Students’ Rights in Public Education

Introduction

In April 2001, William Shepard’s daughter, a fifth grader at a California elementary school, was

reading her Bible during recess with some of her friends when a teacher ordered her to stop reading the Bible

and refrain from bringing the book to school in the future. After attorneys for The Rutherford Institute informed

the school of the young girl’s right to freely exercise her religious beliefs at school, the school principal

apologized to the Shepard family and reprimanded the teacher.

 

In the spring of 1999, a principal at a New York public school forbade kindergartner Emily Welisevich

from passing out invitations to a musical being held at her church due to the religious nature of the event.

However, school officials had allowed students to distribute invitations for other events, such as YMCA soccer

registration, Girl Scout enrollment and Summer Camp. After being contacted by The Rutherford Institute, the

superintendent of schools changed the school district’s literature distribution policy.

 

Recently, a public school superintendent in Milford, New York, refused to allow a Christian youth club

to meet in school facilities after hours, even though he allowed the Boy Scouts, 4-H club and other groups this

privilege. The Christian club’s meetings would constitute “religious instruction” in the public schools, forbidden

by the “separation of church and state,” according to the school official. Rutherford Institute attorneys took the

case all the way to the Supreme Court of the United States, which ruled that the club had a right to meet and

enjoy the same privileges as other non-religious clubs. Nonetheless, the superintendent still threatened to deny

the club their right to meet, stating the school district would rather forbid all clubs from meeting than allow the

religious club to use the schoolhouse.

 

These situations, which represent just a sampling of the cases handled by Religious Liberties

attorneys, illustrate the degree to which many school officials in this country are ignorant about the rights of

religious people in public schools. As President Clinton stated in his July 1995 Directive discussing religion and

the public schools, confusion about the state of the law creates many difficulties for religious people in public

education. This booklet aims to clarify some of the ambiguities surrounding religion in the public schools and

provide students the opportunity to exercise fully their constitutional rights in that environment.

 

Principles Governing Religion in the Public School

 

The Free Exercise Clause

The First Amendment of the United States Constitution provides that “Congress shall make no law . . .

prohibiting the free exercise [of religion].”1 This provision is commonly known as the Free Exercise Clause.

The Supreme Court has held that this measure safeguards all religious beliefs but not all the ways that

individuals might act on those beliefs.2 For example, the Supreme Court held that the Constitution protected

the right of 19th Century Mormons to believe in polygamy but not the right to engage in that practice.3

The historical controversy surrounding the Free Exercise Clause centers on whether the state must

exempt individuals from laws or policies that conflict with their religious beliefs or simply treat religious people

on an equal footing with nonreligious people.4 Until recently, the Supreme Court held that the Free Exercise

Clause requires the government to accommodate religious persons when state law or policy burdened religious

beliefs or actions.5 The government could refuse to accommodate such persons only if protecting a compelling

government interest by the least restrictive means available.6

 

In 1990, the Supreme Court adopted a different position on the parameters of the Free Exercise

Clause.7 In Employment Division v. Smith, the Court held that, as long as a government policy or law is

neutral and generally applicable, the government need not accommodate religious people whose beliefs conflict

with such policy or law.8 In other words, as long as the state does not intend to discriminate against religious

people when it adopts a law or policy, the state does not offend the Free Exercise Clause.

 

The Smith approach differs drastically from the accommodation view of the Free Exercise Clause,

under which courts found constitutional violations even where the government action or policy created only

unintentional or incidental burdens on religious beliefs.9 Under the Smith approach, however, burdens must

be direct and intentional to amount to constitutional problems.10

 

The Rise and Fall of the Religious Freedom Restoration Act

The Smith decision produced outrage among constitutional scholars and religious liberty practitioners.

To bolster religious freedom, Congress enacted the Religious Freedom Restoration Act (“RFRA”) in 1993.11

Until July 1997, this legislation reestablished the traditional accommodation framework for evaluating Free

Exercise Clause cases. According to the statute, once an individual shows that a government action or policy

burdens his religious beliefs, the government must demonstrate a compelling reason to justify that burden.12

Otherwise, the state must accommodate religious persons.13

 

In July 1997, however, the Supreme Court struck down RFRA as it applied to state and local actions,

reasoning that Congress, in enacting the statute, had violated the separation of powers by attempting to

broaden the Free Exercise Clause beyond what the Supreme Court had interpreted in the First Amendment;

and that Congress had exceeded the scope of its enforcement power over the states under section 5 of the

Fourteenth Amendment when it enacted RFRA.14

 

The Free Speech Clause

The First Amendment also provides that “Congress shall make no law . . . abridging free speech.”15

As with many constitutional liberties, this right is not absolute.16 This principle holds particularly true in the

public school context. Although the Supreme Court has held that neither teachers nor students shed their rights

when they enter the schoolhouse gate,17 courts give school officials some latitude in regulating free speech on

their premises. Despite these limits, an increasing number of religious students and teachers are successfully

invoking the Free Speech Clause to defend their religious freedom.

 

The Establishment Clause

Invariably, school administrators cite the Establishment Clause to justify any interference with religious

speech or activity in the public schools. This constitutional measure provides that “Congress shall make no law

respecting an establishment of religion.”18

 

Since the early 1960s, when the United States Supreme Court decided the public school prayer cases,

widespread misconceptions have existed concerning the role of religion and religious activity in public

education. Often religious persons face discrimination or outright hostility in the public education system.

School officials have told individuals that they may not pray or talk about religion while in school, even by

themselves and on their own time. Supreme Court precedent, however, dictates otherwise.

