Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools, No. 05-1508 (4th Cir. Aug. 10, 2006)
The U.S. Court of Appeals for the Fourth Circuit has ruled that a Maryland school district’s policy limiting classroom distribution of materials from outside groups based on the type of group, rather than the content of the materials, still violates a religious group's free speech rights. Montgomery County Public Schools (MCPS) and Child Evangelism Fellowship of Maryland (CEF) have been involved in protracted litigation over MCPS’s classroom materials distribution policy. The Fourth Circuit previously ruled that MCPS’s denial of CEF’s request for elementary school teachers to distribute flyers promoting the group’s after-school Good News Club constituted impermissible viewpoint discrimination. In response to that ruling, the MCPS school board adopted a revised policy limiting classroom distribution to materials from (1) MCPS; (2) other county, state, or federal agencies; (3) parent-teacher organizations; (4) licensed day care providers operating on-campus; and (5) non-profit youth sports leagues. Another group still could gain access to the classroom distribution forum if one of these approved groups sponsored or endorsed its message. The new policy placed no restrictions on the content of the materials, religious or otherwise. But because CEF did not fit into any of these five categories, its materials were not distributed. A district court upheld this policy, finding that it passed the “reasonableness” test applicable to rules governing access to a nonpublic forum because MCPS merely sought to reduce the “burgeoning number of organizations” distributing their materials in the classroom by “limit[ing] the subject matter to activities of traditional educational relevance to students and the categories of speakers to organizations involved in those activities.”
The Fourth Circuit found the district court’s forum analysis flawed, because even in a limited public or non-public forum, government restrictions on speech are subject to more than a test of reasonableness. They must also be viewpoint neutral, the appeals court determined, and “viewpoint neutrality requires not just that a government refrain from explicit viewpoint discrimination, but also that it provide adequate safeguards to protect against the improper exclusion of viewpoints.” As a result, the court concluded that it need not rule on what type of forum was at issue but instead turned to the central issue: whether the policy protects against viewpoint discrimination.
The court found “unconvincing” CEF’s contention that the revised policy is not viewpoint neutral because MCPS continues to exclude CEF’s flyers. Circumstances have changed since the prior appeal, the court pointed out, because at that time MCPS had “no discernible policy governing access to the take-home flyer forum.” Rather, the school district had acknowledged it had engaged in viewpoint discrimination by excluding the flyers but justified this practice based on Establishment Clause concerns. The school district crafted its new policy to address the problem of viewpoint discrimination. The court rejected CEF’s contention that the mere fact that it continues to be excluded from the forum means MCPS has not changed its policy: “[I]f MCPS established an access policy that was reasonable and eliminated viewpoint discrimination, we would hold that it did not violate CEF’s free speech rights whether or not CEF thereby gained admission to the take-home flyer forum. It is entirely proper for a governmental entity to attempt to conform its policies to the demands of the First Amendment. Even when litigation prompts the change, if a revised policy passes constitutional muster, a court will not penalize the government for transgressions under an earlier policy.”
On the other hand, the court agreed with CEF’s second argument that the revised policy unconstitutionally gives MCPS “unfettered discretion” to deny access to the forum for any reason. While acknowledging that “unbridled discretion analysis” is not precisely the same when applied to a limited public or nonpublic forum, as opposed to a traditional public forum, the court held that even in a case involving a nonpublic or limited public forum, a policy that allows officials to deny access for any reason or fails to provide sufficient safeguards to prevent viewpoint discrimination will not survive constitutional scrutiny. After reviewing the plain language of the revised policy and the circumstances surrounding its adoption, the court concluded that MCPS “assertedly limit[s] access to certain purportedly neutral speakers but actually reserves to itself unbridled discretion to permit or deny access to any speaker for any reason it chooses.” Specifically, the policy states that officials (1) “may approve” fliers from, or sponsored or endorsed by, one of the five types of eligible groups but provides no guidelines as to how they should exercise this discretion; (2) may withdraw approval of any flier that somehow “undermine[s] the intent of the policy,” although the intent of the policy is a very “broad” one of “establish[ing] a forum for communications from various community groups and governmental agencies to parents without disrupting the educational environment.” As a result, the policy “utterly fails to provide adequate protection for viewpoint neutrality…” and “[b]ecause the policy offers no protection against the discriminatory exercise of MCPS’s discretion, it creates too great a risk of viewpoint discrimination to survive constitutional scrutiny.”
Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools, No. 05-1508 (4th Cir. Aug. 10, 2006)
[Link to full opinion]
[ Editor’s Note: While CEF and its attorney applaud the ruling, the Montgomery County Gazette quotes MCPS’s attorney and COSA member Judith S. Bresler below as saying the court’s opinion demonstrated a ‘‘misunderstanding of how the policy operated.” Ms. Bresler insists that MCPS had no discretion because the fliers were put in one of two categories: approved for students to take home, or approved for display only. ‘‘Either they were one of the groups approved for backpack distribution or they weren’t.” The Washington Post reports below that MCPS has announced that, until the school board reworks the policy this fall, teachers only will distribute materials for the district itself and other government agencies.
NSBA filed an amicus brief in support of MCPS asserting that school boards have, and need, discretion over forum rules, including rules adopted in response to adverse court rulings, and urging the court to avoid issuing a ruling that could put school boards in the position of having to adopt “all-or-nothing” rules for access to school fora. Background on the case, including summaries of the previous district court and Fourth Circuit decisions, and NSBA’s brief are available below at the other links.]
Montgomery County Gazette
By Sean R. Sedam & C. Benjamin Ford
[Link to full story]
Washington Post
By Lori Aratani
[Full story]
[NSBA School Law pages on CEF-MD v. MCPS]
[NSBA amicus brief]