The Equal Access Act (EAA), enacted with broad bipartisan support by Congress in 1984, prohibits public school districts receiving federal financial assistance from discriminating among noncurriculum- related student groups who want to use school premises. Once schools have created a limited open forum within the definition of EAA, those schools cannot deny student access to school premises on the basis of ‘‘religious, political, philosophical, or other speech content.’’ An immediate effect of EAA was that student religious groups, previously denied use of school facilities in such federal circuit court of appeal cases as Brandon v. Board of Education (1980) and Lubbock Civil Liberties Union v. Lubbock Independent School District (1982) because of concern about advancing or sponsoring religion in violation of the Establishment Clause, now had a federal statutory right to meet on the same terms as other noncurriculum- related student groups. The language and purpose of the EAA was influenced by a Supreme Court decision, Widmar v. Vincent (1981), where the Court held with reference to a public university that, once it had opened its facilities to use of a wide range of student groups, it had created a limited public forum and was prohibited under the free speech clause from denying the use of its facilities to student religious groups. In enacting EAA, Congress deliberately selected the term, ‘‘limited open forum,’’ so as not to confuse rights granted under EAA with those granted, as in Widmar, under the free speech clause’s limited public forum. A limited open forum exists whenever one or more noncurriculum-related student groups meets on school premises during noninstructional time. While EAA does not define what constitutes noncurriculum-related student groups, the Supreme Court, in upholding the constitutionality of EAA against an Establishment Clause challenge in Board of Education of the Westside Community Schools v. Mergens (1990), provided a useful analytical framework for determining the curricular relatedness of student groups. The EAA defines noninstructional time as that which is ‘‘set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.’’ In order to assure that students have a fair opportunity to conduct meetings under a school’s limited open forum, meetings must be voluntary and student-initiated; cannot be government sponsored; can be attended by government employees only in a nonparticipatory capacity; cannot materially or substantially interfere with the educational activities of the school; and cannot be directed, conducted, or regularly attended by nonschool persons. In clarifying the statute’s prohibition on government-sponsored meetings, EAA defines ‘‘sponsorship’’ as ‘‘promoting, leading, or participating in a meeting,’’ but expressly excludes from sponsorship ‘‘the assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes.’’ Congress in enacting EAA provided assurance to public schools that the statute was not intended 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.’’ However, Congress also placed broad limitations on every level of government and its subdivisions, including school districts, to prohibit them from: influencing the content of prayer or religious activities, requiring that any person participate in prayer or religious activities, expending more than incidental funds to provide space for student meetings, compelling school agents or employees to attend meetings where the content of speech at a meeting would be contrary to a person’s beliefs, sanctioning meetings otherwise unlawful, limiting the rights of groups not of a specified size, and abridging the constitutional rights of any person. The EAA allows for private enforcement of the statute by students who claim that they have been denied equal access rights, but the statute expressly prohibits the federal government from denying or withholding federal financial assistance to any school.
The Equal Access Act has been extended to a wider range of student groups than religious clubs, such as gay/straight clubs. Protection under EAA’s limited open forum may overlap with free speech’s limited public forum which means that students denied access to school premises could have both statutory and constitutional claims.
RALPH D. MAWDSLEY
References and Further Reading
Cases and Statutes Cited