Equal Access in Public Schools


While it would be inappropriate for The Rutherford Institute to provide you with legal advice under

these circumstances, the Institute is pleased to provide you with the following information.

Two significant avenues of protecting the religious freedom of public school students are: first, the

Equal Access Act1 and, second, the Free Speech Clause of the First Amendment to the United States



The Equal Access Act


The United States Congress passed the Equal Access Act (the "EAA" or the "Act") in 1984 to

protect the religious rights of public school students. The Act broadly prohibits public schools from

discriminating against any student group based on the religious, political, philosophical, or other content of

the group's speech.3 In addition, the Act requires that schools grant religious student groups official

recognition with the same rights and privileges enjoyed by non-religious student groups.4


The EAA applies, and mandates equal access and privileges for religious student groups, if the

school has three characteristics.5 First, the school must be a public secondary school.6 This term is defined

by the law of the state in which the school is located7 and usually includes high schools and sometimes

junior high schools. Second, the school must receive federal funding.8 Third, the school must have created a

"limited open forum"9 (also called limited public forum). Under the EAA, a school establishes a limited open

forum when it permits non-curricular student groups to meet on school grounds during "non-instructional

time,"10 that is, during time set aside by school officials before or after actual classroom instructional time.

Thus, if the school chooses to permit only those student activities that are related to the curriculum, it does

not create a limited open forum and is not bound by the EAA's requirements. If, however, the school

chooses to permit non-curricular groups, such as a chess club, to meet on campus, it establishes a limited

open forum and must abide by the EAA and permit a student prayer group to meet on campus as well.

11The United States Supreme Court upheld the EAA in Mergens v. Board of Education of Westside

Community Schools12 against a challenge based on the Establishment Clause of the First Amendment.13

The Westside Board of Education in this case argued that allowing religious groups on a high school campus

would violate the Establishment Clause,14 which prohibits governmental endorsement of religion. The Court

rejected that argument and held instead that student religious expression is private speech, not government

speech, and thus protected by the Free Speech Clause and the Free Exercise Clause of the First

Amendment, not forbidden by the Establishment Clause.15 Because the school in Mergens had allowed

non-curricular clubs like a scuba diving club and a chess club to meet on campus, the Court ruled the school

had established a limited open forum and was required by the EAA to allow religious groups to so meet. If

even one non-curricular group has access to the student newspaper, bulletin boards, public address system,

and annual school events, all groups, including religious ones, must be allowed the same access.16

Following Mergens, the Ninth Circuit Court of Appeals in Ceniceros v. Board of Trustees of San Diego Unified

School District17 held that a student religious club in a public high school had a constitutional

right to meet in empty classrooms during lunch period where other non-curricular student groups were

allowed to do the same.


Some courts read the EAA even more broadly than the Mergens Court. In Hsu v. Roslyn Union

Free School District,18 the Second Circuit Court of Appeals interpreted the EAA's protection of "speech" to

encompass the leadership policy of a religious club. The club's policy, which required office holders to be

professing Christians, violated a school non-discrimination policy applicable to all clubs, but the court

determined that the EAA required the high school to make an exception for the religious club.19 The court

noted that allowing the club to maintain this requirement for leadership ensures that the club can preserve

the religious content of its speech. The court held that "exemptions from neutrally applicable rules that

impede one or another club from expressing the beliefs that it was formed to express, may be required if a

school is to provide equal access."20


It is important to note the limitations of the EAA. The Act only applies to public secondary schools,

and then, only to student activity.21 Thus, there are situations in which the EAA was not applied—such as

outside religious groups distributing Bibles to fifth grade students22 and teacher led voluntary Bible classes

in an Arkansas elementary school. 23 When the EAA does apply, the court has only allowed the religious

group the same privileges as that of a secular group.Hence, in Herdahl v. Pontotoc County School

District,24 a district court in Mississippi held that although secular clubs were allowed to broadcast

announcements over the public address system, the school was justified in forbidding a student religious

group from broadcasting devotionals and prayers in addition to announcements.25


Some schools have resisted submitting to the EAA's requirements. In Pope v. East Brunswick

