Equal Access Act (EAA)

According to the Equal Access Act (EAA), secondary schools receiving federal funds must allow noninstructional-related groups equal access to their facilities for meetings before and after school or during noninstructional periods of the day. The EAA was intended to open school facilities to religiously oriented groups, which had previously been barred from using facilities under constitutional prohibitions on the involvement of government in religion. It has also been used by other groups, especially gay and lesbian organizations, which had previously been barred from school grounds. Schools that do not receive federal funds or that bar all noncurriculum-related meetings remain unaffected by the act. This entry discusses the EAA’s background and implications.

Legal Background

Congress enacted the EAA in 1984, with broad bipartisan support. Enforcement of the EAA was immediately challenged under the Establishment Clause, and in Board of Education of Westside Community Schools v. Mergens (1990), the Supreme Court upheld its constitutionality.

In enacting the EAA, Congress limited its application to secondary schools receiving federal financial assistance and prohibited those schools that created a “limited open forum” from denying student access to school premises for the purpose of engaging in “religious, political, philosophical, or other speech content” (sec. 4071(a)). The definition of a secondary school is left up to state law, although if case law is any indication, the term appears limited to high schools (see Prince v. Jacoby, 2002). Congress deliberately selected the term limited open forum so as not to confuse this right granted under the EAA with the free speech limited-public-forum right that had been extended to public education 3 years prior to passage of the EAA in Widmar v. Vincent (1981).

Pursuant to the EAA, a limited open forum exists whenever one or more noncurriculum-related student groups meet on school premises during noninstructional time. While the EAA does not define what constitutes “noncurriculum-related student groups,” the Supreme Court in Mergens determined that “any student group that does not directly relate to the body of courses offered by the school” would be considered to be noncurriculum related (Mergens, p. 239, emphasis in original; 20 U.S.C. § 4072(3)). The EAA defines noninstructional time as that which is “set aside by the school before actual classroom instruction begins or after actual classroom instruction ends” (sec. 4072(4)). Subsequent case law suggested that noninstructional time can extend to activity periods during the school day as long as noncurriculum-related student groups are permitted to meet during that time (Prince v. Jacoby).

To ensure that students have a fair opportunity to conduct meetings under a school’s limited open forum, meetings must be voluntary and student initiated; cannot be government sponsored; can be attended by government employees only in a nonparticipatory capacity; cannot materially or substantially interfere with the educational activities of the school; and cannot be directed, conducted, or regularly attended by nonschool persons (sec. 4071(c)). In clarifying the statute’s prohibition on government-sponsored meetings, the EAA defines sponsorship as “promoting, leading, or participating in a meeting” but expressly excludes from sponsorship “the assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes” (sec. 4072(2)).

In enacting the EAA, Congress provided assurance to public schools that the statute was not intended to “limit 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 ensure that attendance of students at meetings is voluntary” (sec. 4071(f)). The EAA reflects the language of Tinker v. Des Moines Independent Community School District (1969) by ensuring protection of the EAA to a student group only so long as its “meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school” (sec. 4071(c)(4)).

To ensure the neutrality of schools’ control over student groups, Congress placed broad limitations on every level of government and its subdivisions, including school districts, to prohibit them from influencing the content of prayer or religious activities, requiring that any person participate in prayer or religious activities, expending more than incidental funds to provide space for student meetings, compelling school agents or employees to attend meetings in which the content of speech at a meeting would be contrary to a person’s beliefs, sanctioning meetings otherwise unlawful, limiting the rights of groups not of a specified size, and abridging the constitutional rights of any person (sec. 4071(d)).

Implications for Schools

While it has not generated any litigation to date on this point, a cursory review of the EAA suggests an interesting anomaly for school administrators. Administrators can assign teachers to attend student meetings to function in a supervisory capacity without violating the EAA’s nonparticipation requirement. Yet administrators cannot compel teachers to attend such meetings if attendance would violate the teachers’ beliefs.

The EAA implicitly allows for private enforcement of the statute (sec. 4071(e)). Courts have granted injunctions to student groups that were denied access to school meeting space on the same terms as other groups, in effect finding that denial of such access amounts to irreparable harm (Student Coalition for Peace v. Lower Merion School District Board of School Directors, 1985). However, the EAA expressly prohibits the federal government from denying or withholding federal financial assistance to any school (sec. 4071(e)). In effect, Congress provided just the opposite enforcement process for the EAA as it had for the Family Educational Rights and Privacy Act (FERPA), enacted in 1974. In FERPA, Congress expressly allowed for withholding of funds, and the Supreme Court later interpreted FERPAas not permitting private enforcement (20 U.S.C. 1232g(f); Gonzaga University v. Doe, 2002).

