When Alicia Rivera and other students in Colorado’s East OteroSchool District began distributing an independent newspaper at school thatadvocated Christian principles for living they probably were not expecting theirschool district’s response. School administrators pointed to a district policybarring student distribution of any literature that “proselytizes a particularreligious . . . belief.”
Why would a school district attempt to limit the private speech of students in such an extreme manner? And why would material proselytizing religious belief bebunched together with pornography and hate speech for such a ban?
Unfortunately for students, many schools are increasingly concernedabout the constitutionally mandated “separation of church and state” with littlethought as to what the law actually requires. Administrators, concerned thatthey will violate the First Amendment provision that prohibits government”establishment” of religion if they permit any religious speech, are often reluctant to allow such expression in schools — including speech in student-edited media. For example, school officials have censored editorials and news stories about religious topics from student newspapers and excluded photos and advertisements for religious organizations from student yearbooks and — as in Rivera’s case — even tried to limit religious speech in independent student publications.
Such restrictions often go too far and violate students’ First Amendment rights of free speech and freedom of the press instead of the Establishment Clause. Rivera’s right to distribute was vindicated by a federal court that found the East Otero School District’s policy unconstitutional. All too often, however, these misunderstandings go uncorrected, and the rights of students suffer as a result. Public high school students who understand the law can ensure that does not happen at their school.
Note that this article focuses on religious speech at public secondary schools.
What does the Establishment Clause forbid?
Some of the confusion felt by administrators trying to adhere to the First Amendment’s limitation on the government engaging in any “establishment of religion” in the context of their schools is understandable, as even the U.S. Supreme Court has sometimes struggled in its interpretation. One thing, however, is clear: The Establishment Clause does not require schools to completely eliminate religious speech within their walls.
The initial test for what constitutes a violation of the Establishment Clause was laid out by the Supreme Court in Lemon v. Kurtzman. This test has been refined by subsequent case law, and the Court has made clear that the government (including a public school) impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred, or (3) when the government’s actions would entangle church and state to too great a degree. The purpose component is meant to evaluate whether the government’s actual purpose is to endorse or disapprove of religion, while the effect component should evaluate whether a reasonable observer, aware of the history and context of the community in which the conduct occurs, would view the practice as communicating a message of government endorsement or approval.
School-sponsored Student Media and the Establishment Clause
Perhaps the best way for a school to avoid any possibility of an Establishment Clause violation is to ensure that students, rather than administrators, are responsible for choosing the subject matter addressed in student publications. Courts have said that students are not agents of the school when they are acting independently, even in a school-sponsored activity.
The argument that most schools will use for censoring student religiousexpression is the fear that it will appear the school is endorsing the religiousexpression. In Fleming v. Jefferson County Schools, a federal districtcourt for Colorado examined a program allowing community members to installtiles in the school building commemorating those who died in the 1999 ColumbineHigh School shootings. Some of the tiles contained religious messages. The court found no risk of endorsement because the students could perceive the distinction between speech that was permitted by the school but spoken by community members and speech by the school itself.
Even proselytizing messages in a high school student publication could be permissible if a school clearly allows students to determine the content of that publication. But the greater degree to which a school censors student media, or otherwise substitutes the editorial discretion of administrators for that of student journalists, the greater the risk that the school could face liability for a violation of the Establishment Clause.
A school might attempt to restrict student religious speech in school-sponsoredstudent media, such as a student column published in the high school’s officialstudent newspaper advocating (or opposing) denominational prayer, by arguing that permitting such speech would violate the Constitution’s church and state provisions. Success on such an argument would be unlikely, as the school would have to show that permitting religious speech to take place along with all the other forms of permitted student speech would either be motivated by religious purpose, could be viewed as having such a purpose, or would entangle the school with religious activities.
So long as the school has not actively chosen to advance student religious speech above other forms of student speech because of its religious theme, the school would not violate the purpose component of the Establishment Clause. Although the Supreme Court has never specifically examined the question of religious speech in student media, a case from the U.S. Court of Appeals for the Tenth Circuit provides a helpful illumination of the issues.
