Equal Access Act

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 [Page 301]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)).

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