Full opinion text
JACOBS, Circuit Judge: Under the Equal Access Act, 20 U.S.C. §§ 4071-4074, public school students who wish to pray and study the Bible together after school enjoy the same right to meet in school classrooms as other extracurricular groups. The school can avoid the require-merits of the Equal Access Act by prohibiting all “noncurriculum related” student groups or by declining federal funding. In this case, a public high school subject to the Act negotiated to impasse with a small group of students who wanted to form an after-school Bible Club. Agreement was reached on every aspect of the club’s status and operation, but one. The students insisted on a club charter provision that only Christians could be club officers; the school refused recognition on the sole ground that this condition violated the school policy prohibiting all student groups from discriminating on the basis of (among other things) religion. The students sued, and moved for a preliminary injunction that would force the school to recognize the club. The United States District Court for the Eastern District of New York (Leonard D. Wexler, J.) denied the motion. We review that denial. We conclude that the club’s Christian officer requirement, as applied to some of the club’s officers, is essential to the expressive content of the meetings and to the group’s preservation of its purpose and identity, and is therefore protected by the Equal Access Act. This application of the Act is constitutional because the school’s recognition of the club will not draw the school into an establishment of religion or impair the school’s efforts to prevent invidious discrimination. We therefore affirm in part and reverse in part. I. Facts Except for some immaterial details of chronology, the following facts are undisputed in the complaint, the answer, and the affidavits submitted to the district court. Roslyn High School (the “School”) is a public school serving grades nine through twelve. Located in Roslyn, New York, the School is part of the Roslyn Union Free School District (the “District”). The District is governed by a Board of Education (the “Board”), which employs a Superintendent to implement its policies. In September 1993, as Emily Hsu began her senior year at Roslyn High and her brother Timothy entered as a freshman, Emily met with the school’s principal, Mark Weyne, to ask if she could form an after-school Christian Bible Club (the “Club”). He told her that he would look into it, and referred the matter to the office of the District Superintendent. In November 1993, the Assistant Superintendent for Curriculum and Instruction, Marilyn Silverman, met with Emily and Jane Shin (another Roslyn High student interested in forming a Bible club) “to obtain additional information about the club.” Emily was told that the Board would discuss the Club at a December 2 meeting. Emily, Jane, and a third interested student, Johnny Whang, attended the meeting. After Emily and Jane explained their proposal to the Board, the Board had a “broad ranging discussion of the issue” and postponed final decision. Emily claims that during that discussion: a Board member stated that School officials did not want the Club to meet, but that they were legally required to grant the Club access; a second Board member suggested that the District should stop accepting federal funds in order to avoid the mandate of the Equal Access Act; and the Board indicated that it was tabling the proposal so that it could study in greater depth the consequences of forgoing federal money. Several weeks after the Board meeting, Emily and Jane met with Silverman and Roslyn High’s new principal, Howard Rubin. The two administrators asked the two students to submit a written constitution describing the proposed Club, so that the Board could make a fully informed decision about whether to recognize it. In early January 1994, Emily delivered to Silverman the Club’s proposed constitution. Article I stated that the “Walking on Water” club would be open to all Roslyn High School students “regardless of race, color, age, religion, sex, national origin, or physical handicap.” Article II stated that-the Club would provide “a time of praise for students to gather in Christian fellowship,” which was defined as a time “when Christians gather to praise God ...” (the “Christian fellowship provision”). Fellowship would be provided “in the form of singspiration[, that is,] singing inspirational music which exalts the Lord Jesus Christ____” Article III described the Club’s weekly, hour-long meetings. Meetings would open and close with a prayer. The first half of the meetings would consist of “singspiration.” The second half might include more prayer, more “singspiration,” testimonies from students about their belief in Jesus Christ, guest speakers, skits, games, or Bible study. According to the Hsus, these activities were to be consistent with the Club’s overarching goal of spending an hour of spirituality together “to praise God.” Article IV listed potential projects for the Club, including volunteer community service, charitable fund raising, and picnics. Article V concerned “Elections and Officers.” Officers were to be elected in May for the following academic year by a majority vote of those students who attended two-thirds of the Club’s meetings during the year. Five officer positions were created: President, Vice-President, Secretary, Music Coordinator, and Activities Counselor. The President would be “responsible for the overall spiritual direction and oversight of the Bible club ... [and] the spiritual content of the regular weekly meetings,” and the Vice-President would help perform these responsibilities. The Secretary would take the minutes and do the accounting. Both the Vice-President and Secretary were to “be prepared to perform the presidential functions” in the President’s absence. The Music Coordinator would select the “praise and wbrship songs” and “lead the singing and worship of the Lord” at “Singspiration time.” The Activities Coordinator would plan the community service work, charitable fundraising, and picnics. All officers had to be prepared “to open or close a meeting with prayer or to lead a Bible study,” and “to give testimony to the life-changing presence of Jesus Christ in his/her life.” Article V required that all of these officers be “professed Christians either through baptism or confirmation” (the “leadership provision”). That provision is the bone of contention here. In late January, Silverman and Rubin again met with Emily and Jane. They explained to the students that two provisions of the Club’s constitution were unacceptable: the provision defining Christian fellowship as a gathering of “Christians,” and the provision limiting officers to “professed Christians.” Emily responded by crossing out the word “Christians” in the Christian fellowship provision, and writing in the more inelusionary word, “people.” Emily was more unbending as to the School’s second objection, however, and wrote the following sentences in the margin of the leadership provision: “All members eligible to vote will also be eligible to run for offices. Accepting Jesus Christ as savior is a requirement for all officers.” (The second