In Bauchman v. West High School a student challenged a school’s decision to incorporate songs with religious content into a choir curriculum and to have the choir perform in religious venues. The court required the student to prove either that the school had no clearly secular (non-religious) purpose in its actions or that “in spite of the existence of a legitimatesecular purpose(s), the defendants’ “actual” purpose was to endorse or disapprove of religion.” Rather than find an Establishment Clause violation in the school’s choice of religious music and settings, the Bauchman court found ample secular purposes in exposing students to popular choral themes and finding opportunities for performances before an audience.
Similarly, a school’s motivations for permitting religious speech in its sponsored media may very well be secular ones. Religious and anti-religious themes, conflicts and motivations pervade society, from the wide-ranging, personal convictions (or professed lack of convictions) of classmates, to the commitments of public figures, to the stage of world politics. The exploration of such themes is common in professional journalism, and as such should be included in journalism education. It is clear that the Constitution does not require that religion be excluded entirely fromthe public schools or other government-sanctioned activity. Indeed, the appropriate discussion of religion in public school classrooms is clearly permitted. So long as thereligious speech in question remains student-initiated, it is unlikely that a court would find that the school’s purpose in permitting such speech was to endorse or disapprove of religion. Rather, in supporting religious speech in student media along with all other forms of student speech, the school is more likely driven by the constitutionally permissible and laudable purpose of teaching students about responsible journalism and the First Amendment.
Under the effect component of the revised Lemon test, a school’sdecision to permit student religious speech might also violate the EstablishmentClause if a reasonable observer aware of the overall community context wouldview the practice as having a primary effect of conveying a belief that religionor a particular religion is favored.
The Bauchman court evaluated a reasonable person’s likely reaction to the school’s choice of choir curriculum and performance venues. The court’s hypothetical observer was likely to not only observe the religious character of some songs and venues, but also the choir’s representation of a public school and a diverse group of students, along with the inclusion of secular songs into the curriculum, and would likely take from this context no advancement or endorsement of religion.
Similarly, a reader perusing a public high school newspaper would be aware of the overall context of both the school and the paper. As previously noted, religious perspectives are commonly included in mainstream media publications, without readers becoming confused about the denominational leanings of their morning paper.
This prong of the Establishment Clause test might seem to bar proselytizing messages, which advocate particular faiths or practices, from school-sponsored student media. While a balanced column exploring student’s religious beliefs would not be taken by a reader as a message that religion is favored by the school, a front-page, unsigned editorial advocating religious conversion to a specific faith or denominational holiday observance might be so construed.
Even so, the Supreme Court has been reluctant to permit school officials to distinguish between messages that contain religious content and messages that are proselytizing. Indeed, the Court has warned that requiring school administrators to scrutinize the content of student speech to make certain it did not contain “too great a religious content” raised censorship issues that would “imperil the very sources of free speech and expression.” It alsonoted the difficulty of distinguishing between “speech about religion” and”religious speech,” since such an inquiry would require evaluation of the significance of words and practices to different religious faiths.
The final prong of the revised Lemon test, the excessive entanglement analysis, is reserved for situations in which the state is involving itself with a recognized religious activity or institution. If the religious speech at issue is truly student-initiated, this analysis should not berelevant.
So long as the inclusion of religious materials in school-sponsored publications is not driven by a government purpose of endorsing religion, and would not strike a reasonable observer as conveying such a message, the inclusion of such speech will not violate the Establishment Clause. The Constitution clearly leaves ample room for students to explore religious topics in their school-sponsored media.
Censorship of religious speech in school-sponsored student media?
Having established that the Constitution does not require schools to forbid religious speech by students, the question remains: To what degree can a school nevertheless censor such speech without violating the First Amendment free expression rights of their students?
Although the Supreme Court has famously noted that public school students “do not shed their constitutional rights at the schoolhouse gate,” those rights are more limited in the school context.
