The Equal Access Act
by
Leora Harpaz
Western New England College School of Law
lharpaz@law.wnec.edu
Widmar v. Vincent, 454 U.S. 263,
269-70 (1981)
• “In order to justify discriminatory exclusion
from a public forum based on the religious
content of a group's intended speech, the
University must therefore satisfy the
standard of review appropriate to contentbased exclusions. It must show that its
regulation is necessary to serve a
compelling state interest and that it is
narrowly drawn to achieve that end.”
Widmar v. Vincent, 454 U.S. 263,
274 n.14 (1981)
• “University students are, of course, young
adults. They are less impressionable than
younger students and should be able to
appreciate that the University's policy is
one of neutrality toward religion. . . . In
light of the large number of groups
meeting on campus, however, we doubt
students could draw any reasonable
inference of University support from the
mere fact of a campus meeting place.”
The Equal Access Act
• Section 4071. Denial of equal access prohibited
• (a) Restriction of limited open forum on basis of
religious, political, philosophical, or other speech
context prohibited. 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.
Definition of Limited Open Forum
• 20 U.S.C. § 4071(b) "Limited open forum"
defined. 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.
Definition of Noninstructional Time
• 20 U.S.C. § 4072(4) The term
"noninstructional time" means time
set aside by the school before actual
classroom instruction begins or after
actual classroom instruction ends.
Safe Harbor Provision
• 20 U.S.C. § 4071(c) Fair opportunity criteria. 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.
Definition of Meeting
• 20 U.S.C. § 4072(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.
Definition of Sponsorship
• 20 U.S.C. § 4072(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.
Order and Student Well-being
• 20 U.S.C. § 4071(f) Authority of schools with
respect to order, discipline, well-being, and
attendance concerns. Nothing in this title [20
U.S.C. § 4071 et seq.] 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.
Limitations on Coverage
• 20 U.S.C. § 4071(d) Nothing in this title [20 U.S.C. § 4071 et seq.]
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.
Bd. of Educ. v. Mergens, 496 U.S.
226, 250-51 (1990)
• “There is a 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. We think
that secondary school students are mature enough and
are likely to understand that a school does not endorse or
support student speech that it merely permits on a
nondiscriminatory basis. . . . The proposition that schools
do not endorse everything they fail to censor is not
complicated. ‘Particularly in this age of massive media
information . . . the few years difference in age between
high school and college students [does not] justify
departing from Widmar.’ Bender v. Williamsport Area
School Dist., 475 U.S. 534, 556 (1986) (Powell, J.
dissenting).”
Bd. of Educ. v. Mergens, 496 U.S.
226, 252 (1990)
• “Although a school may not itself lead or direct a
religious club, a school that permits a studentinitiated and student-led religious club to meet
after school, just as it permits any other student
group to do, does not convey a message of state
approval or endorsement of the particular
religion. . . . To the extent that a religious club is
merely one of many different student-initiated
voluntary clubs, students should perceive no
message of government endorsement of
religion.”
Bd. of Educ. v. Mergens, 496 U.S.
226, 251 (1990)
• “[T]here is little if any risk of official state endorsement or
coercion where no formal classroom activities are
involved and no school officials actively participate.
Moreover, petitioners' fear of a mistaken inference of
endorsement is largely self-imposed, because the school
itself has control over any impressions it gives its
students. To the extent a school makes clear that its
recognition of respondents' proposed club is not an
endorsement of the views of the club's participants,
students will reasonably understand that the school's
official recognition of the club evinces neutrality toward,
rather than endorsement of, religious speech.”
Bd. of Educ. v. Mergens, 496 U.S.
226, 253 (1990)
• “Under the Act, however, faculty monitors may not participate
in any religious meetings, and nonschool persons may not
direct, control, or regularly attend activities of student groups.
