The Equal Access Act

1
The Equal Access Act

• by
• Leora Harpaz
• Western New England College School of Law
• lharpaz_at_law.wnec.edu

2
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 content-based 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.

3
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.

4
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.

5
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.

6
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.

7
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.

8
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.

9
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.

10
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.

11
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.

12
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). 

13
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
  student-initiated 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.

14
Bd. of Educ. v. Mergens, 496 U.S. 226, 251 (1990)

• There 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.

15
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.

16
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.

17
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.

18
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.

19
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.

20
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.

21
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.