The Court’s most extensive discussion of the rights of student media came in Hazlewood School District v. Kuhlmeier. In upholding a Missouri high school principal’s censorship of a student newspaper, the Court noted that while the school was obliged to tolerate some private student speech, it was not required to affirmatively promote speech in the context of school-sponsored expressive activities bearing the imprimatur (endorsement) ofthe school. Educators, the Court said, are generally permitted to exercise control over student speech in school-sponsored activities so long as their actions are reasonably related to legitimate pedagogical (educational) concerns, which includes a broad — though certainly not unlimited — array of justifications related to the school’s educational function. However, if a school-sponsored activity (such as a student newspaper) has established itself as a forum for student expression, typically demonstrated by a written policy or a long-standing practice of allowing student editors to determine editorial content, educators will have a much tougher time justifying their censorship of otherwise lawful student speech. In such cases, they must show that the speech — religious or otherwise — would cause aserious physical disruption of the school if published. Five states — Arkansas, California, Colorado, Iowa, Kansas and Massachusetts — also have statutes that provide increased free speech protections for school-sponsored student media.
One court recently used Hazelwood to allow a school’s censorship of the phrase “God Bless America” in student artwork intended for the cover of an elementary school yearbook. Although the decision was only a preliminary one, the judge indicated that the appearance of school endorsement in the mind of elementary school students was a sufficient justification for censorship.
A recent case before the U.S. Court of Appeals for the Third Circuit, however, suggests that singling out student religious expression for censorship may not be allowed because it will be seen as impermissible “viewpoint discrimination.” C.H. v. Oliva arose after school officials removed a poster from an elementary school Thanksgiving holiday display on which a student said he was “thankful for Jesus.” The student was also prevented from reading a children’s Bible story to his class, while other students were permitted to read their favorite stories. The school admitted its actions were motivated by the religious content of the story and poster.
Initially, the court upheld the teacher’s discretion in not permitting the religious poster and story because the elementary students might have assumed that they carried the endorsement of the school, and because they might have engendered resentment among students and parents. The court found that these concerns were reasonably related to legitimate pedagogical concerns, and so the teacher’s actions were upheld under Hazlewood.
However, the full (en banc) panel of Third Circuit judges later tossed out the first opinion on procedural grounds and ducked the substantive question ofwhether the censorship was in fact permissible. In this second decision, a strongly worded dissent challenged the majority to re-examine the constitutional issues involved and argued Hazlewood should not beinterpreted to so dramatically chill student religious speech.
The dissent forcefully argued that discriminatory treatment of the student’s poster because of its religious theme violated the First Amendment. The dissent noted voluminous precedent holding that even in a non-public forum, viewpoint discrimination will only be upheld if it passes strictscrutiny. The school’s restrictions were viewpoint discriminatory because they removed the student’s poster to a less conspicuous location based on its religious content. In the context of the school, the strict scrutiny test holds that viewpoint discrimination isproscribed by the First Amendment unless the school can show that permitting thequestioned speech on a non-discriminatory basis would have “materially disrupt[ed] class work or involve[d] substantial disorder or invasion of the rights of other [students].” More distinctly, in the context of religious speech, only “if the expression of a religious viewpoint, such as one espousing racial hatred, creates a sufficient threat” of disruption may school officialsintervene. According to the dissent, the mere possibility that students or parents might resent the speech in question, as feared by administrators in Oliva, did not rise to a substantial enough level to justify viewpoint discrimination. The dissenting judges rebuked their colleague’s failure to confront these violations of the student’s expressive rights, calling the earlier opinion “radically at odds with fundamental First Amendment principles.”
The Oliva II dissent noted that Hazlewood was limited to student activities that might “bear the imprimatur of the school” or represent “the [school’s] own speech.” The dissent’s reasoning suggests an important limit on the scope of Hazlewood, as even when student speech is part of assigned classroom activities, such as official student newspapers and yearbooks, viewpoint discriminatory regulations may be impermissible.
Independent student speech and the Establishment Clause
If school officials will have a tough time justifying limitations on the inclusion of religious material in school-sponsored student media, the law makes clear that it will be nearly impossible to prohibit the distribution of such material in non-school sponsored (or “underground”) student media. Still, they have certainly tried. In such cases, courts have generally held that: (1) regulations based on religious content cannot be maintained for purposes of avoiding Establishment Clause violations; (2) absolute bans on such distribution violate the free-speech provisions of the First Amendment; and (3) only limited restrictions may be placed on such distribution.
