The Finch Formerly Known As Gold

2 October 2005

Further Family Fun Fellowship foofaraw

When last we left this story, I had suggested that there were Constitutional issues involved.

Sean Gleeson reports on what those issues are:

[A]s the law stands now, it would have been illegal and unconstitutional for the school to refuse to distribute the Pumpkin Festival flier!

In 1993, the Supreme Court decided Lamb's Chapel v. Center Moriches Union Free School District, holding that it is a violation of the First Amendment for a public school to "discriminate on the basis of viewpoint." In other words, the school must treat religious persons and organizations no differently than non-religious ones. This legal doctrine was strengthened and reaffirmed with Good News Club v. Milford Central School in 2001. In both cases, the court forced the schools to allow religious groups to use their facilities.

These cases were not specifically about distributing fliers, but in 2003 the U.S. District Court in San Diego ruled against the San Diego Unified School District in a case involving fliers advertising free lectures at a Lutheran church. The school district was ordered to post and distribute the church's fliers. The school district was ordered in a summary judgment to post the church's fliers. A summary judgment is one in which one party's case is so weak that the court can rule without hearing any testimony. After this, the school district settled out of court and agreed to distribute the church's fliers to students as well.

Which would indicate that if the school is handing out promotional material for non-religious organizations — been a while since I've had any dealings with grade schools, but I rather suspect that they might be — they have no basis on which to refuse material from religious organizations.

And that would seem to settle that.

Addendum: The Subjective Scribe says it's okay with him if they send home no materials at all:

[O]utside groups, religious and otherwise, have other avenues for reaching their target market. An involuntary, captive audience should not be subject to outside marketing.

Posted at 8:14 AM to Immaterial Witness


Thanks for the link, Charles. I just want to own up before anyone else catches it, that the last sentence in your blockquote isn't entirely right, and this morning I have corrected it in my own post, to read:

"The school district was ordered in a summary judgment to post the church’s fliers. A summary judgment is one in which one party's case is so weak that the court can rule without hearing any testimony. After this, the school district settled out of court and agreed to distribute the church's fliers to students as well."

Posted by: Sean Gleeson at 9:07 AM on 2 October 2005

I guess it won't be long now then before school kids are bringing home flyers from Jewish and Islamic temples, Scientologists, hedonistic organizations, gay religous groups, ad infinitum.

Posted by: MikeH at 10:54 AM on 2 October 2005

I guess it won't be long now then before school kids are bringing home flyers from Jewish and Islamic temples, Scientologists, hedonistic organizations, gay religous groups, ad infinitum.

Or schools could establish a blanket policy that promotional materials are not to be distributed to students, period.

Oh wait -- that would be too sensible. And nowhere near as much fun to predict if one lives in abject fear of The Imminent Neo-Con Theocracy™.

Posted by: McGehee at 11:27 AM on 2 October 2005

Besides, why would the Scientologists need to advertise? They have Tom "I'm insane, but dammit, I'm a babe magnet" Cruise.

Posted by: CGHill at 12:04 PM on 2 October 2005

By the way, from the site's ostensible contrarian, this all seems to be exactly correct. If a school sends home fliers from "community groups" with students, then churches cannot be excluded. This is the same principle that says if schools allow students to form social clubs, it can't prevent a Gay-Straight Alliance. Or that if a hacky-sack group is allowed to informally gather on one corner of the parking lot, then the school also has to allow informal prayers around the flagpole, etc.

When it comes to allowing third-party groups access to school grounds, everyone gets treated the same. Separation of church and state still means school employees can't advocate for or against any particular religion or belief, but that quite logically means that religious groups are also "groups," with every right of access every group has.

(This, by the way, is why the ACLU has gone to court to defend the rights of the Gideons to distribute Bibles on corners across the street from public schools, while also going to court to keep the Gideons from being invited into classrooms to hand out Bibles to captive students when other groups don't get the same invitations.)

Posted by: Matt at 3:35 PM on 2 October 2005