Lambda Legal

INTRODUCTION

The Equal Access Act is a federal law passed by Congress in 1984 to protect student groups in public secondary schools. Such student groups include Gay/Straight Alliances and other gay-related groups, which can play an important role in supporting students who face anti-gay bigotry in their schools and an important role in educating their peers about discrimination.

Gay/Straight Alliances are blossoming across the nation, including in states such as Alaska, California, Connecticut, Massachusetts, Indiana, Nebraska, New Hampshire, Ohio, Pennsylvania, Texas, and Virginia. Too often, however, school administrators refuse to honor the students' right to meet as a club on the same terms as other groups, occasionally suggesting that they should meet like other community groups by renting school space. The information below will help in the effort to persuade administrators to abide by the law, ideally without the need for lawyers and expensive litigation.

For your convenience, the pertinent text of the Equal Access Act is attached as the appendix to this publication. For more detailed information and citations to authority, please call one of our offices for information on obtaining the publication entitled "Resources For Defending Gay/Straight Alliances and Other Gay-Related Groups in Public Schools."

QUESTIONS AND ANSWERS

Q: HOW DOES THE EQUAL ACCESS ACT HELP YOU DEFEND STUDENT GROUPS?

A: So long as a school's clubs or student groups are covered by the Equal Access Act, the school cannot deny equal access to students who wish to conduct a meeting, if the basis for the denial is what the students want to talk about or take action on. For example, a school might say that it will not allow a Gay/Straight Student Alliance to meet as a club because the group wants to talk about homophobia and propose that the school adopt anti-harassment policies. The school's reason for disallowing the group is unlawful under the Equal Access Act. Any time a school uses the content of a group's purpose or discussions, or simply says that it is opposed to a group organized around a particular topic, it is violating the Equal Access Act (when that law applies).

Q: WHEN CAN YOU SAY THAT THE EQUAL ACCESS ACT APPLIES?

A: Three characteristics of a school trigger the Equal Access Act:

1) if it is a public secondary school;
2) if it receives federal financial assistance; and
3) if it has a "limited open forum."

Q: WHAT IS A LIMITED OPEN FORUM?

A: A school creates a "limited open forum" whenever it provides access to any (even just one) noncurriculum-related student group to meet on school premises during noninstructional time. On the other hand, if all student groups are curriculum-related, as for example most French Clubs would be, then there is no "limited open forum," in which case the school has not triggered the Equal Access Act and does not have to allow non-curricular groups to meet.

Thus, the key issue in battles under the Equal Access Act is often about whether the school allows any (even one) other non-curricular club to meet. Schools may argue that they have no such clubs and therefore that they are not bound by the Equal Access Act. Given how valuable non-curricular clubs are to the educational experience for young people, hopefully schools do indeed have such clubs.

Q: WHAT IS A "NONCURRICULUM-RELATED" STUDENT GROUP?

A:

A. THE DEFINITION

The Equal Access Act itself does not define a noncurriculum-related student group, so the courts had to derive a definition. In 1990, the Supreme Court in the Mergens case found that Congress intended a "broad reading of the Act" and a "low threshold for triggering the Act's requirements" (the case's name and citation is Board of Educ. of Westside Community School v. Mergens, 496 U.S. 226 (1990)). The Court then reasoned as follows:

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.

This definition is a good start in helping you understand when students have protection, but determining whether or not a student group "directly" relates to courses offered at the school is still not easy. Fortunately, the Supreme Court provided some further analysis of what it means to "directly relate to the body of courses."

B. THE FOUR FACTORS THAT HELP FLESH OUT THE PHRASE "DIRECTLY RELATE"

The Supreme Court in the Mergens case identified four factors that together help determine whether a group is "directly" related to a school's curriculum:

1) if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course;
2) if the subject matter of the group concerns the body of courses as a whole;
3) if participation in the group is required for a particular course; or
4) if participation in the group results in academic credit.

C. EVALUATING UNDER THE FOUR FACTORS

The Supreme Court further reasoned in Mergens that the connection to the curriculum must be strong, and emphasized that a "direct relation" to the curriculum:

1) does not mean "anything remotely related to abstract educational goals;"
2) can not mean that schools "can evade the Act by strategically describing existing student groups," rendering the Act meaningless; and
3) does not depend on what a school says, but rather on what a school actually does.

In fact, at another point in its opinion, the Court reaffirmed that its definition of noncurriculum-related clubs "looks to a school's actual practice rather than its stated policy...." In addition, the Court held that the burden of showing that a group is directly related to the curriculum rests on the school district, and not on the students.

