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Board of Education of Westside Community Schools V. Mergens at Twenty-Five: An Update on the Equal Access Act

ABSTRACT The Supreme Court’s 1990 decision in Board of Education of Westside Community Schools v. Mergens upheld the constitutionality of the Equal Access Act (EAA). The EAA is a federal law enacted to permit student organized, noncurriculum groups in public secondary schools, most notably those with religious affiliations, to meet during noninstructional time. In the interim, courts have expanded the reach of the EAA to protect the rights of students who are gay, lesbian, bisexual, or transgender (LGBT) and their peers to form clubs. In light of changes in societal attitudes with regard to sexuality, particularly as it plays out in schools, the 25th anniversary of Mergens presents a timely opportunity to review its status as well as that of the Equal Access Act. In fact, in light of a Supreme Court case from higher education, Christian Legal Society v. Martinez, wherein the Justices upheld an “all comers” policy allowing individuals to be eligible for leadership positions regardless of whether they agree with the missions of groups they wish to join, the status of the EAA is in some doubt. Against the background of these, and other cases, this article examines the EAA before reflecting on the meaning of Mergens, closing with a brief conclusion.