Rights of Controversial Student Groups, The

Fear of lawsuits over separation of church and state and controversial student groups sometimes cause schools to be so skittish that they actually make themselves vulnerable to lawsuits. Know what you can do to protect your school and organization.

On your desk is an application from students who want to form an environmental club to oppose nuclear energy. The group wants to hold school events promoting its cause. The thing is, many of your town's best jobs and most of its tax base come from the nuclear power plant three miles away. What a way to start a school year.

Controversies over student clubs seem to be on the rise. Especially nettlesome in recent years have been disputes and lawsuits over student religious clubs and gay-straight alliances (GSAs).

Fear of lawsuits over separation of church and state sometimes causes schools to be too skittish about anything remotely religious, which ironically has left them vulnerable to lawsuits from the other direction. Meanwhile, clubs that seek to promote a safe and supportive environment for gay students have sparked furious controversies in several communities.

As a legal matter, such disputes involve important constitutional rights, especially the First Amendment's guarantees of free speech and freedom from government establishment of religion. However, the first legal point of reference for secondary schools is the federal Equal Access Act (EAA).

The EAA prohibits any public secondary school that gets federal funds and that has a "limited open forum" from denying a "fair opportunity" to students who wish to conduct a "meeting" based on the religious, political, or philosophical content of the speech at the meeting.

State law, not federal law, determines whether a school is covered by EAA. Some states define secondary schools according to grade level. Where the state does not define secondary schools very clearly, or where the grades do not correspond neatly with the definition, lawyers and courts may have to determine whether the EAA applies to the school.

Forums, Curriculum, and Instruction

* A school creates a limited open forum under the EAA whenever it allows even one "noncurriculum related" student group to meet on school premises during "noninstructional time."

To make things more interesting, a limited open forum is not the same thing as a limited public forum under the free speech clause. A school creates a limited public forum when it provides a forum for expressive activity that is limited to certain kinds of speakers or subjects.

For example, courts have increasingly found that a secondary school with a limited open forum under the EAA also creates a limited public forum: one limited to student groups. Once this limited public forum is created, the free speech clause prohibits discrimination against expression in the forum based on viewpoint, such as political or religious perspectives. As we'll see, this can be significant.

The Supreme Court has held that a student group is a noncurriculum related group under the EAA unless:

* The group's subject matter is actually taught, or soon will be, in a regularly offered course

* The group's subject matter concerns the body of courses as a whole

* Participation in the group is required for a course

* Academic credit is given for participation in the group.

Rather than deferring to what the school says, a court will apply these factors to determine if a group is curriculum related. For example, courts have found that junior and senior executive councils, a drama club, a chess club, and various community service clubs were noncurriculum related, even if the groups' activities related in some way to a course.

On the other hand, one court found that an academic honor society was curriculum related, since the school's whole purpose was academic achievement and the group's activities related to the college preparatory curriculum. This doesn't mean every drama club is noncurriculum related and every honor society is curriculum related: a court will consider each school and each club's activities on a case-by-case basis.

The EAA defines noninstructional time as time before actual classroom instruction begins or after it ends. Courts have split over how this applies to lunch and student activity periods in the middle of the school day. One court found that a school's lunch period was noninstructional time because no classroom instruction occurred and some noncurriculumrelated groups met. The same court later held that another school's student-staff time period was instructional time because school attendance was mandatory and some classroom instruction occurred during the period. A different court recently declined to follow this approach, finding instead that some classroom instruction does not make the whole activity period "instructional."

The more legally cautious approach for a school is to assume that if any noncurriculum related club can conduct activities during such a period, the school has created a limited open forum. If a school has created a limited open forum, it must provide a fair opportunity by meeting the following conditions:

* The noncurriculum related groups' activities must be voluntary and student-initiated. Schools still occasionally get into legal trouble by trying to promote religious activities. For example, one court held that the EAA did not allow a student group to recite prayers over the PA system because subjecting the entire student body to the prayers meant the group's activities were no longer "voluntary" and "student-initiated."

* The school and its employees must not "sponsor" the group's meetings by promoting, leading, or participating in them. School employees can only be involved with religious groups in a nonparticipatory capacity; that is, for administrative purposes and to provide adult supervision. In one case, a school violated the EAA when a school employee sponsored and participated in a gospel choir. The EAA also says that no school employee may be compelled to attend a group's meeting if the content of the speech at the meeting violates the employee's personal beliefs.

* The group's activities must not interfere with orderly conduct of the school's educational activities. One court held that both the EAA and the free speech clause allowed a principal to exclude a group's religious symbols from a school mural because he rightly feared resulting litigation and disorder and because a white supremacist group also wanted to display a swastika in the mural.

However, the fact that a group is controversial is not always a ground for restricting it. Another court held that protests against a GSA by students and outside organizations were no fault of the GSA's members, were handled well by the school, and did not warrant excluding the GSA.