When you examine clubs to determine their status, it is important to keep in hand the four factors and the principles for evaluating those factors. In the lawsuits that have arisen under the Equal Access Act, schools have constructed all sorts of arguments about how clubs are directly related to the curriculum, in attempts to establish they have no non-curricular clubs (mostly to keep religious groups off campus). These arguments by the schools, if accepted as valid, would often mean that almost any student club at all could somehow be sufficiently related to the curriculum. Therefore, your advocacy in defending student groups may depend on keeping the focus on the Supreme Court's principles.

At bottom, the best understanding of how the Supreme Court's principles help you use the Equal Access Act to defend students arises from reviewing how the courts have actually made decisions about real clubs. Below we provide a sketch of the results in those decisions.

D. GETTING TO THE HARD PART: WHICH CLUBS ARE WHICH?

Whether or not a club is directly related to the curriculum depends on each individual case, because the subject matter of a club in one school may differ from the subject matter of a club in another school. The same would be true for the courses, or "curriculum," in each school. For that reason, the lists of clubs here should not be taken as checklists that necessarily apply in all cases, but rather as rough guidance.

1. Clubs That Directly Relate to the Schools' Courses are "Curricular"

Here are some clubs that the Supreme Court found would likely meet the definition that calls for a direct relation to the curriculum: French Club, Student Government, and School Band.

2. Clubs Not Directly Related to the Schools' Courses are "Non-curricular"

Here are some clubs that the Supreme Court and other courts found did not meet the definition that calls for a direct relation to the curriculum: Subsurfers Club, Chess Club, Key Club, the Pep Club, the Chess Club, the Girls' Club, the Ski Club, the Bowling Club, the SKY Club, the International Club, the Varsity Club, the Minority Students Union, and the Future Business Leaders of America.

Applying the principles set forth above, the Supreme Court found that the Subsurfers Club was non-curricular even though the club's topic overlapped with the school's swimming course, and even though the school contended that the club was curricular because it furthered "one of the essential goals of the Physical Education Department -- enabling students to develop lifelong recreational interests." The Court found the Chess club to be non-curricular even though math teachers at the school encouraged their students to play chess.

In 1993, the federal Third Circuit Court of Appeals encountered a school seeking to evade the Equal Access Act in part by claiming that its "Key Club" was a curriculum-related club. The Key Club was a student service organization that sought to develop civic responsibility and do fund-raising to donate funds to local charities. The school argued three of the four factors for a direct relation to the curriculum, beginning with the argument that the club's subject matter "concerns the body of courses as a whole." However, the Court looked to the Supreme Court's criteria and reasoned as follows with regard to the particular Key Club in the case:

* the Key Club is noncurriculum-related even though it may relate to the subject matter of many courses (but not directly);
* the Key Club is noncurriculum-related even though a teacher requires the participation of students in some of the club's activities (but not all); and
* the Key Club is noncurriculum-related even if there is overlap in subject matter between the club and a course (but the overall subject matter is not the same).

The Court observed that the school has "attempted to restructure its existing student groups, striving mightily not to trigger the Act. We conclude, however, that is has indeed triggered it."

In 1991, the federal District Court of the Western District of Washington found that:

* the Bowling Club was noncurriculum-related even though members participated in tournaments with other public high schools;
* the SKY (Special Kiwanis Youth) Club was noncurriculum-related even though it "serves to enrich and broaden students' education" and a "Certificate of Achievement" issues to students for completion of the activities;
* the International Club was noncurriculum-related even though "all the foreign language teachers participate in the Club and urge their students to participate also," and "a goal shared by the Club and the study of a foreign language is cultural understanding";
* the Minority Students Union was noncurriculum-related even though it discusses "SAT testing information" and "offers the student body a black history program" and "enhances some things taught in the social studies program";
* the Future Business Leaders of America (FBLA) was noncurriculum-related even though "District and State guidelines require [the school] to offer FBLA or a similar program to students enrolled in business classes."

Q: WHAT IF PEOPLE COMPLAIN ABOUT THE SCHOOL "ENDORSING" A STUDENT GROUP IF IT ALLOWS THE GROUP TO MEET?

A: Such a complaint is off the mark and misses a main point of the Equal Access Act. Schools only "endorse" those clubs that are curricular. The very definition of a "non-curricular" club is that it does not relate to the curriculum and therefore the school is not endorsing it. Non-curricular groups are initiated by their student members, and express only the views of those members -- not the school itself. A school's open forum provides students with the ability to choose the organizations and issues they want to associate with, however diverse students' various interests might be. In addition, it is useful to remember that schools can have religious clubs, precisely because such clubs are non-curricular and therefore not endorsed by the school. Otherwise, schools would be endorsing a religion, which is against the law.

Q: WHAT IF PEOPLE ARGUE THAT IT'S BEST TO TERMINATE ALL NON-CURRICULAR CLUBS AND GET RID OF ANY POTENTIAL CONTROVERSY?

