Use of Public School Property by Students for Religious Purposes
Key point 13-07. 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.
Resource. In 1998, the federal government issued to every public school in America a document entitled "Religious Expression in Public Schools." This document was designed to inform public school administrators of the religious rights enjoyed by public school students while at school.
In 1990, the Supreme Court upheld the constitutionality of the "Equal Access Act," which prohibits public high schools from denying any group access during noninstructional hours to school facilities if the same right is given to any noncurriculum related student groups. Board of Education v. Mergens, 496 U.S. 226 (1990). See also Van Schoick v. Saddleback Valley Unified School District, 104 Cal.Rptr.2d 562 (Cal. App. 2001). The Equal Access Act provides:
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. 20 U.S.C. §§ 4071-4074.
A "limited open forum" exists whenever a public high school "grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." A school is deemed to offer a fair opportunity to students wishing to conduct a meeting on school premises during noninstructional hours if it uniformly provides that (1) the meeting is voluntary and student-initiated; (2) there is no sponsorship of the meeting by the school; (3) employees or agents of the school are present at religious meetings only in a nonparticipatory capacity; (4) the meeting does not materially interfere with the orderly conduct of educational activities within the school; and (5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups. 20 U.S.C. § 4071(c). However, the assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute impermissible sponsorship. The term noninstructional time refers to time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.
The Supreme Court began its opinion by noting that the critical question is whether or not a public high school permits "noncurriculum related" student groups to use school facilities during noninstructional hours. If it does, then the school has created a "limited open forum," and the Equal Access Act prevents school officials from denying any other student group access to school facilities during noninstructional hours on the basis of the content of its speech. The Court concluded:
[W]e 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 if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a common sense interpretation of the Act that is consistent with Congress' intent. … For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school's student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school. If participation in a school's band or orchestra were required for the band or orchestra classes, or resulted in academic credit, then those groups would also directly relate to the curriculum. The existence of such groups at a school would not trigger the Act's obligations.
On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be "noncurriculum related student groups" for purposes of the Act. The existence of such groups would create a "limited open forum" under the Act and would prohibit the school from denying equal access to any other student group on the basis of the content of that group's speech. Whether a specific student group is a "noncurriculum related student group" will therefore depend on a particular school's curriculum, but such determinations would be subject to factual findings well within the competence of trial courts to make.
Public high school officials in the Mergens case had attempted to bar religious groups by claiming that the school had not created a limited open forum since all non-religious groups were curriculum related. To illustrate, the school contended that all of its 30 non-religious student groups were curriculum related because they furthered the general educational goals of the school. The student government club "advances the goals of the school's political science classes," the scuba club "furthers the essential goals of the physical education department," the chess club "supplements math and science courses," and the junior Rotarians "promote effective citizenship —a critical goal of the social sciences department." The Court rejected this analysis, noting that
[a]llowing such a broad interpretation of "curriculum related" would make the [Act] meaningless. A school's administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to allow by tying the purpose of those clubs to some broadly defined educational goal. At the same time the administration could arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congress sought to prohibit by enacting the [Act]. A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group. Id. at 2369, quoting with approval from the appeals court's decision, at 867 F.2d 1076, 1078 (8th Cir. 1989).
The Court concluded that the school had a number of noncurriculum related student groups under the test that it announced. Examples cited by the Court included the scuba club and chess club. It did not evaluate any other clubs, but hinted that a number of the other groups also would be noncurriculum related. Because the school clearly allowed one or more noncurriculum related student groups to meet during noninstructional hours, it had created a limited open forum and could not discriminate against students wanting to meet for religious purposes.
The Court acknowledged that a school wishing to avoid the obligations of the Equal Access Act could do so by "structuring its course offerings and existing student groups to avoid the Act's obligations." In other words, a school could eliminate all student groups that are not directly related to courses offered at the school. A school that took such action would avoid creating a limited open forum, and accordingly it would have no legal obligation to permit student religious groups to meet. The Court refused to decide whether student groups have a constitutionally protected right to meet on public high school property.
The Act does not apply to student groups that meet during regular classroom hours. It only applies to schools that permit student groups to meet before or after regular classroom hours.
