By David L. Hudson Jr.
First Amendment Center research attorney
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 usually 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 high 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.”
Gay-lesbian clubs: raging debate
The raging debate over gay and lesbian student clubs often features Equal Access Act disputes. In some communities, students have formed gay and lesbian or gay-straight alliance clubs to promote greater tolerance toward gays and lesbians. These clubs have often met harsh resistance from other students, parents, community leaders and school officials.
In another 2003 case, Boyd County High School Gay-Straight Alliance v. Board of Education of Boyd County, a federal judge in Kentucky ruled that school officials violated the Equal Access Act when they refused to give a gay-straight alliance club the same opportunities as other noncurriculum-related student clubs. The stated purpose of the club was “to provide students with a safe haven to talk about anti-gay harassment and to work together to promote tolerance, understanding and acceptance of one another regardless of sexual orientation.”
The school argued that it was justified in preventing the club from meeting because of the disruptions caused by other students who vigorously opposed the club. These students protested by wearing shirts saying “Adam and Eve, not Adam and Steve.” On one school day, half of the students did not attend, many in protest of the gay-straight club. These disruptions caused school officials to suspend all noncurriculum-related schools.
However, the gay-straight alliance alleged that school officials, despite the school board’s supposed suspension of clubs, still allowed many student groups to meet at Boyd County High School. These clubs included the Drama Club, the Bible Club, the Executive Councils and the Beta Club.
U.S. District Judge David L. Bunning sided with the student club, finding that school officials violated the Equal Access Act by treating the gay-straight alliance group differently from other student clubs. The judge rejected the school board’s argument that it could prohibit the gay-straight club because it caused substantial disruption of school activities under the Equal Access Act.
The judge also said that the Equal Access Act and the famous black-armband case Tinker v. Des Moines Independent Community School District from 1969 both allow school officials to prohibit student expression or activities that cause a substantial disruption of school activities. (The Equal Access Act is modeled on the language of the Tinker opinion.) However, Bunning reasoned that the Tinker case does not allow school officials to suppress student speech based on a heckler’s veto. In other words, school officials cannot allow the protesting students to shut down the gay-straight alliance club. The judge wrote that the Equal Access Act would permit school officials to treat the club differently from other clubs “only upon a showing that Plaintiffs’ (the gay-straight club) own disruptive activities have interfered with Defendants’ (school officials’) ability to maintain order and discipline.”
Bunning added that “there was no evidence presented during the hearing that either GSA (the gay-straight club) members or GSA Club meetings were disruptive.”
The Boyd case was settled in 2004. The school agreed to treat the gay-straight club the same as other student clubs, and it agreed to provide training about various types of harassment, including anti-gay harassment.
Paul Cates, public education director for the Lesbian and Gay Rights Project of the American Civil Liberties Union, says the Equal Access Act is vital for gay students. “The act has proven critical in erecting safe places where gay and straight students alike can meet and discuss issues like anti-gay harassment and other ways of protecting gay students who often face hostile environments in their high schools.”
The Equal Access Act serves a vital purpose in public schools by allowing many student groups to meet even though some may disagree with their ideologies, religions or politics. It enables interested students to assemble to discuss ideas, projects and goals.
In essence, the Equal Access Act furthers education and may even promote greater tolerance in schools. Continuing disputes over Bible clubs and gay-lesbian clubs show the continued need for this important federal law. School officials also run the risk of violating the First Amendment in general if they discriminate against a particular club on the basis of its viewpoint.