 

Every United States Supreme Court decision condemning religious activity in public schools has

involved state-directed and state-sponsored religious activity. While the Supreme Court has held that the state

may not prescribe religious activities, it has never ruled that individual religious expression in public schools is

unconstitutional. Courts have expressly acknowledged the difference between individual religious speech and

government-endorsed religious expression: “[T]here is a crucial difference between government speech

endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the

Free Speech and Free Exercise Clauses protect.”19

 

Government involvement in religion, however, raises concerns under the Establishment Clause. Courts

use the often criticized but never overruled test articulated in Lemon v. Kurtzman to determine whether school

interaction with religion is permissible.20 Under this framework, a school policy is constitutional if it: (1) has a

secular purpose; (2) has a primary effect which neither advances nor inhibits religion; and (3) does not create

an excessive entanglement with religion.21

 

The Supreme Court has identified only seven specific practices as unconstitutional establishments of

religion in public schools:

 

1. State-directed and required on-premises religious training22

2. State-directed and required prayer23

3. State-directed and required Bible reading24

4. State-directed and required posting of the Ten Commandments25

5. State-directed and authorized “periods of silence” for meditation and voluntary prayer, where

the legislative intent is to promote or advance religion26

6. State-directed and required teaching of scientific creationism27

7. State-sponsored prayer led by clergy or students at public high school graduation and

promotion ceremonies28

 

The Presidential Directive

Because the Supreme Court has struck down only seven practices as impermissible religious activity in

the public schools, there are many gray areas with which school administrators, teachers, parents, and students

must wrestle. In an effort to minimize these clouded issues, the Clinton Administration directed the Department

of Education to issue guidelines on religious activity in public schools to school superintendents across the

country.29

 

The Department of Education Guidelines addressed many of the problem areas facing religious people

in the public schools. Unfortunately, there has not been any evidence to show that the Guidelines have

impacted the number of cases of religious discrimination in the public schools.

 

Despite the good intentions underlying the Guidelines, they contain several problems.30 The

Guidelines fail to address several important issues such as the rights of teachers and the degrees to which

elementary and junior high school students can form religious clubs.

 

Most importantly, the Guidelines do not have any legal effect, being simply a tool to guide individuals

on these issues. The Guidelines do not provide any legal shield for school administrators who follow them.

Consequently, it is important for school officials, teachers, students, and parents to know the case law

that supports these guidelines. This booklet provides complete legal information on issues facing students in

public schools. When used in conjunction with tools such as the Guidelines, this booklet will help foster a

better understanding of religious freedom in the public schools and, as a result, allow students to exercise their

rights fully in that environment.

 

RIGHTS OF STUDENTS

Free Speech and Expression

The Supreme Court first applied the Free Speech Clause of the First Amendment to public school

students in West Virginia State Board of Education v. Barnette.31 The Court held that public school

students have a First Amendment right “to be free from ideological indoctrination.”32

 

Several decades later, the Supreme Court, in a trilogy of cases, established the current framework for

courts to use in evaluating free speech cases in the public schools. Courts have divided student speech into

three categories: (1) “vulgar, lewd, obscene, and plainly offensive speech”; (2) school-sponsored speech; and

(3) all other student speech.33

 

Vulgar, Lewd, Obscene, and Plainly Offensive Speech

As one court has noted, “school officials may suppress speech that is vulgar, lewd, obscene, or plainly

offensive without a showing that such speech occurred during a school-sponsored event or threatened to

‘substantially interfere with [the school’s] work.’”34 Bethel School District No. 403 v. Fraser supplies the

appropriate standard for vulgar, lewd, obscene, and plainly offensive speech.35.

 

In Fraser, the Supreme Court stated that “[t]he undoubted freedom to advocate unpopular and

controversial views in schools and classrooms must be balanced against the society’s countervailing interest in

teaching students the boundaries of socially accepted behavior.”36 The Court found that “[t]he schools, as

instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in

a school that tolerates lewd, indecent, or offensive speech and conduct.”37 The Court recognized that while it

had given adults substantial freedom to engage in plainly offensive speech, it would not afford that same latitude

to students in the public schools.38

 

Courts are constantly defining the boundaries of decency. However, one court has recently held that

“[s]peech need not be sexual to be prohibited by school officials; speech that is merely lewd, indecent, or

offensive is subject to limitation.”39 The age of the students also should factor into a court’s evaluation.40

 

School-Sponsored Speech

This category involves speech or expressive activity that “students, parents and members of the public

might reasonably perceive to bear the imprimatur of the school.”41 Such speech includes school-sponsored

publications, theatrical productions, and school elections.42

 

In these cases, schools have substantial latitude in regulating student expression.43 Federal courts

must “defer to [any] school decision to ‘disassociate itself’ from speech that a reasonable person would view

as bearing the imprimatur of the school”44 as long as that decision is “reasonably related to legitimate

pedagogical concerns.”45 In the constitutional scheme, most school decisions easily satisfy this standard.

 

All Other Student Speech

Tinker v. Des Moines Independent School District46 governs student speech that falls in neither of

the above categories. Tinker applies to cases “address[ing] the educators’ ability to silence a student’s

expression that happens to occur on the school premises.”47

 

Under this framework, the Constitution guarantees a student’s freedom of expression in public schools

if the speech does not: (1) materially and substantially interfere with the requirements of appropriate discipline

in the operation of the schools; or (2) invade or collide with the rights of others.48

 

Schools must offer more than just mere speculation that a disturbance will occur as evidence to justify

any interference with this type of student speech.49 The First Amendment prohibits schools from banning

student expression simply “because of an undifferentiated fear or apprehension of disturbance.”50 School

officials also must show more than a desire to avoid possible “discomfort and unpleasantness” accompanying a

viewpoint.51

 

Determining whether student expression invades or collides with the rights of others is sometimes

difficult.52 Evidence that other students objected to the speech is by itself insufficient to justify banning

expression under Tinker.53 If courts were to accept that evidence, “absent any further justification, the

officials would have a license to prohibit virtually every type of expression.”54

 

In addition, according to one federal district court, a school policy prohibiting attire that depicts

messages that harass other students does not survive the Tinker test.55 The court found that the policy

attempts to regulate “the content of speech, not . . . its potential for disruption.”56 The court noted that under

the school’s policy a student could not wear a T-shirt that bore a depiction objecting to homosexuality because

it would demean his homosexual classmates.57 While the court recognized that the school wanted to teach

students to tolerate different races, ethnic backgrounds, sexes, and sexual orientations, it could not ban speech

simply because it conflicts with this objective.58 The court stated that schools cross “the ‘constitutional line . .

