Stretching the Equal Access Act Beyond Equal Access

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 2FALL 2003

ARTICLES

Stretching the Equal Access Act Beyond Equal Access

Aaron H. Caplan(fn*)

Table of Contents

I. The Equal Access Act.........................................................277

A. Student Groups at Public Schools....................................277

B. Congressional Motivations..............................................281

C. Analysis of the Statute....................................................287

1. Access to What?......................................................287

2. When Does a School Have a Limited Open

Forum?...................................................................289

3. What is a Limited Open Forum?.............................291

4. When is Access Equal?............................................295

5. Are There Limitations to the Equal Access

Obligation?.............................................................297

6. How is the Act Enforced?.........................................300

D. Court Interpretations of the Equal Access Act...................201

1. Westside Community Board of Education v. Mergens..................................................................302

2. Post-Mergens Decisions...........................................306

a. Religious Groups........................................307

b. Gay Rights Groups.....................................309

II. Prince v. Jacoby...................................................................311

A. Description of the Ninth Circuit Decision.........................311

1. The ASB Under Washington Law...........................311

2. The Dispute at Spanaway Lake High School............313

3. Trial Court Decision................................................316

4. Court of Appeals Decision.......................................316

a. Equal Access Act Issues..............................317

1. Equal Access, Fair Opportunity,

and Discrimination........................317

2. Sponsorship...................................317

3. Specific Benefits............................318

b. First Amendment Issues.............................319

B. Critique of the Ninth Circuit Decision..............................320

1. Equal Access to What?............................................320

2. The Meaning of Sponsorship...................................324

3. Specific Benefits Under the EAA.............................333

a. ASB Affiliation...........................................333

b. ASB Funding.............................................334

c. Fundraising on Campus..............................336

d. Appearance in Yearbook.............................336

e. Publicity for Meetings................................338

f. Meetings During Student/Staff Time..........339

g. Spending Beyond the Cost of Meeting

Space..........................................................341

C. Prince's Significance......................................................342

III. Stretching the Public Forum Doctrine......................344

A. Overview of the Public Forum Doctrine............................345

1. Public and Nonpublic Forums..................................345

2. Limited Public Forums...........................................348

3. Is Public Forum Doctrine Necessary?.......................351

B. Five Ways to Stretch the Public Forum Doctrine...............353

1. Communications Media as Public Forum.................354

2. Private Property as Public Forum.............................358

3. Government Programs as Public Forum...................362

4. Government Money as Public Forum.......................364

5. Government Speech as Public Forum.......................368

C. Public Forum Doctrine as Applied in Prince......................371

IV. Practical Suggestions for Applying or Revising

the Equal Access Act After Prince...........................372

A. Suggestions for Schools: Restructuring the Forum................372

B. Suggestions for Congress: Restructuring the Act...................374

1. A Modest Proposal: The Intelligible Access Act.......374

2. A Less Modest Proposal: Repeal..............................378

Appendix A: The Equal Access Act.......................................380

Appendix B: The Intelligible Access Act............................382

Introduction

The federal Equal Access Act(fn1) makes it unlawful for most public high schools to deny student groups the ability "to meet on school premises during noninstructional time"(fn2) on the basis of "the religious, political, philosophical, or other content of the speech at such meetings."(fn3) The First Amendment requires public schools to offer equal access when they make buildings available to community groups as a general-purpose meeting hall.(fn4) Interpreting the Equal Access Act and the First Amendment together in Prince v. Jacoby,(fn5) the Ninth Circuit held that a student religious group not sponsored by the school could claim equal access to more than just the school premises. Instead, the students were entitled to receive an equal measure of virtually all benefits a school might bestow on school-sponsored extracurricular clubs: affiliation with the student council, unrestricted grants from the school's student activity fee account, appearance in the school yearbook, meetings during instructional time, and expenditure of tax money beyond the incidental cost of providing the space for meetings.(fn6)

This article explores the ramifications of stretching the Equal Access Act ("EAA" or "the Act") beyond equal access to school premises for meetings during noninstructional time. I argue that Prince was wrongly decided: the school was obligated to allow unsponsored student groups to meet on campus, but had no corresponding obligation to provide them the other attributes of school sponsorship. This is because student groups have the right to promote ideas or behavior that public schools may be legally prohibited from endorsing-as with clubs that advocate for religious beliefs or political candidates-or that schools prefer not to endorse- as with clubs that advocate racial superiority, legalization of recreational drugs, or other controversial ideologies. Schools need the ability to give meaningful support to the clubs they endorse, and to express in a meaningful way their lack of sponsorship of the clubs they do not endorse. By requiring schools to treat student groups identically with regard to all benefits, and not just building access, Prince reduces the ability of public schools to communicate their desired educational messages.

The source of the error is, in many ways, the Ninth Circuit's casual use of the term "forum" to describe virtually anything of value, whether or not it is a place or a medium for expression. Under existing interpretations of the First Amendment, a government entity must act differently when managing a public forum (like a park, sidewalk, or public access cable TV channel) than when performing other functions. Prince eliminates that difference: it holds that whenever a school provides anything to a user of a forum, it has added attributes to the forum itself. This greatly changes the legal standards governing school administrators. Before Prince, a school's decision to provide or withhold benefits other than meeting space to a student group would hinge on educators' judgments about the pedagogical value of the group's activities. After Prince, such value judgments are forbidden, since public forums are equally available to all. Prince is an extreme example of how an unthinking application of the public forum doctrine beyond its intended scope can have undesired consequences.

I often represent student groups seeking to enforce their rights under the EAA, so it may seem odd for me to advocate a narrower view of the law. I have written in favor of expansive free speech rights for public school students.(fn7) I agree with the Supreme Court's ruling in Westside Community Board of Education v. Mergens(fn8) that a school rule granting student groups equal access to the premises for meetings is constitutional on its face, even when the groups involved are religious. I even believe that such a rule will often be good public policy. Why then do I advocate less than full equality between sponsored and non-sponsored student groups when it comes to benefits unrelated to meeting space? My concerns arise primarily from two sources: support for the mission of the secular public schools, and a desire for consistency and intelligibility in the law. Prince interferes with schools' ability to make legitimate educational choices and to maintain religious neutrality in the curriculum. This by itself would be enough to argue for a different result. In addition, both Prince and the EAA itself are maddening in their illogic and circular reasoning, making it nearly impossible for school officials of ordinary intelligence (and their attorneys) to understand them. This article tries to untangle the Act and the case law interpreting it, in hopes that the process will help even readers who disagree with my thesis to approach the Act with less...