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
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
RE: Child Evangelism Fellowship v. Montgomery County
The majority reports that the District properly conceded that the flyers
contained no evangelical or overtly religious language. Why is this
relevant? If the court's theory is an absence of coercion, than should not
even evangelical or overtly religious literature be permitted? {The Ninth
Circuit in the Scottsdale case similarly held that overtly religious flyers
could be excluded form a distribution program.)
Marc Stern
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Wednesday, June 30, 2004 6:29 PM
To: Law Religion issues for Law Academics
Subject: RE: Child Evangelism Fellowship v. Montgomery County
I'm puzzled by Judge Michael's coercion argument: The
Establishment Clause forbids a state from coercing 'anyone to
support or participate in religion or its exercise.' If the Montgomery
County Public Schools (the School System) give Child Evangelism
Fellowship of Maryland, Inc. (CEF) access to the School System's
take-home flyer forum, elementary students will be required to
distribute CEF's religious flyers to their parents. The students, in
other words, will be coerced to participate in a religious activity in
violation of the Establishment Clause.
The students wouldn't be asked to say anything religious, or
endorse religion -- they'd be asked to deliver a piece of paper,
something no different than a postman would do when told to deliver
religious materials. If the postman can be required to deliver
religious materials alongside everyone else without this being
unconstitutional coercion -- presumably because he's being required to
engage in a secular task, the delivery of mail, even though the mail
happens to be religious -- then why would the child be any different?
(See the majority, note 8.)
Nor does it matter, I think, that these are impressionable
elementary school students. Why would even a 9-year-old, when told to
bring a flyer to his parents, wrongly but reasonably feel this to be a
religious exercise?
Eugene
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RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County
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 Circuitthe 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 schools educational policy. Yesterdays 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 entitledaccess 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 argumentis 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 facilitatingto 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, onethat the courts (and litigants) tend for some reason to ignore, is the simple fact that schoolsdo 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 disfavorreligious (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 virtuallyevery public school system in the country. Not because the school disapproves -- andno 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 ofthe Good News flyer has to be measured -- not some hypotheticalbaseline 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 theGood News flyer should be unproblematic -- while inclusiongives 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 least3 assumptions in Marty's postbelow seem problematic to me: First, the assumption that one must conclude that theschool 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
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 school itself endorses or only those that relate directly to the curriculum. To claim that they can allow that many private groups to speak, and still retain unrestrained discretion to pick and choose on the basis of viewpoint, is to create a new category that does not exist in the Supreme Court's public forum jurisprudence. If that category were created, schools could play favorites however they wanted. The flyers are sent home to parents , and parental permission is required for the child to attend the club, as a protection for children and for the authority of parents. If that step were removed, and the flyers just handed to the kids, the compelled speech argument that people have been making would disappear. But from the perspective of those making the argument, that should make the program worse, not better. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Child Evangelism Fellowship v. Montgomery County -- the View from Montgom...
In a message dated 7/1/04 11:36:03 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: 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. I heartily concur although my example is perhaps more content discrimination. My daughter's public school, although it has noncurricular clubs, including religious clubs, refused to allow formation of a Young ___ (fill in political party name of choice) Club at the high school. "No [partisan/party-affiliated] political clubs" was the reason given. Frances R. A. Paterson, J.D., Ed.D. Associate Professor Department of Educational Leadership Valdosta State University Valdosta, GA 31698 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County
There is some merit in Doug's argument. But it seems to me there is a real problem with a school district stating that it only distributes materials directly related to the curriculum that it explicitly approves while at the same time having courts conclude that there is no endorsement of the material distributed. Perhaps we should only look at what the state does and never what at what it says -- but if state disclaimers mean something for constitutional purposes than state affirmations ought to mean something as well. The numbers certainly seem to suggest a forum rather than the exercise of pedagogical discretion -- but I'm not sure numbers like this are totally inconsistent with the school system exercising pedagogical discretion. I can imagine a school library having a rule that it will only accept donations of pedagogically suitable books and accepting 389 of 402 that are donated. Without more, that would not transform the library into a forum. As for the argument that handing out the flyers to students directly would only make things worse. Both of these alternatives may raise different, but valid, constitutional concerns. And it isn't as if there aren't a lot of alternative ways for private groups using school grounds for expressive activities to reach their intended audience -- without using the school administration and teachers or other parents' children to deliver their message for them. Alan Brownstein UC Davis At 11:24 AM 7/1/2004 -0500, you wrote: 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 school itself endorses or only those that relate directly to the curriculum. To claim that they can allow that many private groups to speak, and still retain unrestrained discretion to pick and choose on the basis of viewpoint, is to create a new category that does not exist in the Supreme Court's public forum jurisprudence. If that category were created, schools could play favorites however they wanted. The flyers are sent home to parents , and parental permission is required for the child to attend the club, as a protection for children and for the authority of parents. If that step were removed, and the flyers just handed to the kids, the compelled speech argument that people have been making would disappear. But from the perspective of those making the argument, that should make the program worse, not better. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Child Evangelism Fellowship v. Montgomery County
I haven't read the opinion, so this comment may not really be related to the facts of the case -- but off the top of my head I would have thought that requiring students to participate in the distribution of private religious messages violates both free speech and establishment clause requirements -- and the existence of some kind of alleged forum would not make any difference. Eugene, do you think the University of Virginia under Rosenberger could have required its students to 1. accept copies of all the periodicals produced by student organizations, and 2. bring copies of those periodicals home to their parents -- or deliver them to anyone else for that matter? Why should students be required to facilitate the distribution of any private organization's political or religious message? Could the state condition my use of a public park on my agreement to accept any leaflets handed to my by leaflet distributors and to bring them home to my wife. Alan Brownstein UC Davis At 04:29 PM 6/30/2004 -0700, you wrote: I'm puzzled by Judge Michael's coercion argument: The Establishment Clause forbids a state from coercing 'anyone to support or participate in religion or its exercise.' If the Montgomery County Public Schools (the School System) give Child Evangelism Fellowship of Maryland, Inc. (CEF) access to the School System's take-home flyer forum, elementary students will be required to distribute CEF's religious flyers to their parents. The students, in other words, will be coerced to participate in a religious activity in violation of the Establishment Clause. The students wouldn't be asked to say anything religious, or endorse religion -- they'd be asked to deliver a piece of paper, something no different than a postman would do when told to deliver religious materials. If the postman can be required to deliver religious materials alongside everyone else without this being unconstitutional coercion -- presumably because he's being required to engage in a secular task, the delivery of mail, even though the mail happens to be religious -- then why would the child be any different? (See the majority, note 8.) Nor does it matter, I think, that these are impressionable elementary school students. Why would even a 9-year-old, when told to bring a flyer to his parents, wrongly but reasonably feel this to be a religious exercise? Eugene ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Child Evangelism Fellowship v. Montgomery County
Well, if Alan is right, then the program is unconstitutional even as to secular messages. Perhaps he's correct; I've always a hard time grasping when a Court considers something to be compelled speech (I think Wooley v. Maynard is probably mistaken, for instance), but given the Court's reasoning in those cases, compelling people to deliver printed material might well be unconstitutional. An important question, I take it, is when the government's role as educator allows it to compel K-12 speech that it otherwise couldn't; for instance, calling on students is pretty clearly a permissible speech compulsion. Likewise, I take it that students could be required to bring home some material from school (e.g., notices about required vaccinations, school events, optional field trips, and so on), presumably because those are closely enough linked to the government's educational function. Hard to tell what the boundaries would be, though; in particular, I think the Tinker disruption test for speech restrictions wouldn't be that helpful. So in general I'm not sure what the proper compelled speech analysis would be, though I am sure that it would apply, as Alan suggests, to all ideological messages (e.g., flyers from the school's Environmental Awareness Club or Diversity Club). But I don't see the Establishment Clause issue here, because I don't think that requiring people to deliver religious flyers alongside other flyers is coercing *religious activity*. And if it is, then it would be equally unconstitutional coercion when the mailman is compelled, on pain of losing his job, to deliver religious materials. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein Sent: Wednesday, June 30, 2004 5:36 PM To: Law Religion issues for Law Academics Subject: RE: Child Evangelism Fellowship v. Montgomery County I haven't read the opinion, so this comment may not really be related to the facts of the case -- but off the top of my head I would have thought that requiring students to participate in the distribution of private religious messages violates both free speech and establishment clause requirements -- and the existence of some kind of alleged forum would not make any difference. Eugene, do you think the University of Virginia under Rosenberger could have required its students to 1. accept copies of all the periodicals produced by student organizations, and 2. bring copies of those periodicals home to their parents -- or deliver them to anyone else for that matter? Why should students be required to facilitate the distribution of any private organization's political or religious message? Could the state condition my use of a public park on my agreement to accept any leaflets handed to my by leaflet distributors and to bring them home to my wife. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
