ARIZONA — Public schools cannotdiscriminate against religious speech when determining what outside literatureto distribute to elementary schoolchildren, a federal appellate court ruled onMay 22. The unanimous decision in the U.S. Court of Appeals for theNinth Circuit was in response to a lawsuit filed against Scottsdale UnifiedSchool District by an Arizona man after his brochure that advertised a nonprofitsummer camp was rejected. Officials told Joseph Hills, president of A LittleSonshine, that the brochure violated district policy that prohibited the displayof “non-school originated material of a commercial, political or religiousnature” because two of the 19 courses described in it were based on Bible stories. As acommunity service, the Phoenix-area school district often distributes tostudents promotional materials from nonprofit organizations. Thethree-judge panel did not rule the policy unconstitutional as Hills hadrequested; however, the court said the district violated his free-speech rightsbecause it discriminated against him for his religious views. It defined thebrochure distribution system as a “limited public forum,” in which the schooldistrict could legitimately restrict commercial, political or religiousmaterial. But the court said the school could not reject materials solely basedon the views expressed. “Speech discussing otherwise permissiblesubjects cannot be excluded from a ‘limited public forum’ simply because thesubject is discussed from a religious viewpoint,” co-wrote Judges William CanbyJr., Michael Daly Hawkins and Marsha Berzon. “The District’s exclusion ofHills’ summer camp brochure because it offered Bible classes from a Christianperspective does just that, and therefore constitutes impermissible viewpointdiscrimination.”In its decision, the court said that it was “mindful”that school districts confront many difficult choices when navigating thesometimes “fine line” between permitting free speech and avoiding the pitfallsof the separation of church and state requirements of the First Amendment. Indoing so, the court set up a “subtle, but important” distinction between thetypes of religious speech that would be constitutionally permissible to bedistributed to schoolchildren.”The District cannot refuse to distributeliterature advertising a program with underlying religious content where itdistributes quite similar literature for secular summer camps, but it can refuseto distribute literature that itself contains proselytizing language,” the courtsaid.The appellate court said that the school district could not beforced to allow Hills to distribute his brochures as originally conceived.It returned the case to the district courtto determine what religious language could constitutionally remain in thebrochure. The court said it would not parse each individual line in Hills’sbrochure, but, in its discussion, the court pointed to particular entries inHills’s brochure that exhorted parents to involve children in religiousobservance rather than just specifically promoting the camp and its classes.Scottsdale Unified School District filed a petition for rehearing infront the entire appellate court, a school district spokesperson said.Mary Ellen Simonson, a partner at Lewisand Roca, argued the case on behalf of the school district in front of the NinthCircuit last fall. She said the decision puts schools in the “untenable”position of risking legal action by either those who believe the schools are acceptingtoo much or too little religious materials for distribution.”So what isleft unclear and confusing is how far a brochure can go in promoting religiousevent in its advertising,” she said.But Walter Weber, who representedHills at the request of the American Center for Law and Justice, applauded thecourt’s ruling that schools cannot apply special restrictions on messagesbecause they are religious.”This is a victory for equal treatment forgroups that have religious messages to have their events or activitiesadvertised, or notified, to the people that might be interested on the sameterms of secular activities,” Weber said.
Hills v. Scottsdale Unified School District, 2003 WL 21197150 C.A.9 (Ariz.) 2003