sentence thus imposed an eligibility requirement not implicit in the first sentence.) The two administrators and two students met again on January 26. Silverman and Rubin explained to Emily and Jane that because the constitution’s leadership provision still restricted officers to “professed Christians” and those who have “accepted Jesus Christ as savior,” it violated the District’s “nondiscrimination policy.” This policy is embodied in two “equal opportunity statements” previously adopted by the Board. The first statement prohibits the Board from discriminating against any student “on the basis of race, color, national origin, creed or religion, marital status, sex, age or handicapping condition,” in providing “access to ... student activities.” The second statement requires that the District provide every student with equal educational opportunities regardless of race, color, creed, sex, national origin, religion, age, marital status, or disability. No student will be excluded on such basis from participating in or having access to any course offerings, athletics, counseling, employment assistance, extracurricular activities or other school resources.' (Emphasis added.) The Walking on Water Club’s exclusionary leadership policy violates the District’s nondiscrimination policy, as all parties agree. On January 31, Emily resubmitted the Club’s constitution (with the handwritten changes) to Silverman and asked her to submit it to the Board. The Board met on February 3, discussed the Bible Club proposal, and resolved to give it “further study and consideration.” By this time, Emily Hsu had been trying to set up a Bible Club for five months and had still received no definitive answer from the Board. On February 16, Emily and her brother Timothy commenced this suit, alleging violations of the Equal Access Act, 20 U.S.C. §§ 4071^4074, the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4, the Free Exercise Clause, the Establishment Clause, the Free Speech Clause, the Equal Protection Clause, the Due Process Clause, their rights to free association under the First Amendment, and various provisions of the New York State Constitution. They asked for declaratory relief, unspecified damages, and preliminary and permanent injunctions that would prohibit the School from denying them “equal access to school facilities” and from violating their constitutional rights. On March 10, the Board officially recognized the Walking on Water Club on the condition that the Club remove its exclusionary officership policy. In relevant part, the Board’s resolution stated: Whereas, we are concerned that the formation of a religious club could lead to the feeling on the part of some students that they would be excluded or ostracized if they failed to participate in any organized prayers at such a religious club; and Whereas, discrimination by a student club which limits a student’s full participation in club activities because of the student’s creed or religious beliefs would be detrimental to the education, welfare and well-being of the students attending the District’s schools. Now, therefore, be it resolved that we hereby approve the formation of said high school student Christian religious club on the following conditions: 1. Membership in the Club shall be limited to Roslyn High School students, and no student shall be discriminated against or excluded from participating in or having access to the Club, including without limitation entitlement to be an officer of the Club, on the basis of creed or religion. 2. A Roslyn Faculty member shall be assigned as a monitor to the Club in a non-participatory capacity only. 3. Non-school persons may not direct, conduct, control or regularly attend activities of said Club. 4. The Club shall be allowed to meet on school premises, but only during non-school hours. 5. In accordance with the Federal Equal Access Act, no public funds will be expended to support the Club or its activities beyond the incidental cost of providing meeting space and compensation for a monitor. It is hereby further resolved that the Superintendent of Schools is hereby directed to cause all listings, communications and announcements issued by the District pertaining to said Club expressly to state that the Roslyn School District does not endorse the Club, but is mandated by the Federal Equal Access Act to permit the Club’s activities, same to be on a voluntary basis and to be held on school premises during non-school hours only. This qualified recognition forced the Hsus to accept a condition that they consider incompatible with the formation of their club. They believe that forcing the Club to accept the possibility of non-Christian officers “would influence the form and content” of the Club, and might alter the speech at the Club’s meetings. Only if the Club’s officers are Christian, say the Hsus, will the Club “serve the function we desire for it to serve.” Because of their belief that the leadership provision is an integral part of the Club, they did not think it meaningful to form a club based on the School’s conditional recognition, and have therefore treated the School’s resolution as tantamount to non-recognition. They folded these arguments into an amended complaint, filed March 25. On May 13, 1994, the district court held a hearing on the plaintiffs’ request for a preliminary injunction and the defendants’ motion for judgment on the pleadings. On February 21, 1995, the district court issued a thorough opinion denying the request for a preliminary injunction and denying the defendants’ motion. 876 F.Supp. 445 (E.D.N.Y.1995). Rejecting the Hsus’ Equal Access Act claim, the court held that the School “appears to have satisfied its obligation under the Act,” id. at 456, by letting the Club meet “on the same basis” and “subject to the same terms and conditions” as other clubs. Id. at 454. Those “terms and conditions” (that is, the nondiscrimination policy) were reasonable, said the court, because they were “aimed at ... protecting the well-being of all students by ensuring equal and nondiseriminatory access of all students to student clubs.” Id. at 455. The court concluded both that the nondiscrimination policy on its face did not violate the Establishment Clause, and that the Establishment Clause required that the nondiscrimination policy be applied to the Walking on Water Club, since an exemption for the Club would create an “unavoidable [] risk of excessive entanglement.” Id. at 460. In addition, the court’ held that such an exemption would convey “a message of exclusion” and would permit “discrimination based on religion in the school setting.” According to the court, this discrimination, like ‘“racial discrimination in education[,] violates a most fundamental national public policy, as well as rights of individuals.’ ” Id. at 459 (quoting Bob Jones Univ. v. United States, 461 U.S. 574, 593, 103 S.Ct. 2017, 2029, 76 L.Ed.2d 157 (1983)). Finally, the court rejected the plaintiffs’ free exercise, free speech, and free association claims on the ground that applying the School’s nondiscrimination policy to the Club advanced, in the least restrictive manner possible, the School’s compelling interest in “ensur[ing] all other students the right to be free from invidious discrimination in school, ... [since] a school-recognized club that is permitted to discriminate on the basis of religion likely would be disruptive to the educational mission of the school.” Id. at 462-63. The plaintiffs appeal the denial of their preliminary injunction motion. II. Standard of Review It is “normally appropriate” to review a district court’s preliminary injunction decision under a deferential standard, determining whether the district court has abused its discretion, Thornburgh v. American College, 476 U.S. 747, 755, 106 S.Ct. 2169, 2175-76, 90 L.Ed.2d 779 (1986), rev’d on other grounds, Planned Parenthood v. Casey, 505 U.S. 833, 870, 112 S.Ct. 2791, 2816-17, 120 L.Ed.2d 674 (1992), either by “an error of law,” Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994) (internal quotations omitted), or by “applying an incorrect legal standard.” Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 780 (2d Cir.1994). However, the presumption that we review a preliminary injunction decision for “abuse of discretion” is “a rule of orderly judicial administration, not a limit on judicial power.” Thornburgh, 476 U.S. at 757, 106 S.Ct. at 2177. The appropriate level of deference afforded to a preliminary injunction decision is “not inflexible.” Id. at 756, 106 S.Ct. at 2176. For instance, we held in Romer v. Green Point Savings Bank, 27 F.3d 12, 16 (2d Cir.1994), that preliminary injunction decisions must undergo “greater scrutiny” when they “effectively award victory in the litigation”: When a district court’s order, albeit in the form of a TRO or preliminary injunction, will finally dispose of the matter in dispute, it is not sufficient for the order to be based on a likelihood of success or balance of hardships ...; the district court’s decision must be correct (insofar as possible on what may be an incomplete record), and appellate review should be plenary. Id. And in Thornburgh, the Supreme Court explained why the Third Circuit had been correct to conduct “plenary review” of the district court’s denial of a preliminary injunction: [I]f a district court’s ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction. Id. at 757, 106 S.Ct. at 2177; see also Blum, 18 F.3d at 1010 (“abuse of discretion” standard applies “[w]here the facts are of controlling relevance”). Judge Friendly offered a similar explanation in applying “a broad standard of review” in Donovan v. Bierwirth, 680 F.2d 263, 270 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982): There is no real dispute over what did and what did not occur. The quarrel is over the legal standard and its application to facts not seriously in dispute.... We would ill perform our duties by a decision affirming the district court because of limitations on the scope of review.... See also Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 777-78 (1982). As these eases make clear, deferential review is justified by the circumstances ordinarily accompanying preliminary injunction rulings: expedited proceedings and untested facts produce tentative rulings with provisional consequences, allowing room for a different ultimate outcome. However, when these circumstances are absent and the district court ruling resembles a final decision on the merits, there is less justification for substantial deference. We therefore consider the nature of the district court’s ruling. Presented with a preliminary injunction motion, the district court (naturally) decided the substantive issues in that framework. Its decision, however, resembles more closely a grant of summary judgment to the defendants. First, as in Thornburgh and Donovan, “the facts [we]re established,” and the only dispute was over the correct legal standard to apply. There is no sign that the factual record needs development or that factual disputes need resolution before the merits of the plaintiffs’ claims can be finally decided. The district court expressed no such need at the two-day hearing or in its opinion, and the parties expressed no such need, then or after. Second, there is no indication that the district court’s consideration of this case was abbreviated by any perceived time constraint, as is common in a preliminary injunction proceeding. The plaintiffs’ amended complaint was filed in March 1993, the hearing was held two months later, and the request for “preliminary” injunctive relief was denied in February 1994, eleven months later. At that point, Emily Hsu had been a graduate of Roslyn High for eight months, and Timothy Hsu was well into his sophomore year. Third, the purpose of the preliminary injunction motion was not the ordinary goal of “preserv[ing] the relative positions of the parties.” Thornburgh, 476 U.S. at 755, 106 S.Ct. at 2175-76. The preliminary injunction motion sought an order requiring the School to recognize the Walking on Water Club on its terms, thus altering the status quo. Moreover, the injunction was likely to give these plaintiffs the only opportunity that the courts could likely afford for them to participate in the Club. In these ways, the district court’s decision, explained by a decisive and categorical opinion, resembled a definitive ruling on the merits of the plaintiffs’ claims. As in Romer, the district court’s decision “effectively award[ed] victory in the litigation.” And as in Thornburgh and Donovan, the district court’s resolution of the case hinged not on what the facts were — since the material ones are undisputed — but on how the law should be applied. As a result, our review of the district court’s denial of a preliminary injunction is plenary. III. The Hsus’ Rights A preliminary injunction is granted if the party seeking the relief establishes two elements: first, the party will suffer “irreparable harm” if the injunction is denied; second, either the moving party is likely to succeed on the merits, or there are “sufficiently serious questions going to the merits” and the “balance of hardships tip[s] decidedly” its way. Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). The district court ruled that the Hsus would carry their burden as to the first element if the School denied them their First Amendment rights: If, as plaintiffs contend, they are being deprived of their First Amendment rights by defendants’ nondiscrimination policy, they have and will continue to sustain irreparable harm. As the Supreme Court has stated: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, [427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976)].... Accordingly, this Court finds that plaintiffs have demonstrated that they will suffer irreparable harm. 876 F.Supp. at 451. The district court’s finding of irreparable harm was thus conditioned on the conclusion (ultimately rejected by the district court) that the Hsus were being deprived of free speech rights. Since the irreparable harm inquiry depends on the merits of the claims, we turn to the merits, asking whether the Hsus are “likely to succeed,” and consider irreparable injury at the end of our opinion. The Hsus make two statutory and several constitutional claims. Consistent with our practice of avoiding constitutional questions wherever possible, we begin with the Hsus’ statutory claims. