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 permits art camps and
behavioral seminars and the Red Cross and the Shakespeare Theatre, etc., to
place flyers in backpacks for uncontroversial cultural or recreational
programs related to the schools' educational program? If so, then I
suppose we simply have a principled disagreement about Free 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 that flyers for ideological, advocacy, and generally
controversial activities can 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
> 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.
>
>
> >_______________________________________________
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>
>
>
> 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]
>
> _______________________________________________
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>
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