Access to programs and facilities

• Equal Access
• Viewpoint Neutrality

When addressing the topic of access to educational programs and facilities, two concepts are extremely important: equal access and viewpoint neutrality. Equal access to educational programs and facilities means that if one individual or group is allowed access to an educational program and/or facility that operates a limited open forum, then all other individuals and groups must be allowed access under the same terms. Viewpoint neutrality forbids officials at state educational institutions from basing their decisions as to who should have access to facilities on the content of applicants’ expression. This entry looks at the law related to both issues.

Equal Access

In 1984, Congress passed the Equal Access Act. Up to that point, the courts were split on the topic of whether student Bible study and prayer groups had a constitutional right to access educational facilities. The Equal Access Act was an attempt by the Congress to clarify those First Amendment rights, using the reasoning from the U.S. Supreme Court decision in Widmar v. Vincent (1981) and applying it to noncurricular high school activities, so that student prayer groups could have a presence at the school. In Widmar, the University of Missouri, concerned about running afoul of the Establishment Clause of the First Amendment, refused to allow a student religious group access to university facilities, although it allowed other nonreligious groups such access. In support of its holding, the Court explained that the refusal to allow access on equal grounds was a violation of the First Amendment freedom of speech rights of the religious student group.
According to the Equal Access Act, if officials in schools that receive federal funding allow noncurricular activities and student clubs to be recognized and meet in school facilities during noninstructional time, then they cannot deny the same access to student religious groups. This is because they have created something called a “limited open forum.” Once school officials create this limited open forum, then they must grant access under equal terms to all student groups regardless of their religious, political, or philosophical beliefs. In Board of Education of Westside Community Schools v. Mergens (1990), the Supreme Court upheld the constitutionality of the Equal Access Act, defined noncurricular and gave specific guidance as to the handling of student religious groups so as to avoid a violation of the Establishment Clause of the First Amendment.
For a court that normally leaves the day-to-day operations of the public schools to the discretion of school administrators, the justices were very direct in defining what constitutes a noncurricular club, thereby creating a limited open forum. Under the Court’s definition, if a school has clubs that conduct activities that are not directly included in the school’s curriculum—for example, a chess club but no chess class, a scuba diving club but no scuba diving unit in the physical education curriculum—then those clubs are “noncurricular.” Under this definition, if school officials allow those clubs to meet on school property, then they have created a limited open forum.
Once this limited open forum has been created, then student religious groups must be allowed access as well, although because of the potential Establishment Clause violation, religious groups must meet two criteria that are not required of other noncurricular groups. First, the student religious group must be student initiated and student led. Second, if there is a faculty sponsor required for noncurricular groups, the faculty sponsor for the student religious group may not participate; he or she may be present solely as a chaperone to make sure that facilities are available and that no damage is done to school property.
Widmar and Mergens caused another type of analysis to develop when courts are reviewing issues of access to school facilities. This analysis is called the “forum analysis.” Under this analysis, there are three types of possible forums in institutions of public education: public forums such as parks and sidewalks, where speech can only be restrained under a compelling state interest; limited public forums such as were defined in Mergens; and closed forums where the area is not open to the public and is under the strict control of a school board. School officials could create this third type of forum, the closed forum, by disbanding any noncurricular activity groups and making sure that all activities engaged in by students were included within the school curriculum.

Viewpoint Neutrality

The second concept, viewpoint neutrality, while imbedded in the rationales surrounding the Equal Access Act and limited open forums, is most often seen when religious groups wish to use school facilities after school hours. Again, due to fear of violating the Establishment Clause, many schools had policies that allowed other community groups to use school facilities after hours but barred community religious groups from doing the same.
In Lamb’s Chapel v. Center Moriches Union Free School District (1995), the Supreme Court used a viewpoint neutrality analysis to evaluate whether the school board’s denial of a religious group’s request to use the district facilities after school hours to show a series of family-friendly films was a violation of the group’s constitutional rights. In finding for the group, the Court unanimously ruled that by allowing other groups such as the Salvation Army Band, Center Moriches Quilting Bee, Center Moriches Drama Club, the Girl Scouts, and the Boy Scouts to use the facilities, the district had established a limited open forum. Therefore, the Court maintained that the board’s refusal to allow the religious group the same access was unconstitutional. The Court essentially reaffirmed this rationale in 2001 in Good News Club v. Milford Central School. This case was another instance wherein school officials initially disallowed a community religious group to use facilities after hours, even though such access was allowed to other, nonreligious, community groups.
The rule of thumb which school boards should use when it comes to access of school programs and facilities is to treat all groups in a similar manner. School officials cannot pick and choose which individuals and groups may use its facilities based on the religious, political, and/or philosophical beliefs of the groups. Rather, educational officials should set basic guidelines for all who wish access to school facilities and programs based on criteria reasonably related to the mission of their schools; with minimal discretion to forbid access should those criteria be met so as to avoid claims of constitutional violations.

See also Board of Education of Westside Community Schools v. Mergens; Equal Access Act; Lamb’s Chapel v. Center Moriches Union Free School District
Legal Citations
Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990).
Equal Access Act, 20 U.S.C. §§ 4071 et seq.
Good News Club v. Milford Central School, 533 U.S. 98 (2001).
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1995).
Widmar v. Vincent, 454 U.S. 263 (1981).