Board of Education,26 for example, a school board refused to recognize a high school student Bible club,

though it recognized other clubs including drama, art, students against drunk drivers, and service

organizations.27 Though the school attempted to define the groups it recognized as curriculum-related in

order to avoid triggering the EAA's restrictions, the Third Circuit stated that the language of the Act "is best

interpreted broadly to mean any student group that does not directly relate to the body of courses offered

by the school."28 The court held that at least one of the existing clubs--the service club-- was noncurricular;

thus, the school had established a limited open forum and was required to allow the Bible club to



Other schools have argued that the EAA does not override conflicting state law.29 However, the

Ninth Circuit Court of Appeals held in Garnett v. Renton School District30 that the EAA preempts any

conflicting provisions of a state constitution. The court stated, “The EAA provides religious student groups

a federal right. State law must therefore yield."31


The EAA gives religious student groups equal footing with other student clubs. In order to ensure

that a school avoids violating the Establishment Clause, though, religious groups must follow certain

guidelines. First, the club must be student-led.32 Teachers, as agents of the state when acting in their official

capacities, may not lead religious groups, as this would give the appearance of endorsing a certain



However, a teacher or other school administrator may be present to supervise the group.34 Non-school

community members may not conduct, control, or regularly attend group meetings.35 Second, the meetings

must be voluntary.36 The EAA does not, however, contain a requirement for parental permission for

students to attend such meetings. Third, religious clubs must not "materially and substantially interfere with

the orderly conduct of educational activities within the school."37


Free Speech


Aside from the EAA, courts often look directly to the Free Speech Clause of the First Amendment

to justify the formation of religious clubs in public schools. Courts use a legal doctrine called forum

analysis38 in order to determine when the government must grant a speaker access to public property, such

as school property, for expressive purposes.39 Courts have generally determined that a public school is a

nonpublic forum;40 however, as with the EAA, if a school has intended to allow, or has by practice allowed,

non-curricular groups to meet on its premises, it becomes a limited open forum.

Where a school maintains a closed (nonpublic) forum, its speech restrictions must only be

reasonably related to legitimate pedagogical concerns.41 Thus, a school would be justified in disallowing all

non-curricular clubs from meeting on its campus when the clubs are unrelated to the school's educational

mission. Even in a nonpublic forum, though, the school cannot engage in viewpoint-based discrimination,

that is, regulate the private speech of religious clubs simply because of their religious viewpoint.42 Further,

once a school opens its facilities to non-curricular groups and becomes a limited open forum, it must meet a

higher standard than just being reasonably related to a legitimate concern. The school must show that any

content-based ban on expression, that is, the exclusion of a religious club because it is religious, is narrowly

tailored to “serve a compelling state interest.”43


In Widmar v. Vincent,44 the Supreme Court held that a university that opened its facilities for use by

all student groups could not exclude religious groups, The court used forum analysis to hold that the

university maintained a limited public forum.45 Because the creation of the forum was for a secular

purpose,46 did not reasonably result in state approval of the religious groups,47 and only incidentally

benefited those organizations, 48 the university was prohibited by the Free Speech Clause of the First

Amendment from refusing a religious student group access to the forum. The Court pointed out that

allowing religious groups access to the forum was unlikely to result in state endorsement of religion because

college students are mature enough not to recognize a university’s policy of neutrality.49 Still, a college can

exclude religious clubs as long as it also excludes all other non-curricular clubs.


With regard to high school, junior high, and elementary school religious clubs, different courts have

reached conflicting results. In Good News/Good Sports Club v. School District of the City of Ladue,50 the

Eighth Circuit Court of Appeals held that a student-led junior high school religious group had a constitutional

right to continue to meet at a public middle school. The court assumed that the lower court was correct in

holding that the school property remained a nonpublic forum.51 Nonetheless, the court found that the

school, by amending its Use Policy to exclude religious expression engaged in viewpoint discrimination,

which violates the First Amendment in any forum.52


By contrast, in Quappe v. Endry,53 a district court in Ohio held that it was not a constitutional

violation for a school board to refuse to allow an elementary school Bible club to meet directly after school

like some other clubs. The court determined that permitting the club to meet immediately after school in the

classroom of a teacher who had been substantially participating in promotion of the club, created a

circumstance in which there would be the appearance of state sponsorship in violation of the Establishment

Clause.54 Reaching the same conclusion in a different situation, the Tenth Circuit Court of Appeals in Bell v.