. when, instead of merely teaching, the educators demand that students express agreement with the educator’s

values.’”59

 

Religious Expression: An Overview

Both the Free Exercise Clause and the Free Speech Clause safeguard religious speech.60 In recent

years, courts, using a free speech framework, have consistently held that public school authorities must protect

religious expression to the same degree as nonreligious expression.61 To prohibit the expression of a

particular opinion because of its religious nature would “strike at the very core of first amendment values.”62

Many schools use the Establishment Clause to defend regulating student religious expression.63 The

Establishment Clause, however, places a limitation on government power, not on individual rights.64

Nevertheless, school officials inevitably maintain that most students lack the maturity necessary to distinguish

between government-sponsored and student-initiated religious expression.65

 

Courts have been reluctant to accept this argument. They generally agree that a content-neutral policy

for expressive activity eliminates Establishment Clause concerns.66 As one federal court has stated, “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. Free speech, free exercise, and the ban on establishment are quite compatible when the

government remains neutral and educates the public about the reasons.”67

 

Allowing exhaustive free expression in elementary and junior high schools troubles some courts and

school officials.68 Yet other courts have held that “nothing in the first amendment postpones the right of

religious speech until high school.”69

 

Barring or restricting student-initiated religious expression in public schools also has significant “chilling

effects” on students’ First Amendment rights.70 The Supreme Court has stated that such bans prefer those

who believe in no religion over those who are religious.71 In a recent decision, the Supreme Court reiterated

this principle and held that the Constitution mandates that government treat religious speech the same as

nonreligious speech.72 “[N]o arm of government may discriminate against religious speech when speech on

other subjects is permitted in the same place at the same time.”73

 

Religious Expression in the Classroom

A growing area of controversy involves religious expression in the classroom. These cases typically

arise when an educator, for example, asks each student to draw a picture of something that makes him or her

happy and a student sketches a church, drawing a reprimand from the teacher for bringing religion into the

classroom. Constitutional common sense suggests that such action on the teacher’s part is unconstitutional.

Even the Department of Education Guidelines state that “students may express their beliefs about religion in the

form of homework, artwork, and other written and oral assignments free of discrimination based on the

religious content of their submissions.”74

 

For the courts, however, this issue is not so clear-cut. In DeNooyer v. Livonia Public Schools,75

for example, a federal district court held that a school could prohibit a student from showing a video of herself

singing a religious song during a “show and tell” period.76 The court noted that the school’s ban was

reasonable for two reasons. First, the student wanted to use a video, and the teacher did not allow students to

use videos for their presentations.77 Most importantly, however, the court based its ruling on the necessity for

the school to protect the student’s classmates from potentially offensive religious discussion.78 The court used

this reasoning even though the school had previously allowed a student to discuss a Menorah in class.79 The

Sixth Circuit Court of Appeals upheld the lower court’s ruling,80 and the United States Supreme Court

refused to hear the student’s appeal.81

 

In another case, Settle v. Dickson County School Board,82 the Sixth Circuit Court of Appeals

issued a similar ruling. In response to a school assignment to write a research paper on a topic that would be

“interesting, researchable and decent,” a student chose to do her paper on “A Scientific and Historical

Approach to Jesus Christ.”83 The teacher rejected this topic and offered many reasons for her decision,

several of which focused on the religious nature of the report.84 The court held that all of the teacher’s

reasons fell within “the broad leeway of teachers to determine the curriculum and the grades awarded to

students.”85 The Supreme Court refused to review this decision.86

 

The Third Circuit Court of Appeals split evenly over whether a grade-school teacher infringed on the

First Amendment rights of a student who wanted to read the Biblical story of Jacob and Esau, in spite of the

fact that there was no mention of God or religious themes in the story.87 The court let stand a lower court

ruling that the right of a school to direct the content of classroom discussion required only that the teacher have

a legitimate, nondiscriminatory reason for excluding the viewpoint, and that the desire to avoid divisive or

potentially offensive religious content sufficed.88

 

Until the Supreme Court clarifies this area of constitutional law, these conflicting lower court rulings are

the law within the states over which the respective courts have jurisdiction.89 Other federal appellate courts

have not issued rulings involving students’ religious speech in the classroom.90

 

Because expression in the classroom typically falls under the “school-sponsored” category, schools

probably would only have to offer a reasonable justification for any restrictions on such speech and show that

they have not based their restrictions on a desire to suppress a particular point of view.91 Unfortunately, this

reasonableness standard is fairly easy for schools to satisfy because courts typically defer to the school’s

judgment on curriculum issues.92 Consequently, some students may have difficulties expressing their religious

views in the classroom even though most attorneys agree that students may engage in religious expression in the

classroom when such speech is relevant to the subject matter being taught.

 

Distribution of Religious Literature

The First Amendment guarantees students the right to distribute literature in a peaceful manner93 as

long as the materials are not “libelous, obscene, disruptive of school activities, or likely to create substantial

disorder, or which invade the rights of others.”94 This constitutional protection extends to the distribution of

religious literature.95

 

Courts have split over the appropriate standard to evaluate distribution of religious literature cases.

Some courts have placed such speech in the school-sponsored category even though schools have nothing to

do with this type of expression.96 In other challenges to school restrictions on distribution of religious

pamphlets, courts have applied the Tinker standard.97

 

Regardless of their method of analysis, however, courts have treated school efforts to ban such

conduct unfavorably.98 In Hedges v. Wauconda Community Unit School District,99 for example, the

Seventh Circuit Court of Appeals struck down a school policy banning distribution of proselytory religious

material and prohibiting any religious speech that might create the appearance of school sponsorship.

Courts have rejected Establishment Clause defenses to categorical bans like the one in Wauconda.

They maintain that a content-neutral policy allowing the distribution of all leaflets in high schools satisfies

Establishment Clause concerns.100 In addition, student distribution of religious literature represents private and

not government conduct. One federal court summarized this principle:

 

Clearly, simply because student speech occurs on school property does not make it government

supported. It is undisputed in this case that the students are not government actors, are not acting in

concert with the government, and do not seek school cooperation or assistance with their speech.

