The federal Equal Access Act (“EAA”), 20 U.S.C. § 4071, requires any school that receives federal funds to guarantee equal access to school facilities for all noncurriculum-related student groups, regardless of the religious, political, philosophical, or other content of the speech that occurs at the group's meetings. A recent federal court decision affects how Washington schools must operate their Associated Student Body (“ASB”) organizations in light of this federal law. Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002). This memo is designed to help school districts understand the obligations created by Prince.
ASB Organizations Under Washington Law
Washington law calls for school districts to establish ASB organizations whenever students engage in money-raising activities under the approval, direction, or supervision of the school district. See generally, RCW 28A.325 and WAC 392‑138. Each ASB has a governing body of students. The exact composition of the ASB governing body can vary from school to school. Some take the form of a student senate or student council with elected members and officers elected by the student body as a whole or through homerooms. Other ASB governing bodies have elected representatives plus representatives from student clubs that become affiliated with the ASB. In the latter situation, the ASB governing body is not a representative democracy like the state legislature, since club members may have more representation on the ASB governing body than students who do not belong to affiliated clubs; there is no one-person, one-vote guarantee under this model.
To fund ASB activities, school boards may require fees for attendance at optional noncredit extracurricular events such as concerts, dances, or sporting events. These student activity fees, plus other moneys raised by or donated to the ASB, may be spent by the ASB on lawful activities of its choosing, within the bounds set by the school board. The ASB may create a budget that is subject to approval by the school board. School staff manage the ASB's bank accounts.
An ASB may have committees, subcomponents, or affiliated groups. For example, an ASB could vote to establish a committee to run the senior prom, or authorize creation of a club affiliated with a national organization like the Key Club or Students Against Drunk Driving. Oftentimes, students will form their own independent clubs outside of the ASB. Depending on the wishes of the club members, the independent club may seek to become affiliated with the ASB. Affiliation usually requires a vote of the existing ASB members, in addition to meeting any affiliation criteria established by the district.
Washington law recognizes that a school might have both ASB and non-ASB clubs. See RCW 28A.325.030 (last paragraph); WAC 392‑138‑200, ‑205 and ‑210. Financial arrangements for the two types of clubs are tracked separately to ensure that their funds are not commingled.
The Equal Access Act as Interpreted by Prince
While Washington law distinguishes between ASB student clubs and non-ASB student clubs, the federal Equal Access Act distinguishes between curriculum-related student clubs and non-curriculum-related student clubs. The US Supreme Court explained in Westside Community Board of Education v. Mergens, 496 U.S. 226 (1990), that the federal distinction depends on whether the club is connected to a course offered for credit. For example, where a school offers a French language class or an orchestra class, an optional student French club or student orchestra that meets after school would be curriculum-related. If there were no class offered on those topics, the club would be noncurriculum-related. Virtually all public schools in Washington, and indeed in the country, have at least one noncurriculum-related student club that meets on campus.
Prince was the first case to explore how Washington's ASB rules mesh with the federal EAA. Prince explained that if a school allows any noncurriculum-related student club to meet at school, it must do three things for all other noncurriculum-related student clubs:
(a) it must offer equal access;
(b) it must offer a fair opportunity to meet (with the meaning of "fair opportunity" defined in a subsection of the EAA); and
(c) it must not discriminate against clubs on the basis of the religious, political, philosophical, or other speech at their meetings.
The school in Prince had some noncurriculum-related student groups that were affiliated with the ASB, and also some other noncurriculum-related students groups that were not affiliated with the ASB. Under the school's rules, religious groups had a fair opportunity to meet on campus as defined by the EAA, but they could not be affiliated with the ASB. The Court of Appeals ruled that non-ASB religious clubs (and by extension, all non-ASB clubs) were entitled under the EAA to "access equal to that given ASB groups." In Prince, equal access required, among other things, that non-ASB groups must be allowed to: petition for funding from the ASB budget; participate in the ASB's annual craft fair without paying fees not charged to ASB clubs; appear in the school yearbook without paying fees not charged to ASB clubs; and to announce their meetings using the school's PA system and bulletin boards to the same extent as ASB clubs.
Prince did not explicitly state that non-ASB clubs must be allowed to affiliate with the ASB. However, it made clear that non-ASB clubs must be given equal access to everything offered to ASB clubs, and that denial of such access would be considered a form of discrimination forbidden by the EAA. This would be the case even if the school allowed a "fair opportunity" (as defined by the EAA) for the non-ASB groups to meet. If ASB groups get benefits beyond a fair opportunity to meet on school premises, the non-ASB groups must get the same benefits.
