Courts determine what rights students have in distributing religious material





Student speech can be vocalized, written or worn.  But when that speech is distributed, school officials often fail to treat it with full First Amendment protections.  

This year, three cases involving the distribution of religious material asked the courts to determine if student free speech can be censored by school officials who claim it violates the separation of church and state.

The outcome of the cases could have a chilling effect on the student press. 

In August, a federal appeals court ruled that pre-Kindergarten and early elementary students cannot express their religious beliefs by distributing gifts that bear a religious message to fellow classmates.

The U.S. Court of Appeals for the Third Circuit ruled that an elementary school in New Jersey could prohibit a 4-year-old boy from passing out pencils labeled “Jesus [Loves] the Little Children,” with a heart symbol substituting for the word love.

The court wrote that an elementary school classroom is not the place for student religious advocacy, adding that requiring a school to permit such speech would infringe upon a school’s legitimate area of control.

The case started in the spring of 1998 when Daniel Walz, then 4, brought the pencils to a pre-Kindergarten class party at an Egg Harbor Township elementary school.  School officials said Walz could only distribute the pencils during noninstructional time because they said they did not want it to appear the school was endorsing Christianity.

Over the next year and a half, Walz tried twice more to distribute candy with Christian messages but was told he could only distribute the candy canes outside the school building during his free time.

The Rutherford Institute, a civil liberties organization based in Charlottesville, Va., filed the lawsuit on behalf of Walz in May 2000.

In the lawsuit, the Rutherford Institute is seeking a declaration that the school’s policy is unconstitutional and an injunction prohibiting the future enforcement of the policy.  The institute plans to appeal to the full bench of the Third Circuit and to the U.S. Supreme Court if necessary, said John Whitehead, president of the organization.

The Pennridge School District in Pennsylvania settled a lawsuit filed by a student who claimed the principal halted his distribution of fliers questioning evolution to review their content.

The case began in March 2001 when Joe Baker, then 19, was prohibited from distributing fliers he wrote which encouraged classmates to question their science teachers about evolution. The principal halted Baker’s distribution, saying that he violated the school’s policy by not seeking the administration’s prior approval. He was later allowed to pass out the fliers. 

Baker, with the help of the Rutherford Institute, filed suit in August 2001 to contest the school’s rule that materials must be reviewed before distribution.

The settlement, which was reached at a school board meeting in August, required the district to pay Baker $2 in damages plus legal fees. The settlement also required the district to review its policy, which allows school administrators to review materials prior to their distribution by students.

The board met in early September to review the policy and finalize the settlement.  Board members voted to leave the policy unchanged.

In November, the Scottsdale Unified School District in Arizona petitioned the U.S. Supreme Court to review a lower court decision which said the district cannot refuse to allow a man to hand out a flier advertising religious summer camps. 

The Court of Appeals for the Ninth Circuit ruled in May that the school district violated Joseph Hills’ free-speech rights by prohibiting him from passing out his fliers advertising a summer camp in 2000.

The court’s ruling said that if schools choose to circulate fliers or brochures, they cannot bar a flier because it is religious.  However, the ruling did not say schools had to distribute material that promotes or “proselytizes” a religion.

The case focuses on Hills’ flier, which featured 17 classes – two of which were named “Bible Heroes” and “Bible Tales.”

After parents complained about the flier’s religious overtone, the school district barred the fliers but still allowed other nonprofit groups to continue distributing their material.

The district put a moratorium on distributing fliers until the court cases are resolved.

In its petition, the district is asking the Supreme Court to review whether a school district is constitutionally required to distribute literature to elementary students which approaches a subject from a religious perspective while also editing and restricting “proselytizing speech.”  In addition, the district is asking the Court to review whether the lower court’s decision violates the separation of government and religion and whether the school district can remain viewpoint neutral.  

Clay Calvert, an associate professor of communications and law at Penn State University and co-director of the Pennsylvania Center for the First Amendment, said the outcomes in the cases have an impact on students’ right to free speech and free press.  

He said the Ninth Circuit’s opinion in Hills is a victory for student speech because it says that school officials cannot use religion as an excuse to censor certain speech.  

However, Calvert said the Third Circuit’s decision in Walz is troubling because it waters down students’ right to free speech. He said the decision not only gives school officials’ the right to determine when speech in elementary schools may be abridged but it also suggests a sliding scale of First Amendment protection for students’ speech rights depending on the age of the student or the audience.

“The court’s observation that ‘[d]etermining the appropriate boundaries of student expression is better handled by those charged with educating our youth’ gives substantial legal leeway that can easily be abused by school administrators seeking to suppress student speech,” Calvert said.

He said administrators could use the decision to censor students if they feel the speech endorses religion or interferes with the school’s goals.

Calvert said the Third Circuit’s determination that “the younger the students, the more control a school may exercise,” could also have a harmful effect on student free speech.

“How many different speech-restricting standards are courts going to develop — one for first graders, a different one for fourth graders and still another for sixth graders?” Calvert said.  “Hazelwood already gives such great deference to administrators.”

CASES: Walz ex rel. Walz v. Egg Harbor Township Bd. of Educ., 342 F.3d 271 (3rd Cir. 2003), aff’g 187 F.Supp.2d 232 (D.N.J. 2002)

Hills v. Scottsdale Unified School Dist. No. 48, 329 F.3d 1044 (9th Cir. 2003)


reports, Winter 2003-04