Judge recommends against prohibition on religious-themed fliers at school

FLORIDA — A Tampa-area school board should no longer be permitted to prohibit fliers that contain messages promoting the benefits of a specific religion, according to a magistrate judge’s report.

Responding to a lawsuit filed by the family of a fourth-grader who wasn’t allowed to distribute invitations to an Easter egg hunt, Magistrate Judge Elizabeth Jenkins wrote in favor of prohibiting the Hillsborough School Board from using a policy that prevents the distribution of fliers containing proselytizing speech, according to her report and recommendation filed last week.

The lawsuit was filed in May after “J.G.,” was not allowed to distribute invitations to an Easter egg hunt in March, according to the complaint filed by J.G.’s mother, Kimberly Gilio. The invitations intended for J.G.’s 20 classmates billed the event as an opportunity “To have fun and learn the true meaning of Easter.”

J.G. gave the invitations to his substitute teacher to distribute; the substitute then turned the invitations over to the principal. The invitations were returned to J.G. with a note stating they would not be distributed because the school was “not allowed to pass out fliers related to religious events or activities,” according to the complaint.

The complaint alleges the policy violates students’ free speech and due process rights under the First and Fourteenth amendments respectively. The complaint also cites Florida’s Religious Freedom Restoration Act of 1998, which says the government may not substantially burden free exercise unless it demonstrates a compelling interest and uses the least restrictive option available.

The lawsuit sought a preliminary injunction that would allow J.G. to distribute religious invitations at school and also seeks an injunction to keep the school district from enforcing its policy prohibiting the distribution of literature containing religious subject matter.

Jenkins recommended against requiring the district to distribute J.G.’s religious-themed invitations, but supported the injunction against the school district’s anti-religious literature policy, permitting J.G.’s invitations to be evaluated under the district’s other, viewpoint-neutral policies.

Both sides have until Oct. 19 to file written objections to Jenkins’ recommendation. Her recommendation will then be accepted, modified or objected by presiding Judge James Whittemore.

“We are pleased with Judge Jenkins’ well-supported recommendation that the school board’s policies used to restrict J.G.’s religious invitations should be enjoined,” said Matt Sharp, an Alliance Defending Freedom lawyer who is representing the Gilios, in a statement. “We look forward to Judge Whittemore’s review of this recommendation and hope that J.G.’s right to express his faith at school will be affirmed.

Attorneys for the school district could not be reached.

By Bailey McGowan, SPLC staff writer. McGowan by email or at (703) 807-1904 ext.127.