The Equal Access Act - 2004

The Supreme Court held, in Widmar v. Vinvent, that when colleges allowed student groups to use their facilities they could not discriminate against student religious groups. [FN10] In other words, Christian students have to be allowed to use a meeting room on campus with the same restrictions applied to any other student group. The Establishment Clause of the First Amendment is not violated when a government entity, such as a public university, treats all groups the same, without attempting to censor religious speech. The Mergens Court quoted from Widmar extensively as they explained why secondary students have the right to have religious clubs on their campus.

Congress enacted the Equal Access Act to cure pervasive antireligious bigotry exhibited by public secondary school officials in the aftermath of the Supreme Court's school prayer cases. Three factors determine whether the Equal Access Act compels official recognition of a Bible club by school officials: 1) does the school receive federal funds; 2) is the school a public secondary school; and 3) does the school allow any noncurriculum clubs to meet on campus?

When these factors are satisfied, federal law compels school officials to provide equal access to students who want to organize and conduct Bible clubs and student prayer groups. In Garnett v. Renton School Dist. No. 403, a Federal Court of Appeals ruled that the Equal Access Act must be complied with even in the face of a state constitutional provision to the contrary.[FN11]

Westside Community Schools v. Mergens

The United States Supreme Court upheld the constitutionality of the Equal Access Act in Westside Community Schools v. Mergens (Mergens).[FN12] According to the Mergens Court, the above-mentioned factors should be employed in a standard three-prong analysis, as follows:

1. Federal Funding. Does the school receive any federal funds at all? This question is answered, simply, yes or no. If the answer is no, the Equal Access Act does not apply. If the answer is yes, it is necessary to examine the next prong of the Mergens-Equal Access Act test.

2. Secondary Schools. Is the school in question a secondary school as defined by state law? This information should be available from the local State Board of Education. If the school in question is classified as a secondary school, it is then necessary to examine the third prong of the Mergens-Equal Access Act test. While it varies from state to state, most states classify a secondary school as grades nine through twelve.

3. Noncurriculum Clubs on Campus. Does the school allow noncurriculum clubs to meet on campus? Here the Mergens Court was very specific. Schools cannot misrepresent the nature of clubs that are permitted to meet. The Court explicitly examined the intent of Congress concerning noncurriculum-related clubs:

• [W]e think that the term noncurriculum related student group' is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. . . . This . . . definition . . . is consistent with Congress' intent to provide a low threshold for triggering the [Equal Access] Act's requirements. [FN13]

Thus, the nature of the clubs currently meeting at the school is key. Service clubs, for example, such as the Key Club, the Lions Club, Zonta and Interact are not considered curriculum-related.

Additionally, clubs such as the Chess Club do not relate to the curriculum under normal circumstances. For example, only when a school teaches chess as an academic subject, for which students received a grade, would a Chess Club be considered related to the curriculum. The school district's argument, in Mergens, that chess was curriculum related because it enhanced logical thinking and the performance of mathematical calculations was rejected by the Supreme Court.

In Mergens, Justice O'Connor noted that "if a state refused to let religious groups use the facilities open to others, then it would demonstrate not neutrality but hostility toward religion. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities." [FN14] When a public high school official refuses to allow student-initiated Bible clubs treatment equal to that given other noncurriculum clubs meeting on campus, it treats those students as second-class citizens. This attitude is precisely the one which the Equal Access Act prohibits.

Bible Clubs Must Receive Official Recognition

Official recognition means that the Bible club must be treated the same as other clubs meeting on campus. "Official recognition allows student clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair."[FN15] Under that view, Bible clubs are allowed to advertise on campus. Types of advertisement could include, but are not limited to: flyers distributed among other students, posters displayed on the school walls, notices in the school newspaper and announcements included during the morning or afternoon announcements. It is important to note that the Bible club is not responsible to make sure the students know that the club is student-initiated. Rather, this is a responsibility of school officials.

Once the Equal Access Act is triggered, the school must provide a room for the Bible club. The school must also make its resources available to the Bible club in the same way that those resources are made available to other clubs. Additionally, the Bible club must be allowed to meet at any time other clubs are allowed to meet. If there is a club period, the Bible club must be allowed to meet during that period.

If other clubs are allowed to have school-wide assemblies to espouse their views, then the Bible club must be allowed the same privilege. Secondary school officials are not allowed to discriminate against a student group because of its message. Neither is a secondary school official allowed to censor the speech of the Bible Club by requiring it to delete references to Christianity from the club's constitution, announcements, or other materials.

Sponsors v. Custodians: Faculty/Staff

The only difference between a Bible club and any other club allowed to meet on the school campus is the use of faculty members as club sponsors. The Equal Access Act specifically allows for a faculty/staff custodian as compared to a normal club sponsor. This means that the faculty/staff custodian does not have control of the Bible club. He or she is only there to ensure that the Bible club does not violate school policies.

The Bible club must be student-initiated. This means that students must create and lead the club. It does not mean that they cannot have outside speakers. It only means that a non-student cannot lead the club. Community leaders and others can be invited to speak occasionally.

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