Student clubs often meet in public secondary schools across the country. While most clubs do not cause controversies, some have occasionally raised concerns. Sometimes when student clubs are denied access in public schools, it can lead to litigation.

To illustrate, a high school student in Nevada wanted to start an anti-abortion club, but was not permitted to do so because school officials thought it would be too controversial. The student filed a suit claiming that school officials violated her rights under both the First Amendment and Equal Access Act (EAA) by refusing to permit her to start the club. The case was dismissed after the parties reached a settlement in which school officials agreed to allow the club to form; the board also agreed to pay $30,000 in attorney fees. 

The Equal Access Act

The Equal Access Act was passed in 1984 by Congress and signed into law by President Reagan. The statute specifically defines the following:

(c) Fair opportunity criteria. Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such a school uniformly provides that:

  1. The meeting is voluntary and student-initiated;
  2. There is no sponsorship of the meeting by the school, the government, or its agents or employees;
  3. Employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity;
  4. The meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and
  5. Nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.

The Supreme Court upheld the constitutionality of the EAA in Board of Education of Westside Community Schools v. Mergens By and Through Mergens. In the case, the court ruled that a school board in Nebraska violated the EAA by forbidding a religious club to meet, even though officials allowed a wide array of other noncurriculum-related clubs to meet. Originally enacted to offer a wider forum for religious groups to express themselves, the EAA eliminates barriers for student groups in public secondary schools by forbidding officials from denying them access to school facilities. More specifically, the EAA requires school boards to permit all student-led noncurricular clubs that meet during noninstructional time (such as lunch and before or after school) to convene on campus if officials have established limited open forums. A limited open forum means that when school officials allow one student noncurriculum-related group to use district facilities, they must give equal access to all such student groups.

By way of illustration, if officials allow an Islamic club to meet, they must also permit a Mormon club to gather. Noncurricular-related student groups are those not directly related to the body of courses offered at schools, such as chess clubs, key clubs, community service clubs, or Bible clubs. By comparison, a curricular-related club might be a German club, assuming the school offers German courses. School boards can prohibit all noncurricular clubs if they establish closed forums.

The EAA contains language allowing boards to refuse to permit clubs to form if they would materially and substantially interfere with the orderly conduct of the educational activities in schools. It is important to highlight that a group’s own activities need to cause the disruption; community resistance does not equate to disruption (see Boyd County High Sch. Gay-Straight Alliance v. Board of Education of Boyd County, 2003).

The Gay-Straight Alliance   

One student club that continues to be discussed in the media and in court is the Gay-Straight Alliance (GSA). The GSA provides a safe place for lesbian, gay, bisexual, transgender (LGBT), and straight students to support each other. Although there is no official count of active gay-straight student clubs in the United States, the Gay, Lesbian, and Straight Education Network listed more than 3,000 registered Gay-Straight Alliance clubs in 2012. Recently, school boards in various states have attempted to ban or curtail the activities of GSAs or related clubs.

In many of the controversies involving GSAs, school board policies had established limited open forums and, after students approached administrators about forming such clubs, officials decided to close their forums to all noncurricular groups. For example, in North Carolina, officials at a charter school suspended all student clubs after receiving complaints from the community when a group wanted to begin an LGBT club. The American Civil Liberties Union (ACLU) argues that this type of action constitutes “an unlawful prior restraint” on the students’ speech. The law is fairly consistent that if boards establish limited open forums, it would be wise for school officials to allow the GSA to meet.

At the same time, the U.S. Department of Education released a “Dear Colleague” letter in 2011 reminding school boards of their responsibility under the EAA. The letter begins by reviewing the research related to harassment and bullying of LGBT students, noting the positive impact the GSA can have in schools. The letter also highlights a quote from former U.S. Secretary of Education Richard Riley, who issued a guidance in 1995 that stated that “[we] protect our own freedoms by respecting the freedom of others who differ from us.” The ED also issued a set of legal guidelines outlining what constitutes unlawful discrimination against student-initiated groups. Hopefully the 2011 guidance will assist boards and officials who are unsure of the legal parameters associated with GSA clubs. 

Suzanne E. Eckes, JD, PhD, is a professor at Indiana University. She has been published widely on school legal matters, including co-editing The Principal’s Legal Handbook.

Charles J. Russo, JD, EdD, is the Panzer Chair in Education and an adjunct professor of law at the University of Dayton in Dayton, OH. He has been published widely on school legal matters, including editing The Yearbook of Education Law. 

Sidebar: Lessons for Principals

  • School policies should address the nature of clubs in secondary schools, such as whether they are organized for extracurricular purposes or must be curriculum related.
  • If policies establish limited open forums, those policies should ensure access for all groups-subject to the threat of disruption provision.
  • The Equal Access Act is clear that school officials need not endorse any club, whether straight pride, atheists, or anti-abortion, but must afford all student groups the same opportunities to form and meet at school if they have established limited open forums.