Accordingly, the Establishment Clause simply is not implicated.101

 

Further, schools cannot curtail student speech simply to appear neutral in the area of religion.102 As

one court has stated, “[s]tudents therefore may hand out literature even if recipients would misunderstand its

provenance. The school’s proper response is to educate the audience rather than squelch the speaker.”103

However, schools may place reasonable time, manner, and place restrictions on distribution as long as

the policy is reasonable and applies evenhandedly to all types of literature.104 According to courts, “[w]hen,

where, and how children can distribute literature in a school is for educators, not judges, to decide ‘provided

[such choices] are not arbitrary or whimsical.’”105 One court has held reasonable a policy that requires “the

student and the principal to determine ‘cooperatively’ an appropriate time and place for the distribution.”106

That same court also upheld the portion of the school’s policy that required a disclaimer as a reasonable

restriction.107

 

Courts have failed to produce a uniform rule regarding policies that require students to obtain prior

approval before distributing leaflets. The Seventh Circuit Court of Appeals held that such a policy in the

elementary schools was constitutional.108 The court held that the school had an interest in ensuring that

obscene, vulgar, and racially and religiously bigoted material did not reach its students.109 Schools, however,

must establish a reasonable prescreening process to avoid Free Speech violations.110

 

Several other courts, however, have struck down prior approval policies.111 The Ninth Circuit ruled

unconstitutional a policy that required prior review of non-school-sponsored speech.112 The Court held that

schools cannot require prior approval for such speech “on the basis of undifferentiated fears of possible

disturbances or embarrassment to school officials.”113 A federal district court ruled unconstitutional an

elementary school’s policy that required prior approval of both religious and non-religious literature.114

 

Freedom of Association

The Supreme Court has recognized an inherent general freedom of association within the First

Amendment.115 The Supreme Court has acknowledged two types of association: private and

expressive.116

The freedom of private association safeguards “an individual’s choice to enter into and maintain certain

intimate or private relationships” from unwarranted government intrusion.117 Such associations include

marriage, child-rearing, and relationships that “presuppose ‘deep attachments and commitments to the

necessarily few other individuals with whom one shares not only a special community of thoughts, experiences,

and beliefs but also distinctively personal aspects of one’s life.’”118

 

The freedom of expressive association allows “individuals to associate for the purpose of engaging in

protected speech or religious activities.”119 The Court has held that “[t]he Constitution guarantees freedom of

association of this kind as an indispensable means of preserving other individual liberties.”120 Students

meeting for a religious club would fall under this category.

 

Right to Know

A plurality of the Supreme Court has held that the right to know is an “inherent corollary of the right of

free speech.”121 The plurality held that students have the right “to inquire, to study and to evaluate, to gain

new maturity and understanding.”122

 

Courts, however, treat this right differently depending on the context. For example, courts typically

disfavor school attempts to restrict student access to materials.123 These cases generally arise when schools

seek to remove controversial books from their libraries. In Board of Education v. Pico,124 a plurality of the

United States Supreme Court held that school administrators cannot remove books from the library “simply

because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be

orthodox in politics, nationalism, religion, or other matters of opinion.’”125

 

Although plurality opinions of the Supreme Court do not serve as binding precedent, most courts

examining similar fact patterns use the Pico plurality as their chief guideline. Under Pico, a school’s underlying

motivation for removing books should be the focus of any judicial inquiry.126 If schools remove books

because of their “pervasively vulgar content” or unsuitable educational nature, courts will find their motivation

constitutional.127 If school officials remove a book simply because they personally disapprove of it, courts

will find the removal unconstitutional.128 School officials who fail to follow established policy for removing

books provide evidence of an improper motive,129 and courts will look unfavorably on such decisions in

order to safeguard the students’ right to know.

 

Courts use a different standard of review for schools’ curriculum decisions.130 The Seventh Circuit

Court of Appeals has held that students questioning the legality of curriculum decisions must “cross a relatively

high threshold before entering upon the field of a constitutional claim suitable for federal court litigation.”131

Courts typically defer to school judgment in these matters.132 For example, a federal district court upheld a

school’s decision not to add the film Schindler’s List to its curriculum because of its R rating.133 The

Eleventh Circuit Court of Appeals found constitutional a school’s decision to stop using a textbook because of

its vulgar nature.134

 

However, this deferential position does not invariably produce victories for schools. In Pratt v.

Independent School District No. 831, the Eighth Circuit Court of Appeals invalidated a school’s decision to

remove a film from its curriculum.135 The court noted that although schools enjoy substantial discretion in

curriculum matters, they do not have an absolute right to remove materials from their curricula.136 The court

struck down the school’s removal of the film because the school’s administrators based their decision on their

own personal values, not on the violent content of the film.137

 

EQUAL ACCESS

Access to Facilities

The University Setting

In Widmar v. Vincent the Supreme Court established the principle of equal access to facilities in the

university context.138 There, the Court held that a university must allow a religious student group access to

facilities on the same basis as all other groups. Although the university argued that denying religious student

groups access avoided problems under the Establishment Clause, the Supreme Court rejected that

argument.139 According to the Court, an open forum available to religious and nonreligious student groups

removes any Establishment Clause problems.140

 

The Equal Access Act and Secondary School Students

In 1984 Congress enacted the federal Equal Access Act (EAA) to protect the religious rights of public

school students.141 The EAA requires schools to grant religious student groups the same rights and privileges

as nonreligious student groups.142 The EAA, however, applies only to schools that satisfy three basic

conditions.

 

First, the school must have created a “limited open forum.” 143 Under the EAA a limited open forum

evolves when a school permits “one or more noncurriculum related student groups to meet on school premises

during noninstructional time.”144 The key phrases left for courts to define are “noncurriculum related student

groups” and “noninstructional time.”

 

The Supreme Court has defined a “noncurriculum related student group” as “any student group that

does not directly relate to the body of courses offered by the school.”145 According to one appellate court,

such groups do not have to be student-initiated.146

 

The Ninth Circuit Court of Appeals considered the meaning of “noninstructional time.”147 A

California school argued that lunch time was not “noninstructional time” under the EAA and that it did not have

to allow religious clubs to meet during that period. The court, however, noted that the plain language of the

statute made clear that when a school interrupts classroom instruction for a lunch period, it has created

noninstructional time.148

 

School officials have the choice whether or not to permit noncurriculum related student groups to meet

during noninstructional time,149 but once they give even one such group permission to meet, school authorities

open the forum. Within the open forum, the school cannot discriminate against any student group based on the

religious, political, or philosophical content of the group’s speech.150

 

In addition, the EAA applies only to public secondary schools and does not discuss religious clubs in

primary schools.151 The EAA gives each state the discretion to define the grade levels encompassed within

the definition of “secondary school.”

