Question-and-Answer Guidelines on Access Law
Shortly after the Congress passed the Equal Access Act on July 25, a broad coalition of educational and legal groups, recognizing the potential for confusion among school administrators caused by the new statute, began discussions to try to develop guidelines for its implementation.
Representative Don Bonker, Democrat of Washington and the main House sponsor of the legislation, published the following near-final version of the recommendations--done in question and answer format--in the Sept. 24 Congressional Record.
Q. What is meant by "limited open forum"? Sec. 802(a) and (b).
A. A limited open forum is created when a secondary school provides an opportunity during "noninstructional time" for students to organize meetings to discuss subject matter not directly related to the school curriculum and permits those meetings on school premises. The forum created is said to be "limited" because it is only the school's own students who can take advantage of the open forum. Outsiders are not granted any affirmative right of access by the Equal Access Act.
Q. Does a school have to provide a limited open forum for students?
A. No. The school or local policymaking body has the exclusive authority to determine whether it will create or maintain a limited open forum. If a school has a limited open forum, it may not discriminate against a student group because of the content of its speech. If a school does not have a limited open forum, the request of a single student group to organize a meeting or a club that is not directly related to the school curriculum requires the school to determine whether it wants to create such a forum.
Q. Do meetings of curriculum-related groups trigger implementation of the Equal Access Act?
A. No. Only allowing meetings of noncurriculum-related groups trigger implementation of the act.
Q. What is meant by "noncurriculum-related student groups"? Sec. 802(b).
A. A noncurriculum-related student group is a group or club that is interested in a subject matter not directly related to the school curriculum. The math club, the Spanish club, the drama club, and the athletic teams would normally be curriculum-related. A religious club, a political club, or service club would be considered noncurriculum-related.
Q. Who determines which student groups are curriculum-related?
A. Local school authorities. However, a school cannot defeat the intent of the Equal Access Act by some all-encompassing definition that arbitrarily results in all but one or a few student clubs being defined as curriculum-related.
Q. When can noncurriculum-related student groups meet?
A. A limited open forum requiring equal access may be established during "noninstructional time." Sec. 802(b). The act defines "noninstructional time" as time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends. Sec. 803(4). It includes time before an individual student's school day begins or after it ends even though other students may be receiving classroom instruction at the time because of split-sessions or staggered school schedules.
Q. Can noncurriculum-related student groups meet during the school day?
A. The act is silent on whether a limited open forum requiring equal access may be established for student clubs during the instructional day. The constitutionality of equal access for religious clubs during the school day is currently being litigated in the federal courts.
Q. May a school establish regulations for meetings that take place in a limited open forum?
A. Yes. The act does not take away a school's authority to establish time, place, and manner regulations for its limited open forum. For example, it may establish a reasonable time period on any one school day, a combination of days or all school days. It may assign the room in which stu-dent groups can meet. It can enforce order and discipline in the meetings. The key is that regulations must be uniform and nondiscriminatory.
Q. Can a school require a minimum number of students to form a noncurriculum-related club?
A. No. Care must be exercised not to discriminate against numerically small student groups that wish to establish a club by setting a requirement of a minimum number of students to form a club. Sec. 802(d)(6). They key is to be flexible in dealing with small student groups and to accommodate student groups that want to meet. For example, one teacher could monitor several small student groups meeting in a large room.
Q. Should a school formulate a written policy for the operation of a limited open forum?
A. If a school desires to create a limited open forum, or if such a forum already exists, it is strongly recommended that a uniform set of regulations be drawn up as soon as possible and be made available to administrators, teachers, students, and parents. The importance of having such a document becomes clearly evident if the school either denies a student group the opportunity to meet or is forced to withdraw that opportunity. When the rules are known in advance, general acceptance is easier to obtain.
Q. What does "student-initiated" mean? Sec. 802(c)(1).
A. "Student-initiated" is one of the key precepts of the act. It means the students themselves are seeking permission to meet and will direct and control the meeting. It means that neither a teacher nor other employee of the school nor the school itself is initiating the meeting. Further, nonschool persons may not direct, control, or conduct student meeting. Sec. 802(2)(5). This does not mean that students are forbidden to seek advice from nonschool persons.
Q. May teachers be present during student meetings?
A. Yes, but there are limitations. For insurance purposes or by local policyo write a one line hed (60p) over two screen lines in mode one or state law, teachers are commonly required to be present during student meetings. However, the act permits teachers only a custodial role (acting in an emergency or to preserve order). In order to avoid any taint of state sponsorship of religion, teachers or employees are to be present at student religious meetings only in a "nonparticipatory capacity." Sec. 802(d)(1). The act also prohibits teachers or other school officials from influencing the form or content of any prayer or other religious activity. Sec. 802(d)(1).
