M.B. v. Liverpool Cent. Sch. Dist., No. 04-1255 (N.D. N.Y. March 29, 2007)
A U.S. district court in New York has ruled that a school district violated an elementary school student’s right to free speech when it rejected her request to distribute a "personal statement" concerning the impact Jesus Christ has had on her life to classmates during non-instructional time. The court found that both the district’s materials distribution policy and the reasons independent of the policy that school district officials relied on in prohibiting the distribution amounted to impermissible viewpoint discrimination. However, the court rejected the student’s equal protection and Establishment Clause claims. M.B. was a student at Nate Perry Elementary School (NPES). Although M.B. had previously passed out some materials that were clearly religious in nature to classmates during non-instructional time, Liverpool Central School District (LCSD) officials informed M.B.’s mother that any requests to distribute literature would have comply with the school district’s materials distribution policy. LCSD denied M.B.’s request to distribute her flyer on two grounds: (1) the request was not consistent with the school district’s policy because it did not designate the entire class as recipients of the flyer; and (2) the proposed manner of distribution, the proselytizing nature of the flyer, and the fact that the audience for distribution was elementary students created the danger of an Establishment Clause violation. M.B.’s mother sued, seeking a court order to allow M.B. to distribute the flyer and arguing that LCSD had engaged impermissible viewpoint discrimination based on the religion content of the flyer in violation of her First Amendment free speech rights. M.B. also claimed that LCSD’s actions had violated her equal protection rights and the Establishment Clause.
Addressing the free speech claim first, the court noted that the claim was based on M.B.’s assertion that LCSD had engaged in viewpoint and/or content discrimination, which it characterized in a footnote as more than an "as applied" challenged to the materials distribution policy. In order to determine the level of judicial scrutiny to which the policy and the officials’ actions should be subject, the performed a forum analysis of the school premises. While school facilities generally are non-public fora, both the school district and M.B. agreed that LCSD had created a limited public forum for written communications. As a result, the court found that LCSD could "make reasonable, viewpoint neutral rules governing content and enforce reasonable time, place, and manner restrictions with respect to written materials." Focusing on whether the flyer was private or school-sponsored speech in order to determine the level of constitutional protection to be afforded, the court determined that because LCSD officials relied on two distinct bases for rejecting the flyer, it would need to apply to test for school-sponsored speech to the policy, while applying the test for private speech to the officials’ actions taken independent of the policy. Regarding the part of LCSD’s decision to reject the flyer based on M.B.’s failure to comply with the policy, the court determined that the policy should be scrutinized under the school-sponsored speech test enunciated in Hazelwood School District v. Kuhlmeier, 484 U.S. 261 (1971). Under that test, the court concluded the policy would pass constitutional muster because requiring students to comply with the policy and its distribution procedure was reasonably related to the legitimate pedagogical concern of maintaining order in the elementary school setting and was viewpoint neutral. Turning to that part of LCSD’s decision in which it denied M.B.’s request notwithstanding the policy, the district court determined that the standard for private speech enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), should be applied. The court concluded that the officials’ rejection of the flyer would not withstand scrutiny under Tinker because the school district had failed to adduce any "evidence showing that M.B.’s flyers would disrupt the elementary classroom, cause substantial disorder, or invade the rights of others." Quoting from Tinker, the court found that none of the reasons LCSD marshaled for denying the request presented anything more than "undifferentiated fear or apprehension of disturbance, [which is] not enough to overcome the right of freedom of expression." To the extent LCSD censored M.B.’s flyer without a reasonable belief it would cause substantial disruption, therefore, it violated her free speech rights.
The court rejected LCSD’s argument that it was justified in censoring the flyer in order to avoid offending the Establishment Clause. The court employed the test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine if the prohibition on the flyers was necessary to avoid running afoul of the First Amendment’s guarantee of government neutrality in matters of religion. Regarding the purpose prong of Lemon, the court concluded that an objective observer, based on the totality of circumstances in an elementary school setting, would perceive that the school district’s decision to allow the distribution as secular in nature. Turning to Lemon’s effects prong, the court found that if LCSD allowed the distribution there would be no evidence the school district was acting with the purpose of advancing religion. As to Lemon’s entanglement prong, the court found there was no evidence from which a reasonable fact-finder would conclude that M.B.’s distribution of flyers would create excessive entanglement.
Having concluded that LCSD had violated M.B.’s free speech rights, the court examined her assertion that the policy’s distribution procedure violated her free speech rights as a student because the procedure implicates the Establishment Clause. Specifically, M.B. challenged the reasonability of LCSD’s time, place and manner restrictions on written speech. The court stated that on order for such restrictions to survive constitutional scrutiny they must: (1) be content neutral, targeting some quality other than substantive expression; (2) be narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression. Applying the test to the LCSD policy’s restrictions, the court concluded that even assuming the restrictions were content neutral, they failed constitutional scrutiny as applied to student speech because "they restrict considerably more than is necessary to serve [LCSD’s] interests in ensuring ‘consistent, orderly, and non-disruptive distribution of documents,’ avoiding unnecessary controversy among students, and preventing a ‘littering problem.’" The court found that LCSD had failed to offer any evidence that the restrictions, which in effect bar all written student speech not related to the elementary school’s pedagogical concerns, were narrowly tailored to serve the school district’s interests in the orderly distribution of written material and avoiding unnecessary controversy and litter on school grounds. As a result, the time, place and manner restrictions as applied to M.B. were unconstitutional.
The court then rejected M.B.’s contention that the policy on its face imposed impermissible prior restraint on her free speech rights. Given the "unique requirements of the educational process," the fact that the policy required prior approval for distribution of material did not create the presumption of unconstitutional prior restraint. However, the court agreed with M.B.’s challenges to the policy based on the lack of objective criteria by which LCSD officials must approve literature submitted and the lack of a definite time period during which officials must either approve or deny such requests. Regarding the issue of objective criteria, the court found the policy failed to provide LCSD officials with any guidance in making decisions about whether to approve or deny distribution requests. Nothing in the policy prevented LCSD officials from exercising "virtually unfettered discretion to suppress disfavored speech or disliked speakers." The policy, therefore, on its face violated the First Amendment’s free speech guarantees. The court also concluded that the policy on its face was unconstitutional in that it failed to impose a definite time limit on school district officials reviewing material. There was no evidence that LCSD "has or operates within a specific time period within in deciding whether to grant or deny a request to distribute a flyer, which flies in the face of early judicial rulings that in order for a regulation to be valid it "must prescribe a definite brief period" within which review will be completed.
The court disposed of M.B.’s equal protection claim on the ground that M.B. failed to show that there were other similarly situated students who were treated differently. Turning to her Establishment Clause claim, the court found that there was nothing to suggest LCSD acted with the purpose of inhibiting religion. Testimony from LCSD officials showed that there was no attempt by them or any policy to prohibit M.B. from speaking with other students during non-instructional time about her religious beliefs. Based on the record, the court would not view LCSD’s actions or the policy as hostile toward, or an attempt to inhibit, religion.
M.B. v. Liverpool Cent. Sch. Dist., No. 04-1255 (N.D. N.Y. March 29, 2007)
[Full opinion]
[Editor’s Note: Two other recent decisions in cases involving student distribution of materials in school are summarized below. The third link to is an NSBA chart reviewing court decisions over distribution of religious materials.]
[NSBA School Law pages on M.A.L. v. Kinsland]
[NSBA School Law pages on Raker v. Frederick County Public Schools]
[NSBA chart on materials distribution decisions]