Discrimination Against Wiccans; Simpson v. Chesterfield County

[Kim Colby]

As the Court of Appeals found in Montgomery County Public Schools, the
school district was distributing fliers for hundreds of community
groups, including numerous religious groups.  The fact that they were
distributing <religious> groups' fliers was not critical to the
Court's holding; the reasoning of the Court would not have allowed the
exclusion of CEF simply because it was religious even if all the other
groups were secular.  That result is required by Supreme Court
precedent which requires inclusion of a single religious group on the
same terms as "secular" groups.  See e.g., Widmar, Mergens, Lamb's
Chapel, Pinette, Rosenberger, Milford.  The fact that MCPS was
distributing for other religious groups that it deemed not to be
"evangelical" or "proselytizing" simply made the case that much easier
for the Fourth Circuit (and MCPS's position that much less
defensible).  

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty
Lederman
Sent: Friday, April 15, 2005 10:14 AM
To: Law & Religion issues for Law Academics
Subject: Discrimination Against Wiccans; Simpson v. Chesterfield
County


My positions in the two cases are not in the slightest bit
inconsistent.  But don't take my word for it:  My principal posts on
the Child Evangelism case are set out below (truncated so as to come
within the space limits), and they continue to reflect my views on the
Free Speech Clause question presented there.  Suffice it to say that
if my school district permitted virtually all religious flyers to be
included in childrens' backpacks other than those of the Wiccans, I
would think that the Wiccans would have a fairly airtight
constitutional claim, notwithstanding that I might think the
underlying policy (allowing religious flyers at all) was
constitutionally dubious (just as I think Marsh is fairly
indefensible).   

 

My posts on the Child Evangelism case:

 

I agree with Eugene that there’s not much of a “compelled speech”
problem here, for reasons the Court explained in Southworth. . . .
.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.

 

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 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 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]nnoucements 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 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
District’s enforcement of the “directly related” criterion is a bit
counterintutive.  . . . 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 Al Qaeda, or the Klan.  Flyers
inviting students to an alchemy club, or to meetings of an
organization sponsoring legalization of marijuana.  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.  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 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. . . . 

 

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?

 

* * * * 

I agree with Doug [Laycock] 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: Kim Colby <mailto:kcolby at clsnet.org>  
To: 'Law  <mailto:religionlaw at lists.ucla.edu> & Religion issues for
Law Academics' 
Sent: Friday, April 15, 2005 9:34 AM
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield
County

I am not quite sure why Marty thinks this Fourth Circuit decision
(Chesterfield) is "indefensible in a fairly fundamental respect" after
his attack (last summer on this list serve) on a Fourth Circuit
decision requiring a school district to distribute fliers regarding
meetings of Child Evangelism Fellowship on the same basis that it
distributed fliers for over 200 other community organizations. I don't
understand how Marty reconciles his criticism of the Chesterfield
decision (for not requiring equal treatment among community speakers)
with his criticism of the Montgomery County Public Schools decision
(for requiring equal treatment among community speakers).
 
Indeed, it seems to me that it is arguably more defensible for the
government to pick and choose among religions when the government is
providing a forum for only one speaker at a time in a context in which
many observers could reasonably view the speech as having government
approval (which Marsh seems to allow whether or not it makes sense in
the overall Establishment Clause context).  It seems to me completely
indefensible for the government to distribute fliers for hundreds of
community groups, including many different religious groups, and then
refuse to distribute the fliers of a group whose views it deems
"evangelical" or "proselytizing" (even though the fliers were purely
informational about where and when the meetings were held).
 
Disclaimer:  I am co-counsel for Child Evangelism Fellowship in the
Montgomery County Public Schools case.
 
Kim Colby

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