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Sorry: The font on that post came through garbled for some reason. Here it is again.
I agree with Eugene that there’s not much of a “compelled speech” problem here, for reasons the Court explained in Southworth. (Of course, it’s 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, I’m not terribly persuaded by Judge Michael’s 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 District’s 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
District’s 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 as student-athletes, student-musicians, and
student-tutors, the Constitution forbids schools to encourage students to become
well rounded as student-worshippers”). Moreover, there is the additional criterion
that flyers may be distributed only if “approved” by a school official – thus
providing an unambiguous school endorsement to the preferred speakers. In the 18 months in question in the
case, the District did, in fact, reject 19 of 402 nonprofit requests to
participate in the program. (Slip
op. at 6-7.) The decision does not
say why those 19 requests were excluded, but it’s not hard to imagine plenty of
requests that would either clearly not be directly related to the
educational program, or that would be rejected out of hand by school
officials: Flyers for nonprofit
bungee-jumping. Flyers urging
parents to criticize school board policies. Flyers supporting the Klan. Flyers
inviting students to join NARAL, or the NRA. Flyers inviting students to
an alchemy club, or to meetings of an organization sponsoring legalization of
marijuana. Flyers urging parents not to let their children join the Good
News Club (or any other organization, for that matter). The obvious hypotheticals are
endless. To take the most clear-cut
case: Partisan political
flyers. I’m certain our District would not permit
those to be distributed in student backpacks. (Nor should they.) Well, if religious speech is being treated
exactly the same political speech, i.e., if it is not disfavored vis-à-vis
speech at the heart of the Free Speech
Clause, is it really possible that the treatment of religious speech is a
violation of that Clause? I
don’t think so. I’ll go one step
further: If our School District in
practice prefers religious
speech to political speech, it will presumptively violate the Free Speech Clause. (Here's a good rule of thumb for Free
Speech Clause analysis: Except in exceedingly rare and circumscribed cases
not relevant here, schools must treat speech promoting the Good News Club (or
Good News Club religious _expression_ itself) no better and no worse than it
treats "Kerry for President" speech.)Accordingly, I think the court’s decision
(and apparently my School District’s briefing to the court) got off on the wrong
foot at the start by presuming that the Free Speech claim was much stronger than
it was in fact. These characteristics of the School District’s policy and practice also have important ramifications for the Establishment Clause question. If the District chose, of its own accord, to permit the flyers inviting students to evangelical meetings – i.e., if school officials exercised their discretion to “approve” such invitations, and the School District concluded that such meetings were “directly related to the educational program” of our public schools -- that decision would violate the Establishment Clause. The Establishment Clause question is a bit tougher if the District decides to permit the flyers only upon compulsion of federal law, e.g., as a result of a federal “equal access to backpacks” law or in response to the Fourth Circuit’s decree. In that case, I think that Justice Marshall’s concurrence in Mergens provides the most apt instruction. Just as application of the Equal Access Act in the Westside High School required that school “to permit religious speech in a forum explicitly designed to advance the school's interest in shaping the character of its students,” so, too, in Montgomery County, the effect of the Fourth Circuit decision will be to require our schools to permit speech endorsing a particular religion in a “forum explicitly designed” to foster _expression_ that is approved by the school district and that is “directly related to [its] educational program.” As Justice Marshall explained, “[n]eutrality towards religion, as required by the Constitution, is not advanced by requiring a school that endorses the goals of some noncontroversial secular organizations to endorse the goals of religious organizations as well. . . . [I]f the religion club is the sole advocacy-oriented group in the forum, or one of a very limited number, and the school continues to promote its student-club program as instrumental to citizenship [or, as in this case, as “directly related to the educational program” of our public schools, and as school-“approved”], then the school's failure to disassociate itself from the religious activity will reasonably be understood as an endorsement of that activity.” 496 U.S. at 266.
Of course, I doubt that our School District will publicly and prominently disclaim any endorsement of the Good News Club. Nor will the District institute a new policy permitting any and all nonprofit speech to be distributed in students’ backpacks, regardless of viewpoint -- which is what the court’s all-too-simplistic Free Speech Clause holding would appear to require. No school district in the nation would tolerate such a policy once it realized the vast range of controversial private _expression_ that it would be compelled to send home to the parents of first graders. Therefore, what I suspect will happen is that our District, and many others like it in Maryland, Virginia, West Virginia and the Carolinas, will eliminate its flyer policy altogether. And won’t that be a victory for Freedom of Speech? |
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