§§ 4071(c)(3) and (5). Moreover, the Act prohibits school
‘sponsorship’ of any religious meetings, § 4071(c)(2), which
means that school officials may not promote, lead, or
participate in any such meeting, § 4072(2). Although the Act
permits ‘the assignment of a teacher, administrator, or other
school employee to the meeting for custodial purposes,’ such
custodial oversight of the student-initiated religious group,
merely to ensure order and good behavior, does not
impermissibly entangle government in the day-to-day
surveillance or administration of religious activities.”
Bd. of Educ. v. Mergens, 496 U.S.
226, 239-40 (1990)
• “In light of this legislative purpose, we think that
the term ‘noncurriculum related student group’ is
best interpreted broadly to mean any student
group that does not directly relate to the body of
courses offered by the school. In our view, 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.”
Bd. of Educ. v. Mergens, 496 U.S.
226, 240 (1990)
• “For example, 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 were
required for the band or orchestra classes, or resulted in
academic credit, then those groups would also directly
relate to the curriculum. The existence of such groups at
a school would not trigger the Act's obligations.”
Bd. of Educ. v. Mergens, 496 U.S.
226, 240 (1990)
• “On the other hand, unless a school could
show that groups such as a chess club, a
stamp collecting club, or a community
service club fell within our description of
groups that directly relate to the
curriculum, such groups would be
‘noncurriculum related student groups’ for
purposes of the Act.”
Bd. of Educ. v. Mergens, 496 U.S.
226, 247 (1990)
• “The remaining statutory question is whether petitioners'
denial of respondents' request to form a religious group
constitutes a denial of ‘equal access’ to the school's limited
open forum. Although the school apparently permits
respondents to meet informally after school, respondents
seek equal access in the form of official recognition by the
school. Official recognition allows student clubs to be part of
the student activities program and carries with it access to the
school newspaper, bulletin boards, the public address system,
and the annual Club Fair. Given that the Act explicitly prohibits
denial of ‘equal access . . . to . . . any students who wish to
conduct a meeting within [the school's] limited open forum’ on
the basis of the religious content of the speech at such
meetings, §4071(a), we hold that Westside's denial of
respondents' request to form a Christian club denies them
‘equal access’ under the Act.”
East High Gay/Straight Alliance v. Board of Educ., 81 F.
Supp. 2d 1166, 1168 (D. Utah 1999)
• On February 20, 1996, the Board of Education of the
Salt Lake City School District adopted a formal written
policy concerning student organizations:
• The Board of Education of Salt Lake City School District
desires to promote and advance curriculum related
student clubs. However, the Board does not allow or
permit student groups or organizations not directly
related to the curriculum to organize or meet on school
property. It is the express decision of the Board of
Education of Salt Lake City School District not to allow a
"limited open forum" as that is defined by the Federal
Equal Access Act, 20 U.S.C. § 4071.
Pope v. East Brunswick Bd. of Educ.,
12 F.3d 1244, 1246-47 (3d Cir. 1993).
•
“The Board of Education considers co-curricular activities and clubs to be an integral
part of the educational program. The Board of Education, therefore, specifically
reserves to itself the right to sponsor such clubs and activities as will further the
educational goals of the district. Only such clubs and activities as are sponsored by
the Board through the process hereinafter set forth will be permitted access to school
facilities and personnel. The specific purpose and intent of this policy is to create
a closed forum within the meaning and intent of 20 U.S.C. § 4071 et seq.
•
Sponsorship by the Board shall consist of the approval of the club or activity together
with the appointment of a faculty member who . . . shall promote, lead and participate
in all meetings and programs of the club or co-curricular activity.
•
All co-curricular clubs and activities to be approved for Board sponsorship shall be
directly related either to specific subject matter which is the subject of one or more
courses offered in the school district, concern the body of courses offered as a whole,
or provide experiences which are deemed by the school district to enhance
understanding of a course or courses offered within the district curriculum. The Board
may also, from time to time, approve and sponsor co-curricular activities including but
not limited to intramural and interscholastic athletic or academic squads, student
government and scholastic achievement organizations, and service activities.”