May students distribute religious literature in a public school?
Court decisions on the issue generally fall into two categories. A minority of decisions hold that schools can prohibit the distribution of any publication that is not sponsored by the school. Of course, the ban must be applied even-handedly to all student publications. A school could not, for example, allow the distribution of political literature while barring religious publications. This is particularly evident in light of the Supreme Court’s 1990 decision in Westside Community Board of Education v.
Mergens, upholding the federal Equal Access Act. Under this minority view, however, a blanket prohibition on all student publications would be permissible.
The majority of courts take a different view. These courts hold that while schools may place some restrictions on the student publications, they may not ban them altogether. The courts base their decisions on the landmark case of Tinker v. Des Moines School District, which upheld the right of students to wear black armbands protesting the Vietnam War, even in a public school. Included in this right of free speech is not only the right to speak for oneself but also to distribute the writings (i.e., speech) of others. Thus, courts have generally upheld the rights of students to distribute non-school publications subject to the school’s right to suppress such publications if they create substantial disruption, harm the rights of other students or infringe upon other compelling interests of the school. Again, the Mergens decision makes clear that the fear of a First Amendment violation is not sufficient justification to suppress a student publication that happens to be religious. Some states, such as California, have incorporated the majority view into their own state education codes.
Do schools that permit the distribution of student religious literature give up all control over how it is done?
No. Just because schools may not prohibit the distribution of all student
materials does not mean that schools have no control over what may be
distributed on school premises. On the contrary, courts have repeatedly held
that schools may place reasonable “time, place and manner” restrictions on all
student materials distributed on campus. Thus, schools may specify when the
distribution can occur (e.g., lunch hour or before or after classes begin),
where it can occur (e.g., outside the school office) and how it can occur (e.g.,
from fixed locations as opposed to roving distribution). One recent decision
upheld a policy confining the distribution of student literature to a table
placed in a location designated by the principal and to the sidewalks adjacent
to school property. Of course, any such restriction must be reasonable.
It is also likely that schools may insist on screening all student materials
prior to distribution to ensure their appropriateness for a public school. Any
such screening policy should provide for a speedy decision, a statement of
reasons for rejecting the literature and a prompt appeals process. Because the
speech rights of students are not coextensive with those of adults, schools may
prohibit the distribution of some types of student literature altogether.
Included in this category would be:
- Materials that would be likely to cause substantial disruption of the
operation of the school. Literature that uses fighting words or other
inflammatory language about students or groups of students would be an example
of this type of material. Student speech may not be prohibited simply because it
is considered offensive by some (see Saxe v. State College Area School Dist., 3rd Cir. 2001).
- Material that violates the rights of others. Included in this category would
be literature that is libelous, invades the privacy of others or infringes on a
- Materials that are obscene, lewd or sexually explicit.
- Commercial materials that advertise products unsuitable for minors.
- Materials that students would reasonably believe to be sponsored or endorsed
by the school. One recent example of this category of speech was a religious
newspaper that was formatted to look like the school newspaper.
Though schools have considerable latitude in prohibiting the distribution of
materials that conflict with their educational mission, schools generally may
not ban materials solely on the basis of content. Similarly, schools should not
allow a heckler’s veto by prohibiting the distribution of only those materials
that are unpopular or controversial. If Christian students are allowed to
distribute their newsletters, then Buddhists, Muslims and even Wiccans must be
given the same privilege.
Do outside groups have the right to distribute material on campus?
No. Adults from outside the school do not have the right to distribute
materials to students in a public school. May school officials allow them to do
so? Although this area of the law is somewhat unclear, it is fair to say that
schools should exercise great caution before giving an outside group access to
students during the school day. Giving some groups access opens the door to
others. Moreover, if a religious group is allowed to actively distribute
religious literature to students on campus, that activity is likely to violate
the establishment clause.
At least one lower court has upheld “passive” distribution of materials by
religious and other community groups. Note that in this case the group left
materials for students to browse through and take only if they wished. Also, a
wide variety of community groups were given similar privileges, and the school
posted a disclaimer explaining that the school did not endorse these materials.
Under those conditions, this court allowed passive distribution, but only in a
secondary school setting (see Peck v. Upshur County, 4th Cir. 1998,
although other federal courts have rejected this distinction).
Schools may announce community events or meetings of groups — including
religious groups — that work with students. All of these groups should be
treated in the same way. The school should make clear that it does not sponsor
these community groups (see Child Evangelism Fellowship v. Stafford Township, 3rd Cir. 2004).