Little Axe Independent School District55 held that a public elementary school had violated the Constitution

by permitting student-led religious meetings to occur on campus. The court held the school's own equal

access policy, which protected voluntary religious meetings on the school grounds before the start of the

school day, was a violation of the Establishment Clause.56


Courts have also reached conflicting results when conducting forum analysis to determine whether

students may distribute religious literature to classmates. A U.S. district court in Texas held in Clark v.

Dallas Independent School District57 that a school district that prohibited the distribution of religious tracts

by high school students on their campus violated the First Amendment.58 Other courts have struck down

schools' regulations that restricted the distribution of religious material to areas outside the school,59 that

banned the distribution of religious materials,60 that banned the distribution of religious material that

would appear to be school-sponsored,61 and that required prior approval by the superintendent before a

student could distribute non-school materials.62


By contrast, in Muller v. Jefferson Lighthouse School,63 the Seventh Circuit Court of Appeals

upheld the validity of an elementary school's rule that required advance approval of non-school materials

before students could distribute them on campus, even where no safeguards were placed on the school's

authority to deny permission. In Harless v. Darr,64 a district court in Indiana upheld a school policy

requiring students who wish to distribute more than ten copies of written material on school grounds to

have material reviewed by superintendent. A district court in Colorado in Hemry v. School Board of Colorado

Springs65 held that restrictions on the distribution of a religious newspaper in a public high school was

appropriate in light of the nature and purpose of the school as a nonpublic forum.Courts have used forum

analysis to determine whether school facilities should be available to non-student groups as well. In Planned

Parenthood of Southern Nevada, Inc. v. Clark County Sch. Dist.,66 a high school refused to publish family

planning advertisements. The Ninth Circuit Court held that the school-sponsored publications were

nonpublic forums and that the school district was given substantial deference to control the content of the

publications so as to maintain the appearance of neutrality on controversial issues.


 By contrast, the First Circuit in Yeo v. Lexington,67 where a high school yearbook and newspaper refused to

print an  advertisement promoting sexual abstinence offered by a parent of a public high school student,

found that the state was not responsible for the decision to exclude the advertisement. Instead, the court

determined that the decision was made by the students of the yearbook and therefore resolved the issue in

favor of the students’ free speech rights. 68 Generally, other courts have made rulings in favor of non-

student groups in cases where school boards charged churches higher rents than other nonprofit

organizations69 or refused to allow an organization with a religious message to rent school facilities.70


Under the United States Constitution and the Equal Access Act, public school students have the

right to express their faith. College students and high school students have the same rights as other groups

of students to meet and associate with others during non-curricular times. This principle generally applies to

junior high and elementary school student groups, although a few courts have denied equal access to such

groups because of the students' maturity level and the associated Establishment Clause concerns.










1 20 U.S.C. §§ 4071-74 (2000).

2 The Free Speech Clause states, "Congress shall make no law . . . abridging the freedom of speech . .

." U.S. CONST. amend. I.

3 § 4071(a).

4 Id.

5 Id.

6 Id.

7 § 4072(1).

8 § 4071(a).

9 Id.

10 § 4071(b).

11 See Board of Educ. of Westside Comty. Sch. v. Mergens, 496 U.S. 226, 236 (1990).

12 Mergens, 496 U.S. 226.

13 The Establishment Clause states, "Congress shall make no law respecting an establishment of religion

. . ." U.S. CONST. amend. I.

14 Mergens, 496 U.S. at 233.

15 Id. at 250. The Free Exercise Clause states, "Congress shall make no law . . . prohibiting the free

exercise [of religion] . . ." U.S. CONST. amend. I.

16 Id. at 247-248.

17 106 F.3d 878 (9th Cir. 1997).

18 85 F.3d 839 (2d Cir. 1996).

