Western New England University School of Law The Equal Access Act by Leora Harpaz Western New England University School of Law leora.harpaz@law.wne.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 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.”

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 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.”

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 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 “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.”