What if a black student group distributed flyers to other black students, inviting
them to join the group, inviting them to join some off-campus group, inviting them to
some rally or discussion of issues related to blacks, and so on? Or what if a Jewish
student group distributed leaflets to students whom they knew to be Jewish to Yom
Kippur services? (1) Would the school be able to ban such targeted distribution,
too? (2) If the school didn't punish such distribution, but in practice only
punished the distribution of Christian-themed leaflets to Jewish students, would that
be constitutional?
As to the Civil Rights Act analogy, I wonder how far antidiscrimination law can indeed
go in selection of recipients for speech (or for that matter subjects of speech).
Lower court cases are split on whether groups have a constitutional rights to admit
only people of certain races or genders to their speeches; but I would think that the
better view is that a group is indeed entitled to discriminate in its choice of
audience. Likewise, one lower court case upheld the right of a group to choose
speakers based on race, there in a KKK parade that excluded blacks (and, I think, Jews
as well). And of course Boy Scouts v. Dale suggests the same.
Shifting a bit from choice of audience to choice of subjects, NAACP v. Claiborne
Hardware involved the NAACP's attempt to target blacks who refused to abide by a
boycott; I suspect it may have involved targeted audience communication as well, for
instance if NAACP members approached noncomplying blacks to remonstrate with them but
not noncomplying whites. Or is Marty's claim simply that antidiscrimination rules are
categorically permissible in government-run schools, even if there must be some First
Amendment exemptions from such rules outside government-run schools?
Incidentally, I don't think this is an open-and-shut issue in either direction -- I
sympathize, for instance, with arguments that teachers (even teachers at private
schools) may be barred by law from singling out students based on race, religion, sex,
etc. for ridicule in class, even though they have a right to express racist,
anti-religious, or sexist views to the class as a whole. But I don't think it's quite
as easy as "antidiscrimination rule, therefore end of story."
Eugene
-----Original Message-----
From: [EMAIL PROTECTED] on behalf of Marty Lederman
Sent: Fri 11/5/2004 11:51 AM
To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics
Cc:
Subject: Re: Pamphlets at School
Marc's question was not whether the school could prohibit distribution of
religious literature; as I understand it, it was whether the school could prohibit
literature distributors from targeting Jewish students as the audience for the
literature, regardless of its content. I think the answer to that question is
probably "yes" -- a simple prohibition on religious discrimination against students
would do the trick, and it would be no more unconstitutional than are the bans on
religious discrimination in, e.g., the Civil Rights Act.
----- Original Message -----
From: "Gene Summerlin" <[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> >
To: "'Law & Religion issues for Law Academics'" <[EMAIL PROTECTED]
<mailto:[EMAIL PROTECTED]> >
Sent: Friday, November 05, 2004 11:43 AM
Subject: Pamphlets at School
> While the school could potentially eliminate the distribution of all flyers
> or pamphlets as a time, place or manner restriction, I seriously doubt that
> a content based prohibition on just religious speech would be upheld.
>
> The right to free speech includes the right to distribute literature. Martin
> v. City of Struthers, 319 U.S. 141 (1943). The Supreme Court considers the
> distribution of printed material as pure speech. Texas v. Johnson, 491 U.S.
> 397, 406 (1989). The peaceful distribution of literature is a protected form
> of free speech just like verbal speech. United States v. Grace, 461 U.S.
> 171, 176 (1983) ("leafletting is protected speech."); Lovell v. City of
> Griffin, 303 U.S. 444, 451-52 (1938) ("liberty of circulating is as
> essential to [freedom of speech] as liberty of publishing; indeed without
> circulation, the publication would be of little value.")
> The Supreme Court has recognized "that the right to distribute flyers and
> literature lies at the heart of the liberties guaranteed by the speech and
> press clauses of the First Amendment." ISKCON v. Lee, 112 S. Ct. 2711, 2720
> (1992).
>
> Of course, in a school setting the school has the right to prohibited speech
> activities if those activities "substantially interfere with the work of the
> school, or impinge upon the rights of other students." Tinker v. Des Moines
> Indep. Sch. Dist., 393 U.S. 503, 509 (1969). However, the Tinker Court made
> it clear that impinging upon the rights of other students is something
> substantially more than communicating a message that others disagree with or
> find offensive. "Any departure from absolute regimentation may cause
> trouble. Any variation from the majority's opinion may inspire fear. Any
> word spoken, in class, in the lunchroom, or on the campus, that deviates
> from the views of another person may start an argument or cause a
> disturbance. But our Constitution says we must take this risk and our
> history says that it is this risk of hazardous freedom -- this kind of
> openness -- that is the basis of our national strength and of the
> independence of vigor of Americans who grew up and live in this relatively
> permissive, often disputatious, society." Tinker, 393 U.S. at 508-09
> (citations omitted).
>
> Nor can school officials require "preapproval" of distributed material. See
> Fujishima v. Board of Educ., 460 F.2d 1355, 1358 (7th Cir. 1972). See e.g.,
> Nitzderg v. Parks, 525 F.2d 378, 383-85 (4th Cir. 1975); Baughman v. Board
> of Educ., 478 F.2d 1345 (4th Cir. 1973); Quarterman v. Byrd, 453 F.2d 54
> (4th Cir. 1971); Eisner v. Stamford Board of Educ., 440 F.2d 803 (2d Cir.
> 1971); Riseman v. School Committee, 439 F.2d 148 (1st Cir. 1971);
> Johnston-Loehner v. O'Brien, 859 F.Supp. 575 (M.D. Fla. 1994); Slotterback
> v. Interboro Sch. Dist., 766 F.Supp. 280 (E.D. Penn. 1991); Riveria v. Board
> of Regents, 721 F.Supp. 1189, 1197 (D. Col. 1989); Sullivan v. Houston
> Indep. Sch. Dist., 333 F.Supp. 1149 (S.D. Tex. 1971); Zucker v. Panitz, 299
> F.Supp. 102 (S.D. N.Y. 1969). See also Muller v. Jefferson Lighthouse Sch.,
> 98 F.3d 1530 (7th Cir. 1996); Hedges v. Wauconda Community Unit Sch. Dist.
> No. 118, 9 F.3d 1295 (7th Cir. 1993); Bystrom v. Friedley High Sch., 822
> F.2d 747 (8th Cir. 1987); Shanley v. Northeast Indep. Sch. Dist., 462 F.2d
> 960 (5th Cir. 1972).
>
>>From a practical perspective, if I were asked to advise the school I would
> be sure to inform them that if they decide to enact such a ban, they better
> start a litigation fund because it is sure to start a lawsuit.
>
> Good luck, Marc.
>
> Gene Summerlin
> Ogborn Summerlin & Ogborn P.C.
> 210 Windsor Place
> 330 So. 10th St.
> Lincoln, NE 68508
> (402) 434-8040
> (402) 434-8044 (FAX)
> (402) 730-5344 (Mobile)
> www.osolaw.com <http://www.osolaw.com>
> [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]>
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]>
> [mailto:[EMAIL PROTECTED] Behalf Of marc stern
> Sent: Friday, November 05, 2004 9:58 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: (no subject)
>
>
> Anonymous students left pamphlets calling on students to accept Jesus on the
> desks of Jewish public high school students and no other students. I have
> been asked whether a school could ban religiously targeted distribution of
> any pamphlet. Any responses?
> Marc Stern
>
>
>
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