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Principal n September/October 2007 www.naesp.org12

P e r ry a . Z I r k e l

One of the leading legal issues for principals concerns the distribution of religious literature within or adjacent to

school property. It has been almost 20 years since I last visited the issue of distribution of religious material in schools by outside groups. It was reported then that a “consistent line of court decisions seems to stand for the proposition that Bible distribution in the public schools [as compared with an area adjacent to the school grounds] violates the establishment clause.”1

Ten years ago, I also examined student distribution of religious materials, concluding that the case law in this area was much more uneven.2 In the interim, the lower courts have continued to address this issue, and the Supreme Court has issued decisions allowing access to public schools for religious groups under the First Amendment’s free speech doctrine of viewpoint neutrality.3 In recent years, the Alliance Defense Fund, an Arizona-based network of lawyers, has filed hundreds of cases advocating religious speech in schools.4 The following case and accompanying question-and-answer discussion illustrate the court decisions that have emerged during the most recent period.

the CaseFor many years, Missouri’s South Iron R-1 School District

allowed the Gideons Association to distribute Bibles to fifth-grade students during the school day. When some parents objected in early 2005, the school board voted to continue this Bible-specific policy, rejecting recommendations from the superintendent and a local ministerial alliance for an “open forum” policy that would allow the distribution of any outside group’s literature on school property.

At the start of the 2005-2006 school year, the principal of the elementary school accompanied Gideon representatives to fifth-grade classrooms, where they distributed Bibles to the students. In February 2006, two parents filed for a pre-liminary injunction against the Bible distribution in federal court, claiming that the district’s policy violated the First Amendment’s establishment clause.

A week before the scheduled court hearing, after learning that its insurer would not represent the district, the school board adopted a new policy that allowed all outside groups to distribute printed materials—including Bibles—to students subject to certain conditions:

Distribution of Religious Literature: An Update

n Submission of the materials to the superintendent at least 48 hours prior to distribution;

n Noncoercive distribution in specified group locations, not classrooms; and

n Exclusion of libelous, obscene, com-mercial, political, illegal, or substan-tially disruptive materials.

The district defendants pointed to Supreme Court precedents that

upheld access to public schools for religious activities, based on the principle that content-based restrictions on religious expression constitute viewpoint discrimination under the First Amendment. The plaintiff-parents persisted with their claim, arguing that both the former and the new policies were unconstitutional.

Questions and answers

how do you think the court responded to the plaintiff’s request for a preliminary injunction?

First, the court granted the preliminary injunction with regard to the former policy, concluding that its clearly fatal flaw was its allowance for the Bible distribution in the classroom, an action not permitted in any of the prior precedents and one that did not qualify the defendants to qualified immunity. 5

Second, although finding it a “much closer call,” the court also granted the preliminary injunction with regard to the new policy, concluding that its cumulatively fatal features were:

nIts specific application to the Bible rather than less directly religious publications, such as fliers concerning information about religious community activities;

nThe lack of a prohibition for school employees, such as the principal or a teacher, from being involved in the Bible distribution; and

nThe school board’s inferable intent to promote religious activity.

Does the court’s decision in this case carry conclusive legal weight?

Not by itself. First, the decision in this case is not final because further judicial proceedings continue, including an appeal. Second, the facts of this case, at least at this pre-liminary stage, were particularly unfavorable to the district. On the other hand, the decision is consistent with a rather long and solid line of published court decisions as applied to Bible distribution in elementary schools.

have the courts been similarly unsupportive of outside groups’ efforts to distribute religious fliers?

No. The federal courts in recent years have rather consis-tently struck down refusals to allow distribution of religious

13Principal n September/October 2007www.naesp.org

fliers in elementary school classrooms as a viewpoint discrimination violation under the First Amendment freedom of expression.6

If the distributors of religious materials were students, would the judicial outcomes be different?

The answer depends on several factors, most notably the manner in which the materials were distributed. For example, if the distribution was on school grounds but at a time and place that did not interfere with instruction, the recent judicial trend has been to interpret such activity as within the students’ First Amendment freedom of expression.7 In one recent case, the trend was extended to such distribution during noninstructional time in the classroom, although the decision was not officially published.8 In many of these cases, the material was distributed by a student religious group.9

ConclusionWhen faced with a request for or

objection to distribution of religious material in a public school, the princi-pal would be ill-advised to engage in a knee-jerk reaction based on perceived community values. Rather, careful con-sultation with the central office—with the assistance of legal counsel—is par-ticularly advisable in this complicated, controversial, and not completely settled area. The specter of litigation looms large because church-state issues are in constant tumult in our society, with the religious right matching the secular left with organized networks for

legal advocacy. In addition, the cases increasingly involve First Amendment freedom of expression in addition to or in place of the First Amendment’s estab-lishment clause.