The Court rejected the school's argument that the Equal Access Act violated the First Amendment's Nonestablishment of Religion Clause. The Court applied its 20-year-old "three-part test" for evaluating the constitutionality of a law challenged under the nonestablishment of religion clause —(1) does it have a clearly secular purpose, (2) does it have a primary effect that neither advances nor inhibits religion, and (3) does it avoid an "excessive entanglement" between church and state? All three of these tests must be satisfied for a challenged law to be constitutional. The Court concluded that all three tests were met —the Act had a "secular purpose" of demonstrating neutrality rather than hostility toward religion, and it did not create an excessive entanglement between church and state. The second test —the primary effect of the law does not advance religion —was the most difficult to answer, but the Court unequivocally ruled that this test was satisfied as well. The school had argued that the Act failed this test since it required public schools to "endorse" religious clubs and provide them with an official platform to proselytize other students. The Court rejected this claim, noting that the message of the Act "is one of neutrality rather than endorsement … the [Constitution] does not license government to treat religion and those who teach or practice it … as subversive of American ideals and therefore subject to unique disabilities." Further, the Court observed that
there is a crucial difference between government speech endorsing religion, which the establishment clause forbids, and private speech endorsing religion, which the free speech and free exercise [of religion] clause protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis. … [S]chools do not endorse everything they fail to censor. Id. at 2372.
The Supreme Court has recognized the right of students to meet for religious purposes on public university property if the same privilege is granted to non-religious student groups. In 1981, the Court struck down a policy of the University of Missouri at Kansas City that made university facilities available generally to all student groups except those wanting to meet for religious worship and religious teaching. Widmar v. Vincent, 454 U.S. 263 (1981). See also Clergy and Laity Concerned v. Chicago Board of Education, 586 F. Supp. 1408 (N.D. Ill. 1984). The Court stressed that if a university regulation excludes any group from meeting solely on the basis of the content of the group's speech, the university must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. In rejecting the university's claim that the maintenance of a strict separation of church and state constituted a sufficiently "compelling" interest to justify the abridgment of religious expression, the Court observed:
Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of content. On the other hand, the State interest asserted here —in achieving greater separation than is already ensured under the establishment clause of the Federal Constitution —is limited by the free exercise clause and in this case by the free speech clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently "compelling" to justify the content-based discrimination against students' religious speech. Id. at 277 (citations omitted).
The Court emphasized that a university can impose reasonable regulations affecting the time and place of group meetings, and can exclude any group that violates reasonable campus rules or substantially interferes with the opportunity of other students to obtain an education. It also held that if a school does not make its facilities available to any student group, it is not required to make them available to religious groups.
Similarly, the Supreme Court of Delaware invalidated an absolute ban by the University of Delaware on all religious activities in school buildings.  Keegan v. University of Delaware, 349 A.2d 18 (Del. 1975). The university's ban barred Christian students from meeting periodically in the "commons" rooms of campus dormitories for religious worship. The Court concluded that
the University cannot support its absolute ban of all religious worship on the theory that, without such a ban, University policy allowing all student groups, including religious groups, free access to dormitory common areas would necessarily violate the establishment clause. The establishment cases decided by the United States Supreme Court indicate that neutrality is the safe harbor in which to avoid First Amendment violation: neutral "accommodation" of religion is permitted, while "promotion" and "advancement" of religion are not. University policy without the worship ban could be neutral toward religion and could have the primary effect of advancing education by allowing students to meet together in the commons rooms of their dormitory to exchange ideas and share mutual interests. If any religious group or religion is accommodated or benefited thereby, such accommodation or benefit is purely incidental, and would not, in our judgment, violate the establishment clause. Id. at 16 (citations omitted).
The court distinguished decisions prohibiting religious exercise by public primary and secondary school students on the ground that such decisions did not, like the present case, involve "activity by adult residents of a living complex in common areas generally set aside for the benefit of such residents." Id. at 18.
Case study. A federal appeals court ruled that a public high school that allowed several student groups to meet on school premises during the lunch period could not deny the same opportunity to a student group that wanted to meet for religious purposes. Ceniceros v. Board of Trustees, 106 F. 3d 878 (9th Cir. 1997) All students at the school had the same lunch period each day, and so no classes were conducted during the lunch period. School officials permitted several student groups to meet during the lunch period, including a surfing club, conservation club, and various ethnic organizations. A student asked a school official for permission to organize a religious club that would meet during the lunch period in an empty classroom. Permission was denied by school officials who insisted that the Equal Access Act did not apply since the lunch period is "noninstructional time." The student sued the school, and a federal appeals court ruled in favor of the student. The court concluded that a lunch period is "noninstructional time" since the school had "set aside" the lunch period after morning classes ended and before afternoon classes began. The court noted that the United States Supreme Court had ruled that the Equal Access Act reflected a "broad legislative purpose" and must be given a "broad meaning." The court cautioned that the religious club's right to meet "is defined by the extent to which other groups were permitted to meet." It continued, "Our decision today does not necessarily preclude school districts from disallowing religious groups from using school premises for meetings during lunch periods. The Act is about equal access. If a school district wanted to prohibit religious groups from meeting during lunch, the school need only make its prohibition neutral, so that all noncurriculum-related groups are barred from meeting at lunch." The court summarily rejected the school's claim that the First Amendment's Nonestablishment of Religion Clause prohibited public school property from being used for religious purposes. It noted that the Supreme Court rejected this argument in a 1990 ruling.