for Public Education v. Nyquist, supra, 413 U.S. 756, 772-773 [37 L.Ed.2d 948, 962-963] [invalidating a system of tax credits and tuition reimbursements to low income families who sent their children to nonpublic schools].) Failure to meet any one of the three conditions is fatal to the constitutionality of state action. (See e.g., Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman, supra; Abington School Dist. v. Schempp, supra, 374 U.S. 203.)

No test, however, can be applied with precision in determining where the line between church and state should be drawn; the problem, like many in constitutional adjudication, is one of degree. (Zorach v. Clauson, supra, 343 U.S. at p. 314 [96 L.Ed. at p. 962].) The high court has cautioned that the tripartite Lemon test is to be viewed, not as a formula prescribing the precise scope of constitutional inquiry, but as a touchstone with which to identify instances where the objectives of the establishment clause have been compromised. (Meek v. Pittenger, supra, 421 U.S. 349, 358-359 [44 L.Ed.2d 217, 227-228].) The primaiy evils the clause was intended to protect against are “sponsorship, financial support, and active involvement of the sovereign in religious activity.” (E.g., Meek v. Pittenger, supra, at p. 359 [44 L.Ed.2d at p. 228]; Lemon v. Kurtzman, supra, 403 U.S. 602, 612 [29 L.Ed.2d 745, 755]; Walz v. Tax Commission, 397 U.S. 664, 668 [25 L.Ed.2d 697, 701, 90 S.Ct. 1409].) We proceed to apply the foregoing precepts to the case at bench.

The precise question we must decide is whether school officials of a tax-supported high school of the district may permit plaintiffs’ Bible study club to meet and conduct its activities on the school campus during the school day under regulations governing student clubs. The administrative action which plaintiffs seek would constitute state action and as such must withstand constitutional scrutiny under the guidelines enunciated in Lemon v. Kurtzman, supra, 403 U.S. 602.

To the extent that the first prong of the tripartite test may be applicable it is only necessary to observe that the exercise of the power to permit student organizations to conduct their activities on school campuses during the school day in accordance with district rules and regulations is in the abstract secular in nature.

However, in adjudging whether the “primary effect” of the state action sought by plaintiffs advances religion, we must examine its consequence not in the abstract but as applied to the Bible study club. (See Hunt v. McNair, 413 U.S. 734, 742 [37 L.Ed.2d 923, 930-931, 93 S.Ct. 2868].) In this regard, the Supreme Court has cautioned that the crucial inquiry is not whether some benefit accrues to a religious institution as a consequence of state action, but whether its primary effect advances religion. (Tilton v. Richardson, 403 U.S. 672, 679 [29 L.Ed.2d 790, 799-800, 91 S.Ct. 2091].) Aid may be said to have an impermissible primary effect of advancing religion “when it funds a specifically religious activity in an otherwise substantially secular setting.” (Hunt v. McNair, supra, at p. 743 [37 L.Ed.2d at p. 931]; Meek v. Pittenger, supra, 421 U.S. 349, 365-366 [44 L.Ed.2d 217, 231-232].)

Plaintiffs do not dispute the fact that the club’s mission, “to enable those participating to know God better so that they will be better persons ... by prayerfully studying the Bible,” is religious in nature. It is also apparent that if the club is permitted to meet - and conduct its activities on the school campus as a student club as demanded by plaintiffs, state financial support would flow directly to the club. It would be entitled to use classroom space rent free, receive heat and light and would be monitored by a paid faculty sponsor. The district would also be obligated at its expense to audit club finances.⁹ One of the factors differentiating McCollum from Zorach was the free use of school facilities, classrooms, heat and light. (Zorach v. Clauson, supra, 343 U.S. 306, 308-309 [96 L.Ed. 954, 959-960].) Thus this financial subsidy alone may be sufficient to compel constitutional condemnation of the requested state action.

