Via National School Boards Association Legal Clips (free subscription)
A U.S. district court in New York has ruled that a school district violated an elementary school student's right to free speech when it rejected her request to distribute a "personal statement" concerning the impact Jesus has had on her life to classmates during non-instructional time. The court found that both the district's formal materials distribution policy and the reasons district officials cited in prohibiting the distribution amounted to impermissible viewpoint discrimination. However, the court rejected the student's equal protection and Establishment Clause claims. M.B., a student at Nate Perry Elementary School (NPES), had previously passed out religious materials to classmates during non-instructional time. However, Liverpool Central School District (LCSD) officials informed M.B.'s mother that any request to distribute literature would have to comply with the district's materials distribution policy. LCSD denied M.B.'s request on two grounds: (1) the request was not consistent with the policy because it did not designate the entire class as recipients; and (2) the proposed manner of distribution, the proselytizing nature of the flyer, and the elementary aged audience created a danger of an Establishment Clause violation. M.B.'s mother sued, arguing that LCSD had engaged in impermissible viewpoint discrimination based on religious content, in violation of the Free Speech, Equal Protection, and Establishment Clauses.
Addressing the free speech claim, the court noted that the parties agreed that LCSD had created a limited public forum, in which the district could "make reasonable, viewpoint neutral rules governing content and enforce reasonable time, place, and manner restrictions." The court determined it must apply the test for school-sponsored speech to the district's official policy, while applying the test for private speech to the officials' actions taken independent of the policy. Regarding the former, the court determined that the policy was constitutional under the test for school-sponsored speech set forth in Hazelwood School District v. Kuhlmeier, 484 U.S. 261 (1971), because it was reasonably related to the legitimate pedagogical concern of maintaining order in an elementary school setting and was viewpoint neutral. Regarding the latter, however, the court determined that the rejection of the flyer would not meet the standard for restricting private speech enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), because the district had failed to adduce any "evidence showing that M.B.'s flyers would disrupt the elementary classroom, cause substantial disorder, or invade the rights of others." The court rejected LCSD's argument that its actions were necessary to avoid offending the Establishment Clause, finding that allowing M.B.'s distribution would be acceptable under the purpose, effect, and entanglement prongs of Lemon v. Kurtzman, 403 U.S. 602 (1971).
Turning to the time, place and manner restrictions, the court stated that they must: (1) be content neutral, targeting some quality other than substantive expression; (2) be narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression. Applying this test, the court concluded the restrictions were unconstitutional, even if they were content neutral, because "they restrict considerably more than is necessary to serve [LCSD's] interests in ensuring 'consistent, orderly, and non-disruptive distribution of documents,' avoiding unnecessary controversy among students, and preventing a 'littering problem.'"
The court rejected M.B.'s contention that the policy imposed impermissible prior restraint on her speech by requiring approval of materials, finding instead that the "unique requirements of the educational process" meant the policy did not create the presumption of unconstitutional prior restraint. However, the court agreed with M.B. that the policy lacked objective criteria by which LCSD officials must approve or deny literature, as well as a definite time period during which they must do so. The court disposed of M.B.'s equal protection claim on the ground that she failed to show that any similarly situated students were treated differently. Nor was there anything to suggest LCSD acted with the purpose of inhibiting religion in violation of the Establishment Clause. Testimony from LCSD officials showed that there was neither an attempt nor a policy to prohibit M.B. from speaking with other students during non-instructional time about her religious beliefs.
Full Text: M.B. v. Liverpool Cent. Sch. Dist., No. 04-1255 (N.D. N.Y. Mar. 29, 2007)
[Editor's Note: A more detailed summary of the decision is posted below, followed by summaries of two other recent decisions in cases involving student distribution of materials in school are summarized below. The third link is to an NSBA chart reviewing court decisions over distribution of religious materials.]