Handing out candy canes before winter vacation did not lead to happy holidays for students in Massachusetts.
Seven members of Westfield High School’s Life and Insight for Eternity Bible club were issued suspensions for distributing candy canes that carried religious messages and information about L.I.F.E. meetings. They passed out 450 candy canes in between classes and at lunch on Dec. 19, 2002, despite their principal’s decision to prohibit the distribution.
Six of these students, along with students in three other states who were also punished for distributing religious materials, have challenged the constitutionality of their school’s policies that restrict the distribution of student-produced material ‘ religious or otherwise.
Court decisions or settlements in these cases may support students who wish to distribute other noncurricular materials, including news publications. This year, the Westfield students, along with those from another school district, have gained victories, while other cases are still pending.
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Establishment clause confusion
It is understandable that administrators are sometimes confused when trying to hold to the limitations put in place by the First Amendment on government (including public schools) from engaging in any ‘establishment of religion.’ Even the U.S. Supreme Court has struggled in its interpretation of the law. One thing, however, is clear: the establishment clause does not require public schools to completely eliminate religious speech on campus.
Becky Rees, a lawyer for the Becket Fund, a religious liberties organization said, ‘If other kids are allowed to [distribute materials] that don’t have religious overtones, then you can’t discriminate just because this happens to have a religious overtone.’
This was one of the arguments made in a case in front of the U.S. Court of Appeals for the Third Circuit, brought in June 2002 by an elementary school boy in New Jersey who was barred from handing out ‘proselytizing pencils.’
Daniel Walz, a student in Egg Harbor Township Public Schools was prohibited from distributing gifts with religious messages four times, including an incident in April 1998 when his teacher confiscated the pencils he brought for a class party because they read, ‘Jesus loves the little children.’
Walz is appealing a federal district court ruling that said administrators did not violate his First Amendment rights.
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Equal access
In an effort to help schools avoid litigation, the Department of Education issued guidance in 1998 to clarify the religious expression by students that schools should allow.
The guidance included a defense of students’ rights to distribute religious literature. It said, ‘Students have a right to distribute religious literature to their schoolmates on the same terms they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, place and manner or other constitutional restrictions on the distribution of religious literature as they do on non-school literature generally, but they may not single out religious literature for special regulation.’
Similar wording was adopted this year in Iowa after student members of the Oneighty Youth Program, a Quad Cities-area religious youth group, filed suit to win the right to promote the program at school. Administrators told three students they could not pass out flyers and the Truth for Youth Bible. School district officials agreed to a new distribution policy and settled the case with the students in January.
The new policy says, ‘Materials containing religious content or supporting a religious organization are permitted on the same basis as other non-curricular material.’ It also includes the disclaimer: ‘Distribution of this material at school does not imply endorsement of its content or the organization.’
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Students are not government actors
Administrators are often cautious when it comes to religious expression because they do not want to be perceived as supporting a particular religious view.
‘I think administrators sometimes aren’t quite sure what exactly ‘ will be perceived as their own religious action and what is the private speech of the individual [students],’ Rees said.
Bruce Hunter, a lobbyist with the American Association of School Administrators, said in many cases there is a lack of good school district policy or state law regarding religious speech, so administrators must rely on their best judgment.
‘Sometimes people bend over backward to be neutral because they feel like they’re going to get sued by the people who don’t want there to be much religious speech. And sometimes they feel that they’re about to be sued by the people who want more religious speech,’ Hunter said.
This year, the Education Department issued an updated version of the guidelines on prayer in public schools. In the guidelines, Education Secretary Roderick Paige clarified that student speech is not always considered expression sponsored by the school. He said, ‘Student remarks are not attributable to the state simply because they are delivered in a public setting.’
The new guidance also says that Bible clubs must be allowed equal opportunity to advertise club meetings by handing out leaflets.
Matthew Staver, the president of the Liberty Counsel, a civil liberties legal defense organization, is representing the Westfield High School students in Massachusetts. He said the Department of Education guidelines make it clear that the administrators violated the students’ right to distribute the candy canes.
With the help of the Liberty Counsel, the Bible club members’ suspensions were expunged from their records. On March 17, federal Judge Frank Freedman issued an injunction against the Westfield Public Schools, prohibiting the school from disciplining the students. The court also ruled that the school’s literature distribution policies were likely to be found unconstitutional because the requirement that the students submit material to the principal for prior review was a ‘prior restraint.’ Judge Freedman said the district did not have clear criteria for the principal to decide what material is allowed or a process for students to appeal the principal’s decision.
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Prior review in question
Many school districts, where administrators permit the distribution of non-curricular materials, require students to submit the materials in advance for approval. The constitutionality of this requirement is being challenged by a student in Doylestown, Pennsylvania.
Former Pennridge High School student Joe Baker was prohibited from distributing fliers he wrote encouraging classmates to question their science teachers about evolution. The school eventually allowed Baker to pass out the flyers, but he filed suit in August 2001 to contest the rule that materials must be reviewed before distribution.
Superintendent Robert Kish said school officials were justified in requesting review because they do not want pornographic or racist literature distributed on campus.
Baker is still awaiting a decision, but the case has strong backing by the Rutherford Institute, a civil liberties organization in Virginia.
Rutherford Institute lawyers already have successfully argued a prior review case in Pennsylvania. In 1991, a federal court found that it was ‘facially invalid’ for the Interboro School District to require a three-day prior approval on ‘non-school written materials.’
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More court cases to come
Rees said the Becket Fund recommends that students wishing to distribute religious materials research their district policies to avoid controversy.
Independent student expression that is not part of a school-sponsored publication enjoys significant legal protection under the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District. The court said administrators can censor speech only if it would ‘materially or substantially’ disrupt the operation of school or invade other students’ rights.
Erik Stanley, a lawyer for the Liberty Counsel, said, ‘Students should be aware of their rights and not be intimidated by unconstitutional school policies that violate their rights.’
Hunter said administrators acknowledge that cases will continue to be filed against schools until a clear ruling is handed down. He said it is important for administrators to preserve the separation of church and state while respecting student rights.
‘It’s in everybody’s best interest for students’ free-speech rights to be observed as closely as possible,’ Hunter said. ‘If you want to have a democracy, students need to see that in action. And we don’t teach that if we cut off speech.’
Westfield High School L.I.F.E. Club v. City of Westfield, 2003 WL 1339052 (D.Mass, Mar. 17, 2003)