We do not rest our decision, however, on financial aid alone.¹⁰ The “primary effect” test bespeaks not only of financial assistance but also necessarily inquires whether the consequence of state action is to place its imprimatur upon the religious activity. (Abington School Dist. v. Schempp, supra, 374 U.S. 203, 216-219, 221-222 [10 L.Ed.2d 844, 854-858]; Engel v. Vitale, supra, 370 U.S. 421, 430-436 [8 L.Ed.2d 601, 607-611]. See also: Reed v. Van Hoven, supra, 237 F.Supp. 48, 51-53.) This aspect of the effect test reaches the essence of the establishment clause proscription. In Abington School Dist. v. Schempp, supra, the court cogently observed: “ ‘The [First] Amendment’s purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.’ ” (374 U.S. 203, 217 [10 L.Ed.2d 844, 855], quoting Everson v. Board of Education, 330 U.S. 1, 31-32 [91 L.Ed. 711, 731-732, 67 S.Ct. 504, 168 A.L.R. 1392] [Rutledge, J. dissenting].) The point is that impermissible governmental support is present when the weight of secular authority is behind the dissemination of religious tenets.

It is in the foregoing respect that permitting plaintiffs’ Bible study club to meet and operate on the school campus during the school day most offends establishment principles. Under the district’s rules and regulations, the club will become an entity “sponsored by the school” and as such will be entitled to use the school name in connection with its activities, to free use of school premises and property, to access to the school newspaper and school posting facilities to advertise its activities, and to solicit contributions on campus during the school day. Thus, the consequence of permitting the club to operate on campus as a recognized student organization is to place school support and sponsorship behind the religious objectives of the club. The Bible study club would implicitly become an integral part of the school’s extracurricular program conducted during the school day¹¹ when students are compelled by law to attend the school.

The state action which plaintiffs seek would also run afoul of the third prong of the Lemon test. The school would be required to supply a “faculty sponsor” who would be required to attend all club functions and approve all club activities.¹² The school would also be required to audit the club’s financial accounts¹³ and review membership procedures to ensure they are neither secret nor discriminatory.¹⁴ Thus, permitting the Bible study club to operate on campus would foster excessive state entanglement with religion.

An additional factor which cannot be ignored in the context of the establishment clause is the potential for divisiveness in matters of religion which the requested state action to be evaluated may engender, (Committee of Public Education v. Nyquist, supra, 413 U.S. 756, 797-798 [37 L.Ed.2d 948, 976-978]; Lemon v. Kurtzman, supra, 403 U.S. 602, 622 [29 L.Ed.2d 745, 761]. See also: Abington School Dist. v. Schempp, supra, 374 U.S. 203, 298 [10 L.Ed.2d 844, 901] [concurring opinion of Justice Brennan].) Students who are members of less orthodox religions may be unable to organize a club because of insufficient student support or unavailability of a faculty sponsor. In such event, the free exercise rights of the minority might well.be infringed by the pressure upon them to conform to the beliefs of the recognized religious club. Even if we assume that the spectrum of religious beliefs present in the national community is represented at the school, there is a real possibility that competing sects or beliefs will vie for school permission to operate on campus. Manifestly this could engender student divisiveness in matters of religious beliefs.

In sum, the school machinery implicated in permitting the student Bible study club to meet on campus under the district’s rules and regulations goes far beyond the accommodation endorsed in Zorach. There the school cooperated with religious institutions only to the extent of adjusting its schedule to make it possible for the students who wished to do so to repair to their respective houses of worship to partake in religious activities off campus. The teachers did not sponsor, participate in, or monitor the religious function. Religion must be a private matter wholly untouched by state involvement or sponsorship. (Lemon v. Kurtzman, supra, 403 U.S. 602, 625 [29 L.Ed.2d 745, 762-763].) The school permission sought by plaintiffs would meld the secular with the sectarian and would empower the Bible study club members to use the prestige and authority of the school in proselytizing their beliefs among students whose presence on the campus is compelled by law and who may be vulnerable to the pressure of an officially recognized student religious organization. This, the First Amendment will not permit.