Q. May outsiders attend a student meeting?
A. Yes, if invited by the students, unless the school adopts a policy barring all "nonschool persons." However, the nonschool persons cannot, in fact, be running the student group. "Nonschool persons may not direct, conduct, control, or regularly attend activities of student groups." Sec. 802(c)(5). A school may decide not to permit any outside resource people to attend any club meetings, or it may determine how many times during a school year an outside resource person may attend any club meetings, or it may limit the number of outside resource people who may attend a single meeting.
Q. Can a teacher or other school employee be required to be present at a student meeting if that person does not share the beliefs of the students?
A. No. Sec. 802(d)(4) provides that no school employee can be required to attend a meeting "if the content of the speech at the meeting is con-trary to the beliefs" of that employee. However, if a school establishes a limited open forum, it is responsible for supplying a monitor for every student group meeting if a monitor is required.
Q. What is meant by "no sponsorship of the meeting by the school, the government, or its agents or employees"? Sec. 802(c)(2).
A. Neither the school, the government, or its agents or employees may promote, lead, or participate in a noncurriculum-related student meeting. Sec. 803(2). The assignment of a teacher or other employee to a meeting for custodial purposes (that is, in a nonparticipatory capac-ity) is not considered sponsorship. Sec. 803(2). Expenditure of public funds for the incidental cost of providing the space (including heat and light) for student-initiated meetings is not considered sponsorship. Sec. 802(d)(3).
Q. If a school pays a teacher for monitoring a student religious club, does that constitute "sponsorship"?
A. Congressional debate apparently took for granted that payment of a school-required monitor for any club was an "incidental cost of providing the space for student-initiated meetings." Sec. 803(d)(3). However, there are some who maintain that schools may not expend money to monitor religious clubs in view of the establishment clause [of the First Amendment].
Q. Does the use of school media to announce meetings of noncurriculum-related student groups constitute "sponsorship" of6those meetings?
A. The act does not directly address this issue. If only information about all meetings is given, the use of school media--the public address system, the school paper, the official bulletin board--would not constitute sponsorshp of the meetings. However, schools should be cautioned that the act forbids their promotion of these meetings, and the singling out of one or a few of them for special attention would be promoting them. Because a basic precept of the act is student initiation, each noncurriculum-related student group is responsible for its own promotion.
Q. Do school authorities retain disciplinary control?
A. Yes. The act emphasizes the "authority of the school, its agents, or employees to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary." Sec. 802(f). Furthermore, the school must provide that "the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school." Sec. 802 4). These two provisions do not authorize a school to prohibit certain student groups from meeting because of administrative inconvenience or speculative harm. For example, a group cannot be barred at a particular school because a similar student group at a different school has generated difficulties.
Q. What about groups that wish to advocate or discuss changes in the existing law?
A. Students who wish to discuss controversial social and legal issues such as the rights of the unborn, the drinking age, the draft, and alternative life styles may not be barred on the basis of the content of their speech. However, the school must not sanction meetings in which unlawful conduct occurs. Sec. 802 (d)(5).
Q. What if some students object to other students meeting?
A. The rights of a lawful, orderly student group to meet are not depen-dent upon the fact that other students may object to the ideas expressed. All students enjoy free-speech constitutional guarantees. It is the school's responsibility to maintain discipline in order that all student groups be afforded an equal opportunity to meet peacefully without harassment. The school must not allow a "heckler's veto."
Q. What about so-called "hate" groups?
A. Student groups that are unlawful, Sec. 802(d)(5), or that materially and substantially interfere with the orderly conduct of educational activities, Sec. 802(c)(4), can be excluded. However, a student group cannot be denied equal access because its ideas are unpopular. Freedom of speech includes ideas the majority may find repugnant. A "time, place, and manner" regulation stating that all group meetings during the limited open forum must be open to all students without regard to race, religion, or national origin could forestall the request for meeting space by some groups.
Q. What may a school do to make it clear that it is not promoting or endorsing or otherwise sponsor-ing noncurriculum-related student groups?
A. A school may distribute a disclaimer that plainly states that in affording such student groups an opportunity to meet it is merely making its physical facilities available, nothing more.
Q. What happens if a school violates the Equal Access Act?
A. The law contemplates a judicial remedy. An aggrieved person could bring suit in a U.S. district court to compel the school to observe the law. No cutoff of federal funds is involved. Sec. 802(e). Moreover, indications are that the Education Department has no plans to issue regulations with respect to this act.
Q. What about situations not addressed in this exploration?
A. The groups below are available for advice:
American Association of School Administrators, 1801 N. Moore, Arlington, Va. 22209; (703) 528-0700, Bruce Hunter.
American Civil Liberties Union, 600 Pennsylvania Ave., S.E., Washington, D.C. 20003; (202) 544-1681, Barry W. Lynn.
Christian Legal Society, P.O. Box 1492, Springfield, Va. 22151; (703) 941-3192, Sam Ericsson.