Student Clubs and The Board: The Basics
From time to time, student clubs have become the object of controversy. Some clubs are based around controversial issues like religion, LGBT rights, and political or social causes; and there are sometimes calls from constituents to ban a club, to require parental membership to join, or to otherwise support or hinder it.
Because of this, it’s important for school board members and the general public to know a little about the laws and requirements surrounding student clubs and the district or charter school’s relationship to them.
Sponsored and Non-Sponsored Clubs
One important thing to know is that there are two basic kinds of clubs: sponsored or curriculum clubs and non-sponsored or non-curriculum groups.
Sponsored clubs are clubs that have the support and the direction of the district or charter school. They’re on subjects related to classes the school offers, for instance, a French Club or Debate Club. Sponsored clubs are supported by the school and directed by school staff.
Non-sponsored/non-curriculum clubs aren’t related to a specific class, and they don’t carry the endorsement of the district or charter school. They can be groups like a gay-straight alliance, young Republicans, or the Good News Club. While the school provides space for the group to meet and may provide a willing staff member to make sure school rules are followed, staff don’t lead or direct the meeting. Non-sponsored club activities are student-driven.
Clubs that advocate particular religious or political beliefs must be non-sponsored.
In school districts, whether to allow a new club and whether to designate it as sponsored or non-sponsored should be decided at the district level, rather than the school level. For districts and charter schools, these decisions should be made based on criteria that are applied consistently and fairly. Boards should be especially careful to be clear as to which clubs are sponsored and which are non-sponsored.
The Equal Access Act
The most important law impacting student clubs is the Equal Access Act, 20 USC § 4071 et seq. This federal statute applies to any district or charter school that receives federal funds and allows any non-curriculum clubs to meet during hours when school instruction is not in session. It requires the district or school to treat non-curriculum clubs equally when it comes to:
- Letting them establish a club and hold meetings
- Where they are allowed to announce their meetings, for instance, the school bulletin board and school announcements
- The requirements the group must meet. For instance, a club can’t be required to comply with different rules because it is (for instance) a prayer group, a gay-straight alliance, or a group that advocates a particular stance on politics.
This law prohibits districts and schools from treating clubs differently based on the content of the club’s speech at meetings, including religious, political, and philosophical speech. They can impose consistently applied rules banning obscene or sexually explicit materials, but cannot ban speech or materials simply because they disagree with or morally disapprove of them. They also cannot influence the form or content of religious activities beyond these neutral rules.
Because of this, a school cannot ban a particular club or require parental permission to participate in its activities because of the topic of the meeting or because the school deems the club controversial. While a district or charter school can comply with this law by prohibiting all non-curricular clubs, it would have to exercise care in its definition of what is or is not a curricular club. It also cannot ban all non-curricular clubs to prevent a specific club from meeting.
The Equal Access Act also requires the district or school to ensure:
- Non-curricular club meetings are voluntary and student-initiated, not initiated by the school.
- There is no sponsorship of the meeting by the school, the government, or its agents or employees.
- Employees or agents of the school are present at religious meetings only in a non-participatory capacity.
- The meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school. Prior to making a determination that a club is interfering with the orderly conduct of educational activities, ISBA recommends consulting legal counsel for an analysis. It is worth noting that a club cannot be considered to meet this standard simply because the board or other adults or parents don’t like the message or topic of the club.
- Non-school persons are not directing, conducting, controlling, or regularly attending activities of student groups. While districts/charter schools prohibit groups controlled by non-students, it cannot ban them simply because they are affiliated with or have a similar name to other groups controlled by people who aren’t students of the district or charter school.
Liability and Risk
In deciding whether to allow a student group to meet at school and whether it should be sponsored or non-sponsored, it’s important for a district or charter school to consider risk and liability.
Determination with regard to permitting school sponsored clubs, and how such clubs are operated, should include a consideration as to risks and liability. In such situations, communicating with insurers and their risk managers would be prudent. Some clubs, like rodeo clubs or drag racing clubs involve significant risk. In these cases, the district or school should ensure the club is taking measures to ensure the safety of participants. This might include asking them to create a safety plan. When allowing a non-sponsored club to use school property, as with any other use of school property, consideration needs to be given to the risk of harm or injury to participating parties and how such will be addressed should it occur. If a club wants to hold activities that involve significant safety risk, especially activities that would not be covered by the district/charter school’s insurance policy, it may be prudent to designate the club as a non-sponsored club and to require the club to provide proof it has obtained its own insurance coverage. Non-school sponsored clubs should clearly indicate that they are not school sponsored and that the school is not responsible for the club nor liable for their activities.
While a district or charter school cannot refuse to allow a student group on the basis of the group’s philosophy or speech, it can decline to allow a group if it deems its planned activities too dangerous. The District or charter school can ask about the club’s possible activities in their club approval process, including how the club will address potential liability and risks of harm.
Clarity About the District or Charter School’s Role
It’s important for districts and charter schools to maintain a clear separation between themselves and non-sponsored clubs. This helps to make it clear that non-sponsored clubs are speaking on their own behalf, not that of the district or school, when they express opinions or hold events. It also helps the district/charter school avoid liability that comes with lending their seal of approval to another organization’s activities. Some ways of doing this include prohibiting non-sponsored clubs from using the school or district names and requiring non-sponsored groups to make their non-sponsored status clear on their event announcements.
Keeping within the law and honoring students’ first amendment rights requires some care and planning by the district or charter school. It’s important for everyone involved, as a school leader or a patron, to remember that providing a student group with a safe, supervised place to meet does not mean the district or charter school agrees with the group or co-signs their philosophical stances. While a district or charter school can opt not to allow non-sponsored clubs at all, it cannot pick and choose among non-sponsored clubs on the basis of their speech.