Lawsuits Question Viability of U.S. Equal Access Act

By Kirsten Goldberg — March 30, 1988 11 min read
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The written request from five students at McKinley High School in Buffalo, N.Y., was one that ranks high on the list of administrators’ current legal fears: They were asking permission to meet after school “to pray about student and faculty concerns and to share the good news of the Scripture.’'

That simple request, submitted to district officials last November, ignited a controversy that has school-board members there wrestling with profound questions in an unsettled area of law where the free-speech rights of students compete with the right of school districts to control access to schools as a forum for public discourse.

It is a debate that is taking place in school systems, law offices, and courts around the country in the wake of rulings--including three recent judgments by federal district judges in Nebraska, Texas, and Washington State--that prohibit student religious clubs from meeting on school grounds.

At stake in the debate is the viability of the 1984 Equal Access Act, passed by the Congress in an attempt to clarify the issue. The law guarantees student religious clubs the same access to high-school facilities as is routinely granted to secular groups.

But four years after the act’s passage, the only agreement among those who oppose and defend students’ right to meet voluntarily in school to pray is that lawsuits involving the act have raised compelling questions that need to be decided by the U.S. Supreme Court. The Court bypassed an opportunity to set a dominant precedent in the area in 1986, when it declined on technical grounds to review a Bible-study club case, Bender v. Williamsport.

“The act has caused so much confusion that I think we were better off with just the Constitution,’' said Douglas Davis, a lawyer for the conservative National Legal Foundation, which recently was unsuccessful in defending a student Bible-study club in Omaha, Neb.

“Sooner or later, it’s all heading for a conflict,’' said Ruti G. Teitel, a lawyer for the Anti-Defamation League of B’nai B’rith. The ADL is siding with districts in Renton, Wash., and Omaha in opposition to such clubs on school grounds.

“What we’re seeing now is a refinement of how the rules work,’' said Michael J. Woodruff, director of the Center for Law and Religious Freedom of the Christian Legal Society, which has expressed support for the students in the Nebraska and Washington cases.

Court Decisions

Among the recent rulings are these:

  • U.S. District Judge C. Arlen Beam held in February that an Omaha district had not created an open forum for student speech and thus did not have to allow a Bible-study club to meet at Westside High School. Nine students had filed suit against the district in the case, Mergens v. Board of Education of the Westside Community Schools.
  • U.S. District Judge Walter T. McGovern, ruling last December in the case of Garnett v. Renton School District, said the suburban Seattle district did not have to accommodate a prayer club at Charles Lindbergh High School.

He held that the Equal Access Act did not apply in Washington State because that state’s constitution contains stricter language regarding the separation of church and state than the First Amendment. Lawyers for the students had argued that in passing the equal-access law, the Congress intended to supercede state legal and constitutional provisions.

  • U.S. District Judge Robert B. Maloney ruled last October against a prayer group at a Dallas high school whose meetings grew into loud revivals involving proselytizing of other students. In his opinion in the case, Clark v. Dallas Independent School District, the judge indicated that the access act may violate the First Amendment’s establishment clause.

The U.S. Justice Department intervened on the side of the plaintiffs in all three cases, and has filed a motion in the Clark case asking the judge to alter, amend, or vacate his decision.

Before the Equal Access Act was passed, federal appeals courts for the Second, Fifth, 10th, and 11th Circuits had prohibited religious meetings, and opinion in the Third circuit has been divided.

Open or Closed Forum?

Under the federal law, it is unlawful for any public secondary school that has created a limited open forum to deny access to student-initiated groups on the basis of the religious, political, or philosophical content of the groups’ speech. School faculty may be present at meetings of such groups but may not participate, and outsiders may not control or regularly attend group meetings.

The federal act stipulates that a school has created a limited open forum when it allows one or more non-curriculum-related student groups to meet on school premises during non-instructional time.

Thus, if a district sanctions any student club that is not directly related to school course work, it must allow all student clubs, including religious groups, to meet in school. Some opponents of the act contend that districts, in an effort to avoid controversy, have limited student clubs to those related to the curriculum.

Such a closed forum is legal, but religious clubs excluded by such policies have charged that existing student groups, such as chess clubs or service organizations, are not directly curriculum-related but are allowed to meet on campus.

Key Omaha Case

Judge Beam’s ruling in the Omaha case could have a far-reaching impact on the interpretation of what clubs are curriculum-related.

Nine students at Westside High School filed suit against the district in 1985, claiming their free-speech rights were violated when the district prohibited their club from meeting.

The plaintiffs argued that included in the 30 school-sponsored clubs were groups that were not directly related to the curriculum, including the chess club, a computer club, a drama club, a photography club, the Future Business Leaders of America, and the National Honor Society.

The district argued that it had maintained a closed forum because the clubs are an integral part of the school’s curriculum, were under the direct control of the school administration, and had faculty sponsors.

The district said, for example, that the chess club was “an arena for logical thinking,’' and was an extension of the school’s logic course, that the photography club was related to the art department, that the business club was related to the school’s business and economics courses, and that the honor society was related to all courses and was not technically a club.

Judge Beam found that the school kept close control over student groups and the use of school facilities, and had only sparingly permitted “the use of school facilities for political, social, or economic dis-cussions.’'

One school administrator testified, Judge Beam wrote, “that he would consider doing away with all clubs at [the school], if necessary, to ensure that a closed forum, consistent with administrative policy, could be maintained.’'

