Religion, Extracurricular Activities, and Access to Public School Facilities

The Equal Access Act (EAA) is a federal law enacted to permit organized groups of high school students to meet in schools during noninstructional time, periods when classes are not scheduled so that non-curriculum-related clubs can gather. The EAA was designed to remedy situations in which religious speech had been excluded from schools as a form of impermissible viewpoint discrimination. In Board of Education of Westside Community Schools v. Mergens, the Supreme Court upheld the EAA. This chapter covers the situation that existed before the EAA was enacted; the EAA itself; Mergens and later judicial developments; and the meaning of Mergens and its progeny. To date, it appears that the EAA has achieved its goal of granting equal access to religious speech even as it has been applied in ways beyond what its authors likely intended by including LGBT groups and others.

The Curious Case of School Prayer: Political Entrepreneurship and the Resilience of Legal Institutions

School prayer represents a curiosity of Reagan era politics. Reagan and the social conservative movement secured numerous successes in accommodating religious practice and faith in the public sphere. Yet, when it came to restoring voluntary school prayer, conservatives never succeeded in securing the judicial victory that they sought despite conditions that seemingly favored change. Herein, we attempt to reconcile Reagan era successes with Reagan era failures by exploring Reagan's entrepreneurial activity to affect both the demand (i.e., judges) and supply (i.e., litigants) side of legal change. Identifying Reagan's entrepreneurial activities in his attempt to alter national social policy reveals the resilience of legal institutions to presidential and partisan regimes. Reagan's efforts to change national school prayer policy gained some measure of legislative success by securing the Equal Access Act but it failed to garner a change in school prayer jurisprudence. We conclude by noting that the difficulty of influencing both the demand and supply side of legal change in a timely manner and its implication for reconstructing policy through the courts.