Child Evangelism Fellowship v. Montgomery County -- the
View from Montgomery County
DLaycock at mail.law.utexas.edu
Mon Jul 5 13:07:43 PDT 2004
I'm on the road and will not address this in much detail.
On the scope of the forum, I think that the forum could be confined to groups offering programs for kids, or about kids, which would cut out the political stuff. If it's not so limited, including the political stuff doesn't trouble me much.
I think confining the flyer to a description of the program, and saving the evangelizing material for those who show up, is a sensible compromise. It is a little hard to justify in purely formalist terms, but it is easy to justify in functional First Amendment terms. If the religious groups, or other controversial groups, have no way to communicate the fact that they exist and are offering a meeting, they are at a huge disadvantage. A flyer to the parents overcomes that disadvantage, without giving kids the substance of the message that their parents may object to. It maximizes the right of access and the protection for those who want to minimize their exposure to the message.
I have never liked Corneilus. The notion that excluding all controversal viewpoints is somehow neutral seems to cut the core out of the Free Speech Clause, leaving it in effect only where it is not needed. I think it should take a very strong governmental interest to justify that.l
From: "Marty Lederman" <marty.lederman at comcast.net>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Date: Mon, 5 Jul 2004 13:24:37 -0400
Subject: Re: Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County
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" <DLaycock at mail.law.utexas.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Thursday, July 01, 2004 12:24 PM
Subject: RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County
> Marty says they allowed 389 out of 402 requests. That is
> 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.
> >To post, send message to Religionlaw at lists.ucla.edu
> >To subscribe, unsubscribe, change options, or get password, see
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341 (voice)
> 512-471-6988 (fax)
> dlaycock at mail.law.utexas.edu
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