EQUAL ACCESS:

Guidelines For Student Groups On Public School Campuses

by Mathew D. Staver
Copyright © 1998

  Equal Access Means Equal Treatment

The application of the Equal Access Act (hereinafter referred to as the "Act") is simple--all groups must be treated equally without discrimination. Religious and political groups must be treated equally with other social or activity groups. According to the United States Supreme Court in Board of Education v. Mergens, Congress passed the Act in order "to prevent discrimination against religious and other types of speech."(1)

It cannot be emphasized too often or too strongly that equal access means equal treatment. Religious Bible clubs must receive equal treatment and be afforded identical access to school facilities, programs, financing, and opportunities as afforded to the secular noncurriculum related student clubs. If a secular club is allowed to meet during school hours, then the religious club must also be allowed to meet during school hours. If a secular club is allowed post announcements on a specified club bulletin board, announce its meetings over the intercom, be featured in the school yearbook, have a booth at the school club fair, receive financial support from the school or checking or banking facilities provided by the school, then the religious clubs must be afforded the same benefits.

In the Mergens case the Westside High School already allowed a Christian club to meet informally in the school facilities after school hours. However, the Christian club was denied official recognition which allowed other student clubs to be a part of the student activities program and also allowed access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair. According to Mergens, since the Westside High School allowed other noncurriculum related student groups access to the school newspaper, bulletin boards, public address system and the annual Club Fair, but did not allow the same privileges to the Christian club, the school violated the Act. Thus, if any club is given the opportunity of access to the school newspaper, bulletin board, public address system, annual Club Fair, copy machines, or any other opportunity to use school facilities, then a school cannot prohibit the same access to other groups. As one group is treated, all groups must be treated.

Application of Equal Access

The Act provides a safe harbor in which a school may operate. The Act should be viewed as a floor and not a ceiling. In other words, the Act presents the bare minimum that a school may provide to student groups but a school can grant more rights to student groups than the Act requires.

The Act applies to any (1) public secondary school (2) which receives federal funds and (3) which has a limited open forum. Identifying a public school providing secondary education which receives federal funds is easy. A limited open forum occurs "whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time."(2)

The Supreme Court in Mergens defined a noncurriculum related student group, "broadly to mean any student group that does not directly relate to the body of courses offered by the school."(3) The Court further noted that

a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit.(4)

A student government group would generally relate directly to the curriculum to the extent that it addresses concerns or solicits opinions and formulates proposals pertaining to the body of courses offered by the school. If participation in the school band or orchestra were required for the band or orchestra classes, or resulted in academic credit, then those groups would directly relate to the curriculum.

On the other hand, some examples of noncurriculum related student groups include, but are by no means limited to, a chess club, stamp collecting club, community service club, camera club, diving club, music groups, Key Club, debate groups, business groups, political groups, religious groups, and Hi-Y groups.(5)

Equal Access is for Students

Under the Act a student group must be initiated by the students. A student must initiate the request to form a club. The student group, no matter the size, must be given equal treatment as all other existing clubs. If the school requires a constitution or a statement of purpose from the other clubs, then a constitution or a statement of purpose may also be required of the new club. The school may require a faculty member or any other school employee to be a sponsor of the group if a sponsor is required of the already existing groups. The school faculty member or employee may attend the student meetings. The basic principle is that the student group must be initiated and predominantly led by students, although the students may on occasion bring in outside speakers.

Equal Access and Disruptive Clubs

A concern that was brought up during the legislative hearings on the Act was that equal access would allow groups in public schools which are racist, hate groups, or disruptive.(6) However, the Act has been in effect since 1984, yet an influx of disruptive hate groups disturbing schools has not occurred.

The Act specifically indicates that "it shall not be construed, to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary."(7) If a group substantially interferes with the normal operation of the school or is disruptive, the school under the Act is free to prohibit such groups from meeting on campus. The school must be able to show that the group is in fact disruptive. A simple fear that a group may be disruptive in the future is probably not enough to support denial of equal access, but the actual disruption or a threatened disruption by a group may be enough to deny equal access. Satanic, occult, racist, and hate groups probably are types of groups that at some time would cause disruption, but time has shown that schools have not seen an influx of these groups. Simply because some students or faculty disagree with the content of a group's speech is not enough to prohibit that group from equal access, but if such a group is disruptive to the ordinary operation of the school, then the administrators retain the authority under the Act to maintain an orderly operating school.

Equal Access and the Constitution

On June 4, 1990, the Supreme Court of the United States upheld the Constitutionality of the Act.(8) Specifically, the Mergens case ruled that the Act was not prohibited by the First Amendment Establishment Clause. Though the Supreme Court in 1986 hinted that the Act was constitutional in the case of Bender v. Williamsport Area School District(9) the Mergens case left no doubt as to the constitutionality of the Act.

