Originally published at Berkley Center for Religion, Peace, and World Affairs, 2018.
The Equal Access Act, which survived constitutional challenge and was applied in the Mergens case, has served as midwife to all kinds of public high school student-initiated and -led clubs. Because the act was passed on a wave of 1980s Christian conservatism, people have (wrongly) supposed that its proponents failed to anticipate it could give “equal access” to other groups. Yet it is true that some proposed clubs simply won’t succeed under the statute’s terms. Consider some of these terms in light of clubs related to sexual orientation or sexual identity themes:
First, private schools aren’t covered by the act, and they can do as they please regarding student clubs—eschewing federal funds still guarantees some freedoms.
Second, only “secondary”-grade clubs are covered. “Secondary” is to be defined according to state law. School boards or site administrators may let lower grades have clubs, but those won’t have the protection of this law. They may have protections under their state constitutions or other laws.
Third, an agent or employee must be present to monitor the club, in a non-participatory fashion. That person can’t be forced to serve as such “if the content of the speech at the meeting is contrary to the beliefs of the agent or employee.” If the club can’t find and retain a monitor, it will have to suspend meetings under the statute (40 U.S.C. §4071 [d] 4). Additionally, if the administrator discovers that a non-student—whether gay activist or church staffer—is really the impetus behind the club, or speaks regularly at club meetings, the club is not really student-led and student-initiated.
Fourth, parental consent can be required in writing before a student can attend any club. Of course this, like any rule under the Equal Access Act, must be enforced equally as to all clubs. To minimize “rolling” problems regarding membership and leadership, one court allowed a limited publicity and signup period .
Fifth, the proposed club must…