Preventive Law
Preventive Law Corner - The Confusion about Student Distribution
By Sharon S. Gilmore - Schwartz & Eichelbaum P.C.
Apr 5, 2007, 08:31

The Confusion about Student Distribution

Spring is in the air.  The flowers are blooming, birds are singing, and students are passing out religious messages on campus.  Although the “religious wrestle” is generally associated with the month of December, the Spring could open up its own can of worms.  Notable Spring religious holidays include Purim, Passover, Good Friday, and Easter.  However, lesser known spring religious holidays are Vernal Equinox, Rama Navami, Naw-Ruz, Mawlid-al-Nabi, and the Ridvan Festival among others. Potential springtime distribution issues can include students passing out information about Islam on Muhammad’s birthday (Mawlid-al-Nabi), students distributing Bibles before Good Friday, or students providing pamphlets about Seder (Passover).  How does your district address student distribution on campus? 

Student distribution of religious materials on campus has been recently addressed in Morgan v. Plano Independent School District.[1]  Jonathan Morgan, an elementary school student, brought candy cane pens with a religious message to distribute to other students.  He was not permitted to pass out his pens, but his classmates handed out non-secular items.  His parents filed suit alleging that that the school’s policy was unconstitutional because it interfered with Jonathan’s First Amendment right.  While the suit was pending, Plano Independent School District changed its policy.

The new policy adopted by the Board addressed separately the distribution of non-school materials on elementary campuses and secondary campuses by students.  Essentially, the distribution policy was the same for elementary and secondary campuses except that elementary students were prohibited from distributing materials in the hallways and the cafeterias.  Since the new policy was viewpoint neutral, the court reviewed it under the “time, place and manner restriction” test.

In reviewing the magistrate judge’s decision, the District Court held the district’s policy was constitutional, except the provision that related to the distribution of materials in elementary campuses’ cafeterias.  Under the school policy, the elementary schools’ cafeterias were considered a part of instructional activity.  The District Court held that the policy related to the elementary campuses was overly broad because it reached beyond what was necessary to protect the district’s legitimate interests.[2]  It is likely that prohibiting distribution in hallways for elementary school students passed constitutional muster because it would have disrupted the flow between classes and thus the educational environment; that was distinguished in the court’s mind from than lunchtime.[3]

The courts permit reasonable “time, manner and place” restrictions for students to distribute literature on campus.  In Walz v. Egg Harbor Township Board of Education,[4] an elementary school student brought gifts with religious messages to seasonal holiday parties.  In determining whether the elementary school policies were proper, the court examined the degree and the kind of control the school exercised.  The district asserted and the court accepted that the purpose of the holiday parties was instructional- to teach sharing.  The purpose was not to promote religion.  Although the student was not permitted to pass out his religious gifts at the party, the school allowed him to pass them out in the hallways and at recess.  The court did not find a free speech violation because the school imposed reasonable “time, place, and manner” restrictions. 

School policies that restrict student religious expression have been found to violate the law.  In Westfield High School v. City of Westfield,[5] the school had a policy that prohibited distribution of religious materials during non-instructional time.  A group of high school students in a religious club wanted to pass out candy canes with religious messages during the holiday in class, but before instruction began.  The court did not buy the school’s defense that the club was “school-sponsored” because there were no ties to the school’s curriculum or to school funding.  However, the court did find the policy to have prior restraints on student speech because materials had to be reviewed by an administrator.[6] 

These cases teach us that a court will not only examine the “place” where distribution will occur on campus, but whether the place is one where the instructional process occurs and whether the students interfered with instructional process.[7]  Many districts have adopted TASB’s FNAA and GKDA which describe student distribution of non-school literature.  These policies are aligned with the courts’ decisions.  However, if your district has a policy other than the TASB model policy or if your district added provisions to the TASB suggested policy, you may want to consult your school law attorney to make sure that your policy can pass constitutional muster.

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[7] Student distribution is different than non-student distribution of religious materials.  One example would be the Gideons, who have been prohibited from distributing Bibles in classrooms, but may do so at either a distribution table or on the sidewalks.  See Berger v. Rensselaer Cent. School Corp., 982 F.2d 1160 (7th Cir. 1993).