Ramifications of Prince for Washington Schools
Prince strongly suggested that EAA might require Washington schools to change the way they operate their ASB organizations. The following concepts should guide any changes to the ASB structure of Washington school districts:
- Equal Access Should Not Depend on ASB Affiliation
This is the primary result of Prince. A school's rules regarding access to premises for student clubs should not differ based on ASB affiliation. To accomplish this goal of equal treatment, a school could require all student groups to become affiliated with the ASB. It could also leave ASB affiliation rules as they are, but ensure that non-ASB clubs have similar benefits.
- All Clubs Could Become Non-ASB Clubs
Another alternative would be to structure a school's ASB so that it did not have any affiliated clubs. The ASB would conduct its own operations, such as budgeting for and planning social events or school betterment activities. Clubs devoted to other subjects would be non-ASB, performing their own fundraising. Of course, under the EAA, all of the non-ASB clubs would need to be treated equally.
- Equal Access Should Not Be Subject to Student Vote
The rights created by Congress in the EAA cannot be denied by a local school--or by that school's ASB governing body. Currently, many Washington schools allow ASB members to vote on whether an independent student club will be affiliated with the ASB. Sometimes a two thirds vote is required. In recent months, controversial student groups including Gay-Straight Alliances and religious clubs have failed to win ASB affiliation votes at different Washington high schools. After Prince, a school cannot base equal access decisions on the results of a student vote, even where the ASB governing body continues to vote on which student groups are ASB-affiliated.
This rule is consistent with the US Supreme Court decision in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), which ruled that a University's student activity fees should not be allocated on the basis of an election if doing so would reflect prejudice on the basis of a group's viewpoint.
To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent.
One method to avoid putting the rights of student clubs to a popular vote would be to establish neutral criteria for ASB membership. A club that met those criteria would become affiliated with the ASB, with no voting required. Another method is to make benefits equally available without regard to ASB affiliation.
- ASB-Affiliated Clubs Should Not Have Voting Privileges in the ASB Governing Body
A school that allows ASB-affiliated clubs to have voting representatives on the ASB governing body does not follow the one-person, one-vote model of representative democracy. Nothing in the constitution or laws requires ASB governing bodies to be truly representative, but schools may find that it would be a worthwhile educational experience. Structuring an ASB governing body like a student congress, without voting privileges for affiliated clubs, would accomplish this goal.
Furthermore, if a school chooses to follow Prince by having all noncurriculum-related student clubs affiliated with the ASB, a rule that allowed affiliated clubs to send voting representatives to the ASB governing body could result in religious groups having authority over state funds, which would violate the Establishment of Religion Clause of the federal constitution. Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (city may not give law-making authority to churches). A school can respect the EAA and the Establishment Clause by allowing independent student clubs to have equal access to facilities, but not allowing the clubs to have voting power in the school-sponsored ASB. If desired, the school could create a system where ASB-affiliated clubs could send nonvoting delegates to the student council meetings, much as Puerto Rico and the District of Columbia send nonvoting delegates to the US Congress.
- Schools Cannot Force Student Clubs to Change Names
Some schools or ASB governing bodies have demanded that independent student clubs (usually Gay-Straight Alliance clubs) change their name before affiliating with the ASB. This is improper, because private groups have a constitutional right to choose how to present their message to the world. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 US 557 (1995). In addition, student clubs that wish to maintain their affiliation with national networks may need or want to include certain words in their name to signal that they are part of a national movement. An involuntary name change would be a form of unequal treatment based on the content of speech under the EAA.
- Schools May Still Create Curriculum‑Related Clubs
Every school can create a limited open forum for meetings of noncurriculum-related clubs; virtually all of them do, and all should, since extracurricular activities have many educational and social benefits. Prince states that any benefits granted to such clubs must be offered equally to all. At the same time, the Equal Access Act and Prince do not affect a school's ability to provide different benefits to curriculum-related clubs. A school may wish to endorse or sponsor certain student clubs and reward student participation with special benefits not offered equally to other groups (such as school financing or the ability to meet during instructional time). This could only occur if the club truly relates to the curriculum. For example, a foreign language class could offer extra credit for participation in a related language studies club. A math class could add a section on the rules, geometry, and probabilities of chess, making the Chess Club related to the curriculum.
Under Mergens, a student club can have greater than equal access only where the curriculum and the club "directly relate" to each other; "more than just a tangential or attenuated relationship" is required. 496 U.S. at 238. This is to ensure that a school does not deny equal access to noncurriculum-related clubs by making tenuous claims that all of its favorite clubs are curriculum-related and that no open forum exists for meetings for anyone else. "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." 496 U.S. at 239-40. Because the Religion Clauses of the First Amendment prevent public schools from endorsing religions as part of the curriculum, any student group that endorses religious principles would always be noncurriculum-related.