Equal Access Act

Enacted: August 11, 1984

Place: United States (national)

Significance: This federal law requires public secondary schools receiving federal financial assistance that create limited open forums not to deny students opportunities to conduct meetings on their premises solely on the basis of the content of the speech at such meetings

In a 1981 case entitled Widmar v. Vincent, the U.S. Supreme Court ruled that a student religious group at the University of Missouri should be allowed to use campus facilities for its meetings. The state-supported public institution had previously allowed only nonreligious student groups access to its facilities. When it was approached by members of a student religious group, the university denied the group use of its facilities in order not to violate the establishment clause of the First Amendment to the U.S. Constitution. In deciding in favor of these students, the Court ruled that allowing only nonreligious groups to use the same facilities violated the religious groups’ rights to freedom of speech.

Congressional Response

Following the Widmar decision Congress passed the Equal Access Act in 1984. This act effectively extended the Supreme Court’s Widmar decision to include all pubic secondary schools that receive federal funds. The act required all such secondary schools that create limited open forums for noncurriculum-related student groups to meet during noninstructional times not to deny similar access to other student groups solely on the basis of the religious, political, philosophical, or other content of their meetings. Thus, any public secondary school that allowed at least one voluntary student-initiated and nonschool-sponsored club or group unrelated to specific classes to meet on school premises outside of normal classroom instructional settings, must allow any other student groups to conduct their meetings at school in a similar fashion.

Although broadly worded, the legislation limited the scope of access in certain situations. For example, school administrators were permitted to deny access to any student group whose meetings had the potential to interfere with the orderly conduct of educational activities within the school. Otherwise eligible student groups were also restricted in certain other ways; for example, nonschool persons could not direct, control, or regularly attend group activities. Also, if a student group were to embrace a religious orientation, school personnel could be present at its meetings only in a nonparticipatory capacity. Along these same lines, student groups would lose their eligibility under the act if they were sponsored by the school, its agents, or its employees. However, the act also provided that schools and their employees had the authority to maintain order and discipline, to protect the well-being of students and faculty, and to ensure that student involvement in group activities would be strictly voluntary.

The law gave public secondary schools the option of avoiding its requirements by simply declining to create limited open forums. Schools could accomplish this by denying the use of their facilities to all noncurriculum-related student groups, while restricting access only to groups directly connected to existing school curricula. For example, the existence of a student-initiated Spanish club in a high school that provides Spanish-language instruction would not fall under the act’s jurisdiction. By contrast, groups such as a scuba club or student service club closely related to nonschool organizations probably would trigger the act, thereby opening the door for other noncurriculum-related groups to request access to school facilities. It should also be noted that any school district that would normally be subject to the Equal Access Act that forgoes federal funding is not affected by the act.

Subsequent Litigation

In 1990 the U.S. Supreme Court was asked to consider the constitutionality of the Equal Access Act and whether the establishment clause of the First Amendment prohibited a secondary school with a limited open forum from denying access to a student religious group. In Board of Education of the Westside Community Schools v. Mergens (1990) the Court ruled that the act was constitutional. The Court concluded that Congress had not implied an endorsement of religion when it acknowledged the presumed maturity of secondary school students in schools with limited open forums voluntarily to form religious or other types of clubs.

In reaching this decision, the Court confronted Congress’ failure to define several key terms and concepts within its act. For example, since “noncurriculum related student group” was not defined, the Court had to develop its own interpretation of what Congress meant by the term. The Court held that any student club involving subject matter comparable to that in a class that was being taught—or that would soon be taught—in a regularly scheduled course would not trigger the act. Similarly, the act would not be triggered if the group’s subject matter concerned a body of courses taken as a whole (such as student government), or in cases in which group participation is either required or results in the awarding of academic credit (such as school band or choir).

After the Mergens case was decided in 1990 at least one court ruled on the question of the durational length of a secondary school limited open forum. In Pope by Pope v. East Brunswick Board of Education (1993), the U.S. Third Circuit Court of Appeals held that although a school district had created a limited open forum at a high school when it recognized a noncurriculum-related student group, the district retained authority to eliminate all its noncurriculum-related student groups and totally close its forum.

Conclusion

As the Equal Access Act has been interpreted by the Supreme Court, public secondary schools that create limited open forums by allowing noncurriculum-related student clubs to meet on their premises during noninstructional hours may not arbitrarily discriminate against other student groups solely on the basis of their religious, philosophical, or political content or orientations. As the act’s title implies, Congress supports the notion that all students wishing to meet for legal and nondisruptive purposes must have the same access to public facilities that is afforded to other noncurricular student clubs or groups. Whenever the act has been triggered, it has generally prevented public school authorities from unilaterally abridging the rights of secondary school students to gather and discuss topics and issues of common interest on school grounds during noninstructional time.

Bibliography

Arval A. Morris’ “The Equal Access Act After Mergens” in West’s Education Law Reporter (vol. 61, no. 4, 1990) provides an expanded and scholarly analysis of the relationship between the Equal Access Act and the Mergens decision. For a comparable examination of the same relationship, see Lawrence F. Rossow and Mark G. Rice’s “The Constitutionality of the Equal Access Act: Board of Education of Westside Community School District v. Mergens” in West’s Education Law Reporter (vol. 64, no. 3, 1991). A more concise overview of the act’s impact on students and student groups is developed in Martha M. McCarthy and Nelda H. Cambron-McCabe’s Public School Law (3d ed. Boseon, Mass.: Allyn and Bacon, 1992). Fred Hartmeister’s Surviving as a Teacher: The Legal Dimension (Chicago: Precept Press, 1995) provides a similar overview from the teacher’s perspective.