A: This is a question dramatically presented in a case we are working on with co-counsel in Salt Lake City, Utah, where in 1996 the Board of Education responded to the formation of a Gay/Straight Alliance by attempting to ban all non-curricular clubs. The attempt did not work, and still ran afoul of the Equal Access Act, in part because the Board mis-classified clubs as curricular when they were in fact non-curricular.

However, even if schools were successful in evading the Equal Access Act, by avoiding any mis-classification and actually taking the extreme measure of terminating all their non-curricular clubs, there is still a strong policy argument that such a tactic is sorely misguided. Those institutions would be failing in their missions as public schools. Non-curricular clubs are a valuable part of students' educational experience. They provide ways for students to test, develop, and improve their leadership skills through conducting club elections, meetings, and activities. They are also valuable in helping students get into college. Perhaps most profound, however, especially from the standpoint of clubs that seek to speak out on issues, is the value in teaching students how to be good citizens and exercise their First Amendment rights, which goes to the core of what schools are supposed to do. In 1992, one court in Texas stressed:

. . . the mission of public education is preparation for citizenship. High school students, [who at virtually every high school] include persons of voting age, must develop the ability to understand and comment on the society in which they live and to develop their own sets of values and beliefs. A school policy completely preventing students from engaging other students in open discourse on issues they deem important cripples them as contributing citizens. Such restrictions do not advance any legitimate governmental interest. On the contrary, such inhibitions on individual development defeat the very purpose of public education in secondary schools.

Clark v. Dallas Independent Sch. Dist., 806 F. Supp. 116, 121 (N.D. Texas 1992), quoting Rivera v. East Otero Sch. Dist. R-1, 721 F. Supp. 1189, 1194 (D. Colo. 1989).

Therefore, terminating clubs merely to avoid controversy means the school is shirking its responsibility to effectively train young citizens.

Q: WHAT IF A SCHOOL SAYS THAT ALLOWING A GROUP ABOUT GAY ISSUES WOULD LEAD TO TOO MANY DISRUPTIVE OBJECTIONS BY OTHER STUDENTS OR PARENTS?

A: In First Amendment law, there is a phrase to describe those circumstances in which people suppress other people's right to free speech by making loud objections: the hecklers' veto. Essentially, to allow "hecklers" to drown out and justify suppression of others' speech is to gut their right to free speech. While the First Amendment is what we usually think of in terms of defending the right to free speech, the Equal Access Act codifies the right to free speech, and it is unlawful under both to allow the hecklers' veto to bar a club on a particular topic.

It is helpful to include here an excerpt from our in-depth memorandum on the legislative history of the Equal Access Act contained in the "Resources" guide mentioned in the introduction to this booklet:

...Senator Denton provided helpful comments, which are particularly significant given that he was a co-sponsor of the Equal Access Act. To support his point that all other groups already have the First Amendment protection they need to meet in schools...Denton quotes an ACLU publication:
Can students be prohibited from expressing their views if those who hold opposing views become angry and boisterous?
No...
Can school officials keep students from forming an after-school club having a dissident point of view?
No...
Can the school prevent students from inviting a speaker to their club meeting because he or she is too controversial?
No...

Q: HOW ABOUT WHEN SCHOOLS SAY THAT THE EQUAL ACCESS ACT TAKES AWAY THEIR AUTHORITY?

A: The Equal Access Act is federal law and local schools are required to comply with its provisions. In the Mergens case, the Supreme Court acknowledged that the Equal Access Act does limit schools' authority to discriminate among student groups, but stated that ". . . we think that schools and school districts nevertheless retain a significant measure of authority over the type of officially recognized activities in which their students participate." The Court set forth several areas where schools retain significant authority:

1) the Act does not abridge the schools' broad authority to "determine appropriate subjects of instruction," in fact, "[t]o the extent that a school chooses to structure its course offerings and existing student groups to avoid the Act's obligations, that result is not prohibited by the Act";
2) the Act expressly preserves the schools' authority to prohibit meetings that would materially and substantially interfere with the orderly conduct of educational activities within the school;
3) the Act expressly preserves the schools' authority 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";
4) the Act only applies to schools that accept federal assistance. "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 open its facilities to noncurriculum-related student groups."

A: They are just plain wrong. It is true that the original sponsors of the Equal Access bill sought protection solely on behalf of religious clubs, but the bill had no hope of passage until the sponsors agreed to broaden the protections to all non-curricular clubs, not just religious clubs. If you take a look at the text of the Equal Access Act in the appendix to this booklet, you will find that it says schools cannot discriminate on the "basis of the religious, political, philosophical, or other content of the speech at such meetings."

