Legal Forum: Equal Access Act and Student Groups' Access to School Budgets

Dr. Dave Dagley Professor Emeritus, University of Alabama and Dr. Amy Dagley Associate Professor, University of Alabama at Birmingham

The Equal Access Act (EAA) was passed in 1984, forbidding public secondary schools that receive federal funds and which have a limited open forum (as defined by the act) to prohibit students from conducting meetings because of the “religious, political, philosophical, or other content of speech at such meetings.” 20 U.S.C. § 4071 (a). That year was an election year, producing Ronald Reagan’s successful attempt for a second term, and there was concern about a string of federal court decisions about separation of church and state, including a U.S. Supreme Court decision prohibiting teacher-led school prayer, in Engel v. Vitale, 370 U.S. 421 (1962). This commentary is about a recently reported case where, under school board policy, a student group was permitted to meet on campus, but was not allowed to use school bulletin boards, to fundraise, to advertise through announcements on the school’s radio station, or to be listed in the student handbook. The case is Pendleton Heights Gay-Straight Alliance (PHGSA) v. South Madison Community School Corporation, 577 F.Supp.3d 927 (S.D.Ind. 2021).

PHGSA is a student group that meets at the high school, to provide gay, lesbian, bisexual, transgender, and allied students with support for each other, to inform the school community of the existence of these students, and to foster tolerance and acceptance regardless of sexual orientation. PHGSA sued the school district, arguing that it had violated the group’s rights provided by statute in the EAA, and had also violated the group’s constitutional rights under the First Amendment and the Equal Protection Clause. At this early stage of the litigation, PHGSA asked the court for a preliminary injunction requiring the high school to let PHGSA use the bulletin boards and radio station, to allow PHGSA to fund raise, and to let it be included in the student handbook. The legal standard for receiving a preliminary injunction required PHGSA to show that “it is reasonably likely to succeed on the merits, it is suffering irreparable harm that outweighs any harm the nonmoving party (the high school) will suffer if the injunction is granted, there is no adequate remedy at law, and an injunction would not harm the public interest.” Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).

Whether or not the EAA applies to a public high school depends entirely upon conditions set in the EAA and—importantly—whether the school administration has made decisions that make it apply. The formula we use in our teaching for when EAA applies to your school is a series of “if” statements, as follows:

If you are a public secondary school which receives federal funds; (20 USC §4071(a))

If you have a limited open forum in your school; i.e., have agreed to have one or more noncurriculum related student groups to meet on school premises during noninstructional time; (20 USC §4071(b)); and, If one of your school’s students asks to form a group to meet, (20 USC §4071(c))

Then, the school must allow the group to meet. (20 USC §4071(a))

The school’s policy divided its student groups into two categories: school sponsored and non-school sponsored. The school-sponsored groups got access to the budget, mentioned in the student handbook, space on the bulletin boards, and time on the radio station. The non-school sponsored groups received none of those perquisites. This language reflected the definition of a limited open forum under EAA, which exists when the school has let a “non-curriculum related” student group to meet. In this case, the school district argued that the PHGSA was the only noncurriculum related student group and therefore the only non-school related student group to meet.

The first case about the Equal Access Act to reach the U.S. Supreme Court was Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1996), in which the high court held that the EAA was constitutional. The court also held that, under the EAA, allowing students to meet in groups for the purpose of Bible study did not violate church-state requirements. A central part of the Supreme Court’s analysis in Mergens regarded what it means to have a limited open forum. EAA recites that “a public secondary school has a limited open forum whenever such school grants an offering to or an opportunity for one or more noncurriculum (emphasis added) related student groups to meet on school premises during noninstructional time.” 20 U.S.C. § 4071 (b). Consequently, a most important factor is whether a student group is curriculum related or is not curriculum related.

The Mergens court provided four instances in which a student group “directly relates” to a school’s curriculum: (1) if participation in the group is required for a particular course; (2) if participation in the group results in academic credit; (3) if the subject matter of the group concerns the body of courses as a whole; or (4) if the subject matter of the group is actually taught, or will soon be taught, in a regularly-offered course. 496 U.S. at 239-40. The Mergens court determined that a scuba diving club was not sufficiently curriculum-related simply because it enabled students to develop long-term recreational interests. In other words, to be curriculum-related, the student group’s activities must specifically detail and reflect the literal language in the school’s curriculum guide. Because at least one student group, the scubadiving club, was not sufficiently related to the school curriculum, the school district in Mergens had created a limited open forum and was therefore obligated to also allow the student Bible study group access to the forum.

Likewise, in the more-current case involving PHGSA, the high school in South Madison Community School Corporation had at least one student group meeting as an Outdoor Adventure Club, which met none of the four situations listed in Mergens, above, and was not specifically reflected anywhere in the language of the school’s curriculum. Therefore, the high school in this case had created a limited open forum and was obligated to treat the PHGSA the same as the other student groups. The federal district court held that PHGSA was likely to win later on the merits just under terms of the Equal Access Act, and that on balance the student group was being harmed more than the high school. It is important to note that the court stopped its analysis with deciding that the school had violated the student group’s rights under the EAA. It had not yet addressed the constitutional claims regarding the First Amendment or Equal Protection.

We chose this case for comment precisely because the court only addressed the EAA claim and went no further. In recent years, cases under the EAA often move on from the terms in EAA and begin addressing the First Amendment claims, requiring that the courts deploy Public Forum Doctrine to conduct an analysis of the nature of the forum, and also the free speech rights of the parties to the suit. If the forum is a limited public forum (not a limited open forum, the language in used EAA) but a forum where the school has purposely or blindly converted a nonpublic forum (a place where curriculum is delivered, such as a classroom) to something more like a public forum (a place where people are free to speak). If the court moves too quickly in using Public Forum Doctrine, the lines between a statutory limited open forum under the EAA and a limited public forum under Public Forum Doctrine became very fluid, and the relative rights of the parties can become very messy. The lesson for school principals here is that it is important to know what kind of student groups are meeting in your schools, where they fit among categories under the Equal Access Act, how your present board policy supports the decisions you intended to make, and what additional obligations have been created, either by the Equal Access Act or by Public Forum Doctrine.