Discrimination Against Student Religious Speech

Schools, including K-12 schools, generally can’t discriminate against religious speech by students, outside the school curriculum (such as class assignments) or school-organized programs (such as graduations). If they allow extracurricular nonreligious clubs to form, they must let religious clubs form. If they allow nonreligious flyers to be distributed, they must allow religious flyers to be distributed. They may be able to limit a wide range of flyers (say, all flyers that aren’t directly related to school events), but they may not impose that limitation based on the religious content of the flyers. All this, I thought, had been well-settled by a long line of cases such as Lamb’s Chapel v. Center Moriches School Dist., Rosenberger v. Rector, Good News Club v. Milford Central School, and many lower court cases.

But many schools — even schools in very religious parts of the country — still haven’t gotten the message. The latest example I saw was Wright v. Pulaski County Special School Dist. (E.D. Ark. Mar. 25, 2011, just posted on Westlaw in the last few days). An excerpt:

Wright filed this case on her own behalf and on behalf of her child, A.W., a third grade student at Sherwood Elementary School. In October 2009, Wright contacted A.W.’s teacher and requested permission to send home with students and post in the school’s literature rack, flyers for a church-sponsored swimming event. Wright was directed to contact Brazil, the Principal of Sherwood Elementary, to obtain permission. Brazil denied Wright’s request because the flyers were “church related.” This position was affirmed when Wright contacted Harnish, the Director of Elementary Education. Wright then contacted McGill, the Acting Superintendent of Pulaski County, who maintained that A.W. could not send students home with the flyers or post them in the literature rack…. Defendants cited to their district wide policies for support of this position.

Three school district policies are at issue. The first is Article V, Section M.2 of the Pulaski County Handbook for Student Conduct and Discipline, which states: [“]Students have the right to distribute or post-printed [sic] material (pamphlets, posters, leaflets, newspapers, brochures, circulars and petitions) subject to individual building procedures and accordance [sic] with Board of Education policies….[“]

The second policy in question is Policy KHA/KHB, “Public Solicitation/Advertising in the Schools,” which states in pertinent part: [“]The Board directs schools to avoid exploiting students and employees whether by advertising or otherwise promoting products or services, soliciting funds or information, or securing participation in non-school related activities and functions. At the same time, schools should inform and assist students and employees to learn about programs, activities or information which may be of help or service to them. Therefore, the principal may approve bulletins announcing programs or services by a nonprofit local agency or charitable organizations that are operated on a nation-wide basis.[“]

The third policy at issue is Policy KHC, “Distribution/Posting of Promotional Materials,” which states “[s]pecial interest materials submitted for grade level, school-wide or District-wide circulation are not to be distributed to students, used in classrooms or sent to homes unless authorized by the Superintendent.”

Wright maintains that under [school] policies, Pulaski County has permitted birthday invitations, end of year party invitations, community group flyers, business flyers, and advertisements to be distributed to students. Attached to Wright’s motion are several examples of such materials, including, but not limited to, a 4-H summer camp flyer, a Chick-Fil-A family night flyer, a Scholastic books advertisement, an invitation to the Sherwood Elementary PTA spring luau, a Humane Society newsletter and a Dell computers advertisement….

The motion for preliminary injunction is granted because A.W. and Wright are likely to succeed on the merits of their First Amendment free speech and expression claims….

Wright is likely to succeed on the merits of the First Amendment claims brought on behalf of A.W. because it is very clear that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Moreover, “students are entitled to freedom of expression of their views” absent a “specific showing of constitutionally valid reasons to regulate their speech. ”Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” … Defendants have presented no evidence that disseminating flyers regarding church sponsored activities will substantially interfere with the work of the school. In fact, the record is devoid of anything showing how the work of the school will be affected at all by the dissemination of flyers regarding church-sponsored activities, especially considering the vast array of materials presently circulated….

Wright is also likely to succeed on her own First Amendment claims based on viewpoint discrimination. Regardless of whether Sherwood Elementary School is classified as a nonpublic forum or limited public forum, defendants may not discriminate based on viewpoint….

Defendants maintain that the policies preventing Wright and A.W. from circulating flyers regarding the church-sponsored swimming event are unambiguous and reasonably related to the necessary and appropriate educational function of limiting the number of flyers distributed, and ensuring the distribution of only those flyers that deal with a special or symbiotic relationship to the school or school district. The record, however, does not support defendants’ argument because defendants seem to permit almost any organization, with the exception of churches, to circulate material. Indeed, the record clearly shows that defendants’ regulations, as presently enforced, merely stamp out certain viewpoint-based speech….