19 Id. at 848.

20 Id. at 860 (internal quotations omitted).

Copyright 2001 by The Rutherford Institute, P.O. Box 7482, Charlottesville, VA 22906-7482


21 20 USC § 4071(a)

22 Berger v. Rensselaer Central Sch. Corp., 982 F.2d 1160 (7th Cir. 1993).

23 See Doe v. Human, 725 F. Supp. 1503, 1507 (W.D. Ark. 1989), aff'd, 923 F.2d 857 (8th Cir. 1990).

24 933 F. Supp. 582 (N.D. Miss. 1996).

25 Id. at 587 (holding EAA not applicable to intercom prayers broadcast to all classrooms, grades K

though 12, because school not properly characterized as secondary school and the participation was not


26 12 F.3d 1244 (3d Cir. 1993).

27 Id. at 1247.

28 Id. at 1246 (citing Mergens, 496 U.S. 226, 239 (1990)).

29 See Hoppock v. Twin Falls Sch. Dist., 772 F. Supp. 1160 (D. Idaho 1991); Garnett v. Renton Sch.

Dist., 772 F. Supp. 531 (W.D. Wash. 1991), rev'd, 987 F.3d 641 (9th Cir.), cert. denied, 510 U.S. 819


30 987 F.2d 641 (9th Cir. 1993).

31 Id. at 646; see also Hoppock, 772 F. Supp. at 1164.

32 20 U.S.C. §§ 4071(c)(3), (5) (2000) (stating that school employees or agents can attend group

activities in a non-participate capacity).

33 See Quappe v. Endry, 772 F. Supp. 1004, 1014 (S.D. Ohio 1991), aff'd, 979 F.2d 851 (6th Cir.

1992) (holding elementary school teacher who used classroom as forum to promote club created appearance

of state sponsorship of club in violation of First Amendment); Sease v. School Dist. of Philadelphia, 811 F.

Supp. 183, 192 (E.D. Pa. 1993) (holding high school secretary was prohibited by EAA from sponsoring

school gospel choir even though she led group after school hours).

34 § 4071(c)(3).

35 § 4071(c)(5).

36 § 4071(c)(1).

37 § 4071(c)(4).

38 See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983) (noting three general

types of forums: traditional public forum, designated public forum (also called limited public or limited

open forum), and non-public forum). The public forum is a place that has "immemorially been held in

Copyright 2001 by The Rutherford Institute, P.O. Box 7482, Charlottesville, VA 22906-7482


trust for the use of the public," such as a street or park; the government must show that a content-based

restriction on speech in a public forum is narrowly tailored to achieve a compelling state interest. Id. at

45. A designated public forum is a place the government has opened for use by the public for expressive

activity; as long as the government retains the open character of the forum, it is bound by the same

standards as apply in a public forum. Id. at 45-46. A nonpublic forum is public property that is not by

tradition or designation a forum for public communication; the government may restrict speech in this

forum as long as the regulation is reasonable and not an effort to suppress a speaker's viewpoint. Id. at


39 See, e.g., Widmar v. Vincent, 454 U.S. 263, 277 (1981) (holding university that maintained limited public

forum violated First Amendment when it refused religious student group access to university facilities);

Good News/Good Sports Club v. Sch. Dist. of the City of Ladue, 28 F.3d 1501, 1510 (8th Cir. 1994)

(holding junior high school that permitted other clubs to meet, though it remained a nonpublic forum,

must give religious club similar permission).

40 See Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1370-1371 (3d Cir. 1990) (discussing the nature

of a High School forum); see generally Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788,

802-806 (1985) (plurality opinion)(comparing the criteria for the creation of a limited public, public, or

nonpublic forum).

41 See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (“[W]e hold that educators do not

offend the First Amendment by exercising editorial control over the style and content of student speech

in school-sponsored expressive activities so long as their actions are reasonably related to legitimate

pedagogical concerns”).

42 See Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993), citing Cornelius

v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (holding "the government violates the

First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on

an otherwise includible subject"); see also Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S.

503, 506 (1969) (holding that regardless of forum, "students do not shed their right to freedom of

expression at the schoolhouse gate").

43 Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

44 454 U.S. 263 (1981).

45 Id. at 274-275.

46 Id. at 271-272.

47 Id. at 274.

48 Id. at 273-274.

49 Id. at 274 n14.

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50 28 F.3d 1501 (8th Cir. 1994).

