Public School Religious Clubs: Rights & Reasons

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.

I. 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.1 The Act broadly prohibits public schools from

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

the group's speech.2 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.3

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

school has three characteristics:4


* The school must be a public secondary school.5 This term is defined by the law of the state

in which the school is located6 and usually includes high schools and sometimes junior high


* The school must receive federal funding.7

* The school must have created a "limited open forum" 8 (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,"9 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.10


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

Westside Community Schools11 against a challenge based on the Establishment Clause of the First

Amendment.12 The Westside Board of Education in this case argued that allowing religious groups on a

high school campus would violate the Establishment Clause,13 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.14 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.15


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

Diego Unified School District16 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,17 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.18

The court noted that allowing the club to maintain this requirement for leadership ensures that the club

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

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."19

Other courts read the EAA narrowly. In Berger v. Rensselaer Central School Corporation,20 the

Seventh Circuit Court of Appeals held that the EAA did not require the school district to permit a religious

organization to distribute Bibles to fifth grade public school students. The court noted that the

in this case sought access to the classrooms during school hours, and that the students were
a captive
audience; thus the case was different from Mergens.21 Similarly, a U.S. District Court in Arkansas

held the
EAA did not permit a public elementary school to offer voluntary Bible classes during regular

school hours.22

In Herdahl v. Pontotoc County School District,23 a district court in Mississippi held that although some

students 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.24


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

Board of Education,25 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.26 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."27 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 meet.


Other schools have argued that the EAA does not override conflicting state law.28 However, the

Ninth Circuit Court of Appeals held in Garnett v. Renton School District29 that the EAA preempts any

conflicting provisions of a state constitution. The court stated that Congress intended through the EAA to

"provide religious student groups a federal right. State law must therefore yield."30

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


* The club must be student-led.31 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 religion.32 However, a teacher or other school administrator may be present to

maintain control of the group.33 Community members may not conduct, control, or

regularly attend group meetings.34

* The meetings must be voluntary.35 The EAA does not, however, contain a requirement for

parental permission for students to attend such meetings.

* Religious clubs must not materially and substantially interfere with the orderly conduct of

educational activities within the school.36


II. Free Speech of Religious Clubs

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.37 Courts use a legal doctrine called forum

analysis 38 in order to determine when the government must grant a speaker access to public property,

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

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


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

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

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

educational m
ission. Even in a nonpublic forum, though, the school cannot engage in viewpoint-based

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 further a compelling state interest.43

In Widmar v. Vincent,44 the Supreme Court used forum analysis to hold that a university that

opened its facilities for use by student groups maintained a limited public forum &thus was prohibited by

the Free Speech Clause of the 1st Amendment from refusing a religious student group similar access to

facilities. The Court held further that allowing religious groups such access would not violate the

Establishment Clause and that public college students are mature enough not to infer state endorsement

From the university's giving religious groups equal access.45 Yet, again, a college can exclude religious

clubs as long as it 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,46

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

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

holding that the school property remained a nonpublic forum.47 Nonetheless, the court found that the

school, by excluding the religious club while allowing other clubs to meet, engaged in viewpoint

discrimination, which violates the First Amendment in any forum.48


By contrast, in Quappe v. Endry,49 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

like other clubs. The court determined that because a teacher used her classroom to promote the

permitting the club to meet right after school would create the appearance of state sponsorship in

of the Establishment Clause.50 Reaching the same conclusion in a different situation, the Tenth

Circuit Court
of Appeals in Bell v. Little Axe Independent School District51 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.52


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 Indep. School District53 that a school district that prohibited the distribution of religious tracts

by high school students on their campus violated the First Amendment.54 Other courts have struck down

schools regulations restricting the distribution of religious material to areas outside the school,55 that

banned the distribution of religious materials,56 that banned the distribution of religious material that

would appear to be school-sponsored,57 and that required prior approval by the superintendent before a

student could distribute non-school materials.58


By contrast, in Muller v. Jefferson Lighthouse School,59 the Seventh Circuit Court of Appeals upheld the

validity of an elementary school?s rule that required advance approval of nonschool 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,60 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

