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Equal Access of Law at Center of Utah Flap

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The Salt Lake City school board's recent decision to ban all extracurricular clubs rather than allow a support group for gay students confirmed the suspicions of many educators and legal experts that schools haven't had their last day in court over the Equal Access Act.

The 1984 federal law bars districts from singling out groups such as religious clubs for exclusion from high school campuses. And it opened the door, many administrators feared, to far more controversial groups such as white supremacists or occult groups.

Though few such controversies have surfaced since a U.S. Supreme Court test of the law in 1990, officials in many school districts remain concerned.

"My advice would be to deal with the issue of equal access now; otherwise you're going to be dealing with what they're seeing in Utah," said Jim Findley, the principal of Westside High School in Omaha, Neb.

In 1985, one of Mr. Findley's students, Bridget Mergens, filed a lawsuit against the 4,700-student Westside district saying the schools violated the federal law by prohibiting her from holding Bible-club meetings.

The case, Board of Education of the Westside Community Schools v. Mergens, went all the way to the Supreme Court, where the district lost in 1990. The high court upheld the law's stipulation that schools cannot discriminate against student clubs "on the basis of the religious, political, philosophical, or other content of the speech at such meetings."

That decision lay behind the Salt Lake City board's Feb. 20 vote to ban noncurricular clubs after gay students proposed a support group. (See Education Week, Feb. 28, 1996.)

Last week, the vote sparked student protests in Salt Lake City high schools, the creation of an advocacy group for gay and lesbian teachers in Utah, and passage of a bill in the state legislature. (See story, page 12.)

'Your Worst Nightmare'

Under the Mergens decision, just about any group of students could challenge a district that tried to stop the students from forming a club, said Jay P. Heubert, who chairs the Institute on Current Issues in School Law at Harvard University in Cambridge, Mass.

"When I teach this in class," Mr. Heubert said, "my question is, 'What would be your worst nightmare?"' The groups students most often propose are skinheads or Satan worshipers, he added. "Technically, any of those groups could seek recognition."

While the school administrators in Mr. Heubert's class may worry about that nightmare coming true, most districts haven't experienced problems.

A survey by the National School Boards Association last fall found that 94 percent of the secondary school principals who responded had never faced a lawsuit over the access law. Some districts, however, have faced disputes that never made it to court.

In the late 1980s, the school board of the Capistrano Unified district in Orange County, Calif., made essentially the same decision as the Salt Lake City board. Rather than allow a religious club in the 35,000-student district, the Capistrano board abolished all school organizations that were not related to the curriculum.

"You can't sit there with a checklist of who you like and who you don't," Crystal Kochendorfer, a board member there who supported the ban, said last week.

Less than 50 miles north of the Capistrano district, the 13,000-student Huntington Beach high school district reached the opposite conclusion in 1994 and allowed a gay support group to meet at one of its high schools. Despite threats from conservative Christian groups to oust board members in the next election, the issue fizzled, said Bonnie Castrey, the board president.

"I question whether it's ever good to shut out dialogue," she said. "But what's good for one community may not be good for another."

'Even the KKK ... '

The roots of the current debate sprouted in the early 1980s, when President Reagan's hopes for a constitutional amendment sanctioning school prayer died in Congress.

The failed amendment's supporters then looked to a measure co-sponsored by Sen. Mark O. Hatfield, R-Ore., to bar schools from discriminating against religious organizations.

But the Equal Access Act that President Reagan signed in 1984 had evolved considerably from the measure that was first introduced. To win support from moderates and liberals, it was rewritten to protect not only religious clubs, but virtually all groups.

"The beauty of the act is that it does force people to recognize the indivisibility of free-speech rights," said Nadine Strossen, the president of the American Civil Liberties Union. "If you recognize your favorite group, you have to also recognize your least favorite group."

The law's first major challenge came in early 1985, when the Westside district in Omaha refused Bridget Mergens' request to hold Bible-club meetings for fear they'd be in violation of the First Amendment prohibition on a government establishment of religion.

In its 1990 opinion in the Mergens case, the Supreme Court ruled that by allowing any non-curriculum-related group a school created a "limited public forum" and therefore could not ban any other extracurricular group.

While not addressing sports, the court defined noncurriculum groups as those "not directly related to the body of courses offered by the school."

The Salt Lake City decision bans clubs such as Students Against Driving Drunk and the key club, for example, while allowing clubs for languages taught at the district's schools.

For a chess club to be recognized, the school would have to teach a chess class. In its opinion, however, the Supreme Court warned that merely discussing chess in another class would not render the subject curriculum-related.

Since Mergens, most local debates over the law have centered on religious clubs, despite the fears of some school officials about occult or extremist groups such as the Ku Klux Klan.

The Westside district, since losing its case, has allowed both an anti-abortion and an abortion-rights group. The school board rejected a proposal for a club for enthusiasts of the board game Dungeons and Dragons, in part over concerns about the game's leanings toward the occult, but the denial was not challenged.

Battle for Control

Salt Lake City's example has shown that seeking to rid a school of a controversial group may only draw more attention to that group's mission.

What started as a request by a handful of students to form a group called the Gay-Straight Alliance at East High School has drawn national attention.

In addition to the debates among the city's students and in the state legislature, the Utah School Boards Association has hired a law firm to draft a policy that the group hopes would allow districts to exclude gay support groups without violating the Equal Access Act.

Winston Gleave, the executive director of the school boards' group, contends that the real battle is over local control rather than support for controversial organizations.

"As boards of education, we don't believe it is in the interest of local districts to have to say [that] if one club is admitted, then all kinds have to be admitted," he said.

Education-law experts speculate that a district could try to sidestep the Equal Access Act by claiming that gay support groups encourage activity that is illegal in Utah, such as sodomy.

"If the club were formed to create an opportunity for kids to engage in illegal behavior such as sodomy, [banning it] would not be a problem," said Harvard's Mr. Heubert. "But it's one thing to engage in illegal acts, and it's something else to discuss these issues."

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