To this point we have concerned ourselves only with the federal establishment clause. However, section 4 of article I of the California Constitution contains an establishment clause identical to that of the First Amendment to the federal Constitution.¹⁵ For all of the reasons heretofore stated, we hold that the state action in question is proscribed by the establishment clause of the state Constitution.

Furthermore, section 5 of article XVI of the California Constitution also compels us to uphold the school district’s action. The section provides in relevant part: “Neither the Legislature nor any . . . school district . . . shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose. . . .”¹⁶ In California Educational Facilities Authority v. Priest, 12 Cal.3d 593 [116 Cal.Rptr. 361, 526 P.2d 513], the court observed: “The section thus forbids more than the appropriation or payment of public funds to support sectarian institutions. It bans any official involvement, whatever its form, which has the direct, immediate, and substantial effect of promoting religious purposes.” (At p. 605, fn. 12.) As we have explained, permitting the club to operate on campus implicates school authority and prestige behind the dissemination of religious dogma. This benefit cannot be viewed as “incidental to a primary public purpose.” (12 Cal.3d at p. 605.) Indeed the primary purpose to be served by permitting the club to operate on campus as a student organization is to promote sectarian tenets, an intrinsically religious function. We are, therefore, compelled to conclude that the California Constitution will not suffer school officials to permit plaintiffs’ Bible study club to meet and conduct its activities on school campus during the school day.

Plaintiffs argue that refusal to permit their club to operate on the campus on the same footing as other student clubs infringes upon rights guaranteed to them under the First and Fourteenth Amendments of the United States Constitution. The argument must be rejected. The free exercise clause of the federal Constitution embodies two rights: Freedom to believe and freedom to act. “The first is absolute but, in the nature of things, the second cannot be.” (Cantwell v. Connecticut, 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900].) Under the free exercise clause, freedom of conscience and freedom to adhere to such religious organizations or beliefs as the individual may choose is secured against governmental interference. (Cantwell v. Connecticut, supra.) This is not to say, however, that religion may be exercised wherever and whenever the adherent chooses. (Wisconsin v. Yoder, 406 U.S. 205 [32 L.Ed.2d 15, 92 S.Ct. 1526]; Poulos v. New Hampshire, 345 U.S. 395, 405 [97 L.Ed. 1105, 1113-1114, 73 S.Ct. 760]; Cantwell v. Connecticut, supra, 310 U.S. 296.) The inevitable consequence of the establishment clause when applied to religious ritual on school property¹⁷ is to restrict that activity to preserve the wall between church and state. “ ‘Our constitutional policy . . . does not deny the value or the necessity for religious training, teaching or observance. Rather it secures their free exercise. But to that end it does deny that the state can undertake or sustain them in any form or degree. For this reason the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two fold protection and, as the state cannot forbid, neither can it perform or aid in performing the religious function. The dual prohibition makes that function altogether private.’ ” (Abington School Dist. v. Schempp, supra, 374 U.S. 203, 218-219 [10 L.Ed.2d 844, 856], quoting Everson v. Board of Education, supra, 330 U.S. 1, 52 [91 L.Ed 711, 742] [Rutledge, J. dissenting].)

This is not a case where plaintiffs are denied access to all public forums for religious expression; they are merely being denied use of school property during the school day for religious purposes. This deprivation in no way infringes upon their religious rights when practiced outside the confines of the school. Plaintiffs are only being denied religious expression in a manner involving state participation. Each club member remains free to believe and express his religious beliefs on an individual basis and the students’ Bible study club is free to meet as such off campus outside of school hours. There is no infringement of plaintiffs’ free exercise rights except to the limited extent made necessary by the establishment clause of the state and federal Constitutions.¹⁸

Judgment is affirmed.

Gardner, P. J, concurred.