In Thompson v. Waynesboro Area School District, for example, two students distributed copies of a professionally published religious newspaper titled Issues and Answers in the hallway of their junior high school before classes. The publication featured articles and cartoons advocating such Christian tenets as a personal relationship with God and obedience to Biblical commands. The students were eventually suspended after distributing the newspapers on several occasions despite being warned that the distribution violated school policies. The court accepted school officials’ claims that they acted out of concern that the distribution of such religious materials by students during the school day violated the Establishment Clause. Nevertheless, the court rejected their actions.
Applying a version of the Lemon test similar to that applied by the court in Bauchman, the court first addressed the school’s purpose in permitting distribution of materials during the school day. The court found evidence, including the existence of student activities like a newspaper club, which strongly supported an inference that the school district sought to open a forum to promote the intellectual and social development of its students. Allowing religiously motivated students to avail themselves of that forum along with others would not change the secular nature of the school’s objective, even if the student’s purpose were a non-secular one.
The court then considered whether the school’s permitting an open forum for students could be perceived as advancing religion. The court found “a generalrecognition that junior high school students” could differentiate between government-initiated and student-initiated religious activity. Further, the court found that the federal Equal AccessAct mandates that secondary schools accommodate religious activity on school premises just as they would accommodate any other student activity. On these two grounds, the Thompson court found that a school permitting students to distributereligious materials on school grounds during the school day would not be perceived as advancing religion in violation of the Establishment Clause.
The Thompson court also addressed the final prong of the revised Lemon test: whether the government policy would foster excessive entanglement of government and religion. The court found that neutral supervision of student distribution would not excessively entangle the school with religion in violation of the Establishment Clause.
It is even more clear in the context of independently produced student media than in the context of school-sponsored media that student-initiated religious speech does not violate the Establishment Clause.
Censorship of independent student religious speech
Because there is less risk that observers will mistake the materials for state-sponsored speech, independent student distribution of religious materials is subject to far less regulation than such speech in the school-sponsored media. Courts evaluating what sorts of regulations are permissible have differed on their approach, although both approaches seem to yield identical results.
Most courts simply apply the Supreme Court’s standard from Tinker v. Des Moines Independent Community School District and find that a student’s private speech can be regulated by school officials only to the extent that it materially and substantially interferes with the work of the school or impinges on the rights of other students. Under this approach, school regulations of speech must be narrowly tailored toward the school’s interest in preventing disruption, and be no broader than necessary to achieve that goal.
Some courts have engaged in a “public forum” analysis to examine the extent of students’ free-speech rights in school. The public forum approach contrasts schools to other public places such as parks, airports, and street corners and allows less freedom to pass out materials because schools are not open to the public. However, even courts that apply a forum analysis haverecognized that school officials cannot completely bar students from handing outreligious materials, even if the materials were prepared by non-students, the only possible exception being in the context of elementary schools.
For example, in Slotterback v. Interboro School District, the court foundthat the government intended to open secondary schools as limited public forums,during school hours, for the First Amendment personal speech of the students whoattend those schools. Content-based restrictions in a limited public forum are held to essentially the same strict scrutiny legal standard as under the Tinker approach.
Under strict scrutiny, school restrictions against religious speech, because of its religious content, will not be maintained. They cannot be supported by claims of safeguarding the educational environment, sincestudent personal intercommunication is vital to the educational process. And they cannot be supported by claims of avoiding Establishment Clause violations, since a neutral policy permitting distribution of student literature does not violate the Establishment Clause. However, student religious speech can still be limited, along with other forms of student speech, based on content-neutral criteria.
“Reasonable” time, place, and manner restrictions on the distribution of materials are permitted in public schools. To be”reasonable,” such restrictions must be narrowly tailored to serve a significant school interest, and they must leave open ample alternative channels of communication. These restrictions must also be content-neutral and not restrict distribution of materials based on the viewpoint espoused.
In the school context a permissible time, place and manner restriction might, for example, limit students’ distribution of materials to times before school, during lunch, and after school. More restrictive regulations are sometimes invalidated. Schools can limit the time and place of distribution only to the extent necessary to avoid a “material and substantial disruption of the school day,” a very limited grant of discretion to administrators.