Springs61 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 nonstudent

groups as well. In Yeo v. Lexington,62 a high school yearbook and newspaper refused to print an ad

promoting sexual abstinence that was offered by a parent of public high school students. The

First Circuit Court of Appeals held that the advertising pages of the publications were "limited public fora"

that could not constitutionally be subjected to content-based restriction, and thus the school must run the

advertisement.63 Other courts have made similar rulings in cases where school boards charged churches

higher rents than other nonprofit orgs or refused to allow an organization with a religious message

to rent school facilities.64


III. Conclusion

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

express their faith. College students & high school students have the same rights as other groups

students to meet &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 USCS 4071-74 (1998)

2. 4071-74

3. 4071(a)

4. Id.

5. Id.

6. 4072(1)

7. 4071(a)

8. Id.

9. 4071(b)

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

11. Id.

12. The Establishment Clause states, "Congress shall make no law respecting an establishment of

religion..." U.S. Const. Amend. I.

13. Mergens, 496 U.S. at 233.

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

exercise [of religion] ..." U.S. Const. Amend. I.

15. Id. at 247.

16. 106 F.3d 878 (9th Cir. 1997).

17. 85 F.3d 839 (2d Cir. 1996).

18. Id. at 848.

19. Id. at 860 (internal quotations omitted).

20. 982 F.2d 1160 (7th Cir. 1993).

21. 982 F.2d at 1166-67.

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

Cir. 1990).

23. 933 F.Supp. 582 (N.D. Miss. 1996).

24. 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).

25. 12 F.3d 1244 (3d Cir. 1993).

26. Id. at 1247.

27. Id. at 1246.

28. 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., 978 F.3d 641 (9th Cir.),

cert. denied, 114 S.Ct. 72 1993).

29. 987 F.2d 641 (9th Cir. 1993).

30. Id. at 646: see also Hoppock, 772 F.Supp. at 1164.

31. 20 U.S.C. 4071(c)(3), (5) (1984).

32. 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).

33. 4071(c)(3)

34. 4071(c)(5)

35. 4071(c)(1)

36. 4071(c)(4)

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

speech..." U.S. Const. Amend. I.

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 intrust 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 955. 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. 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.

39. See, eg., 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 Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802 (1985)

(plurality): Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1370 (3d Cir. 1990).

41. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

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 a 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 276-77.

46. 28 F.3d 1501 (8th Cir. 1994).

47. Id. at 1505 n.6.

48. Id. at 1507.

49. 772 F. Supp. 1004 (S.D. Ohio 1991), aff'd., 979 F.2d 851 (6th Cir. 1992).

50. Id. at 1014.

51. 766 F.2d 1391 (10th Cir. 1985).

52. 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 view-points nor distinguish private speech from school-endorsed

speech. Bell, 766 F.2d at 1401.

53. 806 F.Supp. 116 (N.D. Texas 1992); see also Tinker v. Des Moines Indep. Community

Sch. Dist., 393 U.S. 503, 512-13 (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").

54. Clark, 806 F.Supp. at 120.

55. See Thompson v. Waynesboro 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


56. 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?).

57. 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.

58. See Johnston-Loehner v. O?Brien, 859 F. Supp. 575, 581 (M.D. Fla. 1994) (holding

elementary school policy requiring prior approval by superintendent before distribution of nonschool

materials was impermissible content-based prior restraint on speech).

59. 98 F.3d 1530 (7th Cir. 1996).

60. 937 F. Supp. 1351 (S.D. Ind. 1996).

61. 760 F. Supp. 856 (D. Colo. 1991).

62. 131 F.3d 241 (1st Cir. 1997), cert. denied., 118 S. Ct. 2060.

63. See id. at *16; but see Planned Parenthood of Southern Nevada, Inc. v. Clark County

Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (holding high school yearbook, newspapers,

and athletic programs were not limited public forum and school's justification for refusing to

publish family planning advertisement was reasonable).

64. 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). See also Travis v. Owego-Appalachian 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 worshiping 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).