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996, 86 L.Ed.2d 664 (1985) (it is “a fundamental rule of judicial restraint” that “[p]rior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision” (internal quotations omitted)); Montilla v. INS, 926 F.2d 162, 168-69 (2d Cir.1991) (same). A. Equal Access Act: Generally Enacted in 1984, the Equal Access Act (“Act”), 20 U.S.C. §§ 4071-4074, guarantees the right of public school students to form extracurricular groups that engage in religious, philosophical, or political discourse. Section 4071(a) creates this statutory free speech right: 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 or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. There is no doubt that Roslyn High School is a “public secondary school” that has a “limited open forum” and receives federal funds. Thus, the Hsus’ claim turns on whether the School denied them “equal access ... on the basis of the religious ... content of the speech” that would have taken place at their meetings. There is scant authority to guide us in our effort to interpret these statutory terms. The legislative history of the Act indicates that its authors sought to end discrimination against religious extracurricular groups in public schools by mandating a policy of neutrality. See 130 Cong. Rec. 19,224 (1984) (statement of Sen. Hatfield). To the Act’s authors, “equal access” meant that “secondary school students engaging in religious speech have the same rights to associate together and to speak as do students who wish to meet to discuss chess, politics, or philosophy.” Id. at 19,216 (Sen. Denton) (emphasis added). Supporting and opposing members of Congress worried that this grant of protection for student speech was too broad and the intrusion on school autonomy too great; specifically, they expressed concern that a law intended to ensure that after-school prayer groups could meet would leave a school powerless to bar the Ku Klux Klan, cults, or intrusive proselytizers. Though Senator Hatfield, the Senate’s primary sponsor, thought this concern was overstated, arguing that the Act still allowed schools to outlaw groups that “would be disruptive to the purpose of [the] school ... [, including a group like] the American Nazi Party ... that is dedicated to the purpose of dividing people, on grounds of race or religion,” id. at 19,224, he admitted that “we are [not] going to be able to anticipate every possible instance that will arise under this expansion of rights....” Id. at 19,225. Indeed, the members of Congress do not appear to have anticipated the situation that confronts us: there is no discussion in the legislative history about whether “equal access” allows an after-school religious club to limit its leaders to those of a particular religious faith. Nor did members of Congress discuss whether the term “speech at [the] meetings” includes a leadership eligibility requirement that is intended to guarantee that the speech at the club meetings will have a particular content. Though the Supreme Court interpreted the Equal Access Act in Board of Educ. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), that case also provides only limited guidance about how to interpret the statutory terms that concern us. In Mergens, students at a Nebraska public high school wanted to form an after-school Christian club, open to students of all religions, for prayer and Bible discussion. Id. at 232, 110 S.Ct. at 2362-63. The students sought the school’s official recognition, which would have given the club “access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair.” Id. at 247, 110 S.Ct. at 2370. The students’ proposal contemplated that there would be no faculty adviser. Id. at 232, 110 S.Ct. at 2362-63. See 20 U.S.C. §§ 4071(c)(2) & 4072(2). The school denied recognition on the grounds that every recognized club needed a faculty sponsor, and that recognition of a religious club would violate the Establishment Clause. Mergens, 496 U.S. at 232-33, 110 S.Ct. at 2362-63. The Supreme Court held that the Equal Access Act required recognition of the club, and that the Act on its face and as applied did not violate the Establishment Clause. (We address the Establishment Clause aspect of the Court’s decision in section IV, infra.) In discussing whether the school’s refusal to recognize the Bible club fell within the terms of the statute, the Court concerned itself almost exclusively with the meaning of the term “noncurriculum related student groups,” a concept not at issue in our case. The final paragraph of the Court’s statutory interpretation section briefly discussed the term “equal access,” holding simply that to deny the Bible Club “official recognition” (including denial of access to the school newspaper, bulletin boards, and public address system) was to deny it “equal access.” Id. at 247, 110 S.Ct. at 2370. This Court has had no occasion to consider the Equal Access Act. Two other circuits have interpreted the Act, see Ceniceros v. Board of Trustees, 66 F.3d 1535 (9th Cir.1995); Garnett v. Renton School Dist. No. 403, 987 F.2d 641 (9th Cir.), cert. denied, — U.S. -, 114 S.Ct. 72, 126 L.Ed.2d 41 (1993); Pope v. East Brunswick Bd. of Educ., 12 F.3d 1244 (3d Cir.1993); Student Coalition for Peace v. Lower Merion School Dist., 776 F.2d 431 (3d Cir.1985), but none of these cases addresses the situation presented here or construes the wordings that concern us. In interpreting the Act, we therefore rely on the common meanings of the words themselves, the logic and architecture of the Act, the congressional purpose of providing religious clubs with the “same rights” as other clubs, the Supreme Court’s direction in Mergens that the Act is to be “interpreted broadly,” 496 U.S. at 239, 110 S.Ct. at 2366, and Supreme Court cases from analogous areas of the law. B. “[RJeligious ... content of the speech Did the School refuse to recognize the Hsus’ club “on the basis of the religious ... content of the speech at [the Club’s] meetings”? One might argue that there is no “speech” at issue here. After all, the School did not base its qualified recognition of the Club on what would be said at the Club meetings, but on what could be characterized as the Club’s “act” of excluding non-Christians from leadership. The School has demonstrated that it would recognize the Walking on Water Club (or any other religious club) without regard to the content of the club’s prayers or discussions, so long as no religious exclusions were made. We are therefore confronted with difficult issues about the meaning of the statutory term “speech.” We conclude that, in light of the Supreme Court’s command that we construe the Act broadly, the term “speech” includes the Walking on Water’s Club leadership policy provision, to the extent that it is reasonably designed to assure that a certain type of religious speech will take place at the Club’s meetings. We take guidance from the Supreme Court’s recent decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, — U.S. -, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). In that case, the Court recognized that the message a group imparts sometimes depends upon its ability to exclude certain people, and that this exclusion may be protected by the First Amendment. The