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:
- 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.
- 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:
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.