EQUAL ACCESS

For over two decades litigation involving religion and the public schools focused on state-sponsored religious exercises. This pattern changed during the 1980s, as student-led religious groups sought access to school facilities on the same basis as other student groups. These groups claimed that once a public school opened its premises to extracurricular student groups, it created a limited public forum and could not discriminate against some groups on the basis of the content of their speech; hence, the school was obliged to grant "equal access" to religious student groups that wanted to use school facilities. Equal access found a legal footing in widmar v. vincent (1981), where the Supreme Court held that a public university could not close its facilities to religious student groups once it had opened them for use by other groups because to do so would violate the religious students' freedom of speech guaranteed by the first amendment.

Despite Widmar, most secondary schools continued to reject requests by religious students to meet on school premises, as did most federal courts; indeed, until 1989 every federal appellate court to rule on the issue held that it would violate the establishment clause for secondary schools to allow religious student groups to meet on the same basis as other student groups. The basic rationale for these lower-court holdings came from a federal appellate opinion by Judge Irving Kaufman in Brandon v. Guilderland (1980). In Brandon, a group of high school students sought permission to meet before school in an empty classroom to pray and read the Bible. The school district denied the request. Judge Kaufman argued that the district could not accede to the students' petition because to do so would impermissibly advance religion and excessively entangle church and state in violation of the second and third prongs of the lemon test.

Kaufman's main argument was psychological: "To an impressionable student even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular creed. This symbolic inference is too dangerous to permit." Critics of the decision disagreed. Chief Justice warren burger, dissenting in bender v. williamsport (1986), argued that one must objectively distinguish between state advancement of religion and individual advocacy of religion; whereas the former activity is prohibited by the First Amendment, the latter is "affirmatively protected." The fact that "some hypothetical students" might mistake individual religious expression for state religion was irrelevant according to Burger, who added: "No one would contend that the State would be authorized to dismantle a church erected by private persons on private property because overwhelming evidence showed that other members of the community thought the church was owned and operated by the state."

When the Supreme Court declined to resolve the constitutionality of equal access, Congress intervened by passing the Equal Access Act in 1984. The act applies to all public secondary schools receiving federal money that also maintain a "limited open forum," which exists whenever a school allows "one or more noncurriculum related student groups to meet on school premises during noninstructional time." The act forbids schools with a limited open forum from discriminating against student groups because of the content of their speech.

In board of education of the westside community schools v. mergens (1990) the Supreme Court held that the act does not violate the establishment clause as applied to religious student groups, but declined to rule whether the equal-access rights guaranteed by statute are also required by the First Amendment. The Court will likely have another opportunity to deal with this First Amendment issue. As equal-access theory is based primarily on the freedom of speech, it lends itself to a broader range of activities than just the student meetings protected by the Equal Access Act. More recent cases have focused, for example, on the right of students to distribute religious publications to classmates on school premises. These cases have yet to reach the Supreme Court.

John G. West, Jr.
(1992)

(see also: Religion in Public Schools; Religious Fundamentalism; Religious Liberty; Separation of Church and State.)

Bibliography

West, John G., Jr. 1991 The Changing Battle over Religion in the Public Schools. Wake Forest Law Review 26:361–401.

Whitehead, John W. 1989 Avoiding Religious Apartheid: Affording Equal Treatment for Student-Initiated Religious Expression in Public Schools. Pepperdine Law Review 16:229–258.