veterans group that organized the annual St. Patrick’s Day parade in Boston refused to let an Irish gay pride group march with a gay pride banner. The Massachusetts courts held that this exclusion ran afoul of the state’s public accommodations law, which prohibited discrimination on the basis of, inter alia, sexual orientation. Id. at - - -, 115 S.Ct. at 2341-43. The Supreme Court reversed, holding that this application of the state law violated the parade organizers’ First Amendment free speech rights. Id. at -, 115 S.Ct. at 2343. The Court noted that the parade did not exclude gay people in general, but rather excluded a group of gay people that wanted to communicate a particular message during the parade. By excluding that group, the parade organizers sought to “tailor” their own message by omitting a particular communication from the banners that constituted their speech, id. at -, 115 S.Ct. at 2347, and by “select[ing] the expressive units of the parade from potential participants.” Id. at -, 115 S.Ct. at 2348. The lesson we draw from Hurley is that the principle of “speaker’s autonomy” gives a speaker the right, in some circumstances, to prevent certain groups from contributing to the speaker’s speech, if the groups’ contribution would alter the speaker’s message. Hurley does not control this case, because (first) it concerns speech rights under the Constitution, not a federal statute, and (second) the Club’s proposed exclusion differs somewhat from the exclusion at issue in Hurley. Here, we are not faced with the exclusion of a discrete group that will definitely communicate a specific message if included. Rather, a broad cross-section of people is excluded from leadership in the Club because they lack a personal characteristic or belief, without any showing that they would desire to communicate any particular message. Despite these two differences, Hurley remains instructive. First, since the Act creates an analog to the First Amendment’s default rule banning content-based speech discrimination, cases discussing the meaning of “speech” in First Amendment jurisprudence are also interpretive tools for understanding the Act. Second, the exclusions here and in Hurley are too similar to be meaningfully distinguished. As in Hurley, the Club’s decision to exclude is based on its desire to preserve the content of its message. The Hsus claim that having Christian leaders necessarily shapes the content of the religious speech at their meetings, because the nature and quality of the speech at the meetings is dependent upon the religious commitment of the officers. We can accept this claim to the extent that there is an integral connection between the exclusionary leadership policy and the “religious speech” at their meetings. No party or amicus is challenging the idea that the activities of this Club will consist of “religious speech.” We accept — as the parties and the district court have apparently accepted — that the purpose of the Club is to organize participation in activities that will be in the nature of religious devotions. However, as we review the Club’s constitution, we see that some of the activities are not unambiguously “religious.” Although meetings will consist mostly of prayers, “singspiration” (a form of musical prayer), Bible readings, and testimonies about the impact of Jesus Christ in the students’ lives, the Club’s constitution also lists guest speakers, skits, and games as possible activities at the meetings. There is no reason to limit the range of activities that may be undertaken by an after-school religious club that discriminates, so long as the activities are integral to a sectarian religious experience. But to the extent that such a group engages in social and community activities that are not integral to a sectarian religious experience, it is in danger of becoming merely a religious affinity group practicing social exclusion. The entire thrust of the Hsus’ case, the School’s resistance, and the amici’s arguments assumes that the activities at the Club’s meetings promote and express the Christian religious experience in an integral way, and we proceed on this assumption. On the other hand, the constitution also lists picnics and volunteer community service as Club activities, events which would obviously take place outside of the Club’s meetings at the schoolhouse. Taking an expansive view, one can say that religion suffuses all the conduct of a pious person, so that the worshipful contemplation of nature on a picnic, as well as acts of charity and service, may all be deemed to have a religious dimension. However, this is not “religious speech” within the meaning of the Equal Access Act, if only because it will not occur at a “meeting.” In addition, there is no reason to believe, based on the present record, that the planning of a picnic or a service project must be done by a Christian in order to make it meaningful for Christian students. In the Walking on Water Club, the planning of these non-school activities is the only responsibility of the Activities Coordinator, who, according to the Hsus, must ensure that the activities do not “offend Christian sensibilities.” But an agnostic with an understanding of “Christian sensibilities” might plan these activities as well as any other student. Similarly, it is very difficult to understand why the “religious speech” at the Walking on Water Club meetings would be affected by having a non-Christian “Secretary,” whose principal duties are “to accurately record the minutes of meetings and be involved in the Club’s financial accounting and reporting.” The Hsus claim that all officers, including the Secretary and Activities Coordinator, must be prepared to “open or close a meeting with prayer ... or to lead a Bible study” and that this duty justifies the exclusion of non-Christians from those posts. But this assertion has no limiting principle. Anyone in attendance at a religious meeting may be called upon for a benediction or to “lead a Bible study.” There is thus no difference between (a) the Hsus’ desire to discriminate in the selection of numerous officers of a small club, each of whom may be called upon to officiate briefly, and (b) a religious test for membership or attendance, which is plainly insupportable. The leadership provision is defensible, however, as to the President, Vice-President, and Music Coordinator of the Club, because their duties consist of leading Christian prayers and devotions and safeguarding the “spiritual content” of the meetings. Guaranteeing that these officers will be dedicated Christians assures that the Club’s programs, in which any student is of course free to participate, will be imbued with certain qualities of commitment and spirituality. Thus, we conclude that the decision to allow only Christians to be President, Vice-President, or Music Coordinator is calculated to make a certain type of speech possible, and will affect the “religious ... content of the speech at [the] meetings,” within the meaning of the Equal Access Act. From this point on, our reference to the Club’s exclusionary leadership policy refers only to the exclusion of non-Christians from these three leadership positions. In interpreting the term “speech,” we are also guided by a set of Supreme Court cases similar to Hurley, although analyzed under the Court’s freedom of association jurisprudence. The right to free association for expressive purposes is implicit in the First Amendment free speech guarantee. See NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 233, 97 S.Ct. 1782, 1798, 52 L.Ed.2d 261 (1977). That right is an instrumental one: expressive association is protected “as an indispensable means of preserving other individual liberties.” Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 3249, 82 L.Ed.2d 462 (1984). The right to associate also includes the right not to associate. Id. at 623, 104 S.Ct. at 3252-53. The Supreme Court examined the scope of this right in Roberts and Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). In both cases, the Court upheld the application of state antidiscrimination laws to private civic clubs that wished to continue their exclusion of women as members. Although the Court determined that the statutes infringed on the expressive association rights of the private clubs, “that infringement [was] justified because it serves the State’s compelling interest in eliminating discrimination against women.” Rotary, 481 U.S. at 549, 107 S.Ct. at 1948. See also Roberts, 468 U.S. at 623, 104 S.Ct. at 3252-53; New York State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 11-12, 108 S.Ct. 2225, 2233-34, 101 L.Ed.2d 1 (1988) (rejecting a facial challenge to a nondiscrimination statute, on the ground that the freedom of expressive association was not infringed upon by all applications of the statute). Roberts and Rotary (like Hurley) are analytically distinct from this case, because they involve constitutional rights, not statutory ones. Nevertheless (like Hurley) they assist our interpretation of the term “speech” in the Equal Access Act. The Act, which protects students only against the denial of equal access on the basis of their “speech,” does not expressly protect their right to “associate.” But since the grant of speech protection is to “students who wish to conduct a meeting,” the right to associate for the purpose of holding such a meeting is a necessary corollary. The Act’s authors made it clear that the language of § 4071(a) was intended to protect both free speech and free association rights of certain student clubs. 130 Cong. Rec. 19,216 (1984) (statement of Sen. Denton); id. at 19,217 (Sen. Hatfield). Thus, the Act contains an implicit right of expressive association when the goal of that association is to meet for a purpose protected by the Act. As in Roberts and Rotary, when the students’ desire to hold a meeting covered by the Act involves a decision not to associate with other students, that decision, depending on its purpose, may constitute an exercise of the students’ right of expressive association. On the one hand, an exclusion solely for reasons of hostility or cliquishness, with no direct bearing or effect on the group’s speech, does not implicate the right to expressive association. But expressive association is implicated when the decision to exclude is made in order to foster the group’s shared interest in particular speech. See William P. Marshall, Discrimination and the Right of Association, 81 Nw. U.L.Rev. 68, 78-80, 90-91 (1986). As the Court said in Roberts, a regulation that prevents a group from excluding certain people “may impair the ability of the original members to express only those views that brought them together.” 468 U.S. at 623, 104 S.Ct. at 3252 (emphasis added). Similarly, the Court in New York State Club Association stated that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion. 487 U.S. at 13, 108 S.Ct. at 2234 (emphasis added). It is undisputed that the decision by the Walking on Water Club to impose a religious test for leadership positions has been made purely for expressive purposes— to guarantee that meetings include the desired worship and observance — rather than for the sake of exclusion itself. As we have explained, supra, this test serves this expressive purpose for three of the leadership positions. As in other instances in which a limitation on the right to associate for expressive purposes has been held to infringe on the right to free speech, the School’s refusal to allow the Walking on Water Club to guarantee that Christians will lead its Christian prayers implicates free speech rights under the Act. This does not mean, however, that the students’ Equal Access Act claim automatically prevails. On the constitutional level, the right to free association is not absolute. Roberts and Rotary make clear that a “compelling” governmental interest (such as eliminating discrimination against women) will override the right to expressive association. Roberts, 468 U.S. at 623, 104 S.Ct. at 3252-53; Rotary, 481 U.S. at 549, 107 S.Ct. at 1947-48. And, since the students’ right to expressive association here is based on a statute applicable to public schools — where free speech rights receive somewhat less protection generally — it is not at all apparent that a governmental interest need be “compelling” to override the expressive association rights at issue here. We ask in sections IV and V, infra, whether the School has a valid reason (under the Constitution or otherwise) for denying the Club the recognition it seeks. We can conclude at this point, however, that when an after-school religious club excludes people of other religions from conducting its meetings, and when that choice is made to protect the expressive content of the meetings, a school’s decision to deny recognition to the club because of the exclusion is a decision based on “the content of the speech at [the] meetings,” within the meaning of the Equal Access Act. C. “[EJqual access”. The District argues that “equal access” has not been denied. It claims that it is applying its nondiscrimination policy neutrally to all after-school clubs, that this equal treatment amounts to “equal access,” and that recognition of the Walking on Water Club, with its discriminatory constitution, would afford the Club special treatment, a level of accommodation that the Act does not demand. The District’s focus on the even application of its nondiscrimination rule misses the point. The Act mandates that students be given “equal access,” not that the School’s internal rules be administered uniformly. A rule against wearing hats in the school building, perfectly and consistently enforced, might deprive Jewish students of equal access to after-school facilities for shared religious observance. Similarly, a rule requiring students to wear appropriate footwear at all times, perfectly and consistently enforced, might effectively ban after-school meetings of the Yoga Club. The neutral application of the School’s rules allows the School to say that it is treating all clubs equally. But exemptions from neutrally applicable rules that impede one or another club from expressing the beliefs that it was formed to express, may be required if a school is to provide “equal access.” The District argues that allowing the Hsus to discriminate on the basis of religion would grant them special rights: since the Chess Club may not limit its officers to Muslims, even if its founding