by David L. Hudson Jr., First Amendment Scholar, and Mahad Ghani, First Amendment Center Fellow
Last updated: September 18, 2017
Students form all sorts of clubs at school, including some not related to the curriculum. Sometimes school officials shut down such clubs because they believe them inappropriate or too controversial. For example, there is evidence that many school officials have prohibited student religious clubs because they fear that allowing such clubs would violate the establishment clause of the First Amendment. (For more information, see Religious clubs in the Religious liberty in public schools section.)
In 1984, Congress passed the Equal Access Act, which forbids schools from discriminating against clubs or denying them equal access to school facilities because of their philosophical or religious viewpoints. The act was passed largely to prevent widespread discrimination against religious clubs.
Under the law if a school opens its facilities to “any noncurriculum related group,” it must open its facilities to all student groups. This means that if a school allows students to form a chess club or a 4-H club, it must also allow the formation of a Bible club, gay-lesbian club or other group that some might consider controversial.
In 1990, the U.S. Supreme Court ruled in Westside Community Board of Education v. Mergens that the Equal Access Act was constitutional. In that case, the Court determined that a school district violated the Equal Access Act by denying use of its facilities to a religious club, while allowing a chess club, a scuba-diving club and other “noncurriculum-related” groups to use school facilities.
Student Bridget Mergens met with the principal at Westside High School in Omaha, Neb., to request permission to form a Christian club at her school. The principal and later the associate superintendent denied Mergens’ request. They argued that having a religious club at the school would violate the establishment clause. School officials also contended that they did not have to comply with the Equal Access Act because they had not created a limited open forum. (Under the Equal Access Act, a limited open forum is created when school officials open their facilities for use by noncurriculum-related student groups. Thus, if a school allows a chess club it must also allow a Bible Club.) According to the school officials, the other student clubs were curriculum-related, rather than noncurriculum-related.
The case eventually reached the Supreme Court, which ruled in favor of Mergens. The Court disagreed with the officials, and found that the clubs were all noncurriculum-related. “Congress clearly sought to prohibit schools from discriminating on the basis of the content of a student group’s speech, and that obligation is the price a federally funded school must pay if it opens its facilities to noncurriculum-related student groups,” the Court wrote.
The Court also rejected the school board’s argument that the Equal Access Act itself violated the establishment clause. The school board had argued that the primary purpose of the Equal Access Act was religious, that the primary effect of the law was to advance religion and that it caused an excessive entanglement between religion and schools. The Court rejected all of these contentions. “Congress’ avowed purpose — to prevent discrimination against religious and other types of speech — is undeniably secular,” the Court wrote. “Because the Act on its face grants equal access to both secular and religious speech, we think it clear that the Act’s purpose was not to endorse or disapprove of religion.”
“The Mergens decision was a landmark ruling in the area of equal access involving student rights on public school campuses,” said Jay Sekulow, chief counsel of the American Center for Law and Justice and the attorney who argued the case for Mergens before the high court. Mergens “upheld the constitutionality of the Equal Access Act and determined once and for all that student religious groups must be given the same access and benefits afforded to other student groups,” Sekulow said. ”The Mergens decision cleared the way for the tremendous growth of student Bible clubs on public school campuses across the nation. There were relatively few in place before the case began and now — some 14 years later — there are more than 15,000 student Bible clubs operating in school districts nationwide. The impact of Mergens is still felt today with the Supreme Court opinion often cited in other religious-liberties cases particularly when the rights of students are at issue.”
The Mergens case did not end Equal Access Act disputes between students and school officials over the formation of student religious clubs. Punxsutawney, Pa., high school student Melissa Donovan encountered resistance at her high school when she sought permission from school officials for a Bible club to meet during the school’s “activity period” between 8:15 and 8:54 a.m. each day. During this period, students could attend club meetings, go to study hall, take make-up tests or hang out in the school gymnasium. Other voluntary, noncurriculum clubs met during this time, including an anti-alcohol club and a health-services career club.
School officials argued that they did not violate the Equal Access Act because the activity period did not constitute “noninstructional time” within the meaning of the statute. Under the Equal Access Act, a school creates a limited open forum when it allows noncurriculum-related student clubs to meet on school grounds during “noninstructional time.”
