Do students have the right to form religious or political clubs below the secondary level?
Probably not, but current law is unclear on this point. Although the Equal Access Act does not apply to public schools below the secondary level, some courts have held that the free-speech clause protects the right of middle school or elementary school students to form religious or political clubs on an equal footing with other student-initiated clubs. When the EAA was debated in Congress, many lawmakers expressed doubt that young children could form religious clubs that would be truly initiated and led by students. In addition, younger students are more likely to view religious clubs meeting at the school as “school sponsored.” For these and other reasons, Congress declined to apply equal access below the secondary level.
May administrators permit students to form religious or political clubs in middle schools, even if the law does not require that such clubs be allowed? Again, current law is unclear on this point. If school officials decide to allow middle school students to form religious or political clubs, then at the very least the school should have in place a clear policy and ground rules for the clubs, consistent with the EAA, and explain that the student clubs are not school-sponsored (see Good News Club v. School Dist. of Ladue, 8th Cir. 1994).