PDK_96_8_Darden_76_Art_554x350pxIf a school district allows students to form noncurricular clubs, it must allow all clubs.

When high school students seek to start a controversial club on campus, their youthful ambition might ignite a local firestorm. Their right to proceed, however, is firmly protected by federal law.

The Equal Access Act (EAA), a student-friendly statute, has existed for more than 30 years. Yet, some educators still flinch when envisioning teens pursuing conversations or activities they find despicable. That hardheaded instinct to control student clubs has recently revived unnecessary scuffles.

This much is clear: Adult judgments about what is inappropriate or what cannot be abided is not the standard.

In 1984, Congress passed the EAA, a measure grounded in free speech principles under the First Amendment to the U.S. Constitution. Put simply, if a public school district recognizes any noncurriculum high school club, it must allow any other club to exist without prejudice. That is a powerful statement — and one with court cases to back it up.

Schools could avoid the dictates of the Equal Access Act by banning all noncurriculum clubs.

Most significant is the 1990 U.S. Supreme Court case, Board of Westside Community Schools v. Mergens. Bridget Mergens wanted to start an after-school Christian club and have it treated the same as other groups at her Nebraska high school. The district refused, citing the U.S. Constitution’s Establishment Clause, which prohibits schools from endorsing religious activities. Justices ruled 8-1 for Mergens, saying the Equal Access Act protected her club. The high court stressed that EAA serves a nonreligious purpose because it also protects political, philosophical, and other types of speech.

Clubs cause a clash

Examples during the last two years suggest that student club conflicts are not just a dusty relic of the 1990s:

  • The Lake County (Fla.) School’s Fellowship of Christian Athletes in April 2014 filed a federal lawsuit under the Equal Access Act. Students said school officials prevented them from advertising events on the school marquee, distributing flyers, making announcements on the public address system, and more. The suit claimed students were denied of “their dignity and relegated . . . to second-class citizenship solely because of ” their religious beliefs. The two sides reached a settlement to allow the club equivalent benefits.
  • The same Lake County school district in March 2015 was ensconced in a federal trial versus Carver Middle School’s Gay/Straight Alliance Club. The Florida district revised its policy to require student clubs to promote critical thinking. The American Civil Liberties Union (ACLU), on behalf of the students, claims the policy is designed to exclude the Alliance. A key question in the federal case is whether the Equal Access Act even applies since the federal law governs “secondary schools.” A recent change in Florida’s state law defines secondary as high schools and does not mention middle schools. Judge William Terrell Hodges of the U.S. District Court for the Middle District of Florida will decide the case after the trial is complete.
  • In Austin, Texas, high school senior Nick Montana wanted to start a fellowship club for nonreligious students. The James Bowie High School principal refused the request in 2013. Montana, with the help of the Secular Student Alliance and Freedom From Religion Foundation, challenged the determination, citing the Equal Access Act and First Amendment free speech. With the threat of a lawsuit looming, the principal relented and allowed Montana’s club.
  • When high school students in Bainbridge, Ind., tried to start a Gay/Straight Alliance Club, the North Putnam Community School Corp. reacted negatively. The ACLU filed suit in December 2014; that case has yet to be decided.
  • But not all student clubs are confrontational. A Binghamton Sun-Press article in February 2015 described a fully embraced Bible Club in Vestal, N.Y. Each day, students meet before school for Bible study. Charles Haynes, a senior scholar at the First Amendment Center in Washington, D.C., and religion expert, told the newspaper, “These clubs are less divisive than they once were. . . . Some people in education have never liked religious clubs and dug in their heels, but they generally lost. I think the Equal Access Act is working well.”

Rights are not unlimited

Even at its strongest, the Equal Access Act is not a blank slate. The law has several requirements:

#1. The club must be voluntary and student-initiated.

#2. If the club is religious, then school employees can attend meetings but not participate.

#3. Club meetings cannot substantially interfere with normal school operations.

#4. Outside individuals may not direct, control, or regularly attend the club meetings.

The language of the law hints at the religion-related history of the act. Christian groups lobbied hard for the EAA as a means of allowing students to form Bible study clubs before school, during lunch, and after school. By stressing the equal access principle, however, the act has been a linchpin for gay/straight clubs and others to assert an equal claim — perhaps an unintended consequence.

Schools could avoid the dictates of the Equal Access Act by banning all noncurriculum clubs. Hence, French club would be permitted as related to instruction, but a yoga club or a Christian club would not. Such an approach would drastically shrink club offerings for students and is akin to the proverbial cutting off your nose to spite your face.

Still, the Salt Lake City (Utah) School District in 1996 tried that strategy to prevent the East High School Gay/Straight Alliance Club. Groups like the Future Homemakers of America, though, were still allowed to meet. A federal trial judge ruled in 1999 that the school system had violated student rights but then dismissed the case saying the problem had been fixed. The students appealed. But before a final ruling, the Salt Lake City district changed its stance and allowed the gay/straight club to meet. The litigation was dropped.

Can’t we all just get along?

Some readers might remember a 2010 U.S. Supreme Court ruling involving equal access to college and university clubs. While the Equal Access Act doesn’t apply to higher education, the legal conflict unfolded between the University of California’s Hastings College of the Law and the Christian Legal Society. Hastings had a policy requiring official student groups to admit all students regardless of their beliefs. The Christian Legal Society required members to pledge fidelity to a statement of beliefs prohibiting LGBT students and their advocates from becoming voting members. In Christian Legal Society v. Martinez, the high court upheld the Hastings policy citing free speech reasons.

To me, the Equal Access Act is joyfully consistent with the First Amendment’s bedrock idea that more speech is better. There are many controversial topics for student clubs: Ku Klux Klan, Wiccan, Young Democrats, Republicans, or Communists, or online gamers clubs. But that’s OK.

Congress deserves credit for getting this issue right. Adults can still use their most powerful weapons — education and persuasion — but must resist the urge to be heavy-handed or squelch teenage exploration. The EAA is a federal law that schools, students, and communities can live with, even during occasional bouts of pain.

 

Citation: Darden, E. (2015). Ed law: Federal law protects student clubs — even ones you don’t like. Phi Delta Kappan, 96 (8), 76-77.

ABOUT THE AUTHOR

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Edwin C. Darden

EDWIN C. DARDEN is a consultant, freelance writer, adjunct law instructor, and managing partner of the Education Advocacy Firm, Springfield, Va.