Schools sometimes limit student distribution of materials to materials they have actually produced, rather than materials produced for distribution by others, such as churches or religious organizations. Most courts have not evaluated such provisions, or have allowed students to distribute outsider produced material as if it were their own. While case law in this area is few and far between, it is nearly certain that such a policy must be content-neutral: a bar on all outsider produced works may be constitutionally permissible, but a bar prohibiting distribution of outside-produced works expressing a certain content (such as religious faith) or works produced by certain organizations (such as churches) would almost certainly be struck down.
High school administrators often seek to limit religious speech by their students based upon a mistaken belief that permitting any student religious expression would violate the Establishment Clause. If students, and not administrators, are responsible for determining the editorial content of student media, the school can likely avoid any risk of an Establishment Clause violation. Even where school officials are more closely involved with their school-sponsored student media, the inclusion of such speech will not violate the Establishment Clause so long as itspublication is not driven by a government purpose of endorsing religion and would not strike a reasonable observer as conveying such a message. It is even more certain in the context of independently produced student media that student-initiated religious speech does not violate the Establishment Clause, and is protected by the First Amendment. The Constitution clearly leaves ample room for students to explore religious topics.
1 Rivera v. East Otero School Dist. R-1, 721 F.Supp. 1189 (D. Co. 1989).
2 U.S. Const. Amend. I.
3 Students at private schools or at public colleges and universities find themselves in a different situation.
For students attending private schools there is both good and bad news. The bad news is that the First Amendment’s guarantees of freedom of speech and of the press only proscribe censorship by government officials. See Hudgens v. National Labor Relations Bd., 424 U.S. 507 (1976). While other avenues for legal protection may be available, student religious speech in the private schools, like any form of student speech in the private school environment, does not receive constitutional protection from private school regulation. Legally, therefore, private schools can generally permit or forbid student religious speech as they see fit. The good news for students, however, is that the Establishment Clause of the First Amendment does not apply to private schools for the same reason. This removes the largest source of worry for school administrators confronting religious speech, and what is typically their biggest reason for limiting such speech. For more information on the rights of private school students and strategies for fighting censorship in the private schools, please refer to the Student Press Law Center’s guide, “Press Freedom and Private Schools.” See SPLC, “Press Freedom and Private Schools,” available at http://www.splc.org/legalresearch.asp?id=52 (last visited April 12, 2002). For college students, the Supreme Court of the United States has made clear that a public college does not violate the Establishment Clause of the First Amendment by neutrally supporting student religious speech along with other forms of student speech. Rather, a public college policy that fails to protect and support student religious speech to as great a degree as other student viewpoints likely violates the First Amendment’s guarantee of free speech. See Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819, 837-845 (1995).
4 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
5 See Lynch v. Donnelly, 465 U.S. 668 at 687 (1984) (O’Connor, J. concurring). See also Rosenberger, 515 U.S. at 839-40; County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 at 592-93 (1989); Bauchman for Bauchman v. West High School, 132 F.3d 542 at 552 (10th Cir. 1997).
6 See Bauchman, 132 F.3d at 551; Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 763 (1995) (plurality opinion); Edwards v. Aguillard, 482 U.S. 578, 585 (1987).
7 See Yeo v. Town ofLexington 131 F.3d 241, 250 (1st Cir. 1997) (yearbook editors rejection of advertisement not state action when school officials granted them editorial discretion). Cf. Owasso Indep. School Dist. No. I-011 v. Falvo, 122 S.Ct. 934; 2002 U.S. Lexis 619 (2002) (students were not acting for the school when scoring other students’ exams).
8 Fleming v. Jefferson County School Dist. No. R-1, 170 F.Supp.2d 1094, 1097 (D. Co. 1999).
9 Id. at 1109. See also Board of Education of the Westside Comm. Schools v. Mergens, 496 U.S. at 250-251 (noting “secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.”).
10 Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)(school’s control over content of “invocation” delivered by student at school football game a factor in finding practice a violation of Establishment Clause); Cole v. Oroville Union High School District, 228 F.3d 1092, 1103 (9thCir. 2000) (finding a violation of the Establishment Clause would follow from student prayer in a valedictory speech where the principal had final authority to approve the contents of student graduation speeches). Cf. Adler v. Duval County School Board, 250 F.2d 1330 (11th Cir. 2001), cert. denied, 122 S. Ct. 664 (2001)(school policy allowing graduating class to elect a speaker who might express religious views not an Establishment Clause violation because school officials exercised no control over election process or content of speech).
