Lack of faculty adviser should not impede formation of secular club in NC high school.

Hemant has a good write up about what inevitably happens when public school administrators finally consult the school’s attorneys about blocking an atheist club: the attorneys usually tell them there’s no way they’ll win and suddenly the administrators change their tune.

Hemant’s piece closes by saying: “For what it’s worth, no faculty member has stepped up yet to volunteer as the group’s sponsor.”  Thanks to my time as high school organizer with the SSA, I can confidently say that it doesn’t matter, thanks to a legal precedent set by a lawsuit brought by a Christian.  🙂  Even if the school has a rule saying a student group must have a volunteer faculty sponsor, that rule is actually against the law.  According to the law, if a faculty sponsor doesn’t volunteer the school must assign a faculty member in a custodial capacity for the club (or waive the requirement).  Otherwise groups with mainstream views are getting a distinct advantage over groups without mainstream views.

The primary law at work here is the Equal Access Act which essentially says if you allow one club that you have to allow all of them, and the courts have ruled that it violates the Equal Access Act to allow a monitor requirement to serve as a bar to a club’s formation or to impose restrictions on one group that are not imposed on other groups.  In Board of Education of Westside Community Schools v. Mergens the United States Supreme Court ruled that a high school violated the Equal Access Act when it denied a student permission to form a Christian club.  The Court was guided by its observation that the purpose of the Act is to forbid schools to “deny access to school facilities to any unfavored student club on the basis of its speech content.”  

Furthermore, the Court advised, the Act is to be given a “broad reading,” because a narrow reading would result either in almost no schools being subject to the Act, or it would permit schools to strategically evade the Act.  The Court held that the club must be allowed by the school, even though the student’s proposal called for the club to “have the same privileges and meet on the same terms and conditions as other … student groups, except that the proposed club would not have a faculty sponsor” as required by school regulations.  Id. at 232.  The Court pointed out that, at most, “the Act permits the assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes.”

A similar conclusion was reached in Pope v. East Brunswick Board of Education.  There, the court considered whether the Equal Access Act is limited in application to schools that allow student-initiated clubs or extends to schools that allow only faculty-initiated clubs.  The court adopted the broader interpretation, reasoning that a narrow interpretation of the Act would allow schools to limit clubs to those with mainstream interests for which faculty sponsors could be easily found, while excluding clubs that espouse objectionable views on the ground that no sponsor could be found.  Id. at 1250-51.

Consistent with a broad reading of the statute, the courts have held that schools must waive generally applicable requirements that have the effect of denying, rather than fostering, “equal access.”  Thus, in Hsu v. Roslyn Union Free School District No. 3 the court held that the Equal Access Act requires a school to excuse a Bible Club from complying with a school policy prohibiting student groups from discriminating on the basis of religion in electing officers.  The court reasoned as follows:

The Act mandates that students be given “equal access,” not that the School’s internal rules be administered uniformly.  A rule against wearing hats in the school building, perfectly and consistently enforced, might deprive Jewish students of equal access to after-school facilities for shared religious observance.  Similarly, a rule requiring students to wear appropriate footwear at all times, perfectly and consistently enforced, might effectively ban after-school meetings of the Yoga Club.  The neutral application of the School’s rules allows the School to say that it is treating all clubs equally.  But exemptions from neutrally applicable rules that impede one or another club from expressing the beliefs that it was formed to express, may be required if a school is to provide “equal access.”

Pursuant to the case law, the Equal Access Act obligates the administration of any high school in which an open forum has been created (by allowing a student club of any sort) and receiving public funding to react to the absence of a volunteer sponsor in one of the following ways:  (1) the school may waive the requirement of a faculty monitor; (2) it may assign a school employee to serve as a non-participatory monitor for the group; or (3) if no such employee can be found, and the school is unwilling to waive the faculty monitor requirement, the school must furnish a monitor by, for example, assigning non-objecting school employees to attend the club’s meetings on a rotating basis.  Furthermore, upon formation, the club must be given the same access to facilities that are provided to other groups, and must not be subjected to more demanding rules and limitations than those that are imposed on other student groups.

Anyway, that’s why the lack of a volunteer sponsor is nothing to worry about, even though the school might try to make it something to worry about.  🙂


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