The judge ruled that the school had not created a limited open forum and thus was not required under the Equal Access Act to allow the religious group to meet.

He noted that the plaintiffs were never prohibited from exercising their religious beliefs or expressing their ideas in informal discussions at school.

The plaintiffs have appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.

‘Narrow Interpretation’

Mr. Davis, who assisted the plaintiffs, criticized the decision for its “narrow interpretation’’ of the Equal Access Act. “The Congress unintentionally limited students’ rights by using this language of non-curriculum or curriculum-related,’' he said.

Ms. Teitel of the ADL agreed. “The courts have really strained to say that these clubs are related to the curriculum. Obviously, it’s a wish to sustain the school’s determination of what type of forum it wishes to have.’'

But while Mr. Davis argued that student Bible clubs were seeking only the same rights as other student clubs under the federal law, Ms. Teitel charged that the law unnecessarily entangles schools in religion by sanctioning such clubs.

The American Civil Liberties Union also opposes the act and supported the school district in the Washington State case.

“There is a constant pushing to enlarge the scope of the act,’' said Barry W. Lynn, legislative counsel for the ACLU “We would like to see some clarification of it.’'

Senator John H. Chafee, Republican of Rhode Island, introduced a bill in the last Congress to repeal the act, but it gained little support, and has not been introduced.

Higher Wall in Renton?

In the case in the Renton school district, the student prayer group, called the Hi-Tops, also protested the decision by school officials that the religious group was not curriculum-related.

Judge McGovern rejected the students’ argument that school authorities had violated their free-speech rights, basing his decision on the religion clauses of the Washington Constitution.

One provision stipulates that “no public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or the support of any religious establishment.’'

Another provision forbids “sectarian control or influence’’ in Washington’s public schools.

Therefore, the judge wrote, the Equal Access Act “may not be applied in Washington State to permit religious organizations to meet on school premises owing to provisions of this state’s constitution.’'

Judge McGovern also noted that the school’s 15 clubs are considered curriculum-related and have faculty sponsors, including a bowling club, ski club, and the minority student union.

William H. Ellis, the lawyer for the students, said the plaintiffs have appealed the decision to the Ninth Circuit Court. He said he would argue that the state’s constitution cannot be more restrictive than the federal Constitution.

“The judge bought that ACLU line that our constitution has a higher wall of separation,’' Mr. Ellis said. “A state constitution can’t make a federal act unconstitutional.’'

The ACLU, which submitted a brief supporting the school district, argued that students could meet outside of school and off school property. The group said the decision could affect cases in states with constititutions similar to Washington’s.

In the Texas case, Judge Maloney found that a student prayer group’s First Amendment right to free exercise of religion had not been violated when Dallas school officials barred its meetings.

Revival Meetings Banned

The religious club had begun in 1982 for discussion and small-group prayer, school officials said, but the group began holding traditional revival meetings, with a student leader using a bullhorn in an attempt to proselytize unconverted students.

The judge ruled that allowing the meetings would violate the First Amendment’s prohibition against state establishment of religion.

Judge Maloney also found that the provisions of the Equal Access Act would force the school to allow the group to meet, which would lead lead to “an unconstitutional result.’'

“An application of the act would yield a contrary result, and would offend the Constitution,’' he wrote. “A constitutional interpretation can be overruled only by constitutional amendment, and not by act of Congress.’'

The Justice Department, acting on behalf of the students, filed a motion challenging the ruling and charging that the judge’s decision leaves the constitutionality of the Equal Access Act in question.

The three cases, if they progress to higher courts, may provide some help to districts in determining how to implement the act. But Ms. Teitel of the A.D.L. said those disputes are only the “tip of the iceberg.’'

“The big losers have not been the Bible clubs, but the other clubs that schools are shutting down: the civics clubs, the bowling clubs,’' she said.

Students ‘Considered Outlaws’

Meanwhile, in Buffalo last week the school board decided to delay its final decision on whether to allow McKinley’s Bible club to meet until next month, in order to give the district’s lawyers more time to determine whether the district has an open or a closed forum.

The club was formed last fall under the sponsorship of an English teacher, James Benson, and was holding meetings at school until the principal asked the group to seek official permission from the district.

In its request, the students wrote that some of the meeting time would be devoted to “asking those present to share how God is working in our lives for good and how specific passages of the Bible are giving us direction in our lives.’'

In January, the district’s lawyers denied the group permission to meet. Articles appeared in the local newspaper about the group, causing a public outcry of support.

“These are kids who believe in helping each other, getting along together in society,’' Mr. Benson told The Buffalo News. “They know there’s a power greater than themselves. Boy, I have to tell you, that’s a breath of fresh air. It is a real shame they are being considered outlaws.’'

School-board members learned about the group, the first of its kind in the district since the Equal Access Act was passed, from the newspaper articles, said Judith P. Fisher, president of the board.

“The board wants to ensure that young people engage in wide-ranging discussions on any issue, and we think controversy is healthy,’' Ms. Fisher said. Board members were vaguely aware of the federal law, but after four years with no student requests to start religious clubs, Ms. Fisher said, “I had thrown away my Equal Access Act guidelines.’'

A version of this article appeared in the March 30, 1988 edition of Education Week as Lawsuits Question Viability of U.S. Equal Access Act


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