Stretching the Equal Access Act Beyond Equal Access
112 Pages Posted: 24 Jul 2008 Last revised: 4 Aug 2008
Date Written: 2003
The federal Equal Access Act makes it unlawful for most public high schools to deny student groups the ability "to meet on school premises during noninstructional time" on the basis of "the religious, political, philosophical, or other content of the speech at such meetings." In recent litigation, the Ninth Circuit stretched the Act to provide equal access to more than just meeting space. Student-run religious clubs that a school would be constitutionally barred from sponsoring are now entitled to receive an equal measure of virtually all benefits that a school bestows on school-sponsored clubs (such as affiliation with the student council, unrestricted grants from the school's student activity fund, appearance in the school yearbook, meetings during instructional time, and expenditure of tax money beyond the incidental cost of providing the space for meetings). This result means that public schools are, in practical terms, sponsoring religious activity that both the Act and the Establishment Clause should prevent them from sponsoring.
This article argues that the source of the error is, in many ways, the Court's casual use of the term "forum" to describe virtually anything of value, even if it is not a physical space or a medium for expression. This stretching of the term "forum" as used in the Act parallels a trend in First Amendment cases, where the "public forum" doctrine is unthinkingly applied beyond its original setting (i.e., cases involving three-dimensional government-owned physical spaces where people could assemble for face-to-face dialogue). The article explores five areas that the public forum doctrine has been, or may be, stretched to cover: communications media, private property, government programs, government money, and government speech. It concludes that the public forum metaphor is ill-suited to resolve disputes over access to much other than physical spaces or communications media.
Part I provides background on the Equal Access Act, from its legislative origins through its interpretations by federal courts. Part II describes and criticizes Prince v. Jacoby, the Ninth Circuit case that stretched the Act beyond equal access to meeting space. Part III explores the parallel development in which the First Amendment public forum doctrine has been stretched beyond physical spaces or communications media. Part IV concludes with practical suggestions for school districts (suggesting how to structure student groups' benefits) and for Congress (suggesting amendments to make the Equal Access Act easier to understand and better suited to the needs of public school districts).
Keywords: First Amendment, Equal Access Act, Student Rights, Public Forum, Public Display, Religion, Education, Rosenberger, Association, Establishment Clause
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