Religious liberty in public schools - FAQs

Distributing religious literature

May students distribute religious literature in a public school?

Court decisions on the issue generally fall into two categories.

Most courts hold that although schools may place some restrictions on distribution of religious materials by students, 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 religious literature subject to the school’s right to suppress such materials 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 distribution of material that happens to be religious. Some states, such as California, have incorporated the majority view into their own state education codes.

A minority of decisions hold that schools can prohibit the distribution of any material that is not sponsored by the school. Of course, the ban must be applied even-handedly to all students. 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 distributions would be permissible.

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:

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?

Generally no. Adults from outside the school do not have an automatic 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 in a secondary school 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 the 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).