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 when nonacademic clubs were allowed to meet. The Assistant Deputy AG explained that the federal Equal Access Act barred a federally assisted public secondary school with a limited open forum from excluding student meetings because of their religious content. A limited open forum depended on noncurriculum student groups being allowed to meet during noninstructional time.

The letter cited a federal appeals decision treating a high-school lunch period without classroom instruction as noninstructional time. That decision was from outside the circuit covering South Carolina, so the author treated it as support rather than controlling law. Whether the particular activity, club, or lunch period qualified required facts the AG’s office would not investigate. If it did qualify, access also depended on whether the school permitted noncurriculum groups to meet during that period. The opinion did not give an unconditional answer for the named school.

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: Was a religious club automatically entitled to any school-day meeting slot? A: No. The opinion said equal access depended on the period being noninstructional and the school having a limited open forum.

Q: Could a lunch or activity period count as noninstructional time?
A: Possibly. The cited appeals case treated a lunch period that lacked classroom instruction that way, but the AG said the answer for any particular period depended on its facts.

Q: Did the AG decide the facts of the school schedule?
A: No. He said investigation of the specific period was outside the scope of an office opinion.

Background and statutory framework

The letter quoted 20 U.S.C.§ 4071 (a) and (b) on equal access and a limited open forum, and § 4072(4) on noninstructional time. It discussed an out-of-circuit appeals ruling on a lunch period but preserved the need for school-specific facts.

Citations and references

Federal provisions discussed: 20 U.S.C.§ 4071 (a); § 4071 (b); § 4072(4). The PDF text contains visibly garbled case names, so this page does not normalize them into a case-citation field.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-13-1998-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Fair-M.-01-13-1998-01204450xD2C78.pdf

Original opinion text

The Honorable Michael L Fair, 1998 WL 62940(1998)

1998 WL 62940(S.C.A.G.)

Office of the Attorney General
State of South Carolina

January 13,1998
*1 The Honorable Michael L. Fair
Senator

District No.6

501 Gressette Building
Columbia, SC 29202
Dear Mike:

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 non-academic 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 fonun" 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 Ceniccros 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 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. Meraens.496 U.S.

226, 110 L.Ed.2d 191, HQS. Ct. 2356. 2373 {1990). ^ 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.

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 period would not fall within the scope of opinions of this Office. Ops. Attv. 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).
*2 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.

WESTLAVV © 2016 Thomson Reuters. No claim to original U.S. Government Works.

The Honorable Michael L. Fair, 1998 WL 62940 (1998)

J. Emory Smith, Jr.

Assistant Deputy Attorney General

Footnotes
The Supreme Court did not expressly rule upon the question presented here; however, the Court made some comments related

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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 student-initiated 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] suggested] that the timing of the meetings was an important factor upon which the Court based its decision." 66 F. 3d at 1539. Although Mereens 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.

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Bender v. Williamsoort Area School District. 741 F.2d 538 (3rd Cr. 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 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.

1998 WL 62940 (S.C.A.G.)

F.nd of Document

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< • 2016 Thomson Reuters. No claim to original I'.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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