To avoid claims of ‘viewpoint’ discrimination, brush up on the U.S. Equal Access Act

On Board Online • June 11, 2012

By the New York State
Association of School Attorneys

When school officials receive requests from students to form clubs, they should make decisions in light of the U.S. Equal Access Act, which has been used to support the rights of students to form groups ranging from conservative Christian groups to support groups for LGBTQ (lesbian, gay, bisexual, transgender and questioning) students. The law prohibits school districts from engaging in what courts have called “viewpoint discrimination” and generally requires the door to be open to either everyone or no one.

Congress passed the Equal Access Act in 1984, and it was signed into law by President Ronald Reagan. Although the legislation was initially motivated by a desire to permit student religious groups to meet in public secondary schools, in order to ensure passage its scope was expanded to include student groups advocating political, philosophical and other viewpoints.

The Act states:
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 meeting.

It is important that boards of education and school administrators be aware of the application and requirements of this law. In some instances a school official’s initial reaction to a student proposal to form a group with a specific religious or political view might be that the club is “not appropriate” in a public school setting. Boards and administrators should be mindful, however, that the law grants as much protection to non-traditional student groups as it does to traditional student clubs as Interact or SADD. Moreover, there are a number of organizations, many faith-based, that are prepared, if not eager, to institute legal actions against districts which run afoul of the provisions of the Equal Access Act. Such litigation can be expensive, time-consuming, and distracting to a school district. Here are some questions and answers about the law.

Does the Equal Access Act apply to my school district?

The Equal Access Act applies to public secondary schools that receive Federal financial assistance and which have established a “limited open forum.” Pursuant to the Act, a public secondary school has a limited open forum if it allows “one or more non-curricular student groups to meet on school premises during non-instruction time.” The U.S. Supreme Court ruled in Board of Education of the Westside Community School v. Mergens (1990) that the term “non-curriculum related student group” should be “interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school.” An example of a curriculum-related group would be one in which students receive academic credit for participation.

If a district does not permit any student clubs, or only curriculum-related clubs, it could lawfully deny an application from students seeking to form a religious or politically-oriented club.

What criteria must be met for a student group to receive protection under the Act?

The Act is designed to prevent school sponsorship of religious or other viewpoint-based student groups. Accordingly, the Act sets forth five criteria which serve to identify those groups that are entitled to the protection of the Act. These criteria are:

• The meeting is voluntary and student-initiated.
• There is no sponsorship of the meeting by the school, the government, or its agents or employees.
• Employees or agents of the school or government are present at religious meetings, only in a non-participatory manner.
• The meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school.
• Non-school persons may not direct, conduct, control or regularly attend activities of student groups.

If, in a given case, any of the five are not satisfied, the school is not required to allow the group to meet, or to otherwise provide it with “equal access.”

What types of student groups have been held to be protected by the Act?

Most of the litigation involving the Act has concerned student religious groups such as Bible clubs. In these cases, the courts have uniformly held that these groups are permitted to meet on school property during non-instructional time provided, of course, that they satisfy the other criteria of the Act. The other category of groups which has been the subject of litigation is that of gay-straight alliances, or similar groups, which advocate tolerance. With limited exceptions, these groups have been held to be protected by the Act.

What about hate groups?

Hate groups such as the Nazis, the Ku Klux Klan and skinheads pose a potentially challenging issue under the Act. In the nearly 30 years since the enactment of the Equal Access Act, there are no reported cases which address the rights of student hate groups to meet on school property. However, in the event that students were to seek to form a club of this nature, a school district would have a strong argument that the presence of such a group in the school would “materially and substantially interfere with the orderly conduct of the educational activities within the school.” The law specifies this as a justification for denying a group the right to meet.

What constitutes “equal access”?

“Equal access” constitutes more than the right of the student group to meet on school property. A student group that is determined to be protected by the Act must be afforded the same benefits as other student clubs, except that the school district is not required “to expend public funds beyond the incidental cost of providing the space for student-initiated meetings.” Thus, equal access has been held to include posting of the club on the district website, use of the school bulletin board, use of the school’s public address system and access to the school’s student activity account for deposit of club funds. The U.S. Court of Appeals for the Ninth Circuit has determined that the Act does not require that student-initiated groups be permitted to use school supplies, audio/visual equipment, and school vehicles, as each would involve expenditure of public funds in excess of the incidental cost of providing meeting space (Prince v. Jacoby, 2002).

A federal district court in New York ruled that a paid advisor is not an incidental cost of providing meeting space (Youth Alive v. Hauppauge Union Free School District, 2011). The Act specifically provides, however, that its provisions shall not be construed to limit the authority of the school “to maintain order and discipline on school premises, to protect the well-being of students and family, and to assure the attendance of students at meetings is voluntary.” As such, it is entirely appropriate for a school to provide a monitor at the student meetings. At religious meetings, the monitor must be present only in a non-participatory capacity.
May the school district condition approval of the group upon its having a minimum number of members?

No. The Act states that its provisions shall not be construed “to limit the rights of groups of students which are not of a specified numerical size.”

May a student-initiated religious group limit leadership positions in the group to adherents of a particular faith?

In New York State, the answer is yes. In the Second Circuit, which includes New York State, the U.S. Court of Appeals has ruled that a school district may not apply its nondiscrimination policy to require a student-initiated religious club to open its leadership positions to all students, irrespective of their faith. (Hsu by and through Hsu v. Roslyn Union Free School District, 1996). The Ninth Circuit Court of Appeals in California reached a contrary conclusion in Truth v. Kent School District (2007). However, both of these courts are in agreement that the Equal Access Act does not permit a student-initiated group to limit attendance at meetings to students of the same religious belief.

Conclusion

When faced with a request by a student group to meet on school property, a district should immediately review the request with its school attorney to determine the rights of the group under the Equal Access Act as well as the district’s obligations. Proper handling of requests will make it unnecessary for student organizers to reach out to outside advocacy organizations, which potentially could result in costly legal proceedings.

Members of the New York State Association of School Attorneys represent school districts and BOCES. This article was written by Warren H. Richmond of Harris Beach PLLC. He represented the Hauppauge school district in the Youth Alive case.