General Rule: The Equal Access Act (" EAA") (20 U. S. C. §§ 4071-74) requires public schools
which meet certain criteria to treat all student-initiated groups equally, regardless of the religious,
political, philosophical or other orientation of the groups. This means that to the extent
that a school board opens up its school facilities to any student-led and run non-curriculum
related group, it must uniformly open its facilities to all student-led and run groups, including
religious ones. The EAA was adopted by Congress in 1984, and its constitutionality was
upheld by the U. S. Supreme Court in Board of Education of Westside Community Schools v.
Mergens, 496 U. S. 226 (1990).
This Chapter is limited to a discussion of student-initiated religious clubs. Chapter X addresses the
related topic of access to school facilities by outside religious clubs and organizations.
Does the EAA apply to all schools? No. The EAA only applies to schools that meet a three-part
test. The school must:
What is a "Secondary School" in the context of the EAA? A secondary school is often
defined by state statute, but typically means grades 9 - 12. It is unlikely that the Equal Access
Act applies to so-called "middle" schools. 61
- Be a public secondary school;
- Receive federal financial assistance; and
- Have designated certain facilities as a "limited open forum."
What is a "limited open forum" in the context of the EAA? A "limited open forum" is created
when a public secondary school allows one or more "non-curriculum related student
groups to meet on school premises during non-instructional time." 20 USCA § 4071( b). Local
school boards decide whether to create and maintain limited open forums.
What is a "non-curriculum related student group"? "Non-curriculum related student
group," as used in Equal Access Act, refers to those student groups whose activities are not
directly related to the body of courses offered by the public school (e. g., the chess club).
Student groups that are directly related to the subject matter of courses offered by the school
(e. g., the Spanish club) do not fall within the non-curriculum-related category and thus
would be considered curriculum-related. 62, 63
What restrictions does EAA place on non-curriculum related student groups?
What are the rights of non-curriculum related student groups under the EAA? The EAA
grants these groups equal access to school facilities for meetings, and equal access to school
media (e. g. school publications, school bulletin boards and public address systems) for
publicizing their activities. They may choose their own leaders, restricting certain leadership
roles to people of their own faith. 64 However, general membership probably cannot
- The group must be student-initiated.
- The group must be student-sponsored and student-led.
- Participation in the group must be voluntary.
What is "non-instructional time"? "Non-instructional time" is time which a school sets
aside before classroom instruction begins or after classroom instruction ends. Non-instructional
time also encompasses an activity period or lunch period during which instruction
does not occur and during which other groups are allowed to meet. 65
What are the rights retained by school authorities under the EAA? School officials have the
right to monitor club meetings to ensure compliance with provisions of the EAA. School
authorities can "maintain order and discipline on school premises" and may prohibit club
meetings which "materially and substantially interfere with the orderly conduct of educational
activities within the school." School officials have the duty of protecting the "well-being
of students and faculty." School officials should require religious clubs to follow the
same rules as all other student clubs, including adherence to any nondiscrimination policy.
School authorities may establish time, place and manner regulations applicable to club meetings,
provided that the restrictions are uniform and nondiscriminatory. School officials have
the right to close the limited open forum at any time by prohibiting all non-curriculum related
clubs from meeting on school premises, thus ending the school's obligations under the
What are the restrictions and obligations placed upon the school, its agents and employees
by the EAA? School personnel, including teachers, may not initiate, sponsor, promote,
lead or participate in religious club meetings. However, school personnel may be required
to monitor club meetings. 20 USCA §4071.
May outsiders attend meetings? Outsiders, such as clergy members, may not initiate club
meetings. Outsiders "may not direct, conduct, control or regularly attend activities of student groups." 67
Outsiders may occasionally attend club meetings if invited by the students
and if the school does not generally prohibit such guests. However, school officials may
totally forbid non-school persons from attending all student club meetings. 68
What are some concerns that arise when a club meets pursuant to the EAA?
The meeting of religious clubs in school facilities pursuant to their rights under the EAA may
create an appearance of school endorsement of religion in violation of the Establishment
Clause. School officials must protect against such impressions and may do so by issuing disclaimers
clearly stating that the school is not sponsoring, endorsing or promoting any non-curriculum
related student groups.
Schools must also recognize and guard against the threat of coercive peer pressure, which
may be substantial. Student club members may be able to coerce students into joining sectarian
groups and adhering to the club's beliefs, particularly if the student body is composed
largely of the same religious faith as that practiced by club members. Such clubs might create
"insider" and "outsider" student groups, and, as a result, students may be ridiculed,
harassed or ostracized.
High School Principal Rejects Student Application for Bible Club, but Permits Other
Non-Curriculum Related Clubs
Three students at Hawthorne High School decide to form a Bible study club. To organize
and structure their club, they enlist the help of their local minister. A school science
teacher agrees to become the club advisor. The principal has allowed a wide variety
of clubs to meet after school hours, including the chess club, the audiovisual
squad, and the Spanish club, but is concerned about the controversy that this club
could create. The students claim that the Equal Access Act protects their right to form
this club. When he rejects the club proposal, the principal states that all other school
clubs are related to the curriculum and hence the Equal Access Act does not apply.
Is the principal correct?
The school has created a limited open forum by allowing other non-curriculum related clubs to
meet, and therefore it must allow the Bible study club to meet. However, the roles of the minister
and science teacher in the club have to be carefully controlled pursuant to the dictates of the
People in Community Object to Controversial Non-Curriculum Related Club
A high school allows non-curriculum related student-organized, student-led clubs to
meet before and after the school day. A very controversial club has been proposed by a
student, and many in the community are opposed to this club's meeting.
What are the school's options?
Under any circumstance, a school may prohibit clubs and organizations that are contrary to the
educational mission of the school or present a danger to the health and safety of a school. This is
a very high standard: a school district may not bar a student club merely because the school or
the community disagrees with its message, even if they disagree strongly. Should the District so
elect, it can ban all such non-curriculum related clubs (such as service clubs) including this one.