Religious Expression in Public Schools- the Equal Access Act By Richard T. Foltin The Equal Access Act of 1984 (EAA), which gave students in public high schools the right to form religious clubs on the same basis as other clubs, provoked heated debate when it was first proposed but has proven relatively uncontroversial in practice. Now Congress is considering various proposals to enhance the EAA, and many of the people who took up the fight for and against it fourteen years ago are again entering the debate, We asked two of the more thoughtful scholars on opposing sides to give us a brief recap of the Act and outline what they believe is at stake in today's battle. A preamble in the nature of full disclosure. During the early 1980s, a battle was fought in the U.S. Congress over proposed legislation guaranteeing the right to students in Federally-funded public secondary schools to form religious clubs on the same basis as other school clubs. The American Jewish Committee, the organization for which I work, opposed that legislation. We were on the losing end of that battle. The summer of 1998 marks fourteen years since the Equal Access Act was signed into law by President Ronald Reagan, following its passage in both Houses of Congress by substantial margins, 88 -11 in the Senate and 337-77 in the House of Representatives. Two years later, by a vote of 8 -1, the US. Supreme Court ruled in the case of Board of Education of the Westside Community Schools v. Mergens that the Equal Access Act did not violate the principle of separation of church and State encompassed in the First Amendment to the Constitution. I wrote the arnicus curiae brief submitted by AJC in the case, one of several briefs making that unsuccessful constitutional claim. The Equal Access Act provides, in brief, that when public secondary schools allow "noncurriculum related student groups" to meet on school premises during "noninstructional time" (thereby creating what the Act defines as a "limited open forum") they may not deny the same opportunity to other students who wish to meet on the basis of the religious, political, philosophical or other content of the speech at those meetings. This approach borrows from the concept of "limited public forum" to be found in free speech jurisprudence which holds that, while government has no obligation to afford access to its property for expressive activity, it may not - once it does allow for such activity - exclude anyone from the use of that property on the basis of the content of their speech. The provisions of the Equal Access Act directing that a "limited open forum" is created in public schools under certain circumstances does not, however, necessarily mean that secondary schools, in allowing for noncurricular clubs, have created a constitutional "limited public forum." 'The Supreme Court has not definitively addressed that question and it remains an issue of dispute to this day. With the failure of the judicial challenge, a number of religious, civil liberties, and education groups that had been in contention - some who had supported the Equal Access Act, some who had opposed it, and some neutral - came together to prepare a pamphlet designed to provide guidance to school administrators, teachers and parents in understanding what the Equal Access Act required of them. The pamphlet pointed out that there were three basic concepts underlying the Act. The first concept was nondiscrimination: in the context of secondary school clubs meeting at "noninstructional time," religious speech should receive equal treatment - but not preferred treatment - as compared to other forms of speech. The second concept was that it was student-initiated. and student led meetings that were being protected, not official school prayer or other actions amounting to government endorsement of religion that were forbidden under judicial precedent. Quite to the contrary, in order to avoid an appearance of official school sponsorship of religion, the Act explicitly stated that the rules under which a school establishes a "limted open forum" must provide that "employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity." The final concept was that of local control; school officials retain the authority to maintain order and discipline and take other actions necessary to protect the wellbeing of the student body. Opponents of the Equal Access Act did not so much fear what the Act allowed on its face - student clubs formed to address religious, political, or philosophical issues - as the abuses that they feared would occur if those who felt deeply that it is their sacred obligation to win over others to their own faith used religious clubs formed under the Act as a base for proselytization. This fear was not without basis, Prior to the passage of the Equal Access Act, and continuing to this day, many school districts across the country have engaged in scofflaw school-sponsored organized prayer and devotional Bible readings, scofflaw actions in plain violation of rulings of the Supreme Court and the lower courts. Even before passage of the Act, evangelical groups were allowed entry to public schools, nominally for the purpose of teaching youngsters about the evils of drugs and alcohol, to preach their gospel at student assemblies. It was against this framework of violations of clear constitutional prohibitions that a number of groups opposed the Equal Access Act and later challenged it as unconstitutional. The guiding principle for those challenges was that parents who enroll their children in public secondary schools for the secular education mandated by the State have a right to expect that their children will not be proselytized away from their own cherished faith and into another, which may be anathema to them, while under the roof of the public school. Children in public schools are, in an important sense, a captive audience, the argument went, and, as such, it is simply not right that they be spiritually seduced, even by sincere and well-meaning fellow students. In addition, opponents of the Act pointed to its provisions allowing adult clergy to enter the public schools and attend student religious club meetings - provided only that they not attend regularly, or direct or control the student religious meetings - as likely to be misused by missionary churches or religious cults that would use student surrogates to, in effect, open branches in public schools. The Equal Access Act has unquestionably wrought important changes on the face of religion in public schools. More than at any time since the Supreme Court's 1963 ruling barring compulsory school prayer, religion has returned to the public schools. Students are forming religious clubs in as many as one in four schools. But the parade of horribles that it was predicted the Equal Access Act would bring have, by and large, not transpired. While noting that some cases of harassment and undue influence by outsiders have been reported, Barry Lynn, executive director of Americans United for Separation of Church and State, recently told Time magazine that "in most school districts, students are spontaneously forming clubs, acting upon their own