The Text of the Equal Access Act

The Equal Access Act is a Federal law that is applicable to all the states. The Act, passed by Congress and published at 20 U.S.C. Section 4071-74, states as follows:

Sec. 4071. (a) It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or the content of the speech at such meetings.

(b) A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.

(c) Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that--

(1) the meeting is voluntary and student-initiated;

(2) there is no sponsorship of the meeting by the school, the government, or its agents or employees;

(3) employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity;

(4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and

(5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.

(d) Nothing in this subchapter shall be construed to authorize the United States or any State or political subdivision thereof--

(1) to influence the form or content of any prayer or other religious activity;

(2) to require any person to participate in prayer or other religious activity;

(3) to expend public funds beyond the incidental cost of providing the space for student-initiated meetings;

(4) to compel any school agent or employee to attend a school meeting if the content of the speech at the meeting is contrary to the beliefs of the agent or employee;

(5) to sanction meetings that are otherwise unlawful;

(6) to limit the rights of groups of students which are not of a specified numerical size; or

(7) to abridge the constitutional rights of any person.

(e) Notwithstanding the availability of any other remedy under the Constitution or the laws of the United States, nothing in this subchapter shall be construed to authorize the United States to deny or withhold Federal financial assistance to any school.

(f) Nothing in this subchapter shall be construed to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary.

Definitions of Common Terms

Sec. 4072. As used in this subchapter--

(1) The term "secondary school" means a public school which provides secondary education as determined by State law.

(2) The term "sponsorship" includes the act of promoting, leading, or participating in a meeting. The assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting.

(3) The term "meeting" includes those activities of student groups which are permitted under a school's limited open forum and are not directly related to the school curriculum.

(4) The term "noninstructional time" means time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.

Severability

Sec. 4073. If any provision of this subchapter or the application thereof to any person or circumstances is judicially determined to be invalid, the provisions of the remainder of the subchapter and the application to other persons or circumstances shall not be affected thereby.

Construction

Sec. 4074. The provisions of this subchapter shall supersede all other provisions of Federal law that are inconsistent with the provisions of this subchapter. GUIDELINES FOR STARTING A CLUB

The following are suggested steps for starting a club. These steps are not required by the Act but are presented here to show practical guidelines:

(1) A club must be initiated by a student. One student should talk to friends to see if there is an interest in starting a club. The students should share ideas about the club. What will the club do? What is the name of the club? What is the purpose? How often will the club meet?

(2) After the idea of the club has been formulated, one or two students should ask a school employee to be its sponsor. Meet with the sponsor to share your ideas. Not all schools require a sponsor, so talk to other clubs to see if they have a sponsor.

(3) Prepare a constitution which states the club's name and purpose. A constitution can be anything from one paragraph to several pages. If you need assistance, Liberty Counsel can provide a model constitution.

(4) One or two student leaders of the club should meet with the principal or one of the vice principals in charge of clubs. Present your request to form a club and your constitution at this meeting.

(5) The school should then consider your request and give you guidance for beginning your meetings.

SUMMARY OF EQUAL ACCESS

Equal access means equal treatment.

Religious clubs must be treated equally and receive identical benefits afforded to the secular clubs.

Religious clubs may meet during class time if secular clubs meet during class time.

Must be student-initiated and student-led.

May have a teacher sponsor.

May bring in outside speakers.

May receive school funding it school funding is provided to other non-curriculum related student clubs.

May advertise and promote religious meetings if other secular clubs are allowed to advertise and promote their meetings.

May not be denied access unless there is specific evidence that the club materially and substantially interferes with the normal operation of the school.

INDEX OF CITATIONS

(1) Board of Education v. Mergens, 110 S. Ct. 2356, 2371 (1990).

(2) 20 U.S.C. Section 4071(b).

(3) Mergens, 110 S. Ct. at 2366.

(4) Id.

(5) See Mergens, 110 S. Ct. at 2356, 2366; Bender v. Williamsport Area School District, 741 F.2d 538, 539 n.18 (3rd Cir. 1984) vacated on other grounds, 475 U.S. 534 (1986); Student Coalition for Peace v. Lower Merion School District, 633 F.Supp. 1040, 1042 (E.D. Pa. 1986); 130 Cong. Rec. H7732 (daily ed. July 25, 1984) and 130 Cong. Rec. 8365 (daily ed. July 27, 1984).

(6) See U.S. Code Congressional and Administrative News, P.L. 95-561 Vol. 5 pp.4971-5226 (1978).

(7) 20 U.S.C. Section 4071(f).

(8) Mergens, 110 S. Ct. at 2356.

(9) Bender, 475 U.S. at 534.

The information contained herein in not intended to render legal advice. Factual and legal issues may arise that must be considered in each circumstance. If legal advice is necessary, the services of a competent attorney should be sought.