The Equal Access Act and the Public Schools:

Questions and Answers

INTRODUCTION

The Equal Access Act became law on August 11, 1984, passing the Senate 88-11 and the House 337-77. Congress's primary purpose in passing the Act, according to the Supreme Court, was to end "perceived widespread discrimination" against religious speech in public schools. While Congress recognized the constitutional prohibition against government promotion of religion, it believed that nonschool sponsored speech, including religious speech, should not be excised from the school environment.

The Supreme Court, by a vote of 8-1, held in Westside Community School v. Mergens (1990) that the Equal Access Act is constitutional. This brochure is designed to help school board members, administrators, teachers, parents, religious leaders, and students understand and conform to the Act.

The title - The Equal Access Act - explains the essential thrust of the Act. There are three basic concepts.

The first is nondiscrimination. If a public secondary school permits student groups to meet for student-initiated activities not directly related to the school curriculum, it is required to treat all such student groups equally. This means the school cannot discriminate against any student conducting such meetings "on the basis of the religious, political, philosophical, or other content of the speech at such meetings." This language was used to make clear that religious speech was to receive equal treatment, not preferred treatment.

The second basic concept is protection of student-initiated and student-led meetings. The Supreme Court has held unconstitutional state-initiated and state-endorsed religious activities in the public schools. (This Act leaves the "school prayer" decision undisturbed.) However, in upholding the constitutionality of the Act, the Court noted the "crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."

The third basic concept is local control. The Act does not limit the authority of the school to maintain order and discipline or to protect the well-being of students and faculty.

While the Act does not cover every specific situation, an understanding of the three basic concepts - as fleshed out by the questions and answers below - should be a sufficient guide for addressing most situations.

Many of the sponsors of this brochure were actively involved in the debate over equal access. Some supported the Act, others remained neutral, and some opposed it. All of the sponsors, however, agree that the provisions of the Act need to be understood clearly as public secondary schools develop policies concerning student groups.

THE EQUAL ACCESS ACT

(20 U.S.C. §§ 4071-74)

DENIAL OF EQUAL ACCESS PROHIBITED

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 other 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 uniformity 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

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 supercede all other provisions of Federal law that are inconsistent with the provisions of this subchapter.

THE FOLLOWING QUESTIONS AND ANSWERS INDICATE HOW THE ACT IS TO WORK:

Q1. What triggers the Equal Access Act?

A1. The creation of a "limited open forum." A limited open forum is created whenever a public secondary school provides an opportunity for one or more "noncurriculum related student groups" to meet on school premises during noninstructional time. The forum created is said to be "limited" because it is only the school's own students who can take advantage of the open forum. Outsiders are not granted an independent right of access by the Act.

Q2. Must a school board create a limited open forum for students?

A2. No. The local school board has exclusive authority to determine whether it will create or maintain a limited open forum. However, if a school has a "limited open forum," it may not discriminate against a student group because of the content of its speech.

Q3. What is a "noncurriculum related student group"?

A3. In Mergens the Supreme Court interpreted a noncurriculum related student group to mean "any group [or club] that does not directly relate to the body of courses offered by the school." According to the Court, a student group directly relates to a school's curriculum only if (1) the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; (2) the subject matter of the group concerns the body of courses as a whole; or (3) participation in the group is required for a particular course or results in academic credit.

Schools may not substitute their own definition of "noncurriculum related student group" for that of the Court.

Q4. Did the Supreme Court give any examples of "noncurriculum related student groups"?

A4. The Court noted that unless a school could show that groups such as a chess club, stamp collecting club, or community service club fell within the definition of curriculum related set forth by the Court, they would be considered noncurriculum related for purposes of the Act.

In Mergens, the Court found at least three groups that were noncurriculum related for that school: (1) a scuba club, (2) a chess club, and (3) a service club. Each of these clubs was found to be noncurriculum related because it did not meet the Court's criteria set forth in question 3 above.

Q5. What examples did the Court give of curriculum related student groups?

A5. The Court noted that "a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school's student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school. If participation in a school's band or orchestra classes, or resulted in academic credit, then those groups would also directly relate to the curriculum."

Q6. Who determines which student groups are in fact curriculum related?

A6. Local school authorities, subject to review by the courts. However, the Supreme Court has made clear that a school cannot defeat the intent of the Act by defining "curriculum related" in a way that arbitrarily results in only those student clubs approved by the school being allowed to meet.

Q7. When can noncurriculum related student groups meet?

A7. A limited open forum requiring equal access may be established during "noninstructional time" which is defined as time set aside by the school before actual classroom instruction begins or after it ends.

