Court approves 'review only' policy for underground student publications

INDIANA — A federal district court in Indiana ruled last July that a public elementary school policy that requires students to submit a copy of non-school-sponsored material to school officials for review prior to distribution did not constitute an illegal prior restraint because the policy did not “permit or require [school officials] to ‘approve’ the distribution.”

The case, Harless v. Darr, 937 F. Supp. 1351 (S.D.Ind. 1996), arose in November 1993 after first-grader Bryan Harless attempted to pass out religious tracts to his classmates while they were lining up in the classroom to go to lunch. Officials at Adams Elementary School, in the Franklin Township, asked Harless to stop distributing the leaflets. Two weeks later, Harless again tried to distribute the tracts to his classmates and was again asked to stop.

In March 1994, Harless (through his father) filed a lawsuit against the school charging, among other things, that the school’s actions violated his First Amendment and state constitutional rights and his rights under the recently enacted federal Religious Freedom Restoration Act (RFRA).

In May 1994, the school district adopted an official literature distribution policy. The policy required that students who wished to distribute more than ten copies of written material on school grounds notify the principal at least 24 hours in advance and submit a copy of the material “for review.” Students would then be required to distribute the literature from a table near the school’s main entrance during specified times.

After the policy was adopted, Harless was allowed to distribute his tracts without interference.

The court dismissed Harless’s RFRA claim and declined to rule on the state constitutional claim.

However, in finding the school district’s new distribution policy constitutional, the court distinguished it from prior review polices that had been struck down in earlier cases, including Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988), Johnston-Loehner v. O’Brien, 859 F. Supp. 575 (M.D.Fla. 1994) and Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir. 1972).

All of those policies, the court said, included language that gave school officials the right to approve or deny distribution based on content. The current policy only allowed for administrative “review.”

While noting the “potential for censorship,” “[t]he policy itself does not on its face appear to empower the Superintendent with the discretion to forbid a particular distribution for content-related reasons,” the court wrote.

Though Harless decided not to appeal the court’s decision he charged that such legal hair-splitting ignored the reality of what prior review was all about. Requiring students to submit printed material to school officials in advance of distribution “for review,” he argued, was tantamount to pre-speech censorship.

reports, Spring 1997