Berkley Center

The Equal Access Act, which survived constitutional challenge and was applied in the Mergens case, has served as midwife to all kinds of public high school student-initiated and -led clubs. Because the act was passed on a wave of 1980s Christian conservatism, people have (wrongly) supposed that its proponents failed to anticipate it could give “equal access” to other groups. Yet it is true that some proposed clubs simply won’t succeed under the statute’s terms. Consider some of these terms in light of clubs related to sexual orientation or sexual identity themes:

First, private schools aren’t covered by the act, and they can do as they please regarding student clubs—eschewing federal funds still guarantees some freedoms.

Second, only “secondary”-grade clubs are covered. “Secondary” is to be defined according to state law. School boards or site administrators may let lower grades have clubs, but those won’t have the protection of this law. They may have protections under their state constitutions or other laws.

Third, an agent or employee must be present to monitor the club, in a non-participatory fashion. That person can’t be forced to serve as such “if the content of the speech at the meeting is contrary to the beliefs of the agent or employee.” If the club can’t find and retain a monitor, it will have to suspend meetings under the statute (40 U.S.C. §4071 [d] 4). Additionally, if the administrator discovers that a non-student—whether gay activist or church staffer—is really the impetus behind the club, or speaks regularly at club meetings, the club is not really student-led and student-initiated. 

Fourth, parental consent can be required in writing before a student can attend any club. Of course this, like any rule under the Equal Access Act, must be enforced equally as to all clubs. To minimize “rolling” problems regarding membership and leadership, one court allowed a limited publicity and signup period [1].

Fifth, the proposed club must be “non-curricular.” The act’s definition of a permissible “meeting” “includes those activities…which are not directly related to the school curriculum.” If sex education, bullying, and tolerance are topics covered in curricular material, it is possible that additional clubs on those topics may overlap too much to be considered non-curricular. More than one adult organization supporting LBGTQ youth clubs in schools also provides classroom material to educators, so there is basis for this concern.

Sixth, “speech” is protected under 4071 [a], and is more protected under case law than is conduct, so student behavior can be limited. Singing, wearing of distinctive clothes and hair, refusing to pledge allegiance to the flag, etc., have been interpreted as protected “speech,” but interfering with walkways, lighting candles, doing rituals, sleeping, using profanity [2], providing obscenity to minors, and carrying out or planning any criminal activity are the kinds of things that could lose protection either due to safety concerns or because courts don’t consider them protected speech [3]. Thus the school can’t allow groups that “materially and substantially interfere with the orderly conduct of educational activities within the school” or “sanction meetings that are otherwise unlawful.” Activity that promotes or makes possible sexual activity between minors can violate state laws, which can be strict, especially if an adult is involved in somehow facilitating or encouraging that sexual encounter. 

As 4071 f says, “Nothing in this subchapter shall be construed to limit the authority of the school, its agents or employees, [and] to maintain order and discipline on school premises, to protect the well-being of students and faculty….” Here the judgment of administrators is important: 

• Does the club violate a prior commitment the school made to an abstinence-only policy [4]? 
• Would the club more likely create, or reduce, occasions for sexual harassment, such as contemplated in Title IX of the Education Amendments of 1972? 
• Will the club work consistently with any non-discrimination policy the school may have [5]? 
• Does it duplicate course material or thwart the educational mission of the school [6]? 
• Are the agenda and subject matter of the club age-appropriate? 

It is educators and parents, not outside advocacy groups, who have the experience, training, and natural concern for the children entrusted to them who can best determine age-appropriateness and other factors in the wellbeing of children and teachers. Just as obscenity is evaluated legally by community standards, schools are communities, and merely because a club has been given a green light in one place in this regard doesn’t mean it can’t be restricted in a different community.

The Equal Access Act has proved to be powerful and durable legislation. U.S. Code § 4074 says that “[t]he provisions of this subchapter shall supersede all other provisions of Federal law that are inconsistent with the provisions of this subchapter.” Its protection extends to clubs for unpopular viewpoints, but not to illegal, disruptive, or unsafe behavior.

1. Krestan v. Deer Valley Unified Sch. Dist. No . 97, 561 F. Supp. 2d. 1078 (D. Ariz. 2008).
2. Bethel School District v. Fraser, 478 U.S. 675, 1986.
3. Gernetzke v. Kenosha Unified Sch. Dist., 274 F.3d 464 (7th Cir.2001).
4. Caudillov. Lubbock Independent Sch. District, 311 F. Supp. 2d 550,558 (N.D.Tex.2004).
5. Truth v. Kent Sch. Dist. 542 F.3d 634 (9th Cir. 2008), rehearing en banc denied, 551 F.3d 850, cert denied, 129 S. Ct. 2866 (2009).
6. Morse v. Frederick, 551 U.S. 393, 2007.