What is a 'noncurriculum-related student group' under the Equal Access Act?
In the 1990 Supreme Court case of Westside Community Board of Education v.
Mergens, the Court interpreted a “noncurriculum related student group” to
mean “any student group [or club] that does not directly relate to the body of
courses offered by the school.”
According to the Court, a student group directly
relates to a school’s curriculum only if (1) the subject matter of the group is
actually taught, or will soon be taught, in a regularly offered course; (2) the
subject matter of the group concerns the body of courses as a whole; or (3)
participation in the group is required for a particular course or results in
As examples, the Court identified three groups that were
noncurriculum-related at the Westside schools: (1) a scuba club, (2) a chess
club, and (3) a service club. The Court found these groups to be noncurriculum-related because they did not meet the criteria set forth above. Conversely, the
French club was found to be curriculum-related since the school regularly
offered French classes.
Subject to review by the courts, local school
authorities must determine whether a student group is curriculum related or not.
Schools may not, however, substitute their own definition of “noncurriculum
related” for the definition provided by the Court.
If the school violates the EAA, an aggrieved person may bring suit in U.S.
district court to compel the school to observe the law. Although violations of
equal access will not result in the loss of federal funds, the school could be
liable for damages and the attorney’s fees of a student group that successfully
challenges a denial to meet under the act.
Do students have the right to form religious or political clubs below the secondary level?
Probably not, but current law is unclear on this point. Although the Equal Access Act does not apply to public schools below the secondary level, some courts have held that the free-speech clause protects the right of middle school or elementary school students to form religious or political clubs on an equal footing with other student-initiated clubs. When the EAA was debated in Congress, many lawmakers expressed doubt that young children could form religious clubs that would be truly initiated and led by students. In addition, younger students are more likely to view religious clubs meeting at the school as “school sponsored.” For these and other reasons, Congress declined to apply equal access below the secondary level.
May administrators permit students to form religious or political clubs in middle schools, even if the law does not require that such clubs be allowed? Again, current law is unclear on this point. If school officials decide to allow middle school students to form religious or political clubs, then at the very least the school should have in place a clear policy and ground rules for the clubs, consistent with the EAA, and explain that the student clubs are not school-sponsored (see Good News Club v. School Dist. of Ladue, 8th Cir. 1994).
May teachers or other school employees participate in student religious clubs?
No. The Equal Access Act states that “employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity.”
For insurance purposes, or because of state law or local school policy, teachers or other school employees are commonly required to be present during student meetings. But if the student club is religious in nature, school employees may be present as monitors only. Such custodial supervision does not constitute sponsorship or endorsement of the group by the school.
May religious leaders or other outside adults attend the meetings of student clubs?
Yes, if the students invite these visitors and if the school does not have a policy barring all guest speakers or outside adults from extracurricular club meetings. However, the Equal Access Act states that the nonschool persons “may not direct, conduct, control, or regularly attend activities of student groups.”
May noncurriculum-related student groups use school media to advertise their meetings?
Yes. A student group may use school media — such as the public-address system, school paper, and school bulletin board — as long as other noncurriculum-related student groups are allowed to do so. Any policy concerning the use of school media must be applied to all noncurriculum-related student groups in a nondiscriminatory manner. Schools, however, may issue disclaimers indicating that extracurricular student groups are not school-sponsored or endorsed.
What control does the school retain over student meetings in a limited open forum?
The Equal Access Act does not take away a school’s authority to establish reasonable time, place, and manner regulations for a limited open forum. For example, a school may establish for its student clubs a reasonable meeting time on any one school day, a combination of days, or all school days. It may assign the rooms in which student groups can meet. It may enforce order and discipline during the meetings. The key, however, is that the school’s time, place, and manner regulations must be uniform, nondiscriminatory, and neutral in viewpoint.
May the school exclude any student extracurricular group?
Yes. According to guidelines endorsed by a broad coalition of educational and religious liberty organizations, “student groups that are unlawful, or that materially and substantially interfere with the orderly conduct of educational activities, may be excluded. However, a student group cannot be denied equal access simply because its ideas are unpopular. Freedom of speech includes the ideas the majority may find repugnant.” *
Most schools require students to submit a statement outlining the purpose and nature of the proposed club. School officials do not have to allow meetings of groups that advocate violence or hate or engage in illegal activity. This does not mean, however, that schools may bar students from forming clubs to discuss controversial social and legal issues such as abortion or sexual orientation. Again, student-initiated clubs in a limited open forum may not be barred on the basis of the viewpoint of their speech. Some schools require parental permission for students to join an extracurricular club. Although this step is not required by the Equal Access Act, it has enabled schools to keep the forum open in communities where student clubs have sparked controversy.
* “The Equal Access Act: Questions and Answers,” found in Haynes & Thomas, Finding Common Ground (2001).
What may a school do to make it clear that it is not promoting, endorsing or otherwise sponsoring noncurriculum-related student groups?
A school may issue a disclaimer that plainly states that in affording such student groups an opportunity to meet, it is merely making its facilities available, nothing more.