Unequal Access

In 1984 Congress passed a law requiring federally funded high schools to provide equal access to all noncurricular student-led groups wishing to meet on school grounds. The law is based on Wid mar v. Vincent (1981), a Supreme Court case that prohibited publicly funded universities from discriminating against religious groups in the use of campus facilities. It is a matter of equal treatment: if the university opened its facilities to some groups, it had to for religious ones. The court didn't even consider the rights of the various parties under the religion clauses of the First Amendment, the Free Exercise Clause, and the Establishment Clause. With the Federal Equal Access Act Congress sought to extend this principle, by statute, to federally funded high schools.

A few years later, some recalcitrant school administrators challenged the constitutionality of the Equal Access Act. Westside High School in Omaha, Nebraska, argued that the Equal Access Act violates the First Amendment Establishment Clause. The case went to the United States Supreme Court in Board of Education of the Westside Community Schools v. Mergens (1990), where the Court, in an 8-1 decision, ruled against the school. The act is now firmly rooted in our law. It is referred to in the Department of Education Guidelines for Religious Expression, which provides that:

Student religious groups at public secondary schools have the same right of access to school facilities as is enjoyed by other comparable student groups. Under the Equal Access Act, a school receiving Federal funds that allows one or more student noncurriculum-related clubs to meet on its premises during noninstructional time may not refuse access to student religious groups.

In a more recent case, the Supreme Court held that public elementary schools may not deny access to Christian organizations and Bible clubs for after-hours meetings at the school.

But despite the Equal Access Act, the court's validation of it, other cases permitting Bible clubs to meet, and the unambiguous Department of Education Guidelines, many public school administrators continue to act as though they are required to discriminate against Christian students. Los Angeles Unified School District (LAUSD), for example, denied requests from the San Fernando Valley of Child Evangelism Fellowship to form a Bible club called the "Good News Club." Liberty Counsel's Mathew Staver, representing the group, said, "The LAUSD seems to think it's above the law. A policy excluding persons or groups because of their religious viewpoint is unconstitutional. This underscores that educators need education." LAUSD policy, said Staver, permits groups or individuals to "meet and discuss any subjects and questions which appertain to the educational, political, economic, cultural, artistic, and moral interests of the community in which they reside." Yet the school concluded that a Bible club doesn't qualify. An analogous situation occurred in Marion, Massachusetts, where the school allowed every conceivable group to use its school auditorium except for the South Coast Community Church.

School officials in Crosby, Minnesota, prohibited a Christian group called the "Lunch Bunch" from passing out flyers or posters to advertise its meetings at Crosby-Ironton High School. Club members Katie Hodges and Jonathan Friesner were trying to publicize the club's annual "See You at the Pole-National Day of Student Prayer" (SYATP), which is a national celebration. In fact, a week after the September 11, 2001, terrorist attacks on America, more than three million students participated in the event in all fifty states. Yet the school principal denied Katie and Jonathan permission to distribute the leaflets unless they substituted "praise" for "prayer." On a separate occasion he also prohibited the club from promoting a Bible study.

Banning Christian groups from distributing flyers and teachers from handing out permission slips about their meetings is a common occurrence around the country. In one case in New Jersey, it took a federal court order to compel the school district to require teachers to distribute flyers and permission slips to students concerning Bible club meetings.

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