Key point 14-07. Public school property may be used during noninstructional hours by students for religious purposes if noncurriculum-related student groups are permitted to use school property during noninstructional hours.

Use of Public Property for Religious Purposes

* A California court ruled that a Christian student group’s rights under the federal Equal Access Act were violated by a public school district’s decision to ban them from school premises. A Christian-based student group (Fellowship of Christian Athletes, or "FCA") began meeting informally at a public high school for prayer and Bible study. Eventually, the group decided to seek formal club status at the high school, and applied for recognition as an officially sanctioned club, one with the avowed aim of having "a Christian presence on campus, [and influencing] others into the Christian faith." Recognition as an official campus club, among other things, conferred certain limited rights—for example, the right to use rooms in which to conduct meetings, bulletin boards, and the public address system. It would also give the group greater visibility on campus. The application was denied by school district officials on the ground that sponsorship of a student religious club "would be contrary to both the United States and California constitutions." The group claimed that it was denied rights and privileges that were granted by the school to other student groups. It sued the school for violating its rights under the federal Equal Access Act.

The school district had a policy classifying each public school as a "closed forum," which meant, among other things, that only student clubs that were "curriculum related" were allowed to meet on school property. The curriculum-related requirement could be met easily by clubs that related directly to the subject matter of a course, such as a French or Spanish club. The school district also attempted to permit some other "service clubs" to meet on school property without affecting each school’s status as a closed forum. It did so by adding eight hours of "community service" as a component of the social studies curriculum at each high school grade level, and by decreeing that this requirement could be met by eight hours of participation in a qualified community service organization, which included service clubs such as the Key Club and the Girls League. As a result, with all of the "favored" clubs in the curriculum-related category, the school district was able to maintain that each of its schools was a closed forum to which the protections of the Equal Access Act did not apply, and therefore FCA had no right of access and could be denied recognition as an official campus club.

The Equal Access Act provides that "it shall be unlawful for any public secondary school which receives federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings." The Act’s protections apply only with respect to a school whose campus is a limited open forum, which is created "whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during non-instructional time."

The court noted that while the Act defines several key words and phrases, "noncurriculum related" is not among them. However, the United States Supreme Court, in a previous case, had provided some clarification. Board of Education v. Mergens, 496 U.S. 226 (1990). In the Mergens case, the Supreme Court concluded, "We think that the term ‘noncurriculum related student group’ is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school’s curriculum (1) if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; (2) if the subject matter of the group concerns the body of courses as a whole; (3)if participation in the group is required for a particular course; or (4) if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a commonsense interpretation of the Act that is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements." The Supreme Court concluded that clubs such as the Future Business Leaders of America, a surfing club, the chess club, and the National Honor Society were not curriculum-related because their goals of "developing effective citizens" or "developing lifelong recreational interests" did not make them sufficiently curriculum related to avoid offending the Act. The Supreme Court noted that "to define ‘curriculum related’ in a way that results in almost no schools having a limited open fora, or in a way that permits schools to evade the Act by strategically describing existing student groups, would render the Act" useless.

Applying the Mergens case, the federal appeals court concluded that the school district had violated the Act by denying FCA recognition as an official student club. It concluded,

We seriously doubt that the community-service graduation requirement, without more, is sufficient to establish curriculum relatedness. As Mergens suggests … community service clubs are, at best, only marginally related to the usual high school curriculum. That being the case, we fail to see how making participation in such clubs satisfy a graduation requirement somehow transforms those clubs into scholastic endeavors. Moreover, allowing [a school] to remain a closed forum merely by making participation in such marginal groups a graduation prerequisite would essentially be permitting the high school to "evade the Act by the simple expedient of requiring some or all students to participate in a single activity or meeting of each group with which the school’s administrators wish to create a curriculum relationship."

The court summarily rejected the school district’s claim that FCA was not entitled to protection under the Act because the group was not student initiated and because of the continued involvement of two teachers. The court noted that the Act merely requires that the on-campus meetings of student groups invoking the Act must be student initiated. It concluded, "While the evidence here suggests the initial and early off-campus meetings of the FCA were initiated by non- students, its informal, on-campus meetings have been, and presumably will continue to be, initiated only by students."

The court also rejected the school district’s argument that the Act is unconstitutional. It concluded, "Again we beg to differ. Merely granting the FCA the same privileges enjoyed by all other campus clubs offends neither the United States Constitution nor that of this state." Van Schoick v. Saddleback Valley Unified School District, (Cal. App. 2001).

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