* Although persons from outside the school can visit and provide some support to the group, they must not direct, conduct, control, or regularly attend the group's activities. Again, the EAA is about student-initiated groups.

A meeting under the EAA encompasses those activities that the school allows student groups to conduct under its limited open forum. These generally include things like access to meeting space, announcements on the PA system, access to the school newspaper, use of school bulletin boards, participation in club fairs, and inclusion in the yearbook. It's important to remember that the school doesn't necessarily have to give clubs access to all these things. Rather, whatever some noncurriculum related groups can do, all of them can do.

Occasionally, a group's right to equal access is not so clear cut. in theory, the EAA does not authorize a school to expend public funds beyond the incidental costs of providing space for student-initiated meetings. One court held that a school was not required by the EAA to let a religious club use school supplies, equipment, and vehicles paid for by public funds, since these are more than incidental costs of space.

However, this case illustrates how the free speech clause may apply even where the EAA does not: the court held that the school had created a limited public forum and that denying these things was unconstitutional viewpoint discrimination. The court also found that the school improperly withheld student activities funds because these were not "public funds" but were raised from students and accounted for separately from general funds.

Can Do/Can't Do

* The bottom line in most cases is that a school has four options for dealing with a request from a controversial group:

* Grant the request on equal terms

* Narrow the forum by denying the request but also prohibiting every other noncurriculum related group from doing the requested activity

* Abolish all clubs

* Limit the forum to curriculum related groups only by abolishing noncurriculum related groups. The Supreme Court has said a school may narrow or close its forum deliberately to avoid granting a particular group's request, and some schools have abolished every noncurriculum related club in order to keep a GSA out.

What the school probably cannot do is have it both ways. Courts tend to be skeptical of attempts by schools to tailor school rules or finesse legal definitions in order to preserve favored groups while barring disfavored ones.

For example, a school can't:

* Close the forum but push the definition of curriculum related to include favored groups. One district tried arguing that the Key Club and Girls Club were curriculum related because the district had a community service requirement. The court didn't buy it.

* Close the forum but look the other way while favored groups quietly continue to meet on their own. One court rejected a school's defense that it didn't know that the Bible club was still meeting in the hall, finding the school "knew or should have known."

* Push the definition of "curriculum related" to include the disfavored group so that it is not protected by the EAA. One district unsuccessfully argued that a GSA was curriculum related because it related to sex education.

* Invoke state or local laws or policies to avoid EAA compliance. One court found that a nondiscrimination policy did not permit a school to condition approval of a religious club on the club's agreeing to allow non-Christians to serve as officers. Another held that a school could not bar a religious meeting, even if the meeting would be illegal under the state constitution.

* Impose conditions only on a disfavored group. One district improperly withheld approval of a GSA unless the group agreed to drop the word "gay" from its name and refrain from discussing sexuality.

Although some of these decisions may be out of the principal's hands, here's some practical advice for school officials:

* Bear in mind that these issues tend to be hotly contested on all sides by well-organized, politically active, and very litigious groups. When in doubt, consult an attorney on the front end, not after the fact.

* Know your district's rules concerning student groups. Think through what kind of forum-what kinds of things all noncurriculum related clubs should have access to-makes the most sense for your school community in light of equal access requirements. Do this before a controversy arises.

When faced with a question, your initial inclination should always be to treat all noncurriculum- related student groups the same. This includes religious groups, even though they sometimes raise tricky church-state issues that you may want to run by your lawyer.

* Don't let a group's request languish for months in the hope that the issue will just go away. Flip-flopping can be trouble, too. It's better to deal with the situation decisively. One school district that agonized over a GSA application probably ended up prolonging and exacerbating the controversy and its costs. Another district "took a little flak" up front for recognizing a GSA but was able to get back to its educational priorities quickly.

* Educate your school community about a school's limited legal options when it comes to controversial student groups. It might not hurt to point out that the same rules apply to conservative Christian groups and to GSAs, since many of those most vociferously opposing one might be sympathetic to the other.

* If your district has insurance for lawsuits, ask what its terms are. One district's insurance company said it would not cover legal costs if the district were found to have discriminated against a student group in violation of the EAA. This fact might be persuasive to those who oppose a group.

Different rules apply in nonsecondary schools or to outside groups that wish to meet on school premises. The EAA does not apply in these situations, but the legal issues and the school's First Amendment obligations are similar.

For example, the No Child Left Behind Act includes a special provision, the Boy Scouts Equal Access Act, which prohibits any school that receives federal funds and that has created a limited public forum from denying equal access to the Boy Scouts or various other "patriotic organizations."

As with secondary school student groups, an educator's first instinct should always be to treat all such groups similarly. When in doubt, it's worth getting some legal advice.

Thomas Hutton is staff attorney for the National School Boards Association, Alexandria, VA.

Copyright National Association of Secondary School Principals Jan 2004
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