Thomas E. Wheeler *

As microcosms of our society in general, it is not surprising that our schools are more and more frequently being placed in the position of walking a tightrope between civil libertarians who advocate a strict wall of separation between church and state (e.g., the positions of the American Civil Liberties Union and the Americans United for Separation of Church and State) and religious advocates who believe that the moral decay in America can be directly linked to the exclusion of religious discourse from the schools (e.g., the position of the American Center for Law and Justice). One of the hot current battlegrounds between these factions is in the student distribution of religious materials.

Following the decision in Westside Community Schools v. Mergens affirming the constitutionality of the Equal Access Act, a number of evangelical organizations declared that students now had a constitutional right to distribute religious materials in the schools. For example, an organization entitled Christian Advocates Serving Evangelism ("CASE") produced a pamphlet stating, "Students have the right to pass out Christian papers and tracts to their peers on campus. As long as the students do not disrupt school discipline, school officials must allow them to be student evangelists." Much of the early litigation on the distribution of religious literature by students at school not surprisingly therefore involved the CASE pamphlet "Issues and Answers." The purpose of this article is to discuss the case law surrounding these issues and suggest some neutral guidelines relating to the distribution of religious materials in schools.

A. Religious Pamphlets

In Nelson v. Moline School District No. 40 some high school students began passing out Religious Liberties News CASE publication Issues and Answers in the hallways before classes began. This was reported to the high school principal who announced that students were prohibited from distributing any materials without prior approval from him. He also stated that materials approved for distribution would be placed in the school office. Several days later (probably after speaking with the school's attorney) the policy was revised so that students desiring to pass out materials were required to get the principal's prior approval, and then the students were permitted to pass out the materials at the entrance to the school both before and after school. The students filed suit alleging that their First Amendment rights were violated when the school refused to permit them to pass out their religious materials in classrooms and halls during passing periods.

The court began its analysis by noting the familiar rubric from Tinker v. Des Moines Independent School District that "[s]tudents do not shed their constitutional rights at the schoolhouse gate." Utilizing a forum analysis, however, the court determined that Moline High School was a non-public forum and therefore the school could prohibit the distribution of all materials if it wished, or in the alternative impose reasonable time place and manner restrictions on the distribution of these materials. The court then found that Moline's policies were reasonable and were not an impermissible prior restraint on the student's First Amendment rights.

Similar issues were raised in the case of Hedges v. Wauconda Community School District No. 118. As with the Moline case, in Hedges junior high school students were passing out Issues and Answers to their peers. The school's 1990 policy permitted students to distribute materials unless the material was obscene or libelous, and provided that "[a]t the elementary and junior high school, written material that is of a religious nature is also prohibited." The students challenged this policy which was promptly thrown out as unconstitutional. The Seventh Circuit affirmed noting that "no arm of
government may discriminate against religious speech when speech on other subjects is permitted at the same place at the same time." The school then developed a second policy which required the following when students sought to distribute more than ten copes of any materials:

1. Notification of administrators at least 24 hours prior to the distribution of the proposed materials;
   
   
2. Materials to be distributed from a designated table immediately prior to school and immediately after school;
   
   
3. Obscene, libelous and religious material that students might believe to be sponsored, endorsed or have the official imprimatur of the school were forbidden; and,
   
   
4. Material that was "primarily prepared by non-students or which concerns the activities, or meetings of a non-school sponsored organization" was banned.

Under this new policy a student was forbidden by the school from handing out Issues and Answers as well as a flyer inviting students to her church for a gathering to send postcards to servicemen and women serving in Operation Desert Storm. The student was, however permitted to distribute a position paper written by her quoting the First Amendment on the topic, "I Believe in God, Won't You?"

Utilizing the forum analysis, the Seventh Circuit held that schools were at the most limited public forums, and as such could impose reasonable restrictions on student distribution of literature. With respect to item one, the prior review of materials, no challenge was made to this restriction as being a prior restraint. With respect to item two, the time, place, and manner restrictions, the Seventh Circuit overturned the district court and held that as follows:

Limiting distribution to a designated place is not an inappropriate rule, given the nature of the school and the principal's lawful control over pupil's behavior within. Part B.2 of the rules does not discriminate against any subject matter or viewpoint, and this record does not contain any Religious Liberties News
indication that demand for access to the designated table is so great that some would-be speakers have been excluded.