Q8. Can noncurriculum related student groups meet during the school day?

A8. The Equal Access Act is triggered by student club meetings that occur only during instructional time. The constitutionality of allowing or disallowing student religious clubs to meet during instructional time has not been expressly ruled upon by the Supreme Court.

Q9. To what schools does the Act apply?

A9. The Act applies only to public secondary schools (as defined by state law) that receive federal financial assistance.

Q10. May a school establish regulations for meetings that take place in its limited open forum?

A10. Yes. The Act does not take away a school's authority to establish reasonable time, place, and manner regulations for its limited open forum. For example, a school may establish a reasonable time period on any one school day, a combination of days, or all school days. It may assign the rooms in which student groups can meet. It may enforce order and discipline during the meetings. The key is that time, place, and manner regulations must be uniform and nondiscriminatory.

Q11. May schools promote, and teachers participate in, some club meetings and not others in an open limited forum?

A11. Some of the Act's language implies that schools may not sponsor any noncurriculum related club. Other language suggests that schools can sponsor all noncurriculum clubs except religious ones. Subsequent to the Mergens decision, some schools have in fact promoted, or assigned teachers to teach, drama or debate clubs and the like even though the school does not offer formal instruction in these subjects or give credit to those who participate in such clubs. There may be other clubs (such as political clubs) for which school sponsorship is inappropriate. School sponsorship of some noncurriculum related student clubs does not mean, however, that a limited open forum does not exist or that non-sponsored clubs may not meet.

Q12. May a school require a minimum number of students to form a noncurriculum related club?

A12. Not if it "limit[s] the rights of groups of students." Care must be exercised that the school not discriminate against numerically small student groups that wish to establish a club. If the number of clubs begins to tax the available space in a particular school, one teacher might be used to monitor several small student groups meeting in the same large room. The key is to be flexible in accommodating student groups that want to meet.

Q13. What does "student-initiated" mean?

A13. It means that the students themselves are seeking permission to meet and that they will direct and control the meeting. Teachers and other school employees may not initiate or direct such meetings, nor may outsiders.

Q14. May outsiders attend a student meeting?

A14. Yes, if invited by the students and if the school does not have a policy barring all "nonschool persons." However, the nonschool persons "may not direct, conduct, control, or regularly attend activities of student groups."

A school may decide not to permit any nonschool persons to attend any club meetings, or it may limit the number of times during an academic year a nonschool person may be invited to attend.

Obviously, no nonschool person should be permitted to proselytize students who are not voluntarily attending the meeting to which the nonschool person is invited.

Q15. May teachers be present during student meetings?

A15. Yes, but there are important limitations. For insurance purposes or because of state law or local school policy, teachers or other school employees are commonly required to be present during student meetings. In order to avoid any appearance of state endorsement of religion, teachers or employees are to be present at student religious meetings only in a "nonparticipatory capacity." The Act also prohibits teachers or other school officials from influencing the form or content of any prayer or other religious activity.

Q16. May a teacher or other school employee be required to be present at a student meeting if that person does not share the beliefs of the students?

A16. The Act provides that no school employee may be required to attend a meeting "if the content of the speech at the meeting is contrary to the beliefs" of that employee. If a school establishes a limited open forum, however, it is responsible for supplying a monitor for every student group meeting if a monitor is required.

Q17. Does the assignment of a teacher to a meeting for custodial purposes constitute sponsorship of the meeting?

A17. No.

Q18. Does the expenditure of public funds for the incidental cost of providing the space (including utilities) for student-initiated meetings constitute sponsorship?

A18. No.

Q19. If a school pays a teacher for monitoring a student religious club, does this constitute sponsorship?

A19. Congressional debate apparently took for granted that payment of a school-required monitor for any club was an "incidental cost of providing the space for student-initiated meetings."

Q20. Does the use of school media to announce meetings of noncurriculum related student groups constitute sponsorship of those meetings?

A20. No. The Supreme Court has interpreted the Act to require schools to allow student groups meeting under the Act to use the school media - including the public address system, school paper, and school bulletin board - to announce their meetings if other noncurriculum related student groups are allowed to use the school media. Any policy concerning the use of school media must be applied to all noncurriculum related student groups in a nondiscriminatory manner. Schools, however, may inform students that certain groups are not school sponsored.

Q21. Do school authorities retain disciplinary control?

A21. Yes. The Act emphasizes the authority of the school "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." Furthermore, the school must provide that the meeting "does not materially and substantially interfere with the orderly conduct of educational activities within the school." These two provisions, however, do not appear to authorize a school to prohibit certain student groups from meeting because of administrative inconvenience or speculative harm. For example, a group cannot be barred at a particular school solely because a similar student group at another school has caused problems.

