Distributing religious literature
By Julie P. Samuels
Students generally have a right to distribute religious material in public schools. However, school officials may apply reasonable time, place and manner restrictions as long as the restrictions are narrowly tailored to achieve the school’s educational objectives.
In some cases involving distribution of religious material by students, plaintiffs have argued that such limitations hinder their free-speech rights under the First Amendment. Yet most courts have upheld these restrictions, as did the 7th U.S. Circuit Court of Appeals in Hedges v. Wauconda Community Unit School District, 9 F.3d 1295, in 1993. The court ruled that the junior high school in that case, as a limited public forum, could implement a policy limiting when and how students could pass out written materials, but only so long as those restrictions were not “arbitrary or whimsical.” An example of reasonable restrictions, the court said, may include setting up a special table for distribution and limiting the times when items may be distributed.
Following the Hedges case, the 7th Circuit looked at a similar policy in Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530, in 1996. The court there upheld a restriction requiring prior approval of nonschool materials before they could be distributed to students — so long as that approval was not granted solely on the religious nature of the material. The court questioned whether the restriction was reasonable or not, considered in light of the grade-school environment, noting that “an elementary school under its custodial responsibilities may restrict such speech that could crush a child’s sense of self-worth.” A federal district court in Massachusetts went further, holding that such restrictions need to contain safeguards such as a requirement that school administrators review submitted material in a reasonably short time and that such reviews “must contain narrow, objective, and reasonable standards.” Westfield High Sch. L.I.F.E. Club v. Westfield, 249 F.Supp.2d 98, 125.
However, since schools are generally considered limited public forums, and because First Amendment rights of students are not as extensive as or equal to those of adults, schools may prohibit distribution of certain types of literature altogether. Those include materials that:
- Would likely cause substantial disruption of the operation of the school (such as literature using fighting words or other inflammatory language).
- Violate the rights of others (e.g., that is libelous, that invades privacy of others or infringes a copyright).
- Are obscene, lewd or sexually explicit.
- Advertise products that are illegal for minors (such as alcohol).
- Students would reasonably believe to be sponsored or endorsed by the school.
Additionally, the U.S. Department of Education has issued general guidelines regarding the distribution of religious material:
"Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on nonschool literature generally, but they may not single out religious literature for special regulation.”
The cases and administrative guidelines all hold one thing: Religious literature cannot be singled out for regulations. The federal district court in Johnston-Loehner v. O’Brien, 859 F.Supp. 575 (M.D. Fla. 1994) made this explicitly clear by proclaiming that “a ban on all student religious speech clearly inhibits religion,” thus violating the prong of the establishment clause forbidding the government from obstructing religion. Consequently, in that case, the school’s policy requiring an elementary school principal to give prior approval to nonschool materials, where the principal used the policy to screen out and prohibit religious materials, was found to be unconstitutional, both on its face and as applied to the plaintiff.
Courts are less tolerant of school restrictions when it comes to high school students. In such cases, the rule from Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, usually prevails, preserving the First Amendment rights of students regardless of whether or to what extent the school is a public forum. In such cases, courts focus on the importance of preparing high school students to be productive citizens, thereby allowing them to “develop the ability to understand and comment on the society in which they live and to develop their own sets of values and beliefs,” as the federal district court in Colorado stated in Rivera v. East Otero School Dist R-1, 721 F.Supp. 1189, 1194. Going even further, a federal district court in Pennsylvania categorically denied any argument that a ban on religious or political material is necessary to preserve an educational environment in a secondary school. (See Slotterback by Slotterback v. Interboro School Dist., 766 F.Supp. 280.) However, even when dealing with high schools, courts will uphold reasonable time, place and manner restrictions, so long as those restrictions are applied equally to all written material.
Third parties’ rights to distribute
Third parties likewise have a right to distribute religious literature in public schools; however, that right is more limited than that of the students. For example, in 1993 the 7th Circuit, in Berger by Berger v. Rensselaer Central School Corp., 982 F.2d 1160, found it unconstitutional for an elementary school to assemble fifth-graders every year to allow for the distribution of Bibles by the Gideons. That decision, issued less than a year before Hedges, recognized a concern that a “fifth grader cannot be expected to make subtle distinctions between speakers or instructors invited by [the school] and those whose invitations are self-initiated, even assuming the children were told how the Gideons arrived in their classrooms.”
At least one court has not gone so far as the 7th Circuit, instead just limiting third-party distribution to specific circumstances in a secondary school. The 4th Circuit, in Peck v. Upshur County Bd. of Ed., 155 F.3d 274, in 1998 held that outside groups may come into public secondary schools and distribute religious literature, so long as that distribution is neutral and “passive,” and disclaimers are present disassociating the school from the speech in question. “Passive” distribution in that case involved private groups coming into the school one day a year and leaving Bibles on a table. While no one was allowed to either stand by the table and encourage students to take one, or to enter the classrooms to discuss the Bibles, the groups were indeed permitted to display the Bibles inside the school, per the administration’s discretion.
While the holding in Peck did not extend to elementary students, courts recently have found that third parties do indeed have a First Amendment right to send home fliers with a religious message to those younger students. In Rusk v. Crestview Local Sch. Dist., 3798 F.3d 418, the 6th Circuit held that an elementary school could distribute third-party fliers so long as the students would not be able to participate in the advertised activities without parental consent. The 4th Circuit came to a similar conclusion in Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Sch., 373 F.3d 589. In response to these decisions, some school districts have decided to ban all fliers.
However, courts have also found that school may exercise limited discretion in determining which fliers may be sent home with students. In 2003, the 9th Circuit in Hills v. Scottsdale Unified School Dist., 329 F.3d 1044, stated that a school “cannot refuse to distribute literature advertising a program with underlying religious content where it distributes quite similar literature for secular summer camps, but it can refuse to distribute literature that itself contains proselytizing language.” This “subtle, but important” distinction helps to highlight the delicate balance schools must reach between the establishment clause and the protections of free speech.
Julie P. Samuels, now an attorney in Chicago at the law firm of Loeb & Loeb, worked as a legal intern at the First Amendment Center while attending Vanderbilt Law School.