The Court then addressed item four, the ban on non-student materials. The district court found that the ban violated the Constitution, but the Seventh Circuit reversed, noting that "[w]hether a school serves pupils' interests by curtailing their dissemination of leaflets prepared by third parties is not a question of constitutional law." The Seventh Circuit essentially noted that this was an educational decision to be left to the schools and because the rule "does not treat religious speech any differently from politics, literature, the arts, and other subjects" there was no Constitutional violation in applying this broad prohibition. In so finding, Judge Easterbrook also pointed out that there was a "safety valve: if they are content to pass out 10 or fewer copies, they need not incur the labor of exposition [i.e. write the materials themselves]."

In Johnston-Loehner v. O'Brien, although the school's policy was found to impose reasonable time, place and manner restrictions, it was still struck down because of the manner in which it was applied. In that case a student wished to pass out two pamphlets, "Strange Facts About You, God, and Your Mother" and an invitation to a Harvest party at her church as an alternative to Halloween activities. Although the policy itself was content-neutral, it gave the superintendent wide discretion as to what he approved or disapproved, and he used it to screen out all religious materials, while allowing other non-religious materials to be distributed. Thus while trying to avoid the Establishment Clause violation the Superintendent violated the Free Speech clause.

In Harless v. Darr a first grade student was distributing religious tracts to fellow students while they were in the classroom preparing to go to lunch. The student was told he could not pass out the religious tracts; he, in turn, and sued the school, alleging that its actions violated his First Amendment rights. The policy essentially tracked the one approved by the Seventh Circuit in Hedges except that it did not contain the ban on non-student produced literature. In generally approving the school's policy the district court adopted the Hedges analysis and noted that the elementary school was a nonpublic forum. The major difference between the Hedges' policy and the policy in Harless was the requirement that administrators review the proposed materials "[a]t least 48 hours prior to any distribution." The student challenged this provision as being an unconstitutional prior restraint. After additional briefing the district court found that the policy was not an impermissible prior restraint because "under the distribution policy a student need not await affirmative action from the Superintendent before proceeding with a distribution, but presumably may proceed with the distribution without the Superintendent's permission." On this basis, the court concluded that the policy requiring students to submit a copy of the literature to be distributed did not constitute an impermissible prior restraint.

In Muller v. Jefferson Lighthouse School the Seventh Circuit revisited the issue of student distribution of religious material and specifically the prior restraint issue that was left open in Hedges. The school had a policy similar to that in the Hedges case but also required that any materials distributed have the following disclaimer: "The opinions expressed are not necessarily those of the school district or its personnel." As in Harless, the court in Muller noted that elementary school students do not have the same degree of free expression rights that high school students have. The court held that elementary schools were generally non-public forums, and "an elementary school under its custodial responsibilities may restrict such speech that could crush a child's sense of self-worth." The Seventh Circuit also found that "[p]rior restraint of student speech in a nonpublic forum is constitutional if reasonable ... Prior restraint in the public school context, and especially where elementary schools are concerned, can be an important tool in preserving a proper educational environment." Although Religious Liberties News
noting that the pre-screening process was involved a "highly specific factual inquiry" the Seventh Circuit indicated that so long as educators act "reasonably" their decisions will pass Constitutional muster.

B. Boy Scouts of America Materials

In Sherman v. Community Consolidated School Dist. No. 21 of Wheeling the issue was whether it was proper for a school to permit the Boy Scouts of America to distribute material about its organization at an elementary school. The material did not have any specific religious message, although the Boy Scouts do require that their members profess a belief in God. The Seventh Circuit was almost dismissive of the parents' complaint noting that because the Boy Scouts' literature contained no overt religious messages, "the religious message of the BSA is sufficiently divorced from the workings of the school to obviate the possibility of the students confusing the two."

