Legal Clips, [June 2008]A U.S. district court has ordered officials at an Arizona high school to play a student religious club’s promotional video during morning announcements and to announce the club’s Bible study on the school’s public address system. However, the court declined to invalidate the school district’s time restrictions and pre-approval requirement on distribution of the club’s leaflets and concluded that it was unnecessary to issue an order regarding announcing the club’s weekly prayer meeting. Common Cause, a Christian club officially recognized by Mountain Ridge High School (MRHS) and Deer Valley Unified School District No. 97, submitted a videotape to the school administration to be played with the morning announcements. School officials refused to run the video because they believed this would violate the Establishment Clause. Common Cause also sought to distribute a promotional leaflet, but MRHS denied this request as well, citing a district policy that restricts distribution of written materials by students to the weeks of the annual “club rush,” when student clubs solicit members, and student elections. The club filed a lawsuit against MRHS and DVUSD in federal court, alleging that the refusal to run the video with the morning announcements violated the club’s rights under the federal Equal Access Act (EAA) and that the time and preapproval restrictions placed on distribution of the leaflets violated the club’s free speech rights. In addition to a preliminary injunction ordering MRHS officials to play the video during morning announcements and prohibiting them from enforcing the rules about leaflets, the club asked for an order under the EAA requiring the school to announce the group’s weekly prayer meeting, which previously has been announced over the PA system, as well as the club’s Bible study meeting.
The court addressed the videotape first, finding that the three elements required to trigger the EAA were present in the case, namely that MRHS: (1) is a public secondary school; (2) that receives federal funding; and (3) that has established a “limited open forum” by allowing noncurriculum student groups to meet on school premises and to advertise their activities in school announcements or publications. MRHS’s practice was to allow clubs to run videos that go beyond mere factual recitations into encouraging students to join. The Common Cause video was promotional, but no more so than any other club’s. Based on the core principle of EAA enunciated in previous federal case law—that “religiously-oriented student activities must be allowed under the same terms and conditions as other extra-curricular activities, once the secondary school has established a limited forum”—the court found that MRHS must afford Common Cause the same opportunity, unless doing so would violate the Establishment Clause. After reviewing the various tests applied to determine whether a government action offends the Establishment Clause, the court concluded that running the video would not violate the principle of neutrality, would not create a coercive atmosphere, and would not smack of government endorsement of religion. Having found that it likely that the club would prevail on the merits of its EEA claim, the court entered a preliminary injunction requiring MRHS and the district to permit the club to broadcast the video. Because the club had raised a meritorious EEA claim, the court declined to address the Free Speech Clause claim.
Turning to the school district’s requirements as to distribution of the leaflets, the court first noted that Common Cause was not claiming that other clubs were permitted to distribute leaflets and thus was making no claim under the EAA. constitutes a free speech violation, the district. As a free speech matter, although the club conceded that MRHS had, in setting the time restrictions, created merely a “limited public forum” in which a government entity can limit speech provided any limitations are viewpoint neutral and reasonable in light of the purposes served by the forum, the club argued that student distribution of literature is instead governed by the “substantial disruption” principle established in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Under that test, the club argued, the school had no discretion to regulate such distribution unless it could prove that allowing it would substantially disrupt school operations. The court rejected that contention, noting that the U.S. Supreme Court in Morse v. Frederick, 127 S. Ct. 2618 (2007), “expressly rejected the notion that Tinker categorically applies to all student free speech, explaining that ‘the mode of analysis set forth in Tinker is not absolute’ and that the Supreme Court has not uniformly invoked Tinker’s ‘substantial disruption’ analysis when resolving First Amendment student speech claims.” The district court also rejected Common Cause’s contention that the time restrictions were unreasonable. The court found that restricting distribution to 17 days a year is content neutral because it applies to all student-created literature. While conceding that the question of whether the restriction is reasonable in light of the purpose of the forum was a “difficult,” the court found that MRHS’s desire to maintain order and appearance by preventing litter is important to the school’s educational purpose, and that “[d]evoting human and financial resources to the work of educating—rather than the work of cleaning—is key to that purpose.” Because MRHS’s leaflet policy was content neutral and reasonable in light of the purpose of the forum, the court continued, the club was not likely to prevail on the merits of its claim and, therefore, not entitled to preliminary injunctive relief as to the time restrictions. As for the pre-approval procedure for leaflets, in light of the fact that MRHS had found the content of the Common Cause leaflet unobjectionable and had approved its distribution during the 17 days, the court held that the club had failed to show there was the “risk of imminent injury” required to issue injunctive relief.
Concluding with the two PA announcements, the court found that no injunctive relief was required as to the weekly prayer meeting announcement since MRHS already has been reading it during morning announcements. As for the Bible study announcement, however, the court rejected MRHS’s argument that the announcement’s call to students to participate in religious study would constitute an Establishment Clause violation. The announcement neither violated the religious neutrality principle nor raised concerns of coercion or endorsement, the court held, finding that high school students possess the capability to discern “the difference between private speech shared through public announcements of club activities and officials’ speech on behalf of the school administration” and that “perceptions of endorsement or coercion are unlikely given the wide range of student clubs recognized at MRHS.”
Krestan v. Deer Valley Unified Sch. Dist. No. 97, N0. 08-194 (D. Ariz. May 9, 2008)
[Editor’s Note: The critical question of when student speech in school is governed by “forum analysis” or by the stricter Tinker disruption standard also is at issue in a case currently pending before the Sixth Circuit (KY, MI, OH, TN), M.A.L. v. Kinsland. Details on that case and NSBA’s amicus brief to that court warning against further expansion of the Tinker standard are at the first link below. Two other recent court decisions involving student religious speech are summarized at the following links. See also an NSBA chart of court decisions regarding distribution of religious materials in public schools and a collection of “survival tips” for school officials when it comes to student religious expression.]
NSBA School Law pages on M.A.L. v. Kinsland
NSBA School Law pages on M.B. v. Liverpool Cent. Sch. Dist.
NSBA School Law pages on Truth v. Kent Sch. Dist.
NSBA chart on distribution of religious materials
PSBA Bulletin, April 2007, By Thomas Hutton