The language and purpose of the EAA was influenced by the Supreme Court’s decision in Widmar v. Vincent, wherein it held that a public university could not deny the use of its facilities to student religious groups after officials opened the facilities to a wide range of other groups. According to the Court, in opening the facilities, the university created a limited public forum under the Free Speech Clause, which prohibited it from making facility use decisions based on the content of student meetings.

In enacting EAA, Congress was also influenced by two cases from federal circuit courts, Brandon v. Board of Education of Guilderland Central School District (1980) and Lubbock Civil Liberties Union v. Lubbock Independent School District (1982). In Brandon, the Second Circuit upheld the refusal of a school board in New York to permit a student religious club to meet on school premises during the instructional day although other student groups were permitted to do so. The court reasoned that the refusal did not violate the students’ rights of free exercise of religion, freedom of speech, or equal protection because the district had a compelling interest in removing any indication under the Establishment Clause that it sponsored religious activity in public schools. In Lubbock, the Fifth Circuit held that a school board policy in Texas allowing students to gather at school for voluntary religious meetings close to the beginning and end of the school day violated the Establishment Clause because it implied recognition of religious activities.

The EAA affects cases such as Brandon and Lubbock only to the extent that public schools that receive federal financial assistance permit other noncurriculum-related student groups to meet on school premises during noninstructional time. Public schools can avoid the impact of the EAA by not accepting federal assistance or by closing their limited open forums and permitting only student groups that are curriculum related, such as allowing biology clubs to meet, provided that schools have biology courses. While identity between the names of student groups and school courses is preferable, courts have not always required identity, such as treating the National Honor Society as curriculum related (East High Gay/Straight Alliance v. Board of Education of Salt Lake City School District, 1998).

The EEA was enacted to ensure that public school personnel do not discriminate against religious student groups because of their religious messages. Two major effects of the EAA and Mergens have been the protection of student expression under the Free Speech Clause and the use of the EAA by other kinds of student groups. Once Mergens eliminated the Establishment Clause as an excuse for schools treating religious groups differently than nonreligious ones, the emphasis shifted, beginning with Lamb’s Chapel v. Center Moriches Union Free School District (1993), to providing constitutional protection for religious expression.

Although initially applied solely to religious clubs, the fluidity and flexibility of federal legislation has been reflected in the EAA’s application more recently to a wider range of student groups, especially gay/ straight clubs, attempting to gain access to meeting space on public school premises (Boyd County High School Gay Straight Alliance v. Board of Education of Boyd County, 2003).

Ralph D. Mawdsley

See also Board of Education of the Westside Community Schools v. Mergens; Family Educational Rights and Privacy Act; Prayer in Public Schools; Religious Activities in Public Schools; Widmar v. Vincent

Further Readings

  • Mawdsley, R. (2001). The equal access act and public schools: What are the legal issues related to recognizing gay student groups? Brigham Young University Educational Law Journal, 1, 1–33. 

Legal Citations

  • Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990). 
  • Boyd County High School Gay Straight Alliance v. Board of Education of Boyd County, 258 F. Supp. 2d 667 (E.D. Ky. 2003). 
  • Brandon v. Board of Education of Guilderland Central School District, 635 F.2d 971 (2d Cir. 1980). 
  • East High Gay/Straight Alliance v. Board of Education of Salt Lake City School District, 30 F.Supp. 2d 1356 (D. Utah 1998). 
  • Equal Access Act, 20 U.S.C. §§ 4071 et seq. Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g. 
  • Gonzaga University v. Doe, 536 U.S. 273 (2002). 
  • Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). 
  • Lubbock Civil Liberties Union v. Lubbock Independent School District, 669 F.2d 1038 (5th Cir. 1982). 
  • Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002). 
  • Student Coalition for Peace v. Lower Merion School District Board of School Directors, 776 F.2d 431 (3d Cir. 1985). 
  • Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). 
  • Widmar v. Vincent, 454 U.S. 283 (1981).