and not outsiders' religious agendas." The intervening years have also brought some greater understanding to one-time opponents of the Equal Access Act as to why so many people - including many who are generally stalwart supporters of the separation of church and State - thought the Act was necessary. As the Supreme Court noted in Mergens, the Equal Access Act was Congress' response to a "perceived widespread discrimination'' against religious speech in public schools because students were barred from forming religious clubs or engaging in religious speech even as they were allowed to form clubs or engage in speech dedicated to a range of other political and philosophical concerns. Opposition to any action of school officials that endorses religious activity or doctrine or coerces participation in religious activity must be joined with due regard-for the right of students to express their personal religious views or beliefs on the same basis that they express other views and belief. At the same time, at least some proponents of religious clubs in public schools have come to recognize that official school prayer has no place in an increasingly diverse society. A recent article in the Washington Post, noting the proliferation of religious clubs in public schools in the wake of the Equal Access Act, cited a comment by Benny Proffitt, the Southern Baptist founder of First Priority, a church group that helps Christian students set up religious clubs at their schools. 'After World War II, the world came to America," said Proffitt. "We could no longer take for granted that everyone was Christian. How do you mandate Christian prayer when the whole country has changed? ... I don't want mandated religion." The need to balance the right to engage in religious expression with protection against government endorsement of religion was well set out in the guidelines on religion in the public schools released by the U.S. Department of Education in 1995 with the endorsement of a broad array of religious and civil liberties groups. In a speech he made shortly before the original release of the guidelines (they were reissued this year to reflect later judicial developments), President Clinton asserted that "nothing in the First Amendment converts our public schools into religion-free zones or requires all religious expression to be left at the schoolhouse door." With the benefit of hindsight, then, this writer would not oppose the Equal Access Act were it brought up for a vote today. But the reality of inappropriate religious practices in public schools, practices that make outsiders of members of minority religious faiths, has not gone away, and that reality cautions against proposals to make the Act even more far-reaching. For thirty-five years, until restrained by the order of a Federal district judge last year, an Alabama school district persisted in an open and flagrant defiance of the constitutional ban on officially sponsored prayer. In another well-publicized case, a Mississippi school engaged in a practice of broadcasting prayers over the intercom; when she protested, the mother of children attending that school was subjected to an ongoing pattern of harassment. In other instances, schools have instituted classes that, in the guise of teaching "about religion," are nothing more than officially sponsored lessons in a particular faith's perspective. It would be a mistake then, to alter the Equal Access Act so as to afford religious expression preferential treatment as opposed to treatment comparable to that afforded to other forms of expression. As noted earlier, the Act affords students the right to form religious clubs only when students are allowed to meet in other noncurricular groups. The courts have, to be sure, read the term "noncurriculum-related" narrowly so as to avoid a situation in which school districts avoid their obligation of equal access through arbitrary determinations as to which clubs are curricular and which are non-curricular. But local school boards should continue to have the exclusive authority to determine whether or not they will create or maintain a "limited public forum," as defined by the Act. The determination of a school board not to allow any noncurriculum-related clubs at all may or may not be wise under the circumstances, but it is not, as has been suggested, an "end run" around the Act. It is, instead, consistent with the principles of nondiscrimination and local control that are a central part of the Act. And it is an option that ought to be available to a school board when noncurricular clubs become vehicles of abuse and harassment rather than a means to allow some students to engage in nondisruptive and noncoercive expression. Similarly, the Act's invocation of equal access principles should only be triggered by noncurriculum-related groups that meet during noninstructional time; those principles ought not to be extended to instructional parts of the day. (Noninstructional time need not necessarily be at the beginning or end of a school day. Courts have held, and the Department of Education guidelines reflect, that a lunch period or recess is "noninstructional time") While there is no definitive authority as to the constitutionality of allowing or disallowing student religious clubs to meet during instructional time, clubs that meet during class hours should more properly be regarded as carrying out the educational mission of the school. As such, the risk that a school administration will come to be regarded as supportive of a particular religious perspective will be that much greater if religious clubs meet during those hours. Finally, in considering changes to the Equal Access Act, it should be recalled that the Act is narrowly focused on only one form of expression in which students may be engaged, the meeting of student groups. Other forms of religious expression, such as "see you at the flagpole" gatherings, moments taken by individual or small groups of students to engage in voluntary prayer, or the distribution of religious literature are protected to the same extent as other forms of expression with or without any changes in the Equal Access Act. In sum, the last few years have seen a sea of changes in attitudes toward religion in the public schools. This is due in no small part to the greater clarity as to what forms of religious expression are-and are not-appropiate in the public school setting that has grown out of the Equal Access Act, especially when the law is viewed in conjunction with the Department of Education guidelines on religion in the public schools. If, in the view of some, the system was "broke" at one time, it is working well now. Let us not be in a rush to "fix it" once again. Richard T Foltin is Legislative Director and Counsel in the Office of Government and International Affairs (Washington, D.C) of the American Jewish Committee. He also serves as Vice Chair of the First Amendment Rights Committee of the ABA Section of Individual Rights and Responsibilities, and is editor Of Religious Liberty in the 1990s - The Religion Clauses Under the Rehnquist Court: A Consultation.

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