Distribution rights under examination


U.S. Supreme Court declines to hear two distribution-rights cases, but two others continue





The U.S. Supreme Court this spring declined to hear two cases involving an individual's right to distribute literature on school grounds while students in Florida and Ohio filed lawsuits over the same issue.

In April, the Supreme Court declined to hear the case of a New Jersey kindergartner who attempted to pass out pencils that bore the message 'Jesus [loves] the Little Children' during a class Easter party in 1998 and then candy canes with a religious message attached at another time.

Egg Harbor Township school officials told then-four-year-old Daniel Walz that he could distribute religious materials only during noninstructional time. The school argued that students receiving the gifts might believe the school was endorsing the religious message. The Rutherford Institute, a civil liberties organization based in Virginia, filed a lawsuit on behalf of Walz in May 2000.

The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over New Jersey, Delaware, Pennsylvania and the U.S. Virgin Islands, ruled that 'a school's need to control student behavior will necessarily result in limitations on student speech.' When the Supreme Court declined to hear the case, it let stand the Third Circuit's ruling.

'It's troubling when schools choose to censor rather than educate,' said John Ferguson, an attorney for the First Amendment Center at Vanderbilt University. 'Kindergartners can understand if they are taught and educated appropriately the difference between little Johnny's message and the teacher's message.'

Ferguson said courts have ruled that if schools allow students to pass out secular messages, schools must allow students to pass out religious messages.

'Either the school needs to say peer-to-peer communication is too dangerous, especially when it comes to distribution of materials, so we're going to eliminate all types of [expression] or we're going to have a neutral set of criteria,' Ferguson said.

Another kindergartner's attempt to distribute religious materials is the subject of a lawsuit against Orchard Park Elementary School in Kettering, Ohio. Madison Wuebben sought permission to distribute jellybeans with a religious prayer attached during class.

School administrators denied the five-year-old's request. After her parents spoke with school officials, they filed a lawsuit in February through the Rutherford Institute against the Kettering School District.

'There seems to be a growing movement to regulate religious messages by private individuals,' said Rita Dunaway, who is representing the Wuebbens as special counsel for the Rutherford Institute. 'When schools single out religious expression, they violate students' First Amendment right to free speech and free expression, as well as students' Fourteenth Amendment right to equal protection under the law.'

The rights of older students to distribute religious literature in schools is at issue in a case in Florida. In Hollywood, a Driftwood Middle School teacher told eighth-grader Christine Curran she would be 'written up' if she did not stop distributing fliers to students between classes in February 2003. The fliers invited students to a three-day church youth conference. Curran had not obtained prior approval from the principal to pass out the fliers.

Curran and her father filed a lawsuit in federal court against the Broward County School Board in January because the school's prior review policy discriminated against religious literature, which the lawsuit claims violates Curran's First Amendment rights.

'I think it's ridiculous that people can pass out fliers for parties and I can't pass out fliers for church, like there's something wrong with it,' Curran said.

Mathew Staver, Curran's attorney and president of the Liberty Counsel, a nonprofit civil liberties organization based in Florida, said the school's policy is unconstitutional because it 'chills and abridges the right of students to freely speak and meet with other people' and because the school only previews select subjects, which 'makes the policy even more problematic because it is making discriminatory selections based on the content or viewpoint.'

Staver said he wonders where the school will draw the line.

'Why do they need prior permission?' Staver said. 'Permission implies they can deny permission. Sometimes [schools] think religion or politics might be controversial, and they may. The First Amendment protects controversial speech. Otherwise, we don't need the First Amendment.'

The U.S. Supreme Court also declined to hear a case involving the rights of an adult from Arizona to distribute fliers advertising a religious summer camp to students.

In 2000, Joseph Hill, president of the group A Little Sonshine from Arizona, distributed fliers advertising the group's summer camp to students in Scottsdale Unified School District schools. Some parents complained about the leaflets' religious overtones, leading the school district to bar Hill from further flier distribution while still allowing other nonprofit groups to advertise on campus.

Hill sued the school district, and two lower courts ruled in his favor. The school district appealed to the Supreme Court, which declined to hear the case in January, letting stand a ruling from the U.S. Court of Appeals for the Ninth Circuit that supported the man's right to distribute fliers in public schools.

One of Hill's lawyers, Walter Weber, from the civil liberties group American Center for Law and Justice, said the case was 'straightforward, so there was no need for the courts to revisit the issue.'

The Ninth Circuit ruled that the school district violated Hill's free-speech rights by barring him from distributing his fliers. The court also decided that schools do not have to distribute 'proselytizing' materials.


reports, Spring 2004