8/27/2003

Teaching Public Schools the ABCs of the Constitution — Part IV

Non-Student Expression on School Property

(Read Part I: The Rights of Religious Student Groups in Public Schools)

(Read Part II: Students' Free Speech Rights in Public Schools)

(Read Part III: Religious Expression at Graduation Ceremonies and Assemblies)

(Read Part V: Teachers’ Rights in Public Education)

(Read Part VI: "Zero Tolerance" Policies and School Searches)

(Read The Rutherford Institute's legal memorandum to public school superintendents) (PDF)



The Supreme Court, and now the United States Department of Education, have provided fairly clear guidance as to the First Amendment’s protection of students’ expressive activity in the public school context. But what about non-student community groups? Some direction can be gleaned from a collection of principles that the Supreme Court has applied in its general First Amendment jurisprudence as well as those cases that involve public schools, specifically.

Forum Analysis

Whenever an individual or group seeks to engage in expressive activity on government-owned property, it is important to determine whether the property in question can be characterized as a forum for expression, and if so, which type of forum it constitutes. This depends upon both the nature of the property and the extent to which the government official or entity charged with managing the property has opened it to expressive activity by policy or practice.

Because schools are government property, courts apply this forum doctrine in considering cases where community groups have been denied access to the school for expressive purposes. In other words, in deciding whether a school must grant an outside person or group access to the school to engage in expressive activities, a court will look to whether or not the school has, by policy or practice, granted such access to other people or groups to engage in similar types of activities.

Some types of public property, such as public parks, streets, and sidewalks, are considered "traditional public fora." These venues have traditionally been used for expressive purposes, and therefore the authority of public officials to restrict expressive activity in them is at its lowest point. The second type of forum is a "designated public forum," or a place that the government has opened to the general public for expressive activity. As with traditional public fora, public officials are quite limited in their ability to restrict expression in designated public fora.

While the sidewalks surrounding school buildings may be considered traditional public fora, school buildings are not normally considered to be traditional or designated public fora. Rather, courts usually classify schools as "limited public fora." A limited public forum is created when government officials open public property to particular types of expression, usually limited to particular topics or types of speakers. Officials can restrict access to preserve the purpose of a limited public forum and can prescribe reasonable time, place and manner restrictions on expressive activity, but cannot restrict access to the forum based on the speaker’s viewpoint.

In fact, in any forum—even a non-public forum—government officials may not discriminate against a speaker based on the viewpoint of his or her message. In one case, for instance, a federal court held that a school board violated the First and Fourteenth Amendments by banning all "political speakers" from addressing students at the school because the ban had been implemented to prevent a communist speaker from addressing a class. The court stated, "neither fear of voter reaction nor personal disagreement with views to be expressed justifies a suppression of free expression, at least in the absence of any reasonable fear of material and substantial interference with the educational process." Wilson v. Chancellor, 418 F.Supp. 1358 (D. Or. 1976).

Use of School Facilities Before or After School Hours

One point on which the Supreme Court has been crystal clear is that, where community groups are granted access to school facilities before or after school hours, public school officials may not deny a religious community group such access solely because the group espouses a religious viewpoint. This was the specific holding of two fairly recent Supreme Court cases, Good News Club v. Milford Central School, 533 U.S. 98 (2001) and Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).

Distribution of Literature to Students

School officials can create limited public fora for the distribution of literature by, for instance, allowing non-profit community groups to bring literature to the school for distribution to students. In such instances, the Supreme Court’s First Amendment jurisprudence dictates that school officials may not discriminate against any particular non-profit community group based on the viewpoint of its message. However, some courts have chosen to apply the First Amendment differently with respect to distribution of religious materials in the elementary school context. These courts are concerned that children will misperceive that the school is endorsing religion by allowing members of outside groups to distribute religious literature.

At least one court has held that an elementary school’s practice of distributing religious materials to students amounted to an unconstitutional endorsement of religion, even though the school also distributed literature from other community organizations. Rusk v. Crestview Local Sch., 220 F.Supp.2d 854 (N.D. Ohio 2002). The Fourth Circuit has upheld the Gideons’ right to distribute Bibles to high school students by leaving them on a table inside the school building, but has refused to allow this practice at the elementary school level. Peck v. Upshur Cty Bd. of Educ., 155 F.3d 274 (4th Cir. 1998). Another court has held that a school could not deny a religious community group access to its forum for literature distribution, but that this access should not extend to requiring teachers to distribute permission slips for children to attend religious activities. Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061 (9th Cir. 2001).

However, the view of an apparent majority of the courts that have considered the question is that schools do not risk offending the Establishment Clause where their policies treat literature distributed by religious groups the same as they treat literature distributed by secular groups. The Supreme Court has reiterated time and again that the Establishment Clause demands neutrality, rather than hostility toward religion. A number of lower federal courts have relied upon this principal, upholding the rights of religious community groups to distribute various types of literature, including Bibles, on public school property or through the public school system. See, e.g., Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044 (9th Cir. 2003); Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Township Sch. Dist., 233 F.Supp.2d 647 (D.N.J. 2002); Sherman v. Community Consolidated Sch. Dist. 21 of Wheeling Township, 8 F.3d 1160 (7th Cir. 1993); Daugherty v. Vanguard Charter Sch. Academy, 116 F.Supp.2d 897 (W.D. Mich. 2000); Bacon v. Bradley-Borbonnais High School Dist., 707 F.Supp. 1005 (C.D. Il. 1985).

Where school officials are concerned that students who receive religious literature at school might perceive that the school is endorsing religion, the best solution is for the school to issue a disclaimer, clearly attributing the material to its proper source. As the Seventh Circuit has stated,

[It is] [f]ar better to teach [students] about the first amendment, about the difference between private and public action, about why we tolerate divergent views . . . . The school's proper response is to educate the audience rather than squelch the speaker. Schools may explain that they do not endorse speech by permitting it. If pupils do not comprehend so simple a lesson, then one wonders whether the [ ] schools can teach anything at all. Free speech, free exercise, and the ban on establishment are quite compatible when the government remains neutral and educates the public about the reasons.

Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299-1300 (7th Cir. 1993).

If your group has been denied access to a school facility based on your group’s viewpoint while other groups have been granted access, please contact The Rutherford Institute at 434-978-3888 or fill out our online form.