Equal Access Act

The Equal Access Act became law on August 11, 1984, passing the Senate 88-11 and the House 337-77. Congress's primary purpose in passing the Act, according to the Supreme Court, was to end “perceived widespread discrimination” against religious speech in public schools. While Congress recognized the constitutional prohibition against government promotion of religion, it believed that non-school-sponsored student speech, including religious speech, should not be excised (eliminated) from the school environment.

The law applies only to public secondary schools that:

  • Receive Federal financial assistance

  • Already have “a limited open forum,” i.e. at least one student-led, non-curriculum club that meets outside of class time. Chess, model building, political, religious and many similar types of clubs are considered to be non-curriculum based. A French club might be considered to be curriculum related.

There are three basic concepts.

  • The first is nondiscrimination. If a public secondary school permits student groups to meet for student-initiated activities not directly related to the school curriculum, it is required to treat all such student groups equally. This means the school cannot discriminate against any students conducting such meetings “on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” This language was used to make clear that religious speech was to receive equal treatment, not preferred treatment.

  • The second basic concept is protection of student-initiated and student-led meetings. The Supreme Court has held unconstitutional state-initiated and state-endorsed religious activities in the public schools. (This Act leaves the “school prayer” decisions undisturbed.) However, in upholding the constitutionality of the Act, the Court noted the “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.”

  • The third basic concept is local control. The Act does not limit the authority of the school to maintain order and discipline or to protect the well being of students and faculty. A faculty member may be present at meetings of religious clubs to ensure the safety of the students and school property, but not to participate in any of the activities.

The Supreme Court, by a vote of 8-1, held in Westside Community Schools v. Mergens (1990) that The Equal Access Act is constitutional.

Additional court decisions further interpreted the law:

  1. Pope v. East Brunswick Board of Education, [12 F.3d 1244 (3d Cir. 1993)] extended the coverage of the law to schools that allow only extracurricular clubs that are faculty-initiated.

  2. Hsu v. Roslyn Union Free School District No. 3, [85 F.3d 839 (2d Cir. 1996)] required a high school to allow a Christian club to discriminate on the basis of religion when electing its officers. The school had a general rule that prohibited religious discrimination by clubs.

For More Information:
The Equal Access Act and the Public Schools: Questions and Answers Chapter 11 of Finding Common Ground provides explanation of the Equal Access Act, a link to the full text of the Equal Access Act and Q and A.


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