 

Finally, only public secondary schools that receive federal funding are subject to the EAA.152

Employees or agents of the school may be present at “religious meetings only in a non-participatory

capacity.”153 Teachers or other school employees may attend meetings to keep order or for other custodial

purposes.154 According to the EAA, no school or government official may promote, lead, or participate in

any student meeting in the school’s limited public forum.155

 

The Supreme Court, in Board of Education of Westside Comm. Schools v. Mergens, held that the

EAA does not violate the federal Constitution’s Establishment Clause.156 Yet, some schools have resisted

submitting to this federal statute’s mandate.157 For example, some schools have insisted that the EAA does

not override any conflicting state law provisions on this issue.158 However, in Garnett v. Renton School

District,159 the Ninth Circuit Court of Appeals held that Congress intended, through the EAA, to “provide

religious student groups a federal right,” and schools must either permit such groups to meet or pay the

consequences—loss of federal funding.160

 

Unfortunately, some public schools have decided to eliminate all noncurricular student organizations to

avoid the requirements of the EAA.161 Such actions represent attempts to circumvent the purpose of the

EAA.162 However, “[w]hile that option may be antithetical to progressive concepts of education, that cost,

like the rejection of federal funds, is the burden that Congress imposed on school districts that do not wish to

allow religious and other student groups equal access to their facilities.”163 Schools cannot close a forum to

noncurricular student clubs in order to prohibit certain clubs from meeting because of their content, e.g.

religious clubs.164

 

The purpose of the EAA is plain: equal access to school facilities for religious student clubs. Schools

must do more than merely allow student religious clubs to meet informally; the EAA demands official

recognition.165 If other student clubs have “access to the school newspaper, bulletin boards, the public

address system, and the annual Club Fair,” student religious clubs also must have such access.166 According

to one court, “‘it does not behoove a school board, or any court for that matter, to disregard a law duly

enacted by a democratically elected Congress and upheld by the highest court of the land.’”167 The same

court rejected a school’s efforts to “‘search the Act and scour the language of Mergens itself for loopholes that

would allow it to continue discriminating against voluntary religious groups.’”168

 

While the Equal Access Act benefits student religious groups, a Second Circuit Court of Appeals

decision indicates that equal access may sometimes exact a price. In Hsu v. Roslyn Union Free School

District No. 3, 169 the appellate court considered whether a school could refuse to recognize a student religious

group that refused to comply with the school’s nondiscrimination policy.170 The school maintained a

nondiscrimination policy that prohibits all student groups from discriminating against individuals because of their

race, color, creed, sex, national origin, marital status, or disability.171 A student religious group indicated that

it could not comply with that policy because it required its officers to be Christians.172 Consequently, the

school stated that it would not recognize the student group unless it removed that restriction from its bylaws.

173

The court ruled that “[u]nder the Equal Access Act, the [group] may try to preserve the content of the

religious speech at their meetings by discriminating in a way that ensures that the Club’s leaders will be

committed to both its cause and a particular type of expression.”174 The court stated that “just as a secular

club may protect its character by restricting eligibility for leadership to those who show themselves committed

to the cause, the [religious group] may protect their ability to hold Christian Bible meetings by including the

leadership provision in the club’s constitution.”175

 

On equality grounds, however, the court held that the religious group could not require all leaders to

satisfy the Christian criterion. The court found that because a non-Christian could adequately carry out the

duties of two positions—Secretary and Activities Coordinator—the student group could not require their

holders to be Christians.176 The court found this holding necessary in order to treat religious groups the same

as nonreligious groups.

 

Equal Access in Junior High and Elementary Schools

The EAA, as stated above, does not apply to junior high or elementary schools.177 Consequently,

students in those schools must rely on the Constitution to protect their right to meet as religious clubs on school

grounds.

 

Courts have acknowledged that the Constitution does not require students to postpone exercising their

rights until high school,178 but they are divided over the breadth of these rights in pre-secondary schools.

Some courts, for instance, have placed serious limitations on the rights of elementary students in particular to

have religious clubs on school premises.179 For example, in Quappe v. Endry, the court held that a school

could prohibit an elementary religious club from meeting immediately before school and instead require that it

meet in the evening.180 A federal district court, however, recently held that elementary school students could

attend a before school devotional meeting as long as they had parental consent.181

 

As for junior high schools, the Eighth Circuit Court of Appeals, in Good News/Good Sports Club, et.

al v. The School District of the City of Ladue,182 held that a student-led junior high school group, the

Good News/Good Sports Club, had a constitutional right to meet at a public middle school. As in Widmar,

the court used forum analysis to rule that students had a First Amendment right to access, and that the school

district had engaged in unconstitutional viewpoint discrimination by excluding the Bible club while allowing

other clubs to meet. In response to the claim that junior high school students lack the maturity to discern that a

school is not sponsoring such religious clubs by permitting them to meet, one court has said 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.”183 In Good News Club v. Milford Central School, the Supreme Court held that a Christian

youth club for grades K through 8 must be permitted to meet in a public school building after the end of the

school day, since the club’s meetings constituted “moral instruction” like the instruction provided by other

youth organizations that were allowed to meet, such as the Boy Scouts and 4-H club.184

 

Access to Funding

Eleven years after it first addressed the equal access to facilities question, the Supreme Court

considered the next equal access issue: whether schools must give religious groups equal access to funding.

In Rosenberger et al. v. Rector and Visitors of University of Virginia,185 the Supreme Court held

that under the Constitution, religious and nonreligious student groups had the right of equal access to the

school’s student activity fund. Rosenberger stemmed from the University of Virginia’s decision to deny

funding from its student activity fund to a Christian student newspaper because of the publication’s religious

perspective.186 In a 5-4 decision, the Court held that denying funding violated the students’ right of free

speech and that the University would not violate the Establishment Clause by granting funds. In its analysis, the

Court equated a public university’s student activities fund with one of its meeting rooms.187 According to the

Court, the principles of equal access therefore apply to both situations and require that public universities

apply the same funding policies to religious and nonreligious student publications.188

 

Rosenberger’s exact reach is uncertain.189 Following the forum analysis under the Rosenberger

decision, however, all public universities should fund secular and nonsecular student groups on an equal basis in

the same manner as they provide all groups access to university facilities.190

 

Prayer in Public Schools

Students may, of course, pray privately over their lunch, before a test or in any number of situations

that may arise during the normal course of a school day. Schools, however, may not direct prayer. For more

detailed information concerning students’ right of religious expression on campus, please consult The

Rutherford Institute’s publication Baccalaureate Services for information on religious graduation services, and

“See You at the Pole” for information on the annual “See You at the Pole” and related events.

 

Conclusion

The classroom is a marketplace of ideas. Thus, as long as material is age-appropriate, relevant to the

subject matter being taught, and presented objectively, school authorities should preserve the marketplace

concept and maintain the freedoms essential to a proper administration of the education system.

