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Legal trends favor allowing religious fliers in public schools
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar
08.22.04

Damned if they do — and damned if they don’t.

That’s the no-win dilemma faced by public school officials when religious groups ask schools to distribute fliers to students.

Say “yes” and get sued by those who believe the practice amounts to unconstitutional endorsement of religion by school officials. Say “no” and get sued by others who view exclusion of religious fliers as discrimination against faith communities.

This issue has been in the courts for years — with mixed results. But two appellate court decisions handed down this summer suggest that the legal wind is now blowing strongly in one direction.

In the first case, principals at two elementary schools in Montgomery County, Md., refused to include fliers from the Child Evangelism Fellowship (CEF) in the informational packet the schools sent home with kids. Other community groups were included in the packet, including a few from religiously affiliated organizations. But CEF was barred because of a district policy prohibiting distribution of fliers involving “proselytizing” or “evangelical groups.”

The school district won round one in a federal district court. But on June 30, a three-judge panel of the 4th U.S. Circuit Court of Appeals reversed the lower court, ruling that giving an evangelical group access to the packet would not violate the establishment clause of the First Amendment.

Unlike the Maryland schools, a district in rural Ohio was more than willing to distribute fliers from religious groups – along with materials from other community organizations that work with youth. Once again, a U.S. district judge struck down the practice as unconstitutional.

But last week the 6th U.S. Circuit Court of Appeals disagreed, holding that elementary schools may constitutionally place fliers advertising religious activities in student mailboxes.

Although these two decisions don’t cover the entire nation (and the U.S. Supreme Court has yet to weigh in), the trend seems clear: Courts are upholding the constitutionality of distributing fliers from religious groups when the school disseminates literature from a variety of community organizations announcing events for students.

In reaction to these decisions, some school districts will attempt to ban or at least restrict distribution of most types of community fliers. After losing in the 6th Circuit, Montgomery County quickly moved to tighten restrictions on what can be sent home with kids. Gone are groups like the Boy Scouts; what remains are school-sponsored activities plus government agencies, child-care centers and sports leagues.

Will shutting down the forum work? Probably not. The Boy Scouts in Montgomery County are already raising legal objections to the new policy. Look for more conflict — and new litigation.

Even if banning most fliers does pass legal muster, it would likely cause a backlash in the community. Cutting kids and parents off from learning about a wide variety of educational and recreational opportunities will strike many people as keeping the public out of public education.

A better option might be for schools to keep distributing fliers, but require all community groups — religious and nonreligious — to include a disclaimer (e.g., “this is not a school-sponsored activity”). Schools could also request that fliers be purely informational — a simple, straightforward announcement of the activity or event.

A compromise like this keeps information flowing while simultaneously maintaining some distance between school officials and the mission of religious groups. This approach won’t satisfy everyone. But it’s a great deal better than divisive lawsuits — and a whole lot cheaper.


Related

Maryland school district limits access to flier program

Move comes after 4th Circuit overturns decision blocking religious group from sending home leaflets advertising its Bible study. 08.12.04

6th Circuit: Ohio school district can distribute religious fliers
Unanimous three-judge panel says school officials don't endorse religion simply by giving students material advertising religious activities. 08.13.04

4th Circuit strikes down Md. school district's flier policy
Panel sides with Christian group, finding revised plan is unconstitutional because it offers no protection against viewpoint discrimination. 08.11.06

Evangelicals intensify calls for public-school pullout
Perceived hostility to religion in public schools fuels movement to home-schooling, private schools. 09.06.06

St. Paul, Minn., schools sued over religious-flier ban
School district attorney says non-religious groups are allowed to advertise on school grounds because their programs aren't held during school hours. 04.14.07

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