The 3rd U.S. Circuit Court of Appeals determined in Donovan v. Punxsutawney Area School Board (2003) that the activity period was “noninstructional time,” writing: “Simply because the period may fall within the more general parameters of the school day does not indicate that all time within those parameters necessarily constitutes actual classroom instruction.”
School officials contended that the activity period should be considered instructional time because it comes after a homeroom period and the beginning of the school day. However, the 3rd Circuit emphasized that it must look more to the substance of the time period than the label placed on it by school officials. “Just as putting a ‘Horse’ sign around a cow’s neck does not make a bovine equine, a school’s decision that a free-wheeling activity period constitutes actual classroom instructional time does not make it so.”
The 3rd Circuit also determined that the school’s exclusion of the Bible club constituted viewpoint discrimination because the school barred it “solely because of the club’s religious nature.”
Attorney Lawrence G. Paladin Jr., who represented Donovan, said the decision was an important one. “The actual decision in Donovan is quite broad,” he said. “It allows students to meet for religious and philosophical purposes on the same basis as other groups.”
He added that the decision and the Equal Access Act were particularly important for student Christian clubs. “In our culture we are turning more towards how ideas are treated to determine whether those ideas are valid,” Paladin said. “In school, if students are told the ski club can meet, the French club can meet and the band club can meet but that the Christian club cannot meet, that very fact sends a message that Christianity is not to be tolerated. It sends a message that Christianity is dangerous, out of bounds and is not a valid argument. The EAA is necessary to allow Christianity to be heard in the marketplace of ideas.”
Student clubs that support members of the LGBT community trace back their earliest iterations to 1984. And though these clubs were few and far between in their earlier days, as widespread acceptance of LGBT rights has expanded in the United States, so too have clubs for students of this community.
A majority of these clubs, both historically and today, are under the name Gay-Straight Alliance (GSA). GSA’s have faced various challenges throughout the country. These challenges still persist today, but a series of cases have made it relatively clear that attempts by schools and communities to silence members of the LGBT community in schools is a violation of the Equal Access Act.
The first of these cases that laid the groundwork was East High Gay/Straight Alliance v. Board of Education of Salt Lake City School District in 1999. In this case, the school district adopted an official policy of not allowing non-curriculum based student organizations from organizing or meeting on school policy. In essence, rather than allowing a GSA on campus, the school district banned all student organizations as its official position.
While this, in and of itself, may seem like an overreaction by the school district, the GSA sued because the school was violating its own policy by allowing other non-curriculum groups to continue to meet on campus. This helped make clear that the policy was targeting “gay-positive views.” The Judge determined that this was a violation of the student’s First Amendment rights, and the case was dropped because the school district withdrew its police following the determination. To quote Judge Jenkin’s from the decision:
“The Board of Education of the Salt Lake City School District, no less than the Congress itself, remains bound by that guarantee and at all times must act within its constraints. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Comm. School District (1969). Whatever forum the Board may create for students’ free expression of ideas, it may not pick and choose among the ideas or viewpoints that find expression in that forum. The Constitution commands otherwise.”
There have been a number of cases since then throughout the country, with clubs facing similar measures as outright bans on student organizations as they did at East High, to measures such as requiring parents to sign permissions slips before students can join any organization. There has been a steady stream of resistance to GSA’s, but the Equal Access Act and the Constitution have been firm in defining student’s rights.
While we have come a long way since the 1999 case, this issue is far from settled. The most recent case was filed in May of 2017.
The Equal Access Act has served as key tool in ensuring that student’s First Amendment rights are not abridged. While it may seem like this issue is settled, disputes continue to arise. Students have been banned from starting clubs because of ideologies like anarchist clubs. Controversial topics ranging from clubs in support of either Palestine or Israel, to pro-life clubs have been barred by administrators. The same precedent that allowed Christian and Bible clubs to enter into public schools is now being cited by Satanists to be afforded access to the same spaces.
The nature of the Equal Access Act is to level the playing field for students, and allow them a forum to discuss ideas they deem important. The fact that these disputes continue to arise for all sorts of clubs shows the continued need for this important piece of legislation. To paraphrase the famous Tinker case, students don’t leave their Constitutional rights when the schoolhouse gates, and the Equal Access Act has been there to help make that promise a reality.