members trust only Muslims to lead them, then the Walking on Water Club may not limit its officers to Christians. We agree that the Hsus are only entitled to the same rights that other student clubs have. But the District’s argument ignores the fact that the Walking on Water Club is a religious club and the Chess Club is not. Walking on Water Club meetings will include certain types of religious prayers and songs. The Club’s leadership eligibility requirement on the basis of religion is therefore similar to a chess club’s eligibility requirement based on chess. Though the District argues that only those exclusions based on “ability and performanee” are appropriate, this ignores one of the principal ways in which many extracurricular clubs typically define themselves: by requiring that their leaders show a firm commitment to the club’s cause. The record does not include the constitutions of other extracurricular clubs at Roslyn High School, but it would be sensible — and unremarkable in light of the clubs’ particular purposes — for the Students Protecting the Environment Against Contamination Club to require that officers have a demonstrated commitment to conservation or recycling; for Students Against Drunk Driving to require that officers have taken the pledge; or for Students for Social Responsibility to require that officers have a social conscience. Similarly, a hypothetical school scouting club could preserve its character and values by requiring that officers be exemplars of the scouting movement, just as a hypothetical Marxist discussion group could require that officers be dedicated to socialist values or be card-carriers. All of these “tests” of an officer’s commitment to the group’s cause allow the group to ensure that its agenda will be advanced at its meetings. One can expect that students in favor of contaminating the environment will lead different meetings than those against contamination, for instance. Similarly, the Hsus may reasonably expect that the prayers at a Club meeting led by non-Christians would be different than the prayers led by Christians. Seen in this light, the discrimination practiced by the Walking on Water Club merely requires that its officers have a certain level of commitment to the program and purpose of the Club. Because that program and purpose are religious and sectarian, the requisite level of commitment and belief is quite naturally expressed in terms of religious belief. Equal treatment should mean that the Walking on Water Club enjoys the same latitude that other clubs may have in determining who is qualified to lead the Club. Thus, just as a secular club may protect its character by restricting eligibility for leadership to those who show themselves committed to the cause, the Hsus may protect their ability to hold Christian Bible meetings by including the leadership provision in the club’s constitution. This type of commitment requirement may be especially important to religious clubs. The Equal Access Act provides that “employees or agents of the school ... [may be] present at religious meetings only in a non-participatory capacity.” 20 U.S.C. § 4071(c)(3). Though the Act provides protection for political and philosophical clubs as well as religious clubs, this provision of the Act singles out religious clubs, denying only to them the opportunity to have faculty sponsors (presumably because of Establishment Clause concerns). Thus, while political clubs and chess clubs may have faculty sponsors to promote institutional stability, help guarantee that new leaders are committed to the club’s cause, and ensure that the club remains true to its purpose, religious clubs do not have that protection. It is therefore particularly understandable that a religious group would seek to assure in other ways that its leadership is genuinely committed to its cause. The District argues that its nondiscrimination policy does not in any way hamper the ability of Club members to express their religious beliefs. After all, says the District, the nondiscrimination policy “does not require that a ‘non-Christian’ lead the club. [Club] members are free to elect whomever they believe will be the best leader and may east their vote according to their conscience.” The district court took a similar view, suggesting that the School’s nondiscrimination policy did not actually prevent the Hsus from forming a club with Christian leaders, because the Club could rely on “[elective forces” to make sure that its desired leaders were chosen. 876 F.Supp. at 455. The Hsus’ concern that the Club “risk[ed] facing ‘non-Christian leadership’” and might be “taken over” by students inimical to the Club’s purpose was dismissed by the court as “speculation.” Id. at 456. But of course, it is also speculation at this point to conclude that there would be no hostility toward a Christian Bible Club at Roslyn High. We simply do not know. And considering that (i) the Club may not have a faculty sponsor and (ii) religious groups have historically been the object of hostility and persecution more often than, say, chess players or glee clubs, the Hsus’ concern that their effort to pray and discuss the Bible after school might be disrupted, though speculative, is by no means unreasonable. In any event, it is not disputed that this concern has been enough to chill their speech. More importantly, telling the Club to rely on elections to assure that its leaders are Christians contemplates that the Club will engage in the same type of religious discrimination embodied in the Club’s constitution. The School cannot have it both ways. If it insists on outlawing all religious discrimination, including clubs with discriminatory constitutions, it can scarcely recognize clubs that elect officers on the basis of their religion. But since the whole purpose of the Club is to gather for sectarian praise and worship (as the School and district court have recognized), the need for the Hsus to realize that purpose justifies the imposition of a religious test for the leaders of the after-school meetings. Thus, the School’s complete ban on “religious discrimination,’’ however it is enforced, also bans the Bible club envisioned by the Hsus. We therefore reject the District’s argument that the Hsus could abandon the leadership provision of the Club’s constitution without suffering any tangible harm. Under the Equal Access Act, the Hsus may try to preserve the content of the religious speech at their meetings by discriminating in a way that ensures that the Club’s leaders will be committed to both its cause and a particular type of expression. The School’s recognition of the Club only on the condition that it abandon this effort therefore constitutes a failure to provide equal treatment, and denies the Walking on Water Club “equal access.” In short, the Hsus are likely to succeed on their claim that Roslyn High violated § 4071(a) of the Equal Access Act, to the extent that the Club’s leadership provision applies to the President, Vice-President, and Music Coordinator of the Club. By concluding that the School’s nonrecognition denies the Hsus “equal access,” we are giving the term “equal access” the broad construction that the Supreme Court requires. See Mergens, 496 U.S. at 