C. Bible Distribution by School

Unsurprisingly, in marked contrast to student distribution of religious materials, the courts are much more restrictive of schools permitting outside organizations to come in and distribute materials. A classic example of this is the case of the Rensselaer Central School Corporation located in northern Indiana. For approximately 50 years Rensselaer had permitted two representatives of the Gideons to come to school each year and during instructional time pass out Gideon Bibles to fifth grade students either in class or in the auditorium. In Berger v. Rensselaer Central School Corporation the town's only Jewish family challenged this practice. Both the district court and the Seventh Circuit made short work of Rensselaer's explanation for the practice. The school tried to argue that the practice did not present entanglement problems and that students would not equate the Gideons' actions with those of the school. Rejecting this argument the Seventh Circuit stated that "the image of hundreds of
students being marched into an auditorium for the yearly distribution of Bibles cannot but leave the imprimatur of state involvement." The Seventh Circuit also noted that "[t]he only reason the Gideons find schools a more amenable point of solicitation than, say, a church or local mall, is ease of distribution, since all children are compelled by law to attend school and the vast majority attend public schools."

The Seventh Circuit treated the school's Bible distribution and its arguments in favor of this process almost with disdain. The fundamental difference between this case and the preceding cases is the fact the distribution was not being done by students, but was being done by an outside organization with the tacit cooperation of the school itself on school grounds during instructional time. The Seventh Circuit did leave some leeway for other avenues for outside parties to distribute literature such as leaving it with the principal, placing it at a table, or distributing it prior to the start of or after the conclusion of the school day.

D. Conclusion

Because of propaganda by civil liberties organizations, many school administrators view any mention of religion in the schools as being forbidden under the First Amendment. What they fail to recognize is that religious speech, particularly that by students, must be treated equally with other speech. Thus if schools wish to do so, they may close the forum entirely and be treated as a non-public forum thus having no obligation to allow any literature to be passed out by students. Once, however, schools allow some student distribution of materials, they must have a policy of content neutrality and must apply that policy in a content-neutral fashion. In Secretary Riley's Statement on Religion in the Schools he noted as follows: "Students have a right to distribute religious literature on the same terms that they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, Religious Liberties News place and manner or other constitutional restrictions on distribution of religious literature as they do on nonschool literature generally."

In preparing a policy of general application, students, parents, and schools should keep in mind the fact that religious material must be treated the same manner as other student distributed literature no better and no worse. Schools should also remember that even if they open up door to some literature, they may still ban certain types of literature including: 1. Indecent, vulgar or lewd material or obscenity defined in reference to minors; 2. Libelous material; 3.Material that invades the privacy of others; 4. Material that promotes illegal activities for minors; 5. Material that promotes unhealthy activities; 6. Material that infringes upon someone's copyright; 7. Advertising or commercial material; and, 8. Material from non-student sponsored organizations.

Thus the argument that allowing student distribution of religious materials will generate all sorts of other problems is not particularly well taken. With respect to reasonable restrictions that may be imposed by schools on the distribution of materials by students (including religious materials), the following restrictions have been approved in one or more of the cases cited above:

1. A requirement that students wishing to distribute materials notify the principle and submit the material in advance for review to determine compliance with objective written restrictions; (Muller)
2. A prohibition on distribution of materials in hallways or other thoroughfares or on school busses where the distribution would disrupt order or impede the free flow of student movement between classes; (Hedges and Harless)
3. Limitations on the time of day and number of days that materials can be distributed; (Hedges and Harless)
4. Requirement that al materials be placed on designated tables in specific locations; (Hedges and Harless)
5. Requirement that students clean up materials left on school grounds;
6. Requirement that materiels bear a prominent disclaimer of school sponsorship.

These are, of course, merely general guidelines, and what is a reasonable restriction is usually defined on a case by case basis. As with anything else, any rigid application of the rules may present problems.

* Thomas E. Wheeler, II is a partner in Bose McKinney & Evans where he is a member of the firm's Education Law Practice Group. His practice consists of the representation of schools and other public sector clients in administrative and litigation matters. His article, "Religious Expression by Teachers: Whose Classroom is it?" was recently published in West's Education Law Reporter at 118 Ed.Law Rep. 571 (July 24, 1997).