Re: Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County
I agree with Doug that unconstrained discretion to discriminate on the basis of viewpoint would be problematic. And Doug, who filed an amicus brief in the case, presumably knows more than I about the way in which the SchoolDistrict's policy was implemented "on the ground." Perhaps the exclusion of the religious club was indefensible in light of the other flyers the District has approved. But I doubt it. I'm a parent in the school district and I receive slews of these flyers every Wednesday. I can assure you that the vast majority of them would occasion no controversy whatsoever and are entirely consistent with the curricular objectives of the schools. That explains the "389 out of 402" ratio. More importantly, I cannot recall a single instance in which we received a flyer that raised our eyebrows or that prompted community controversy and/or parental outrage. That is to say, I cannot recall a single time when we have received a flyer urging students to attend meetings or seminars of an advocacy group, a political party or candidate, a church or religious club, or any other hot-button group. No doubt this is because such groups very rarely even ask for access to the backpacks, because they presume (correctly, until now) that the School District would reject the request out of hand, and because in the handful of cases in which controversial groups have asked for access (perhaps as many as 13 times in an 18-month span), the District has rejected such requests Of course, if groups such as these knew that they had a constitutional right of access to advertise in students' backpacks -- which apparently they now do under the Fourth Circuit's ruling --they would be a lot more assertive about exercising that right and seeking such access. But I think the Fourth Circuit is simply wrong in concluding that exclusion of political, advocacy and other controversial groups is a Free Speech violation. The closest SCOTUS precedent is probably Cornelius, in which the Court held that such "avoidance of controversy" criteria would be permissible if they are not a pretext for exclusion based on hostility toward certain viewpoints. 473 U.S. at 809-12. Similarly, in Planned Parenthood v. Clark, 941 F.2d 817 (9th Cir. 1991), the en banc Ninth Circuit, relying upon Cornelius,upheld a school's exclusion of Planned Parenthood ads from a high-school yearbook pursuant to a policy excluding ads involving sensitive and controversial issues, ads that cause tension and anxiety in the community, and ads that were inconsistent with what the school itself could convey to its students. Id. at 829-30. Montgomery County's policy here is much more defensible than that at issue in Planned Parenthood, both because of the audience (elementary school students and their parents as opposed to graduating high-schoolers) and because the school districtin Planned Parenthooddid not abide by its policy in practice -- it permitted ads run by political candidates, churches, tanning salons and casinos --thus raising a much greater spectre of pretext and of invidious viewpoint discrimination than we have here. Doug, do you think that the Kerry Campaign, and Planned Parenthood, and the NRA, and the Young Socialist Workers, and NORML, etc., etc., ought to have a constitutional right to place flyers in our students' backpacks merely because the school district permits art camps and behavioral seminars and the Red Cross and the Shakespeare Theatre, etc., to place flyers in backpacks for uncontroversialcultural or recreational programs related to the schools' educational program? If so, then I suppose we simply have a principled disagreementaboutFree Speech Clause doctrine -- although I think we'd agree that the upshot of such a reading of the Free Speech Clause will be the cessation of the flyer practice altogether, in Montgomery County and in many others. If, on the other hand,you agree thatflyers for ideological, advocacy, and generally controversial activitiescan be excluded from the backpacks generally, then is there any justification -- policy or constitutional -- for treating any differently Good News Club notices urging parents to send their children to meetings in which they will pray and learn to embrace the Gospel of the Lord Jesus Christ? - Original Message - From: "Douglas Laycock" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Thursday, July 01, 2004 12:24 PM Subject: RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County Marty says they allowed 389 out of 402 requests. That is consistent with applying a child-adjusted compelling interest test, rejecting only those that violate Tinker or Bethel, and probably a few more that the school finds objectionable on some ground that it might or might not be able to defend. Approving that many is not consistent with approving only those that the
Re: Re: Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County
I'm on the road and will not address this in much detail. On the scope of the forum, I think that the forum could be confined to groups offering programs for kids, or about kids, which would cut out the political stuff. If it's not so limited, including the political stuff doesn't trouble me much. I think confining the flyer to a description of the program, and saving the evangelizing material for those who show up, is a sensible compromise. It is a little hard to justify in purely formalist terms, but it is easy to justify in functional First Amendment terms. If the religious groups, or other controversial groups, have no way to communicate the fact that they exist and are offering a meeting, they are at a huge disadvantage. A flyer to the parents overcomes that disadvantage, without giving kids the substance of the message that their parents may object to. It maximizes the right of access and the protection for those who want to minimize their exposure to the message. I have never liked Corneilus. The notion that excluding all controversal viewpoints is somehow neutral seems to cut the core out of the Free Speech Clause, leaving it in effect only where it is not needed. I think it should take a very strong governmental interest to justify that.l -Original Message- From: Marty Lederman [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Mon, 5 Jul 2004 13:24:37 -0400 Subject: Re: Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County I agree with Doug that unconstrained discretion to discriminate on the basis of viewpoint would be problematic. And Doug, who filed an amicus brief in the case, presumably knows more than I about the way in which the School District's policy was implemented on the ground. Perhaps the exclusion of the religious club was indefensible in light of the other flyers the District has approved. But I doubt it. I'm a parent in the school district and I receive slews of these flyers every Wednesday. I can assure you that the vast majority of them would occasion no controversy whatsoever and are entirely consistent with the curricular objectives of the schools. That explains the 389 out of 402 ratio. More importantly, I cannot recall a single instance in which we received a flyer that