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?