Q22. What about groups that wish to advocate or discuss changes in existing law?

A22. Students who wish to discuss controversial social and legal issues such as abortion, drinking age, the draft, and alternative lifestyles may not be barred on the basis of the content of their speech. The school is not required, however, to permit meetings in which unlawful conduct occurs.

Q23. What if some students object to other students meeting?

A23. The right of lawful, orderly student groups to meet does not depend on the approval of other students. All students enjoy the constitutional guarantee of free speech. It is the school's responsibility to maintain discipline in order that all student groups are afforded an equal opportunity to meet peacefully without harassment. The school must not allow a "hecklers' veto."

Q24. May any groups be excluded?

A24. Yes. Student groups that are unlawful, or that materially and substantially interfere with the orderly conduct of educational activities, may be excluded. However, a student group cannot be denied equal access simply because its ideas are unpopular. Freedom of speech includes ideas the majority may find repugnant.

Q25. Must noncurriculum related student groups have an open admissions policy?

A25. The Act does not address this issue. There are, however, several federal, as well as state and local, civil rights laws that may be interpreted to prohibit student groups from denying admission on the basis of race, national origin, gender, or handicap.

Q26. What may a school do to make it clear that it is not promoting, endorsing, or otherwise sponsoring noncurriculum related student groups?

A26. A school may issue a disclaimer that plainly states that in affording such student groups an opportunity to meet, it is merely making its facilities available, nothing more.

Q27. What happens if a school violates The Equal Access Act?

A27. The law contemplates a judicial remedy. An aggrieved person may bring suit in a U.S. District Court to compel a school to observe the law. Violations of equal access will not result in the loss of federal funds for the school. However, a school district could be liable for damages and the attorney's fees of a student group that successfully challenges a denial by the school board of its right to meet under the Act.

Q28. Should a school formulate a written policy for the operation of a limited open forum?

A28. If a school decides to create a limited open forum or if such a forum already exists, it is strongly recommended that a uniform set of regulations be drawn up and made available to administrators, teachers, students, and parents. The importance of having such a document will become clear if the school either denies a student group the opportunity to meet or is forced to withdraw that opportunity. When the rules are known in advance, general acceptance is much easier to obtain.

Q29. What about situations not addressed in these guidelines?

A29. Additional questions may be directed to the organizations listed as sponsors of this publication.

THE EQUAL ACCESS ACT AND THE PUBLIC SCHOOLS: QUESTIONS AND ANSWERS IS SPONSORED JOINTLY BY:

American Academy of Religion
Department of Religion
501 Hall of Languages
Syracuse University
Syracuse, NY 13244-1170

American Association of School Administrators
1801 North Moore Street
Arlington, VA 22209

American Federation of Teachers
555 New Jersey Avenue, NW
Washington, DC 20001

American Jewish Committee
165 East 56 Street
New York, NY 10022

American Jewish Congress
15 East 84th Street
New York, NY 10028-0407

Americans United Research Foundation
900 Silver Spring Avenue
Silver Spring, MD 20910

Association for Supervision and Curriculum Development
1250 North Pitt Street
Alexandria, VA 22314

Baptist Joint Committee
200 Maryland Avenue, NE
Washington, DC 20002

Christian Legal Society
P.O. Box 1492
Merrifield, VA 22116

Department of Education of the U.S. Catholic Conference
3211 Fourth Street, NE
Washington, DC 20017-1194

First Liberty Institute at George Mason University
4085 University Drive, Suite 105
Fairfax, VA 22030

General Conference of Seventh-day Adventists
12501 Old Columbia Pike
Silver Spring, MD 20904-1608

National Association of Secondary School Principals
1904 Association Drive
Reston, VA 22091

National Association of Evangelicals
Suite 500
1023 15th Street, NW
Washington, DC 20005

National Conference of Christians and Jews
71 Fifth Avenue, Suite 1100
New York, NY 10003

National Council of Churches of Christ in the U.S.A.
475 Riverside Drive
New York, NY 10115

National Council on Religion and Public Education
E262 Lagomarcino Hall
Iowa State Unviversity
Ames, IA 50011

National Council for the Social Studies
3501 Newark Street, NW
Washington, DC 20016

National Education Association
1201 16th Street, NW
Washington, DC 20036

National PTA
1201 16th Street, NW
Washington, DC 20036

National School Boards Association
1680 Duke Street
Alexandria, VA 22314