Equal Access: The Right to Form Student Clubs On Public School Campuses

James M Henderson Sr.

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1

Three Part Test Shows Whether Your School Must Permit Your Club

The Equal Access Act created a three part test to be applied in disputes over whether a school must allow students to form religious, political and philosophical clubs: First: Is the school a "secondary" school under the law of your State. Second: Does the school receive any federal funding at all? Third: Does the school, by policy or practice, have a club forum? As explained below, each of these questions is easily answered. If the answer to all three questions is "yes," then as a matter of FEDERAL LAW, your school has no choice but to allow you to form a student club.

2

Is Mine a Secondary School?

The Equal Access Act (EAA) is limited in scope. It doesn't apply to private schools at any level. It doesn't apply to public colleges and universities. It doesn't apply to elementary schools. The EAA applies to public "secondary" schools. The Act looks to each State's law for the definition of what is a "secondary school." Some states, Florida for example, treat as "secondary schools" all the schools that enroll students from 6th through 12th grades. http://www.flsenate.gov/Laws/Statutes/2012/1003.413 Other States treat as "secondary schools" only those that enroll students from grades 9 through 12, or grades 10 through 12. In order to have the benefit of the EAA, and require your school to allow the formation of your proposed club, you must first confirm that your school is a "secondary" one. Most often, primary equates with elementary school and secondary equates with junior and senior high school or with only senior high school.

3

Does My School Receive Federal Funding?

If yours in a public school, it is virtually certain that it receives federal funding. Why? Because if your school has a "school lunch program" for low income students, or has programs for students with disabilities, these are virtually always funded by grants from the federal government. Still, to be certain, you can inquire with the school district office or the school board. But, as indicated, school lunch programs funded by the federal government, or special education programs funded by the federal government meet this requirement, and these programs are found in virtually every public school.

4

Does My School Have a Club Forum?

This is often the most difficult to answer. Not every club or organization meeting on campus makes for a club forum. The EAA depends on whether a school allows student clubs UNRELATED to the curriculum. Some clubs are clearly curriculum related: French Club (or other foreign language clubs) would meet this relatedness test, if the school offers foreign languages; Mathletes would meet this test of relatedness. Other clubs do not have the kind of relatedness Congress had in mind: Zonta, Interact, Keyettes. Schools will often claim that a service club relates to large themes of services and volunteerism that are important to the school curriculum. The debates and legislative history leading up to the EAA indicate that Congress was looking to a relationship that was more measurable and direct. A brief word about school teams. The record of the EAA is clear. Congress did not intend for football and similar school teams to be counted as clubs unrelated to the curriculum.

5

Three Yesses Clarifies The Mess?

If the answer to these three questions is "yes," then the Equal Access Act applies in your situation. This is an important development. Once this point is established, you reach a stage where your club must be allowed. Equally important, the school must afford the same privileges and benefits to your club as it does to all other clubs UNRELATED to the curriculum. In practical terms, that principle of equality means having the same right of access to the school's hallway walls, school calendar and home room announcements as other clubs are allowed. This question of equality is actually where most disputes arise in public schools. Schools have had over 20 years to come into full understanding and compliance with the EAA. The most frequent ongoing dispute has to do with HOW schools must accommodate and treat equally such student clubs.

Additional Resources

The text of the Act is here: http://www.law.cornell.edu/uscode/text/20/4071 Helpful sites regarding the Act: http://www.robertslaw.org/equal_access.htm http://www.religioustolerance.org/equ_acce.htm http://aclj.org/equal-access/the-equal-access-act-from-student-rights-in-the-public-schools-2004

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