11 Bauchman, 132 F.3d at 546-47.
12 Id. at 554.
13 See Wallace v. Jaffree, 472 U.S. 38 at 64 (1985).
14 See School Dist. of Abington v. Schempp, 34 U.S. 203, 225 (1963).
15 Id. See also Note, “The Establishment Clause in Public Schools: A Model for Future Analysis,” 79 Georg. L. J. 121, 129-30 (1990). See also Santa Fe, 530 U.S. at 305 (student-initiated, student-led prayer before public high school football game violated Establishment Clause where “realities of the situation plainly reveal that [school policy allowing pre-game invocation] involves both perceived and actual endorsement of religion.”). But see Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001), cert. denied, 122 S.Ct. 664 (2001) (student-led invocation message at public high school graduation did not violate Establishment Clause).
16 Bauchman, 132 F.3d at555.
17 Id. at 556.
18 Cf. De LaRosa v. Rock Island School District, No. 02-CV-4030 (C.D. Ill. April 16, 2002) (in denying temporary restraining order, court said use of “God Bless America” on elementary school yearbook cover likely to appear as school endorsement of religion to elementary-age students).
19 Rosenberger, 515 U.S. at 844-45. While Rosenberger involved student speech at the college level it is likely the Court would apply the same reasoning to secondary schools. Cf. Bd. of Educ. of the Westside Community Schools v. Mergens, 496 U.S. 226, 250 (1990) (holding in the context of religious group meetings in high school that “a denial of equal access to religious speech might well create greater entanglement problems inthe form of invasive monitoring to prevent religious speech”).
20 Bauchman, 132 F.3d at 556.
21 484 U.S. 260 (1988).
22 Hazlewood, 484 U.S. at 270 (1988).
23 Id. at 271-273.
24 See Tinker, 393 U.S. at 513.
25 See SPLC website for the complete text, available at http://www.splc.org/stateantihazlaws.asp (last viewed April 12, 2002). Two states — Pennsylvania and Washington — have state regulations that may provide similar protections.
26 De La Rosa v. Rock Island School District, No. 02-CV-4030 (C.D. Ill. April 16, 2002).
27 195 F.3d 167 (1999) (Oliva I), vacated (for failure to state a claim against individual defendants and board of education absent a showing of involvement bydefendants), 226 F.3d 198 (3rd. Cir. 2000) (Oliva II), cert.denied sub nom. Hood v. Medford Township Board of Education, 121 S. Ct. 2519 (2001).
28 Oliva I, 195 F.3d at 172.
29 Oliva II, 226 F.3d at 202-03 (finding the plaintiff had failed to state a claim against theschool by proving the teacher’s actions were officially sanctioned).
30 Id. at 203.
31 Id. at 210.
32 Id. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508U.S. 384, 394-95 (1993).
33 Oliva II, 226 F.3d at212.
34 Id. at 212 (quoting and applying Tinker, 393 U.S. at 513) (internal quotations omitted).
35 Oliva II, 226 F.3d at 212.
36 Id. at 213.
37 Id. at 214 (quoting Hazlewood, 484 U.S. at 271 and Rosenberger, 515 U.S. at 834).
38 See, e.g., Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996); Harless v. Darr, 937 F.Supp. 1339 (S.D. Ind. 1996); Hedges v. Waucanda Community Unit School Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993); Clark v. Dallas Indep. School Dist., 806 F.Supp. 116 (N.D. Tex. 1992); Hemry v. School Board of Colorado Springs School District No. 11, 760 F.Supp. 856 (D. Colo. 1991); Slotterback v. Interboro School Dist., 766 F.Supp. 280 (E.D.Pa. 1991); Rivera v. East Otero School Dist. R-1, 721 F.Supp. 1189; Thompson v. Waynesboro Area School Dist., 673 F.Supp. 1379 (M.D. Pa. 1987).
39 See, e.g., Slotterback, 766 F.Supp. at 280; Thompson, 673 F.Supp. at 1379.
40 See, e.g., Clark, 806 F.Supp. at 116; Rivera, 721 F.Supp. at 1189.
41 See, e.g., Hedges, 9 F.3d at 1295; Hemry, 760 F.Supp. 865.
42 673 F.Supp. 1379 (M.D. Pa. 1987).