Overall, the trend appears to be in the direction of carefully crafted allow-ances of such distribution, but the rel-evant questions include:

n What type of material is to be distributed (e.g., the Bible or reli- gious informational fliers)?

n Who is doing the distribution (e.g., an outside group, a teacher, or a student)?

n What is the time and location of the distribution in relation to classroom instruction?

n What is the grade level of the targeted students?

n Does the distribution pose a rea- sonably foreseeable risk of substantial disruption?

n Does the school allow distribution of corresponding nonreligious materials?

“the specter of litigation

looms large because

church-state issues are

in constant tumult in our

society …”

14 Principal n September/October 2007 www.naesp.org

As a starting point, policies or practices that allow the distribution of Bibles in elementary classrooms would appear to be on constitutionally vulnerable grounds, whereas policies and practices that allow—on par with secular materials—the distribution of religious fliers at reasonable times and places remote from classroom instruc-tion would appear to be on constitu-tionally solid grounds. However, the variance in the specific circumstances and the particular jurisdiction warrant treading with extra caution.

Perry a. Zirkel is University Professor of

Education and Law at Lehigh University.

Notes1. Zirkel, P. and I. Gluckman, “Distribution

of Religious Literature.” Principal, November 1989, 62-63.

2. Zirkel, P., “Student Distribution of Religious Material.” Principal, September 1997, 62-63. For overlapping topics, see Zirkel, P., “Religious Items in School,” Principal, May/June 2005, 10–11; Zirkel, P. “Student Evangelism,”

Principal, January 1999, 62-63.3. Good News Club v. Milford Cent. Sch. Dist.,

515 U.S. 819 (2001) (elementary student religious club distribution after school hours); see also Milford v. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (church’s evening showings of religious film series).

4. Holding, R., “Speaking Up for Themselves.” Time, May 21, 2007, 65.

5. See, e.g., Berger v. Rensselaer Cent. Sch. Dist., 982 F.2d 1160 (7th Cir. 1993); Jabr v. Rapides Parish Sch. Bd., 171 F. Supp. 2d 653 (W.D. La. 2001). In the only major decision in favor of Bible distribution constitutionality, the court limited its ruling to secondary school students, reasoning that elementary school students were “particularly impressionable.” Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (4th Cir. 1998).

6. Child Evangelism Fellowship v. Montgomery County Pub. Sch., 457 F.3d 376 (4th Cir. 2006) (revised policy); Child Evangelism Fellowship of New Jersey v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004); Child Evangelism Fellowship v. Montgomery County Pub. Sch., 373 F.3d 589 (4th Cir. 2004) (original policy); Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044 (4th Cir. 2003); cf. Rusk v Crestview

Local Sch., 379 F.3d 418 (6th Cir. 2004); Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897 (W.D. Mich. 2000) (no establishment clause violation). But cf. Reeves v. Rocklin Unified Sch. Dist., 135 Cal. Rptr. 2d 213 (Ct. App. 2003) (anti-abortion organization–closed forum).

7. See, e.g., Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061 (9th Cir. 2001) (designated “speech classroom” at the end of the school day); Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98 (D. Mass. 2003)(during noninstructional time–preliminary injunction); cf. Raker v. Frederick County Pub. Sch., 470 F. Supp. 2d 634 (W.D. Va. 2007) (anti-abortion literature–hallways and cafeteria before and after the school day); M.A.L. v. Kinsland, 2007 WL 313283 (E.D. Mich. 2007) (anti-abortion literature in hallways between classes–preliminary injunction).

8. M.B. v. Liverpool Cent. Sch. Dist., 2007 WL 963285 (N.D.N.Y. 2007).

9. At the elementary level, where the Equal Access Act does not apply, the same viewpoint neutrality trend favors access before or after school hours. See, e.g., Child Evangelism Fellowship of S. Carolina v. Anderson Sch. Dist., 470 F.3d 1062 (4th Cir. 2006).

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