The question of whether religious literature may be distributed in public schools partly involves who would be doing the distributing, how, and at what level of school.
Generally, public school officials themselves may not distribute religious literature to schoolchildren. Distribution of such material by students and by outside groups will be discussed in separate sections.
Distribution by students
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.
Distribution by outside groups
Under current law,
school officials generally may not allow outside groups to actively distribute
religious literature to children on campus. However, outside groups may have a
limited right in some circumstances to distribute religious literature in a
"passive" manner in secondary schools, as outlined further below. And they may have a right to be included in a packet of flyers sent home with kids.
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. Though no one was allowed
either to stand by the table and encourage students to take one, or to enter the
classrooms to discuss the Bibles, the groups were permitted to display the
Bibles inside the school, at the administration’s discretion.
Although 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
a 2004 case, 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. Also in 2004, 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.
Updated September 2009
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.
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