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Overview of the federal Equal Access Act.
Description of the act. Background information.

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Overview of the law:

Most student-intiated, student-led, special interest, non-curriculum clubs are allowed to be organized in most U.S. public high schools. Their right to assemble is almost always protected under a federal law -- the Equal Access Act, (20 U.S.C. §§ 4071-74)  ₁ It states that if a school has at least one such non-curriculum club that meets outside of class time, then the school has become a "a limited open forum." Such a forum must allow all such groups to form. Exceptions are clubs that would:

"... materially and substantially interfere with the orderly conduct of educational activities within the school."

The law was passed in 1984. At the time, it was originally heavily promoted by conservative Christian groups to protect students who wanted to organize religious clubs in public secondary schools. These are typically conservative Christian Bible study, fellowship, and prayer clubs. One writer estimated that the number of Christian Bible clubs in high schools rose from 100 in 1980 to 15,000 by 1995. ₅ The Equal Access Act was a major facilitator to this increase.

The Act affects much more than Christian clubs. Ironically, over opposition from the same conservative Christian groups that sponsored the law, the Equal Access Act is now being used to support the right of students to organize gay/lesbian/bisexual/transgender support groups in those same high schools. These are often called "Gay - Straight Alliances" or GSAs.

The Act requires most schools to also permit faith-based clubs of all religions, and none. Including groups which deal with Atheism, Goth culture, Heavy Metal music, Satanism, Wicca, other Neopagan religion, etc.  School districts can opt out of the Act by prohibiting all non-curriculum clubs or by giving up federal funding. Neither is an attractive option. Prohibiting all clubs will create a lot of frustration and anger among the students. Federal funding is irresistible.

The Equal Access Law:

The Equal Access Act was passed in the Senate with a vote of 88 to 11; it passed in the House 337 to 77; it became law on 1984-AUG-11. The law applies only to public secondary schools which:

	Receive Federal financial assistance.
	Already have "a limited open forum." i.e. at least one student-led, non-curriculum club that meets outside of class time. Chess, model building, political, religious and many similar types of clubs are considered to be non-curriculum based. A French club might be considered to be curriculum related.

The language of the Act is quite clear. Such schools must allow additional clubs to be organized, as long as:

	Attendance is voluntary.
	The group is student-initiated.
	The group is not sponsored by the school itself, by teachers, by other school employees, or by the government. This means that such employees cannot promote, lead or participate in a meeting. However, a teacher or other school employee can be assigned to a group for "custodial purposes."
	The group is not disruptive. i.e. it "does not materially and substantially interfere with the orderly conduct of educational activities within the school."
	Persons from the community may not "direct, conduct, control, or regularly attend activities of student groups."

The school is required to treat all of its student-led non-curriculum clubs equally:

	Each club must have equal access to meeting spaces, the PA system, school periodicals, bulletin board space, etc.
	School officials have the right to monitor meetings.
	Officials can require all clubs to follow a set of rules, including non-discrimination policies. However, a court has ruled that religious clubs can discriminate against persons of other faiths in their selection of officers.
	The school may limit meeting times and locations, but must apply rules equally to all groups.
	The school may prohibit people from the community from attending student clubs. However, they must apply this rule equally to all groups.

Thus, if the school receives financial support from the Federal government and already has one or more student-initiated, extracurricular clubs on campus, then additional clubs cannot be prohibited. One exception would be in the case of a group that can be shown to be disruptive to the educational process. The Equal Access Act and the U.S. Constitution itself protects students' right to the enjoyment of free association and speech.

Background information:

During the early 1980s, a number of decisions by lower-level courts had  interpreted the establishment clause in the First Amendment of the U.S. Constitution strictly. In their rulings, the courts supported the right of school districts to prohibit student-led religious clubs on campus. Many school administrators followed these decisions, feeling that they were simply enforcing the First Amendment's wall of separation of church and state. 

In 1981, the U.S. Supreme Court ruled in Widmar v. Vincent, 454 US 263 that public universities which allowed political student-led groups to use campus buildings for their meetings could not deny equal privileges to a Christian student group on campus. They reasoned that university students are mature individuals. The students would realize that the university is acting in a neutral manner toward religion by allowing religious groups to meet on campus. The university would not be viewed as promoting religion because of their equal treatment of all student groups.

The Equal Access Act was signed into law in 1984-AUG. It covers clubs in public secondary schools. It was ruled constitutional by the U.S. Supreme Court in 1990. ₂ The case, "Board of Education of Westside Community Schools v. Mergens," was typical of many school conflicts over clubs. The school involved already had a chess, scuba-diving and a service club. But a group of Christians were not allowed to form an additional extracurricular group. Their club was to involve Bible study, prayer and fellowship. The Supreme Court issued a clear, 8 to 1 decision in favor of the club. They ruled that:

	The Equal Access Act, as written, does not violate the establishment clause of the U.S. Constitution's First Amendment.
	Courts in individual states might still find the Act to be in conflict with their own constitution. 3
	It only takes only one existing student-led group at a high school to define the campus to be a "limited open forum."
	The court interpreted the act's reference to "non-curriculum related student group" to mean any student group

"... that does not directly relate to the body of courses offered by the school. A group directly relates to a school's curriculum if the group's subject matter is actually taught, or will soon be taught, in a regularly offered course; if that subject matter concerns the body of courses as a whole; or if participation in the group is required for a particular course or results in academic credit."

All student groups which qualify under the Act are to be treated equally by the school board. In the case of Mergens, this included:

"... official recognition, which allows clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, public address system, and annual Club Fair."

This ruling has triggered many lower-court cases involving students and high school groups who had had their freedom of religious expression restricted by public school districts. Based on the Mergen's ruling, President Clinton and the federal Department of Education issued guidelines on religious expression in public schools in 1995.

Additional court decisions have further interpreted the law:

	Pope v. East Brunswick Board of Education, [12 F.3d 1244 (3d Cir. 1993)] extended the coverage of the law to schools that allow only extracurricular clubs that are faculty-initiated. 4
	Hsu v. Roslyn Union Free School District No. 3, [85 F.3d 839 (2d Cir. 1996)] required a high school to allow a Christian club to discriminate on the basis of religion when electing its officers. The school had a general rule that prohibited religious discrimination by clubs. 4

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. The text of the Equal Access Act is at http://www4.law.cornell.edu/
2. "Board of Education of Westside Community Schools v. Mergens," 1990-JUN-4. 496 U.S. 226 (1990) (USSC+). The decision is available at: http://supct.law.cornell.edu/ and at: http://caselaw.findlaw.com/ 
3. J. Mooney, "Research/Term Paper Topics," at: http://www.etsu.edu/ 
4. "How the club was formed," concerning the organization of an Atheist club, at:http://idt.net/
5. S.E. Ericsson, Curriculum Vitae, at: http://advocatesinternational.org/
6. Jim Brown, "Christian Students Punished for Countering Pro-Homosexual Observance." AgapePress, 2003-APR-15, at: http://headlines.agapepress.org/
7. "Day of Silence 2003," GLSEN, at: http://www.dayofsilence.org/
8. "Supreme Court to look at divinity training subsidies..." AANews, 2003-OCT-11.

Further information on the Act can be obtained from:

	"Religion in the Public Schools," Anti-Defamation League, at: http://www.adl.org/
	"A Guide to the Equal Access Act," Christian Legal Society, at: http://www.nlrc.org/public/
	David Buckel, "The Equal Access Act: What does it mean," at: http://www.glsen.org/

Copyright © 2000 to 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2000-FEB-10
Latest update: 2014-FEB-18
Author: B.A. Robinson

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