Guidelines For Student Groups On Public School Campuses
Mathew D. Staver
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
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
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
Equal Access and Disruptive
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
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
(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
(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
(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
(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
(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
(4) The term "noninstructional
time" means time set aside by the school before actual classroom
instruction begins or after actual classroom instruction ends.
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.
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
(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
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.
(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.