MARYLAND — A policy that governed public school officials’ authority to determine which community groups can send home fliers with students was struck down recently because an appeals court said it infringed on the groups’ First Amendment right to free speech.
The 4th U.S. Circuit Court of Appeals said in its August decision in Child Evangelism Fellowship v. Montgomery County Public Schools that the Montgomery County Public School system policy for deciding what materials from outside groups can be sent home with students is too broad, and has no safeguard against allowing administrators to pick and choose based on the views being expressed. The case did not involve the rights of students at the school to distribute materials.
A lower court had ruled earlier that the policy was constitutional because the take-home fliers were “a non-public forum subject only to the test of reasonableness.”
But the 4th Circuit said that although the restrictions may have been reasonable, they also must be viewpoint neutral and protect against viewpoint discrimination.
The court held the policy does not meet that standard.
“The danger in such boundless discretion, therefore, is that the government may succeed in unconstitutionally suppressing particular protected speech by hiding the suppression from public scrutiny,” Judge Diana Gribbon Motz wrote in the court’s unanimous opinion.
The Child Evangelism Fellowship, a Christian organization that holds meetings on school campuses, unsuccessfully brought the case in 2001. In 2004, the school system adopted its new flier policy after the 4th Circuit reinstated the lawsuit and returned it to the district court.
The court stated in its summary that the Montgomery County Public School system could restrict access if it creates a “viewpoint neutral” and “reasonable” way to determine what should be sent home from school, but the current policy “utterly fails” to provide adequate protection.