We live in a nation today where young men and women are exposed to a great amount of information

and, as a result, are maturing at a much earlier age. The time has passed where it can be validly argued that the

young must be shielded from viewpoints different than their own. Instead, they must be provided with an

adequate education, which they may use to confront a world that demands informed judgment and educated

decisions.

 

One effective way to provide such an education is to allow the freedom of religious expression in the

public schools. Granting this freedom provides a means not only to achieve important educational objectives,

but to preserve precious and ancient liberties.

 

 

 

 

 

Endnotes

1 U.S. CONST. AMEND. I.

2 Reynolds v. United States, 98 U.S. 145, 164 (1878).

3 See id.

4 See generally Michael McConnell, Origins of the Free Exercise Clause, 103 HARV. L. REV. 1409

(1990).

5 See generally Sherbert v. Verner, 374 U.S. 398 (1963).

6 Id. at 406-07.

7 Employment Division v. Smith, 494 U.S. 872, reh’g denied, 496 U.S. 913 (1990).

8 See generally id.

9 See McConnell, Origins of the Free Exercise Clause, 103 HARV. L. REV. at 1418.

10 See id. For an application of this principle by the Supreme Court to strike down a municipal

ordinance that was facially neutral but actually targeted at animal sacrifice by a disfavored religious

sect, see Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

11 42 U.S.C. § 2000bb (1993).

12 Id. § 2000bb-1.

13 Id.

14 City of Boerne v. Flores, 521 U.S. 507 (1997). Although Boerne ended RFRA’s application to state

and local government actions in the educational context, RFRA still applies by its terms to the agencies

of the federal government. See Christians v. Crystal Evangelical Free Church (In re Young), 141 F.3d

854 (8th Cir. 1998).

15 U.S. CONST. AMEND. I.

16 See, e.g., Roth v. United States, 354 U.S. 476, 483 (1957).

17 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969).

18 U.S. CONST. AMEND. I.

19 Board of Educ. v. Mergens, 496 U.S. 226, 252 (1990) (plurality opinion).

20 Lemon v. Kurtzman, 403 U.S. 602 (1971).

21 Id. at 612-13.

22 McCollum v. Bd. of Educ., 333 U.S. 203 (1948).

23 Engel v. Vitale, 370 U.S. 431 (1962).

24 Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963).

25 Stone v. Graham, 449 U.S. 39, reh’g denied, 449 U.S. 1104 (1981).

26 Wallace v. Jaffree, 472 U.S. 38 (1985).

27 Edwards v. Aguillard, 482 U.S. 578 (1986).

28 Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

29 A copy of the Guidelines is available from The Rutherford Institute.

30 For a full analysis of the Guidelines, please contact The Rutherford Institute.

31 319 U.S. 624 (1943) (addressing whether mandatory flag salute violated student freedoms of speech

and religion).

32 Id. at 642.

33 See Chandler v. McMinnville, 978 F.2d 524, 528-29 (9th Cir. 1992) (providing this useful overview

of student speech).

34 Chandler, 978 F.2d at 529 (quoting Tinker, 393 U.S. at 509) (brackets in original).

35 478 U.S. 675 (1986).

36 Id. at 681.

37 Id. at 683.

38 Id. at 682-83.

39 Broussard v. School Bd. of Norfolk, 801 F. Supp. 1526, 1536 (E.D. Va.1992).

40 See id. at 1537.

41 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270-71 (1988); see also Lopez v. Tulare Joint

Union High Sch. Dist. Bd. of Trustees, 40 Cal. Rptr. 2d 762 (1995) (upholding on state statutory and

constitutional grounds school decision to force students to remove profanity from student film).

42 Hazelwood, 484 U.S. at 271; Poling v. Murphy, 872 F.3d 757 (6th Cir. 1989), cert. denied, 493

U.S. 1021 (1990).

43 Hazelwood, 484 U.S. at 271; see also Chandler, 978 F.2d at 529 (discussing the application of

Hazelwood). But see Desilets v. Clearview Reg. Bd. of Educ., 647 A.2d 150, 152-54 (N.J. 1994)

(finding that school had no legitimate educational purpose for removing movie reviews from that school

based its decision on subject matter rather than grammatical or style problems).

44 Chandler, 978 F.2d at 529 (quoting Hazelwood, 484 U.S. at 271).

45 Hazelwood, 484 U.S. at 273.

46 393 U.S. 503.

47 Hazelwood, 484 U.S. at 271.

48 Tinker, 393 U.S. at 513.

49 Id. at 511.

50 Id. at 508.

51 Id. at 509.

52 The category of student speech dealing with vulgar and lewd expression is an offshoot of this standard.

53 Clark v. North Dallas Indep. Sch. Dist., 806 F. Supp. 116, 120 (N.D. Tex. 1992).

54 Id.

55 Pyle v. South Hadley Sch. Comm., 861 F. Supp 157, 159 (D. Mass. 1994), aff’d, 55 F.3d 20 (1st

Cir. 1995).

56 Id. at 171.

57 Id. at 172.

58 Id.

59 Id. at 173 (quoting Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989, 994 (3d Cir. 1993)).

60 See Widmar v. Vincent, 454 U.S. 263, 269 (1981).

61 See, e.g., Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Hedges

v. Wauconda Comm. Unit Sch. Dist., 9 F.3d 1295 (7th Cir. 1993).

62 Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 84 (1983) (Stevens, J., concurring).

63 See, e.g., Cole v. Oroville Union H.S. Dist., 228 F.3d 1092 (9th Cir. 2000) (holding that school

district’s need to avoid Establishment Clause violation required censorship of religious elements of

valedictorian’s graduation speech); Clark, 806 F. Supp. at 121; Slotterback v. Interboro Sch. Dist.,

766 F. Supp. 280, 294-95 (E.D. Pa. 1991).

64 Rivera v. East Otero Sch. Dist., 721 F. Supp. 1189, 1195 (D. Colo. 1989).

65 See, e.g., Good News Club v. Milford Central School, 202 F.3d 502 (2d Cir. 2000), reversed, 121

S.Ct. 2093 (2001) (citing impressionability of young students in denying youth religious access to

meeting room after instructional time); Hedges, 9 F.3d 1295; Slotterback, 766 F. Supp. 280;

Thompson v. Waynesboro Area Sch. Dist., 673 F. Supp. 1379 (M.D. Pa. 1987).

