RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County

[marc stern]

Title: Message

In earlier case, Peck v Upshur County, dealing with distribution of literature to students from tables-a policy far preferable to the one upheld yesterday by the Fourth Circuit—the Fourth Circuit held that a public forum was created by the school when it allowed distribution of community literature even though it reserved the right to exclude material inconsistent with the school’s educational policy. Yesterday’s decision rests on the same idea-one I think at odds with the notion of a public forum. In Peck, the Court held equal access rights did not apply to elementary school students-a holding sub silentio overruled in the Montgomery County case. Marc  Stern   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Thursday, July 01, 2004 10:35 AM To: Law & Religion issues for Law Academics Subject: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County   1.  "For example, it's entirely possible for the school to have content-neutral standards of review for the announcements."   Of course it is.  But no school in the Nation does.  Indeed, no school is even viewpoint-neutral.  It is virtually unthinkable that a school would permit distribution in student backpacks of many, many forms of content/viewpoint -- for instance, all those that are entitled to second-class mailing privileges (Hannegan v. Esquire) or all those that are entitled access to a public forum.   2.  "Instead of concluding there is no viewpoint discrimination, the more logical answer is that both excluded speakers should have a claim under the Free Speech Clause."   My claim was not that there is no viewpoint discrimination:  My argument is that there is tons of viewpoint discrimination in such programs, constantly, and that there's nothing constitutionally problematic about it.  You are correct, however, that the upshot of the CTA4 decision is that "both" -- that is to say, all -- excluded speakers now have a claim under the Free Exercise Clause:  The Bush and Kerry (and Nader, and Young Socialist Workers, and . . . ) campaigns, the NRA, NARAL, the Bad News Club, etc., etc. -- loads of _expression_ that is entirely inappropriate for a public school to be facilitating to their charges.  And thus we see the end of the program.   3.   "Surely if a school had a release time program [teachers in classrooms] could make an annoucement about that."    An "announcement" that the bus is there to drive kids to the religious school -- maybe.  An "announcement" such as that on the flyers in this case, i.e., an advertisement for religious programs?  I think not.  Teachers often -- and quite appropriately -- encourage their students to do this, that and the other thing after school or over the summer.  But they may not advise their students to adopt certain religious precepts, or to "check out" certain religious clubs.   The obvious elephant in the middle of the room in these cases, one that the courts (and litigants) tend for some reason to ignore, is the simple fact that schools do censor the speech with which they are associated -- especially when the association is (or is likely to be perceived as) especially strong, as when schools send information home with students.  The censorship is not in order to disfavor religious (or any other) viewpoints, but instead simply to avoid facilitating messages that are likely to be controversial or to be seen as inappropriate by parents.  So Kerry for President, the Klan, Planned Parenthood's exhortation to use birth control, some other group's exhortation to abstinence -- all will be screened out by virtually every public school system in the country.  Not because the school disapproves -- and no one should assume otherwise -- but because the school does not want to be associated, however loosely, with encouraging its students to adopt or to reject any divisive or controversial viewpoint.    That is the baseline against which an exclusion of the Good News flyer has to be measured -- not some hypothetical baseline under which schools do not, or are not permitted to, do such screening (however much some might wish that that were, in fact, the rule).  And against that baseline, exclusion of the Good News flyer should be unproblematic -- while inclusion gives religious speech a preferred status enjoyed by no (or almost no) other political or controversial speech.  ----- Original Message ----- From: Derek Gaubatz To: Law & Religion issues for Law Academics Sent: Thursday, July 01, 2004 10:47 AM Subject: RE: Child Evangelism Fellowship v. Montgomery County -- the ViewfromMontgomery County   At least 3 assumptions in Marty's post below seem problematic to me:   First, the assumption that one must conclude that the school officially endorses the content of the annoucement because it looked it over first before allowing it to be distributed.  Why is this so?  For example, it's entirely possible for the school to have content-neutral standards of review for the announcements.  If that is the case, why should a reader of any annoucement comes home assume the school is in favor of whatever it is the announcement is pushing.  Should I assume that in an annoucement about an Earth Day celebration that the school is endorsing all of the speakers at that celebration?      Second, the assumption that so long as religious speech is treated as badly as at least one other viewpoint (whether it's political or something else) then there is no viewpoint discrimination.  Instead of concluding there is no viewpoint discrimination, the more logical answer is that both excluded speakers should have a claim under the Free Speech Clause.  It may be that there are compelling interests that justify excluding a political viewpoint that do not justify excluding the religious one, but the government shouldn't be off the hook just because it's discrimination extends to 2 viewpoints instead of just one.    Finally, with regard to the point that "if "directly related" simply means the sort of speech that school teachers themselves would be permitted to make to their students - which is how the criterion appears to have been understood in practice -- then these school-approved advertisements satisfy, at least for the most part, the criterion in a way that invitation to bible study would not"   That doesn't actually seem to be the way the school interpreted its policy.  But even if it were, surely if a school had a release time program it could make an annoucement about that.  It seems to me that allowing a flyer from an outside organization about a Bible study doesn't imply any greater government endorsement of religion than an annoucement of a release time program.    Derek L. Gaubatz Senior Legal Counsel The Becket Fund for Religious Liberty

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