1 See Education Code sections 10701, 10702, 10704, 10604, 1052.

2 The district’s “Policy No. 5144” reads:

“Clubs recognized by the board of trustees are those which are sponsored by the individual schools of the district. Clubs shall be responsible to the school through which they are organized. Such clubs may not be secret for, as indicated in the Education Code, it is ‘unlawful for any pupil enrolled in any elementary or secondary school in the state to join or become a member of any secret fraternity, sorority or club wholly or partly formed of pupils attending the public schools, or to take part in the organization or formation of any such fraternity, sorority or club....’”

3 The regulations implementing the district’s policy on student clubs are set forth in “Staff Rule No. 5144,” which reads:

“Clubs

“School Sponsored

“Clubs Recognized

“Clubs recognized by the individual school will be those sponsored by the school. These clubs must be directly responsible to the school.

“Charters

“The organization’s charter must be- approved by Associated Students’ governing body and by the Principal of the school.

“Membership

“Membership must be limited to the students attending the school, and must be open to all students who meet the qualifications and standards of membership set forth in the club charter.

“Charter Filing

“A copy of the charter must be on file in the Principal’s office.

“The organization must:

“1. Be sponsored by a member of the faculty appointed by the Principal.

“2. Deposit all monies collected and check out all monies through the school’s financial secretary according to school regulations. All club accounts shall be audited.

“3. Have the approval of the sponsor for the time and place and all activities carried on by the organization, including regular meetings. The sponsor must be present at all meetings.

“4. Request and receive approval from the school Principal for special social events.

“School-sponsored clubs may be permitted:

“1. tó use official name of the school.

“2. to use building and other facilities.

“3. to have publicity in daily bulletins, bulletin boards and school publications.

“4. to wear identifying emblem but not special clothing.

“5. to sell on school premises tickets or bids to special activities sponsored by the club.

“Deviations

“Deviations from any of the requirements may be made only with the approval of the Associated Students’ governing body and the school Principal.

“Private Clubs

“No off-campus or private clubs are permitted to function in the school. They are also restricted from advertising in any form.

“Secret Clubs

“Education Code, Section 16075 [now section 10604], makes it ‘unlawful for any pupil enrolled in any elementary or secondary school to join or become a member of any secret fraternity, sorority, or club wholly br partly formed of pupils attending the public schools, or to take part in the organization or formation of any such fraternity, sorority, or club....’

“Obligation of the Principal

“It is the obligation of the Principal to see that the clubs and organizations of the school are not of secret nature and that they are not in any way selective or discriminatory.” (Original italics.)

4 It was stipulated that students, as well as members of the community, may apply for use of school facilities under the Civic Center Act (Ed. Code, § 16551 et seq.) but that the district would not grant an application under the act by a student group to use classrooms or other meeting rooms for religious purposes during the school day.

5 The term “Bible” as used in the club’s constitution refers to the 66 books collectively referred to as the Old and New Testaments.

6 Findings of fact and conclusions of law were not requested by either party and none were made.

7 The entire thrust of plaintiffs’ suit in the court below was that they were entitled to recognition of their club and to the use of school facilities under the district’s regulations on the same basis and to the same extent as are enjoyed by other student organizations. They made no attack on the validity of the regulations themselves. For the first time on appeal plaintiffs assert that the regulations are void for “vagueness and overbreadth” and for lack of “standards,” but they fail to point out in what particulars the regulations are vague or overbroad or lack adequate standards. Failure to support a point by legal argument and discussion may be deemed an abandonment of the contention. (Huntington Beach Police Officers' Assn. v. City of Huntington Beach, 58 Cal.App.3d 492, 504 [129 Cal.Rptr. 893].)

8 The area of accommodation has been explored by noted commentators. (See: Religion and the Public Order (Giannela edit. 1963) pp. 17-23; Kauper, Prayer, Public Schools and the Supreme Court (1963) 61 Mich.L.Rev. 1031, 1066-1068.)