66 Hedges, 9 F.3d 1295; Slotterback, 766 F. Supp. 280; Rivera, 721 F. Supp. 1189; Thompson, 673

F. Supp. 1379.

67 Hedges, 9 F.3d. at 1299-1300. Cf. Chandler v. James, 180 F.3d 1254 (11th Cir. 1999) (striking

injunction that banned nearly all religious speech on public school campuses without regard to context)

and Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000) (on remand from Supreme Court,

reaffirming earlier decision).

68 See Quappe v. Endry, 772 F. Supp. 1004 (S.D. Ohio 1991) (finding that elementary students lack

maturity to make such distinctions), aff’d, 979 F.2d 851 (6th Cir. 1992); see also Hedges, 9 F.3d

1295 (school raises capacity argument for junior high school students); Thompson, 673 F. Supp.

1379 (same).

69 Hedges, 9 F.3d at 1298 (recognizing the free speech rights of junior high students); accord

Thompson, 673 F. Supp. 1379; see also Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir.

1996), cert. denied, 117 S. Ct. 1335 (1996) (recognizing the free speech rights of elementary school

students); Herdahl v. Pontotoc County Sch. Dist. ,933 F. Supp. 582, 590 (N.D. Miss. 1996) (holding

that as long as elementary school students have parental consent, they can participate in pre-school

devotional meetings).

70 NAACP v. Button, 371 U.S. 415, 433 (1963); Slotterback, 766 F. Supp. at 293-94. See

generally Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58

B.U.L. REV. 685 (1978).

71 Schempp, 374 U.S. at 225.

72 Lamb’s Chapel, 508 U.S. 384.

73 Hedges, 9 F.3d at 1297-98 (citing Lamb’s Chapel, 113 S. Ct. at 2148; Doe v. Small, 964 F.2d 611

(7th Cir. 1992) (en banc); Laycock, Equal Access and Moments of Silence: The Equal Status of

Religious Speech by Private Speakers, 81 NW. U. L. REV. 1, 48 (1986)).

74 Department of Education Guidelines (on file with The Rutherford Institute).

75 799 F. Supp. 744 (E.D. Mich. 1992), aff’d sub nom., 12 F.3d 211 (6th Cir. 1993), cert. denied, 511

U.S. 1031 (1994).

76 The message of the song was that she was saved by Jesus as a young child. Id. at 746.

77 Id. at 751.

78 Id.

79 Id. at 753.

80 DeNooyer v. Merinelli, 12 F.3d 211 (6th Cir.), cert. denied, 511 U.S. 1031 (1994).

81 511 U.S. 1031 (1994).

82 53 F.3d 152 (6th Cir. 1995), cert. denied, 116 S. Ct. 518 (1995).

83 Id. at 154-55.

84 Id.

85 Id. at 156.

86 Settle v. Dickson County Sch. Bd., 116 S. Ct. 518 (1995).

87 C.H. v. Oliva, 226 F.3d 198, 204 (3d Cir. 2000) (en banc), cert. denied, 121 S.Ct. 1653 (2001)

88 C.H. v. Oliva, 990 F.Supp. 341 (D. N.J. 1997).

89 For example, Settle v. Dickson is binding case authority within the Sixth Circuit Court of Appeals’

jurisdiction, which encompasses Michigan, Ohio, Kentucky, and Tennessee. C.H. v. Oliva is binding

in the Third Circuit’s states, Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands.

90 One federal district court upheld a school’s decision to prohibit a student from presenting an oral

report because of its religious content. Duran v. Nitsche, 780 F. Supp. 1048 (E.D. Pa. 1991),

vacated, 972 F.2d 1331 (3d Cir. 1992). The appellate court, however, vacated that ruling on

procedural grounds. Duran v. Nitsche, 972 F.2d 1331 (3d Cir. 1992).

91 See, e.g., Settle, 53 F.3d 152; Hedges, 9 F.3d 1295; Poling, 872 F.2d 757; DeNooyer, 799 F.

Supp. 744; Hemry v. School Bd., 760 F. Supp. 865 (D. Colo. 1991); Nelson v. Moline Sch. Dist.

No. 40, 725 F. Supp. 965 (C.D. Ill. 1989).

92 See generally Epperson v. Arkansas, 393 U.S. 97, 104 (1968); see also Settle, 53 F.3d 152;

DeNooyer, 799 F. Supp. 744.

93 United States v. Grace, 461 U.S. 171, 176 (1983).

94 See Frasca v. Andrews, 463 F. Supp. 1043, 1050 (E.D.N.Y. 1979).

95 See Widmar, 454 U.S. at 269.

96 See, e.g., Muller, 98 F.3d 1530; Hedges, 9 F.3d 1295; Hemry, 760 F. Supp. 856; Nelson, 725 F.

Supp. 965.

97 See, e.g., Clark, 806 F. Supp. 116; Slotterback, 766 F. Supp. 280; Rivera, 721 F. Supp. 1189;

see also Muller, 98 F.3d at 1545-47 (Rovner, J., concurring in part & in result) (stating that courts

should use Tinker in distribution of literature cases).

98 Hedges, 9 F.3d 1295; Slotterback, 766 F. Supp. 280; Hemry, 760 F. Supp. 856; Rivera, 721 F.

Supp. 1189; Nelson, 725 F. Supp. 965; Thompson, 673 F. Supp. 1379; see also Bjorklun,

Distribution of Religious Literature in the Public Schools, 68 EDUC. L. REP. 957 (1991).

99 Hedges, 9 F.3d 1295.

100 Hedges, 9 F.3d at 1298-1300; Slotterback, 766 F. Supp. at 294-96; Rivera, 721 F. Supp. at

1195-96; Thompson, 672 F. Supp. at 1391-92.

101 Rivera, 721 F. Supp. at 1195.

102 Hedges, 9 F.3d at 1298-1300.

103 Id. at 1299.

104 See Perry Educational Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983); Nelson, 725

F. Supp. 965; Hemry, 760 F. Supp. 856, 863.

105 Muller, 98 F.3d at 1543, (quoting Hedges, 9 F.3d at 1302) (brackets in original); Nelson, 725 F.

Supp. 965.

106 Id. at 1543.

107 Id. at 1544-45.

108 Id. at 1534-35.

109 Id.

110 Id. at 1541 (suggesting that factors such as the nature of the leaflet and problems that might arise in

evaluating its impact on recipients are relevant when considering a policy’s reasonableness).

111 See, e.g., Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Johnston-Loehner v. O’Brien, 859 F.

Supp. 575 (M.D. Fla. 1994).

