Districts challenged over the distribution of religious fliers
By Del Stover
9/23/03 -- As religious groups increasingly seek to distribute fliers and other religiously oriented materials in public schools, local school officials are confronted with a policy issue with significant legal implications.
No one knows that better than officials in Arizona's Scottsdale Unified School District, which was sued for refusing to distribute fliers for a summer camp that offered Bible lessons.
This spring, the 9th Circuit U.S. Court of Appeals ruled the school system had violated the free speech of the camp director, although it stopped short of denying schools the right to reject some materials.
Carole Hughes, the public information officer at Scottsdale Unified, says her office now reviews the wording of 700 community fliers distributed annually on campus. Until the courts provide better guidance, much of the religious-oriented material now also is reviewed by school attorneys.
In Montgomery County, Md., officials are fighting a lawsuit filed by an evangelical group that seeks to force the school system to put recruitment fliers for an after-school Bible club in children's backpacks.
"This is an issue that's been percolating for years," says NSBA Staff Attorney Thomas Hutton. "The difference right now is that there's a full-court press by organizations that focus on these issues. This is an area of the law that's hotly contested."
As is often the case, local school officials find themselves caught in the middle of the legal debate. While some school systems are being sued for violating the free speech of religious groups, others are in court because parents objected to the schools permitting the distribution of materials with a religious message.
Over the years, a series of court rulings has suggested school officials were on relatively safe legal ground if they treated religious materials in a neutral fashion. In other words, if they created a "limited public forum" that allowed non-school-related organizations to distribute fliers on school campuses, then religious groups had a similar right to hand out material.
But, in recognition of the U.S. Constitution's Establishment Clause, which lays out the principle of separation of church and state, many school systems rejected material that included proselytizing messages.
In addition, Hutton says "it was a widely understood rule that school personnel didn't get involved directly in distributing religious messages."
These stances are now being challenged by religious organizations, which argue that their fliers and handouts should not be treated any differently than any other material distributed in the schools.
That argument is at the heart of Child Evangelism Fellowship v. Montgomery County Public Schools, which challenges the decision of school officials to refuse to distribute handbills that have been described as proselytizing.
Montgomery County officials granted the evangelical group access to back-to-school nights and open-house events. But they balked at requiring teachers to insert the group's fliers with other material regularly sent home in students' backpacks.
"An integral part of the Child Evangelism Fellowship's evangelical message is to locate children who have not yet accepted Jesus Christ as their savior," the school system argued in its legal brief. "Requiring teachers to force students to accept and distribute CEF's materials would result in the unconstitutional coercion of the students to proselytize on CEF's behalf."
To Elliot Mincberg, vice president and legal director of the People for the American Way Foundation, that stance is appropriate as "it's more likely to create the perceived promotion of religion when government is giving out information for organizations that want to proselytize."
In an amicus brief filed in support of the Montgomery County schools, NSBA urges the court to preserve the principle of school neutrality toward religion and not force school personnel to be directly involved with religious communications to students.
NSBA also is urging the court to provide school officials with clear and appropriate guidelines to ease the risk of future litigation and allow officials to focus their full attention on educating students.
"Schools are helped when there are some really bright-line rules in areas fraught with legal complexity and political difficulty for school boards, which are caught in the middle of this debate," Hutton says.
For now, however, school officials are still struggling to strike the right balance on the constitutional questions being debated. In Fairfax County, Va., for example, officials this spring responded to recent court rulings by modifying the school system's policy to allow religious groups to more easily distribute fliers like other agencies.
But even that strategy is no shield against litigation. Earlier this year, the Westfield, Mass., school district suspended several students for handing out candy canes with religious messages. School policy prohibits students from distributing anything on campus that is unrelated to the curriculum, and officials said the suspensions had nothing to do with the students' religious views. Still, the students filed suit alleging discrimination.
Charles Haynes, senior scholar with the First Amendment Center in Arlington, Va., says treating all non-school-related material similarly still is the safest strategy given today's legal uncertainties.
Although there are no guarantees, he notes that school officials might limit their liability by being more cautious about material that's distributed in the schools. For example, officials could end the distribution of all non-school-related materials -- or limit all groups to simple announcements of meetings.
School officials also need to take heed of a little-noticed provision of the No Child Left Behind Act, which specifies that a school can lose federal funding if it curtails a student's right to "religious expression." The implications of this provision are still uncertain.
"This is an area where the law varies from jurisdiction to jurisdiction," Hutton says. Given somewhat conflicting court rulings across the nation, "if you have an issue in your district," he advises, "keep in touch with your attorney."
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| Reproduced with permission from the 2003 issue of School Board News. Copyright © 2003, National School Boards Association. Opinions expressed in this newspaper do not necessarily reflect positions of NSBA. This article may be printed out and photocopied for individual or educational use, provided this copyright notice appears on each copy. This article may not be otherwise transmitted or reproduced in print or electronic form without the consent of the Publisher. For more information, call (703) 838-6789. |