Child Evangelism Fellowship v. Montgomery County -- the
View from Montgomery County
aebrownstein at ucdavis.edu
Thu Jul 1 10:36:41 PDT 2004
I agree with a great deal of what Marty says in his very thoughtful post.
But I disagree on two points.
First, Marty argues:
"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.)"
I think that is what the rule should be -- but I'm not at all sure that
this rule reflects current doctrine. The fact that the flyers must be
approved for distribution by either the director
for School Administration or the deputy superintendent of schools means
that if this a some kind of public forum (and it may not be any kind of
forum), then it is a non public forum. The Court has been clear that when
the state exercises selectivity in determining what speech falling within
the general parameters of a forum is actually granted access to the forum,
it creates a non public forum.
In a non public forum, content discriminatory rules will be upheld as long
as they are reasonable. Viewpoint discrimination receives strict scrutiny.
The Court has created a powerful presumption that discrimination against
religious speech constitutes viewpoint discrimination. I think that
against partisan political speech constitutes content discrimination. Thus,
a court might uphold the ban on partisan political speech under the fairly
reasonableness standard of review, while striking down the discrimination
against religious speech under strict scrutiny.
In Rosenberger, the University of Virginia refused to subsidize not only
religious speech but also partisan political speech. If that was a non
public forum (the Court never reached the question of the nature of the
forum), I don't see why the holding in Rosenberger would necessarily have
precluded the University from continuing to refuse to subsidize partisan
Second, I think the compelled affirmation argument is stronger than Marty
suggests -- particularly since Dale, Abood, and United Foods are still good
But even without these precedents, I think there is a real problem in
conscripting citizens into acting as conduits for the communication of
There is a difference between 1. the state providing a site for diverse
private expression to occur, 2. the state involving itself more
affirmatively in the distribution of that expression, and 3.the state
parties to facilitate and assist in the communication of that expression.
I don't think schools have any business moving beyond 1. 3 seems entirely
out of bounds.
So when Marty says the result of court decisions like this will be that the
school district ends its involvement in the flyer distribution policy
and "won't that be a victory for Freedom of Speech?
My response is "Yes" it will be.
At 09:56 AM 7/1/2004 -0400, you wrote:
>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
>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 --
>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.
> > -----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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