Legal Features

Teaching Public Schools the ABCs of the Constitution

Part I: The Rights of Religious Student Groups in Public Schools

(Read Inside the Schoolhouse Gates: A Report on Religion in the Public Schools) (PDF)
(Read Part I: The Rights of Religious Student Groups in Public Schools)
(Read Part II: Students' Free Speech Rights in Public Schools)
(Read Part III: Religious Expression at Graduation Ceremonies and Assemblies)
(Read Part IV: Non-Student Expression on School Property
(Read Part V: Teachers' Rights in Public Education)
(Read Part VI: "Zero Tolerance" Policies and School Searches)
(Read The Rutherford Institute's legal memorandum to public school superintendents) (PDF)

As students across the country return to the classroom, they will encounter a social climate that continues to become more tolerant toward various "alternative lifestyles." At times, however, it seems that mainstream America has become more tolerant toward every social group except Christians who are vocal about their faith. In a wide array of contexts, including the public school system, the rights of Christians to verbalize their faith in the public arena have been under attack. It is therefore crucial that Christian students understand some basics about their legal rights to meet with others who share their beliefs and to express said beliefs in the public school system. The Free Speech Clause of the First Amendment to the United States Constitution and the federal Equal Access Act both protect the religious freedom of public school students.

The Equal Access Act

The United States Congress passed the Equal Access Act (the "EAA" or the "Act") in 1984 to protect the religious rights of public school students. The Act broadly prohibits public schools from discriminating against any student group based on the religious, political, philosophical, or other content of the group's speech. The Act also requires that schools grant religious student groups official recognition under the same conditions as they grant such recognition to non-religious student groups, and that they afford religious groups the same rights and privileges as they offer other groups.

The EAA applies, and mandates equal access and privileges for religious student groups, if the school has three characteristics:

• The school must be a public secondary school. This term is defined by the law of the state in which the school is located and usually includes high schools and sometimes junior high schools;
• The school must receive federal funding; and
• The school must have created a "limited open forum." Under the EAA, a school establishes a limited open forum when it permits non-curricular student groups to meet on school grounds during "non-instructional time," or time set aside by school officials before or after actual classroom instructional time.

For example, if a public high school allows non-curricular student groups such as a ski club or chess club to meet during a certain period of the school day, such as lunchtime, then the school has established a "limited open forum" and must also allow religious student groups to meet during that time. Furthermore, if even one non-curricular group has been granted access to the student newspaper, bulletin boards, public address system, or annual school events, all groups, including religious ones, must be allowed the same access.

It is important to note that the Act only protects student activity. Thus, it offers no protection for outside religious groups that wish to distribute Bibles or religious literature to students. Moreover, when the EAA does apply, it only requires schools to extend to religious student groups the same privileges as those offered to secular student groups.

In short, the EAA gives religious student groups equal footing with other student clubs. Some schools have argued that the Act requires them to violate the First Amendment's Establishment Clause. Courts have squarely rejected this argument, noting that the statute contains certain guidelines for religious student groups to ensure that schools do not violate the Establishment Clause by endorsing religion. First, religious clubs protected by the Act must be student-led. Teachers, as agents of the state when acting in their official capacities, may not lead religious groups, as this would give the appearance of endorsing a certain religion. However, a teacher or other school administrator may be present to supervise the group. Persons who are not associated with the school may not conduct, control, or regularly attend group meetings. Second, the meetings must be voluntary. The EAA does not, however, require parental permission for students to attend such meetings.


The Free Speech Clause of the First Amendment

In addition to the EAA, the Free Speech Clause of the First Amendment provides powerful protection for students' religious rights in the public school system--including the right to form and participate in religious student clubs.

The First Amendment analysis parallels the provisions of the Equal Access Act, as the Act merely represents a codification of First Amendment law as applied to the public school context. The First Amendment's protection is broader, however, as it applies to any public school, and may operate to protect the rights of outside groups to use school facilities or distribute religious literature to students in some circumstances.

Courts use a legal doctrine called forum analysis in determining when the government must grant a speaker access to public property, such as school property, for expressive purposes. Courts have generally determined that public schools are nonpublic fora; however, where a school has allowed non-curricular groups to meet on its premises, it will be considered a limited public forum.

Where a school maintains a closed (nonpublic) forum by refusing to grant access to any non-curricular student groups, its speech restrictions must only be reasonably related to legitimate pedagogical concerns. Thus, a school would be justified in disallowing all non-curricular clubs from meeting on its campus when the clubs are unrelated to the school's educational mission. Even in a nonpublic forum, though, the school cannot engage in viewpoint-based discrimination; it cannot regulate the speech of religious clubs simply because of their religious viewpoint. The school must show that any content-based ban on expression is narrowly tailored to "serve a compelling state interest."


Conclusion

Under the United States Constitution and the Equal Access Act, religious student groups in public schools have the same rights as secular student groups to meet during non-curricular times and access school amenities. In a culture that is becoming increasingly hostile toward Christians, it is important that these students understand their rights to fair treatment by public school officials. If you or a student you know has encountered official opposition to religious expression, or if you know of a religious student club that has been treated less favorably than secular student clubs, please contact The Rutherford Institute at tristaff@rutherford.org or (434) 978-3888. Institute attorneys have protected the rights of religious students in numerous cases and are dedicated to preserving religious liberty in our nation's schools.