9 See footnote 13, infra.

10 There are advocates of the view that mere use of school property alone is not offensive to the Constitution so long as the religious activity is wholly separate from the official school day. (See, e.g., Wood v. Mt. Lebanon Township School District (W.D.Pa. 1972) 342 F.Supp. 1293, 1295; Reed v. Van Hoven (W.D.Mich. 1965) 237 F.Supp. 48, ; Keegan v. University of Delaware (Del. 1975) 349 A.2d 14, 17-18; Lawrence v. Buchmueller (1963) 40 Misc.2d 300 [243 N.Y.S.2d 87, 88-90]; but see: Hunt v. Board of Education of County of Kanawha (S.D.W.Va. 1971) 321 F.Supp. 1263, 1266.)

11 Plaintiffs concede that the lunch hour during which the club proposes to meet is an inseparable part of the school day. (See statutory authorities cited at fn. 12, infra.)

12 A school district is required to maintain supervision over the conduct of its pupils during school hours, including recesses and lunch hours. (Ed. Code, §§ 13557, 13557.5; Cal. Admin. Code, tit. 5, § 303; Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 600 [110 P.2d 1044].) Even if a nonfaculty assumes this function, provision is made for his reimbursement. (Ed. Code, § 20801.)

13 Education Code section 10704 provides:

“The governing board of any school district shall provide for the supervision of all funds raised by any student body or student organization using the name of the school.

“The cost of supervision may constitute a proper charge against the funds of the district.

“The governing board of a school district may also provide for a continuing audit of student body funds with school district personnel.”

14 Education Code section 10604 prohibits pupil membership in secret clubs.

15 Section 4, article I of the California Constitution revised November 5, 1974, provides: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion.”

16 Article IX, section 8 of the state Constitution provides in pertinent part: “No public money shall ever be apportioned for the support of any sectarian or denominational school . . . nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.”

In view of our holding that article XVI, section 5 of the state Constitution proscribes school recognition of plaintiffs’ club, we find it unnecessary to chart the limits and sweep of article IX, section 8’s proscription.

17 Plaintiffs’ reliance upon Saia v. New York, 334 U.S. 558 [92 L.Ed. 1574, 68 S.Ct. 1148]; Kunz v. New York, 340 U.S. 290 [95 L.Ed. 280, 71 S.Ct. 312], and Niemotko v. Maryland, 340 U.S. 268 [95 L.Ed. 267, 71 S.Ct. 325], which sanctioned the use of public parks as a forum for religious teaching is misplaced. The public school is organized “ ‘on the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion.’ ” (Abington School Dist. v. Schempp, supra, 374 U.S. 203, 218 [10 L.Ed.2d 844, 856], quoting Everson v. Board of Education, supra, 330 U.S. 1, 23-24 [91 L.Ed. 711, 727] [Jackson, J. dissenting].) Justice Stewart in his dissent in Schempp also noted the unique circumstances of religious exercise on school property: “Our decisions make clear that there is no constitutional bar to the use of government property for religious purposes. On the contrary, this Court has consistently held that the discriminatory barring of religious groups from public property is itself a violation of First and Fourteenth Amendment guarantees. [Citations.] A different standard has been applied to public school property, because of the coercive effect which the use by religious sects of a compulsory school system would necessarily have upon the children involved. [Citation.]” (Abington School Dist. v. Schempp, supra, 374 U.S. at p. 314 [10 L.Ed.2d at p. 910].) It cannot be said, therefore, that the power of the state to sanction religious practice on its property applies with equal force to all governmental property, irrespective of the nature of the property and governmental involvement resulting from such use.

18 For cases in other jurisdictions holding that the free exercise clause is not violated by denying religious adherents use of school property, see: Stein v. Oshinsky (2d Cir. 1965) 348 F.2d 999, 1001-1002 [cert, den, 382 U.S. 957 (15 L.Ed.2d 361, 86 S.Ct. 435)]; Hunt v. Board of Education of County of Kanawha (S.D.W.Va. 1971) supra, 321 F.Supp. 1263, 1265-1266.