Stretching the Equal Access Act Beyond Equal Access

Abstract

This article explores the ramifications of stretching the Equal Access Act ("EAA" or "the Act") beyond equal access to school premises for meetings during noninstructional time. Part I provides background on the Equal Access Act, from its legislative origins through its interpretations by federal courts. This part includes a careful look at the statute's often confusing language. Part II describes and criticizes Prince v. Jacoby. I argue that the decision is plagued with legal errors large and small, but that the main error is its failure to consider a central question: equal access to what? Both the EAA and the First Amendment public forum doctrine indicate that student groups should have access to forums for assembly and expression, but Prince mandated access to much more. Part III explores a parallel development in which the First Amendment public forum doctrine has been stretched beyond forums for assembly and expression. This part first describes the doctrine in its standard form and then considers how well it translates to other settings. The process reveals some of the tensions within the public forum doctrine even when applied to its usual locations. Part IV concludes the article with practical suggestions for living with Prince if it is not overturned by later court decision.