Could a Fellowship of Christian Athletes club meet during a public school activity period?

Plain-English summary

A senator asked whether the Fellowship of Christian Athletes could meet during a school-day period open to other nonacademic clubs. The Attorney General did not give an unconditional yes or no. It said a meeting could qualify under the federal Equal Access Act if that period was “noninstructional time” and the school maintained a limited open forum by allowing noncurriculum student groups to meet.

The letter cited a federal appellate decision treating a lunch period without classroom instruction as noninstructional. It said that decision supported, but did not bind, an analogous conclusion for a South Carolina school. The AG left the particular school's activity or lunch period to its facts and said a factual investigation fell outside the opinion's scope. The linked archive page says July 13; the official letter and PDF filename say January 13, 1998, which this record uses as its issue date.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does allowing other clubs to meet during school hours require access for a religious club?
A: The AG said that depended on whether the time was noninstructional and whether a limited open forum existed for noncurriculum student groups.

Q: Can lunch count as noninstructional time?
A: The letter cited a federal appellate decision finding that a particular high-school lunch period counted. It left South Carolina schools' periods to their own facts.

Q: Did the AG decide this school's schedule met the federal test?
A: No. The opinion said that would require an investigation and review of the school's specific facts.

Background and statutory framework

The federal Equal Access Act provision quoted in the letter addressed secondary schools receiving federal assistance that provide a limited open forum. The analysis required both noninstructional time and access for other noncurriculum student groups. The letter treated Ceniceros v. Board of Trustees as persuasive on lunch periods, while noting that it did not control courts in South Carolina.

Citations and references

• 20 U.S.C. § 4071 (a), the quoted Equal Access Act provision.
• Ceniceros v. Board of Trustees, discussed on noninstructional time.

Official title

Advising as to whether the Fellowship of Christian Athletes may meet during time set aside during the school day when non-academic related clubs are permitted to meet.

Requester

The Honorable Michael L. Fair, Senator, District No. 6

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-13-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98jan13fair.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

January 13, 1998

The Honorable Michael L. Fair
Senator, District No. 6
501 Gressette Building
Columbia, SC 29202
Dear Mike:

I

You have requested the advice of this Office as to whether the Fellowship of Christian athletes may meet during time set aside during the school day when nonacademic related clubs are permitted to meet. The Equal Access Act provides, in part, as follows: It shall be unlawful for any public secondary school which receives federal financial assistance and which has a limited open forum to deny equal access ... to ... any students who wish to conduct a meeting within that limited open forum on the basis of the religious ... or other content of the speech at such meetings. 20 U.S.C. § 4071 (a). (Emphasis added). Whether a "limited open forum" exists depends upon whether "non-curriculum related student groups [are granted an opportunity] to meet on school premises during noninstructional time." § 4071 (b). "... '[N]on-instructional time' means time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends." § 4072 (4). (Emphasis added). Just recently, a court has addressed the question of whether "noninstructional time" includes time set aside during the school day. In Ceniceros v. Board of Trustees, 66 F. 3d 1535 (9th Cir. 1995), the Court held that this term included the lunch period at a high school when no classroom instruction occurred during that period. The Court also noted

Rc,lllc.RT c. DENNIS BJ:ILDIN(;

•

POST OFFICE Box 11549

•

CoLLMBIA. S.C. 29211-1549

•

TELEPHO:->E:

803-734-3970

•

FACSIMILE: 803-253-6283

The Honorable Michael L. Fair
January 13, 1998
Page 2
that students were not even required to remain on campus during the lunch period but did not clearly indicate that this policy was a controlling factor in its conclusion. See Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 110 L.Ed.2d 191, 110 S. Ct. 2356, 2373 (1990). 1 Ceniceros also upheld the constitutionality of this law under the Establishment Clause of the First Amendment of the United States Constitution as applied to the facts of that case. 2 Although not binding on the Court of Appeals for the Fourth Circuit in which South Carolina is located, Ceniceros does support a conclusion that "noninstructional time" could include a similar period in a South Carolina school when no classroom instruction was ongoing; however, whether a particular school's activity, club or lunch period would constitute "noninstructional time" would be dependent upon those facts associated with the period. An investigation and review of all of the facts associated with the activity

I

The Supreme Court did not expressly rule upon the question presented here; however, the Court made some comments related to this issue. The Court stated that the Equal Access Act would not have the primary effect of advancing religion as applied to the facts of that case, because among other reasons, "... a school that permits a studentinitiated and student-religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion." (emphasis added). 110 S.Ct. at 2373. The Court thought that the limitation of meetings to "noninstructional time" avoided "the problems of 'students' emulation of teachers as role models' and 'mandatory attendance requirements .... "' Id. at 2372. Ceniceros found that these references "provided factual context [rather than] suggest[ ed] that the timing of the meetings was an important factor upon which the Court based its decision." 66 F. 3d at 1539. Although Mergens noted the avoidance of mandatory attendance requirements by after school programs and Ceniceros mentioned that the students could leave school during lunch, the factor alone of being able to leave campus is not necessarily controlling. 2

Bender v. Williamsport Area School District, 741 F.2d 538 (3rd Cir. 1984) held that a student initiated religious group meeting during an activity period would be violative of the Establishment Clause of the First Amendment of the United States Constitution. The Court concluded that the free speech rights of the students would be outweighed by the Establishment Clause concerns (Id. at 559); however, Bender was vacated by the U.S. Supreme Court on grounds unrelated to this issue. 475 U.S. 534, 89 L.Ed.2d 501, 106 Sup.Ct. 1326 (1986). Bender also did not address the Equal Access Act which was passed afterward.

The Honorable Michael L. Fair
January 13, 1998
Page 3
period would not fall within the scope of opinions of this Office. Ops. Any. Gen. December 12, 1983. If the period in question did constitute "noninstructional time", whether the school were required to permit the Fellowship to meet would also be dependent upon whether the school maintained a "limited open forum" during that period by permitting "noncurriculum related student groups" to meet. § 4071 (a) and (b). I hope that this information is of assistance to you. If you have any questions or need further assistance, please let me know.

Yours very truly,

J. Emory Smi . , Jr.
Assistant Deputy Attorney General
JESjr

REVIEWED AND APPROVED BY:

I
I

~,di,

~

z#S C. Williams, III
Deputy Attorney General