Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County

Marty Lederman marty.lederman at comcast.net
Thu Jul 1 06:56:52 PDT 2004


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 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 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 School 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 counterintuitive.
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 School 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, 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 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?



----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Wednesday, June 30, 2004 8:41 PM
Subject: 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: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] 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
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