112 Burch, 861 F.2d 1149.

113 Id. at 1159.

114 Johnston-Loehner, 859 F. Supp. 575.

115 Roberts v. United States Jaycees, 468 U.S. 609, 622-23 (1984).

116 Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 544-45 (1987).

117 Id. at 544.

118 Id. at 545 (quoting Roberts v. Jaycees, 468 U.S. at 619- 20).

119 Id.; Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

120 Roberts v. Jaycees, 468 U.S. at 618.

121 See Board of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality).

122 Id. at 868-69 (plurality opinion).

123 See, e.g., Pico, 457 U.S. at 868-69 (plurality opinion); Campbell v. St.Tammany Parish Sch. Bd., 64

F.3d 184 (5th Cir. 1995); Case v. Unified Sch. Dist. No. 233, 908 F. Supp. 864 (D. Kan. 1995).

124 457 U.S. 853.

125 Id. at 872 (plurality opinion).

126 Id.; see also Campbell, 64 F.3d at 188-89.

127 Pico, 457 U.S. at 870-72 (plurality); see also Campbell, 64 F.3d at 188.

128 See Case, 908 F. Supp. 864 (applying Pico).

129 Id. at 876.

130 See, e.g., Virgil v. School Bd., 862 F.2d 1517 (11th Cir. 1989); Zykan v. Warsaw Community Sch.

Corp., 631 F.2d 1300, 1306 (7th Cir. 1980); Borger v. Bisciglia, 888 F. Supp. 97, 99-100

(E.D. Wis. 1995).

131 Zykan, 631 F.2d at 1306.

132 See Borger, 888 F. Supp. at 99-100.

133 Borger, 888 F. Supp. 97.

134 Virgil, 862 F.2d at 1525 (noting that students still had access to materials in library).

135 670 F.2d 771 (8th Cir. 1982).

136 Id. at 776.

137 Id. at 778.

138 Widmar, 454 U.S. 263.

139 Id. at 270-275.

140 Id. at 266-67.

141 See 20 U.S.C. §§ 4071-4074 (1984).

142 20 U.S.C. § 4071(a).

143 Id.

144 Id. § 4071(b).

145 Mergens, 496 U.S. at 239.

146 Pope v. East Brunswick Bd. of Educ., 12 F.3d 1244, 1249 (3d. Cir. 1993).

147 Ceniceros v. Board of Trustees, 66 F.3d 1535 (9th Cir. 1995).

148 Id. at 1537-38.

149 Id. § 4071(b); see Mergens, 496 U.S. at 241; Pope, 12 F.3d at 1254; see also Ceniceros, 66 F.3d

at 1538 (suggesting that schools can disallow religious groups from meeting during lunch period by

barring all noncurriculum-related student groups from gathering during that time).

150 20 U.S.C. § 4071(a).

151 Id.

152 Id.

153 Id. § 4071(c)(3); see also Sease v. School Dist., 811 F.Supp. 183 (E.D. Pa. 1993) (discussing this

restriction).

154 Id. § 4072(2).

155 Id. § 4071(c); see also Sease, 811 F. Supp. 183 (discussing this restriction).

156 496 U.S. at 253.

157 See, e.g., Pope, 12 F.3d 1244 (rejecting school’s argument that allowing student religious club to

meet sent a message of endorsement of religion).

158. See Ceniceros, 66 F.3d 1535; Hoppock v. Twin Falls Sch. Dist. No. 411, 772 F. Supp. 1160 (D.

Idaho 1991); Garnett v. Renton Sch. Dist., 772 F. Supp. 531 (W.D. Wash. 1991), rev’d, 987 F.2d

641 (9th Cir. 1993), cert. denied, 510 U.S. 818 (1993).

159 987 F.2d 641 (9th Cir.), cert. denied, 510 U.S. 818 (1993).

160 Id. at 646; see also Ceniceros, 66 F.3d 1535 (reaffirming the Garnett holding).

161 See Blade-Citizen Encinitas Edition, Oct. 31, 1990, at A-1 (discussing such debate).

162 See Arval A. Morris, The Equal Access Act After Mergens, 61 EDUC. L. REP. 1139 (1990).

163 Pope, 12 F.3d at 1254.

164 Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2001); East High Gay/Straight Alliance v. Salt

Lake City Sch. Distr., 81 F.Supp.2d 1166 (D.C. Utah 1999).

165 Mergens, 496 U.S. at 247.

166 Id.

167 Pope, 12 F.3d at 1247 (quoting district court opinion).

168 Id.

169 85 F.3d 839 (2d Cir. 1996), cert. denied, 117 S. Ct. 608 (1996).

170 Id.

171 Id. at 850.

172 Id. at 849-50.

173 Id. at 850.

174 Id. at 862.

175 Id. at 861.

176 Id. at 857.

177 The EAA would apply to a junior high school if state law defined junior high schools as secondary

schools.

178 Muller, 98 F.3d at 1534-35 (elementary school students); Hedges, 9 F.3d at 1298 (junior high school

students).

179 See Bell v. Little Axe Indep. Sch. Dist., 766 F.2d 1391 (10th Cir. 1985)(enjoining a school policy

allowing elementary religious club to meet on same terms as nonreligious clubs); see also Quappe, 772

F.Supp. 1004 (upholding school’s decision not to allow an elementary school religious club to meet

immediately before or after school but to require the club to meet at 6:30 pm).

180 772 F. Supp. 1004, aff’d, 979 F.2d 851 (6th Cir. 1992).

181 Herdahl, 933 F. Supp. at 590.

182 28 F.3d 1501 (8th Cir. 1994); see also Thompson v. Waynesboro Area Sch. Dist., 673 F.Supp.

1379, 1380 (M.D. Pa. 1987).

183 Hedges, 9 F.3d at 1300.

184 121 S.Ct. 2093 (2001).

185 515 U.S. 819 (1995).

186 Id. at 2513-15.

187 Id. at 2517-19, 2523.

188 Id.

189 See Gay Lesbian Bisexual Alliance v. Sessions, 917 F. Supp. 1548 (M.D. Ala. 1996) (striking down

policy for bidding use of university funds to condone or support any group that promotes homosexual

lifestyle).

190 See Regents of University of Wisconsin v. Southworth, 529 U.S. 217 (2000) (requiring university

student associations to adhere to viewpoint neutrality requirement in determining allocation of student

association funds to various student organizations).