raised our eyebrows or that prompted community controversy and/or parental outrage. That is to say, I cannot recall a single time when we have received a flyer urging students to attend meetings or seminars of an advocacy group, a political party or candidate, a church or religious club, or any other hot-button group. No doubt this is because such groups very rarely even ask for access to the backpacks, because they presume (correctly, until now) that the School District would reject the request out of hand, and because in the handful of cases in which controversial groups have asked for access (perhaps as many as 13 times in an 18-month span), the District has rejected such requests Of course, if groups such as these knew that they had a constitutional right of access to advertise in students' backpacks -- which apparently they now do under the Fourth Circuit's ruling -- they would be a lot more assertive about exercising that right and seeking such access. But I think the Fourth Circuit is simply wrong in concluding that exclusion of political, advocacy and other controversial groups is a Free Speech violation. The closest SCOTUS precedent is probably Cornelius, in which the Court held that such avoidance of controversy criteria would be permissible if they are not a pretext for exclusion based on hostility toward certain viewpoints. 473 U.S. at 809-12. Similarly, in Planned Parenthood v. Clark, 941 F.2d 817 (9th Cir. 1991), the en banc Ninth Circuit, relying upon Cornelius, upheld a school's exclusion of Planned Parenthood ads from a high-school yearbook pursuant to a policy excluding ads involving sensitive and controversial issues, ads that cause tension and anxiety in the community, and ads that were inconsistent with what the school itself could convey to its students. Id. at 829-30. Montgomery County's policy here is much more defensible than that at issue in Planned Parenthood, both because of the audience (elementary school students and their parents as opposed to graduating high-schoolers) and because the school district in Planned Parenthood did not abide by its policy in practice -- it permitted ads run by political candidates, churches, tanning salons and casinos -- thus raising a much greater spectre of pretext and of invidious viewpoint discrimination than we have here. Doug, do you think that the Kerry Campaign, and Planned Parenthood, and the NRA, and the Young Socialist Workers, and NORML, etc., etc., ought to have a constitutional right to place flyers in our students' backpacks merely because the school district
Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County
Sorry: The font on that post came through garbled for some reason. Here it is again. I agree with Eugene that theres not much of a compelled speech problem here, for reasons the Court explained in Southworth. (Of course, its not quite as easy as that, because of cases such as Dale, Abood and United Foods, which find compelled-speech problems in the unlikeliest of places. But those cases are in my view wrongly decided.) To be sure, carrying a message presents more significant compelled-speech problems than does paying for it, see Wooley. But in this case, the flyer would be contained in a sealed envelope, which is a far cry from a license plate, whatever one thinks of Wooley. For similar reasons, Im not terribly persuaded by Judge Michaels dissenting view that permitting insertion of Good News Club flyers would coerce students to engage in religious activity, as in Lee v. Weisman. Nevertheless, I think the case is not as clear-cut as it appears at first; but the reasons why that is so are obscured by the (questionable) way in which the case was litigated. (Disclosure: I live in Montgomery County and my children are students in the School District; but until reading the decision today I had very little inkling of the facts of the case or how it was being litigated.) The court finds without much effort that the School Districts exclusion of the Good News Club flyers would be a Free Speech Clause violation if there were no Establishment Clause bar to distributing the flyers. This conclusion is not surprising, because the School District conceded that its exclusion of the flyers which would announce Good News Club meetings -- was unconstitutional viewpoint discrimination under controlling precedent. Slip op. at 7. That concession was probably ill-advised. I think the Free Speech Clause question is much more complicated than the District and the court assumed it to be, wholly apart from Wooley and any issue of compelled speech. Just as did the Supreme Court in Rosenberger, the court in this case incorrectly assumed that the school permits virtually all types of nonprofit speech (except religious speech), including most any controversial _expression_, to be conveyed to students and parents in the relevant program. That assumption is mistaken. The School District policy in question does not permit all nonprofit groups to distribute whatever literature they choose. That is to say, it is not a public forum, nor analogous to one. The policy states that [a]nnouncements of educational services or cultural or recreational programs directly related to the educational program may be made available to students provided that the organization sponsoring the announcement is not-for-profit and the announcement is approved for distribution by either the director for School Administration or the deputy superintendent of schools. Thus, groups may distribute literature only if (i) it is directly related to the educational program, and (ii) it is approved for distribution by a school official, who is presumably entrusted with some discretion in the matter. Under any reasonable understanding, announcements of religious meetings are not directly related to the educational program, because, whatever else that criterion means, it must not encompass invitation to participation in religious activities _expression_ that the School District itself is constitutionally forbidden from conveying as part of its educational program. That, frankly, should be end of the Free Speech claim, and thus the end of the case, except that it appears that in practice, the School Districts enforcement of the directly related criterion is a bit counterintutive. According to the DOJ Brief (which is the only brief I could find online -- http://www.usdoj.gov/crt/briefs/cef_montgomery.pdf), [m]aterials distributed under this policy (or under any of the other written or unwritten policies followed by the Board) have included advertisements for a variety of activities, including adult education classes, cultural events such as plays and Earth Day celebrations, athletic league try-outs, and charitable activities such as clothing and food drives. I suppose that perhaps those advertisements are in some attenuated sense directly related to our schools educational program -- although frankly, they seem to me indirectly related, at best. Nevertheless, 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. See Mergens, 496 U.S. at 265-66 (Marshall, J., concurring in the judgment) (although a school may permissibly encourage its students to become well rounded