51 Id. at 1505 n. 6.

52 Id. at 1507.

53 772 F. Supp. 1004 (S.D. Ohio 1991), aff'd, 979 F.2d 851 (6th Cir. 1992).

54 Id. at 1014.

55 766 F.2d 1391 (10th Cir. 1985).

56 Id. at 1401. The court distinguished Widmar v. Vincent, 454 U.S. 263 (1981), by emphasizing that most

elementary school children, as opposed to college students, are unable to appreciate a wide diversity of

viewpoints nor distinguish private speech from school-endorsed speech. Bell, 766 F.2d at 1401.

57 806 F. Supp. 116 (N.D. Texas 1992); see also Tinker v. Des Moines Indep. Community Sch. Dist., 393

U.S. 503, 512-513 (1969) (holding students' free speech rights are protected whether students are "in the

cafeteria, or on the playing field, or on the campus during authorized hours").

58 Clark, 806 F. Supp. at 120.

59 See Thompson v. Waynewsboro Area Sch. Dist., 673 F. Supp. 1379, 1392 (M.D. Pa. 1987) (holding

where school district created limited public forum at junior high school by permitting school groups to

use school facilities, it violated students' freedom of speech when it restricted distribution of religious

literature to area outside school building). The court did not invoke the EAA to strike down the policy

because the newspaper distribution was not a "meeting." Id. at 1383.

60 See Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280, 293 (E.D. Pa. 1991) (holding school district's

ban on students' distribution of religious materials in public high school, a limited public forum, did not

advance educational environment nor create danger that students would infer school endorsement and

thus was not narrowly tailored to achieve compelling state interest); Rivera v. East Otero Sch. Dist., 721

F. Supp. 1189, 1194 (D. Colo. 1989) (holding ban on distribution of religious material in public high

school unlawful, unless material was being distributed in disruptive manner, and noting that "such

inhibitions on individual development defeat the very purpose of public education in secondary schools").

61 See Hedges v. Wauconda Community Unit Sch. Dist., 9 F.3d 1295, 1300 (7th Cir. 1993) (striking down

junior high school's prohibition on distribution of religious material that students would reasonably believe

to be sponsored, endorsed, or given official imprimatur by school, while holding school could place time,

place, and manner restrictions on distribution). The court noted that "ignorant bystanders cannot make

censorship legitimate . . . . Schools may explain that they do not endorse speech by permitting it. If

pupils do not comprehend so simple a lesson, then one wonders whether . . . schools can teach anything

at all." Id. at 1299-1300.

62 See Johnston-Loehner v. O'Brien, 859 F. Supp. 575, 581 (M.D. Fla. 1994) (holding elementary school

Copyright 2001 by The Rutherford Institute, P.O. Box 7482, Charlottesville, VA 22906-7482


policy requiring prior approval by superintendent before distribution of nonschool materials was

impermissible content-based prior restraint on speech).

63 98 F.3d 1530 (7th Cir. 1996).

64 937 F. Supp. 1351 (S.D. Ind. 1996).

65 760 F. Supp. 856 (D. Colo. 1991).

66 Planned Parenthood of Southern Nevada, Inc. v. Clark County Sch. Dist., 941 F.2d 817 (9th Cir. 1991)

67 131 F.3d 241 (1st Cir. 1997).

68 See id. at 254-255.

69 See Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d 703, 707 (4th Cir. 1994) (holding

school facilities were public forum and school board that charged churches higher rents than other

nonprofit organizations discriminated against religious speech in violation of the First Amendment).

70 See Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 694 (2d Cir. 1991) (holding school auditorium

was limited open forum and school district that refused to allow nonprofit pregnancy counseling

organization to use it for fund-raiser with religious theme engaged in unconstitutional viewpoint

discrimination); Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1382 (3d Cir. 1990) (holding high

school auditorium was limited open forum and school board that excluded religious organization from

worshipping and distributing literature there unconstitutionally discriminated against religious speech);

Wallace v. Washoe County Sch. Dist., 818 F. Supp. 1346, 1392 (D. Nev. 1991) (holding school district's

practice of renting school facilities to wide variety of applicants created limited open forum and denying

church access for Sunday worship services because it was religious in nature was unconstitutional

content-based discrimination).