43 Id. at 1389.
44 Id. at 1390-93.
45 Id. at 1389.
46 Id. at 1390.
47 Id. at 1390, 1391 (citing the legislative history of the Equal Access Act, S. Rep. No. 357,98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. &Admin. News 2348, 2381, for the finding that ” . . . students below thecollege level are capable of distinguishing between state-initiated,school-sponsored, or teacher-led religious speech on one hand andstudent-initiated, student-led religious speech on the other.” Seealso Rivera, 721 F.Supp at 1195 (“The Establishment Clause is alimitation on the power of governments: it is not a restriction on the rights of individuals acting in their private lives.”).
48 20 U.S.C. §071.
49 Thompson, 673 F.Supp. at 1391. See also Slotterback, 766 F.Supp. at 295.
50 Id. See also Slotterback, 766 F.Supp. at 295. But see Berger v. Rensselaer Central School Corp., 982 F.2d 1160 (7th Cir. 1993) (school district violated the Establishment Clause when it gave the Gideon sectpreferential treatment by convening the student body to hear their presentation and requiring each student accept a Bible in a formal ceremony).
51 See Lemon, 403 U.S. at612-13.
52 Thompson, 673 F.Supp. at 1392. See also Hedges, 9 F.3d at 1299 (the school”must refrain from promoting the distribution of such literature but canremain neutral by treating religious speech the same way it treats political speech.”).
53 See Hazlewood, 484 U.S. at 266, 270. See also Burch v. Barker, 861 F.2d 1149 (9th Cir. 1989).
54 See Tinker, 393 U.S. at 513. See also Rivera, 721 F.Supp. at 1193 (application of the forum analysis is “fundamentally flawed” and misreads the holdings of Tinker and Hazlewood).
55 See, e.g., Hemry, 760 F.Supp. at 862; Hazlewood, 484 U.S. at 270 (school newspaper was a nonpublic forum). But see Slotterback, 766 F.Supp. at 291 (arguing that the forum approach appropriated by courts fromHazlewood should only be applied when school-sponsored speech is at issue, but noting that the Supreme Court has increasingly adopted a forum analysis in such contexts); Hedges, 9 F.3d at 1301 (noting that the increasingly complex public forum doctrine has little to offer).
56 Id. at 293. But see Hemry, 760 F.Supp. at 863 (finding high school a non-public forum and upholding content-neutral restrictions); Hedges, 9F.3d at 1300 (finding a junior high school a non-public forum).
57 Compare Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1539-44 (7th Cir. 1996) (majority opinion applying a forum analysis to uphold prior review and time, place, and manner restrictions, and content-based restrictions on elementary school student’s distribution of religious materials) with Muller, 98 F.3d at 1545-47 (Rovner, J. concurring in the judgment but applying the Tinker approach).
58 Slotterback, 766 F.Supp. at 293. See also Tinker, 393 U.S. at 512 (students’ intercommunication is an important part of educationalprocess); Rivera, 721 F.Supp. at 1194 (school policy prohibiting proselytizing speech “defeats the very purpose of publiceducation”).
59 Perry Educ. Ass’n, 460 U.S. at 45-46.
60 Slotterback, 766F.Supp. at 299; Gregoire, 907 F.2d at 1382.
61 See, e.g,. Hedges v. Wauconda Community School District, 9 F.3d 1295 (7th Cir. 1993)(upholding such limits).
62 See, e.g., Slotterback, 766 F.Supp. at 299 (invalidating regulations limiting distribution to the end of the school day and the area of the school’s exit). But see Hemry, 760 F.Supp. 856 (upholding regulation requiring distribution take place outside the school); Muller, 98 F.3d at 1543 (upholding policy leaving time and place of permitted distribution to the principal’s discretion).
63 Tinker, 393 U.S. 503.
64 Slotterback, 766 F.Supp. at 297 (describing the high standard in detail).
65 But see Hedges, 9 F.3d at 1301 (upholding limits requiring student authorship as reasonably related to educational interest of promoting student self-expression).