Religious Activities and the Principle of Equal Access

Over the past 20 years, evangelical Christians and others have advanced the rights of religious organizations to have equal access to meeting space and other forms of recognition provided by public schools to students.These organizations have consistently succeeded in securing the same privileges provided by public schools to secular groups.

Their victories have not been based on a claim that religious groups have a right to official recognition simply because they want to practice or preach their religion; instead, these cases have been won on free-speech grounds.

Whenever public schools recognize student extracurricular activities (for example, a student Republican club or an animal rights group), the schools are deemed to have created a forum for student expression.The constitutional rules governing the forum concept are complicated, but one consistent theme is that the state may not discriminate against a person or group seeking access to the forum based on that person’s or group’s viewpoint. In a now lengthy line of decisions, the Supreme Court has ruled consistently that religious groups represent a particular viewpoint on the subjects they address and that officials may not exclude that viewpoint from a government-created forum for expression or association.

The first major decision in this area was Widmar v. Vincent (1981), in which the Supreme Court ruled that the University of Missouri could not exclude from campus facilities a student group that wanted to use the school’s buildings for worship and Bible study.The university had refused the group access, asserting that the Establishment Clause forbade the use of a public university’s facilities for worship. The court rejected this defense, ruling that the university had allowed other student groups to use university property and that the complaining group could not be excluded on the basis of its religious viewpoint.

The Supreme Court later extended Widmar’s notion of equal access to nonstudent groups.They, too, should have access to public space, the court said. Despite the decision in Widmar, however, some public high schools continued to refuse access to student religious groups.Those schools took the view that prayer and Bible reading in public schools were constitutionally impermissible, even if wholly student initiated. At least one Court of Appeals has upheld that argument.

Congress responded by enacting the Equal Access Act of 1984. As a condition for receiving federal financial aid, the law required public secondary schools to not discriminate on the basis of religion or political viewpoint in recognizing and supporting extracurricular activities.This law has benefited a variety of student organizations, from gay and lesbian groups to evangelical Christian clubs.

In 1985, a year after Congress passed the equal access law, school officials in Omaha, Neb., refused a student request for permission to form a Christian club at a public high school.The club’s activities included reading and discussing the Bible and engaging in prayer.The students brought suit under the Equal Access Act, and the school officials responded that allowing such a club in a public school would violate the Establishment Clause.

In the court case,Board of Education v. Mergens (1990), the Supreme Court upheld the Equal Access Act.The 8-1 majority reasoned that high schools were indistinguishable from universities for purposes of equal access to public facilities. Because there were many student groups devoted to different and frequently opposing causes, the court determined that no reasonable observer would see the school’s recognition of a religious group as an official endorsement of the group’s religious views.

The limits of Widmar and Mergens were later put to the test in Rosenberger v. University of Virginia (1995) and Good News Club v. Milford Central School District (2001). In Rosenberger, the Supreme Court held (5-4) that the Free Speech Clause of the First Amendment required a state university to grant the same printing subsidy to an evangelical journal that it made available to all other student journals.The dissenters argued, unsuccessfully, that state financial support for a proselytizing journal violated the Establishment Clause. In Good News Club, a 6-3 majority held that the Free Speech Clause prohibited an elementary school from excluding an evangelical Christian program for children from the list of accepted after-school activities.

These equal access decisions have led to new controversies in the lower courts. In Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools (2006), for instance, a federal appellate court extended the equal access principle to fliers that schools distributed to students to take home for the purpose of informing parents about after-school activities. For years the county had distributed fliers for children’s sports leagues and activities like the Boy Scouts. But it refused to distribute fliers for the after-school programs of the Child Evangelism Fellowship of Maryland, which are not held on school property. The litigation is not complete, but the fellowship has won several rounds in court. Most recently, the 4th U.S. Circuit Court of Appeals held that the county’s flier distribution policy is unconstitutionally discriminatory.

The presence of student religious groups in public schools has raised one additional issue. At times these groups insist that their officers make specific religious commitments, such as accepting Jesus Christ as savior and maintaining sexual abstinence outside of heterosexual marriage. As a result, some students are excluded from joining the group or from its leadership ranks. In Hsu v. Roslyn Union Free School District No. 3 (1996), the 2nd U.S. Circuit Court of Appeals held that the federal Equal Access Act gave students in an evangelical Christian group the right to maintain religious criteria for office.The court said the school’s policy against religious discrimination by student groups was unenforceable in this instance.

Similar issues have arisen with respect to chapters of the Christian Legal Society (CLS) at state university law schools.Those chapters insist that their members and officers make certain commitments, including a renunciation of homosexual activity. When challenged by schools on the grounds that its policies discriminate based on religion and sexual orientation, CLS has responded that its policies are protected by freedom of religion and freedom of association.

That argument is based on the Supreme Court’s opinion in Boy Scouts v. Dale (2000), which upheld the Scouts’ right to exclude an openly gay Eagle Scout leader.The CLS’s position, however, differs from the Boy Scouts’ position in Dale: The CLS is looking for affirmative support and recognition by state universities rather than just the right to be left alone in its associational choices.

The courts have remained split over the conflict between CLS and universities that are seeking to enforce anti-discriminatory policies. In Christian Legal Society v. Kane (2006), a federal district court in California emphasized that distinction in ruling that the Hastings College of the Law can insist that its CLS chapter not exclude students who engaged in “unrepentant homosexual conduct.” The society remains free to exclude such students if it does not seek the benefits of official recognition, the court ruled.

In contrast to the Kane ruling, the 7th U.S. Circuit Court of Appeals ordered Southern Illinois University to continue to recognize the CLS chapter in Christian Legal Society v.Walker (2006). A three-judge panel of the court ruled 2-1 that the organization’s right of association, coupled with its right to continue to participate in the school’s forum of ideas, made it likely to prevail against the university’s effort to end recognition of the society because of its policy concerning officer status and homosexual conduct.The conflict brewing among various courts on this question suggests that the matter may ultimately be headed to the Supreme Court.

This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law at George Washington University Law School; David Masci, Senior Research Fellow at the Pew Forum on Religion & Public Life; and Robert W.Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at George Washington University Law School.

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