“Outsiders” and the Equal Access Act

Photo credit: WTAE Pittsburgh

By Samantha Cook, Editor-in-Chief

Earlier this year, students at the McKeesport Area High School (MAHS) began the process of organizing a McKeesport Black Student Union (MBSU) to address concerns relating to disciplinary and educational biases within the school district.[1] According to a complaint filed by MAHS students, their request was diverted by the school’s superintendent, who expressed an “objection to the name of the group.”[2]

The school’s superintendent, Dr. Mark Holtzman, responded publicly that his concern was not with the subject matter of the group, but rather with the apparent influence on the students from outside political forces.[3] Holtzman claimed that the idea to create a Black Student Union did not originate with the students themselves, but with a local mayoral candidate using the student organization for political gain.[4]

The ACLU filed a lawsuit on behalf of the students to request an injunction to allow the formation of the Black Student Union.[5] It argued that the denial of the students’ request violated the First Amendment and the Equal Access Act (EAA), a federal law that prohibits public secondary schools that receive federal funds from discriminating in the use of the limited open forum on the basis of political speech.[6] The EAA defines the “limited open forum” as when a public secondary school “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.”[7] In other words, when a school lets one student group use its facilities, it is prohibited from denying that same access to other groups based on political, religious, or philosophical beliefs.

However, an exception to the prohibition lies in § 4071(c)(5), the Fair Opportunity Criteria, which include a provision that a school will be deemed to have offered students a fair opportunity to use its limited open forum, provided that “nonschool persons may not direct, conduct, control, or regularly attend in-school activities of student groups.”[8] It was on these grounds, amongst others, that the McKeesport administration settled with the students. The settlement agreement seems targeted at removing outside political influence from the organization. The nonschool persons which the settlement seeks to exclude likely include a local social activist organization, Take Action Mon Valley (TAMV), and Penn State Greater Allegheny (PSGA), a community campus of Penn State University.[9] These two entities were originally intended to serve as community advisors to the MBSU, and according to the complaint.

The Equal Access Act plainly does not offer equal access of the limited public forum to non-student parties, like the MBSU’s proposed advisors. The legislative history of the act shows that its sponsors sought to clarify that they were “not making it equal access to people outside of the schools… Those outsiders, if they participate at all, are to be under the same rules and regulations as any outsiders permitted on the school grounds and school facilities.”[10]

The McKeesport superintendent’s reaction to the proposed MBSU was misguided in that it appears he did not intend to bar the formation of the student group, but rather the use of the facilities from “outsiders,” as they were called by one of the original promoters of the EAA.[11] Holtzman was within his rights as a superintendent to set such limitations on access to nonstudents (the settlement requires that “McKeesport High School students only may direct, conduct, control, or regularly attend activities of the MBSU.”)[12] However, it was a misstep or serious oversight for the district to evade the formation of the student group in the first place. The ACLU and the students, therefore, were equally within their rights to escalate this issue as a violation of the EAA.



[1] https://www.aclupa.org/files/5815/5490/6786/MBSU_verified_complaint_-_complete.pdf

[2] Id.

[3] https://pittsburgh.cbslocal.com/2019/04/29/aclu-mckeesport-black-student-union-lawsuit-settled/

[4] https://www.post-gazette.com/news/education/2019/04/10/ACLU-sues-McKeesport-schools-for-thwarting-Black-Student-Union/stories/201904100111

[5] https://www.aclupa.org/files/5815/5490/6786/MBSU_verified_complaint_-_complete.pdf

[6] 20 U.S.C.S. § 4071 et seq. (LexisNexis, Lexis Advance through PL 116-19, approved May 31, 2019).

[7] Id. at § 4071(b).

[8] Id. at § 4071(c)(5).

[9] Id.

[10] 130 CONG. REC. S8337 (daily ed. June 27, 1984).

[11] Id.

[12] https://www.aclupa.org/files/1515/5656/3479/Settlement_Agreement_-_April_29_2019_signed.pdf

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