239, 110 S.Ct. at 2366. This does not mean, however, that all efforts by a student club to exclude other students are protected by the statute, even if the exclusion is based on a club’s desire to realize its expressive purpose. The Equal Access Act is not a set of federal handcuffs fitted to school principals. Schools must have rules to control their students, and rules will always have the effect of suppressing someone’s idea for a club. Though the School’s effort to apply its nondiscrimination rule is trumped by the Equal Access Act, the Act’s mandate of equal access can be trumped by the School’s responsibility for upholding the Constitution, for protecting the rights of other students, and for maintaining “appropriate discipline in the operation of the school.” See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 738, 21 L.Ed.2d 731 (1969) (internal quotations omitted). These are substantial limitations on the statute’s intrusive power. We turn to them now and ask whether this application of the statute is both constitutional and consistent with a public school’s mission. IV. The Establishment Clause The School, with support from the Anti-Defamation League as amicus curiae, claims that exempting the Walking on Water Club from its nondiscrimination policy would violate the Establishment Clause by conferring upon a Christian club a benefit that other clubs do not enjoy. This exemption would violate all three prongs of the so-called “Lemon test,” runs the argument, because the exemption would have no secular purpose, would have the primary effect of advancing religion, and would excessively entangle the School in religious matters. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971). The School also claims that providing the Club with an exemption would “encourage and pressure” students to join the Club and become practicing Christians. The Anti-Defamation League argues principally that the exemption constitutes “an endorsement” of the Club by the School, and creates a “symbolic union” between the two. Most of the arguments advanced by the School and the Anti-Defamation League are answered in two opinions of the Supreme Court: Mergens, and Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). In Mergens, the Supreme Court held that the Equal Access Act does not violate the Establishment Clause. Writing for four justices, Justice O’Connor applied the “Lemon test,” and concluded that the Act satisfied all three requirements. First, the plurality quickly concluded that the Act had a secular purpose: Congress’ avowed purpose — to prevent discrimination against religious and other types of speech — is undeniably secular. See Amos, 483 U.S. at 335-36 [107 S.Ct. at 2868-69].... Because the Act on its face grants equal access to both secular and religious speech, we think it clear that the Act’s purpose was not to endorse or disapprove of religion. Id., 496 U.S. at 249, 110 S.Ct. at 2371 (internal quotations omitted). Second, the Act did not have the primary effect of advancing religion. Rejecting the school’s arguments that religion is advanced when club meetings are “held under school aegis” at a place where “compulsory attendance laws ... provide a ready-made audience for student evangelists,” id., the plurality concluded that there was no “symbolic link” between the school and religion: [T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis. Cf. [Tinker].... To be sure, the possibility of student peer pressure remains, but there is little if any risk of official state endorsement or coercion where no formal classroom activities are involved and no school officials actively participate.... To the extent a school makes clear that its recognition of respondents’ proposed club is not an endorsement of the views of the club’s participants, students will reasonably understand that the school’s official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech. Id. at 250, 251, 110 S.Ct. at 2371, 2372 (citation omitted). Finally, the plurality concluded that there was no “excessive entanglement” between the school and the religious club, because § 4071(c) of the Act prohibited the school from sponsoring or being involved in any way with the club’s meetings. Id. at 253, 110 S.Ct. at 2373-74. In Amos, the Court rejected Establishment and Equal Protection Clause challenges to § 702 of the Civil Rights Act of 1964, which exempts religious organizations from the Act’s ban on religious discrimination in employment. Again, the Court applied the three-prong “Lemon test.” First, in examining whether § 702 meets the secular purpose requirement, the Court explained that the requirement does not mean that the law’s purpose must be unrelated to religion.... Rather, Lemon’s “purpose” requirement aims at preventing the relevant governmental decisionmaker ... from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters. 483 U.S. at 335, 107 S.Ct. at 2868. The Court concluded that § 702 had a secular purpose because it was motivated by the desire “to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” Id. at 335-36, 107 S.Ct. at 2868. In its discussion of the test’s second prong, the Court again stressed that a law conferring direct benefits only on religious groups does not necessarily have the primary effect of advancing religion. Pointing out that it had upheld a number of laws that helped religious groups “advance their purposes,” such as a property tax exemption for religious groups, id. at 336, 107 S.Ct. at 2869, the Court explained: A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose---- [I]t must be fair to say that the government itself has advanced religion through its own activities and influence. Id. at 337, 107 S.Ct. at 2869; see also id. at 338, 107 S.Ct. at 2869-70 (“[T]he Court ... has never indicated that statutes that give special consideration to religious groups are per se invalid.”). The Court held that § 702 did not advance religion, rejecting the district court’s contrary finding that “the exemption would permit churches with financial resources impermissibly to extend their influence and propagate their faith by entering the commercial, profit-making world.” Id. at 337, 107 S.Ct. at 2869. Finally, the Court dismissed concerns regarding excessive entanglement, stating that § 702 actually “effectuates a more complete separation” of religion and the government. Id. at 339, 107 S.Ct. at 2870. Applying the lines of analysis adopted by the Court in these two cases, we conclude that the School’s recognition of the Walking on Water Club would not violate the Establishment Clause. A. Secular Purpose. As the Court has pointed out, the government may not act with the purpose of “endors[ing]” religion, Mergens, 496 U.S. at 249, 110 S.Ct. at 2371, or “promoting a particular point of view in religious matters.” Amos, 483 U.S. at 335, 107 S.Ct. at 2868. There is no promotion or endorsement of religion here, as the defendants themselves have made clear. When the Board issued its conditional resolution recognizing the Walking on Water Club (without the Christian-only leadership provision on which the Hsus insist) the Board drew a cordon sanitaire between the School and the Club: the Superintendent of Schools is hereby directed to cause all l