Q: WHAT ABOUT THOSE WHO COMPLAIN ABOUT INFILTRATION OF SCHOOLS AND RECRUITMENT BY OUTSIDE GROUPS?

A: When Congress debated the Equal Access Act, there were many fears expressed about infiltration of schools and recruitment of students by religious cult groups. As you will see upon review of the Act in the appendix, it provides that "nonschool persons may not direct, conduct, control, or regularly attend activities of student groups." Also, during the debate, Senator Strom Thurmond stated as follows:

It was also predicted that public school campuses would be turned into "battlegrounds for souls." Frankly, Mr. President, such suggestions are, in my opinion, patently absurd. It is a well-known fact that nonstudents are allowed to enter the premises of public schools only with the permission of school authorities.

Because the clubs covered by the Equal Access Act are student initiated ones, the worry about outside infiltrators is unfounded.

Q: WHAT IF PEOPLE SAY THAT CONGRESS CERTAINLY WASN'T THINKING ABOUT GAY GROUPS?

A: Again, just plain wrong. In fact, the debates in both the House and the Senate largely presume one of two premises: either gay clubs will have protection if the bill passes (a major basis for opposing the bill), or gay clubs already have protection and the point of the bill is to equalize such types of groups and religious groups. Under the view of the supporters or the view of the opposition, gay clubs have protection.

It may be helpful to conclude with a larger excerpt from our in-depth memorandum on the legislative history of the Equal Access Act contained in the "Resources" guide mentioned in the introduction to this booklet:

...Following enactment of the Equal Access Act, the two sponsors in the House, Reps. Bonker and Goodling, published "Equal Access Guidelines" in the Congressional Record. Cong. Rec. 32315-18 (October 11,1984). In pertinent part, the guidelines are as follows:

(20) Q. Do school authorities retain disciplinary control? A. Yes. The Act emphasizes 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." Sec. 802(f). Furthermore, the school must provide that "the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school." Sec.802(c)(4). These two provisions do not authorize a school to prohibit certain student groups from meeting because of administrative inconvenience or speculative harm. For example, a group cannot be barred at a particular school because a similar group at a different school has generated difficulties.

(21) Q. What about groups which wish to advocate or discuss changes in existing law?

A. Students who wish to discuss controversial social and legal issues such as the rights of the unborn, drinking age, the draft and alternative lifestyles may not be barred on the basis of the content of their speech. However, the school must not sanction meetings in which unlawful conduct occurs. Sec.802(d)(5).

(22) Q. What if some students object to other students meeting?

A. The rights of the lawful, orderly student group to meet are not dependent upon the fact that other students may object to the ideas expressed. All students enjoy free speech constitutional guarantees. It is the school's responsibility to maintain discipline in order that all student groups be afforded an equal opportunity to meet peacefully without harassment. The school must not allow a "hecklers' veto."

(23) Q. What about so-called "hate" groups?

A. Student groups which are unlawful, Sec.802(d)(5), or which materially and substantially interfere with the orderly conduct of educational activities, Sec.802(c)(4), can be excluded. However, a student group cannot be denied equal access because its ideas are unpopular. Freedom of speech includes ideas the majority may find repugnant.

CONCLUSION

We hope this booklet is helpful to you in your important efforts to defend Gay/Straight Alliances and other gay-related student groups. If your advocacy is meeting serious obstacles, please feel free to call one of our offices for further information (see phone numbers at bottom of cover page). In some circumstances, we may be able to provide legal advice or representation, or perhaps identify an attorney in your area that may be helpful.

Thank you for your contribution to the defense of young people's civil rights!

APPENDIX: THE EQUAL ACCESS ACT

20 U.S.C. § 4071. Denial of equal access prohibited

(a) Restriction of limited open forum on basis of religious, political, philosophical, or other speech content 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.

(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.

(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.

(d) Construction of subchapter with respect to certain rights

Nothing in this subchapter 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.

(e) Federal financial assistance to schools unaffected Notwithstanding the availability of any other remedy under the Constitution or the laws of the United States, nothing in this subchapter shall be construed to authorize the United States to deny or withhold Federal financial assistance to any school.

(f) Authority of schools with respect to order, discipline, well-being, and attendance concerns

Nothing in this subchapter 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.

§ 4072. Definitions

As used in this subchapter--

(1) the term "secondary school" means a public school which provides secondary education as determined by State law.
(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.
(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.
(4) The term "noninstructional time" means time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.

§ 4073. Severability

If any provision of this subchapter or the application thereof to any person or circumstances is judicially determined to be invalid, the provisions of the remainder of the subchapter and the application to other persons or circumstances shall not be affected thereby.

§ 4074. Construction

The provisions of this subchapter shall supersede all other provisions of Federal law that are inconsistent with the provisions of this subchapter.