School districts cannot automatically bar distribution of
on-campus literature with religious overtones, a federal appeals court ruled
Thursday.
The decision by the 9th U.S. Circuit Court of Appeals, which covers nine
western states, concerned a Scottsdale Unified School District policy
prohibiting literature with any religious content from being posted or
distributed among the 33 schools the Arizona agency supervises.
A three-judge appeals panel, however, stopped short of saying that all
religious-based literature, such as those advertising Bible-based summer camps,
could be posted on bulletin boards and distributed via teachers.
The San Francisco-based court concluded that First Amendment speech protections
do not apply evenly to religious speech on public school grounds. The court
wrote that advertisements proselytizing religion could be barred, but
literature solely advertising religious instruction could not.
"The district cannot refuse to distribute literature advertising a program
with underlying religious content where it distributes quite similar literature
for secular summer camps, but it can refuse to distribute literature that
itself contains proselytizing language," Judges William Canby Jr., Michael
Daly Hawkins and Marsha Berzon wrote jointly.
The court noted that such a "subtle" difference satisfies First
Amendment guarantees while also abiding by the constitutional provision of
separation of church and state.
While the court set limitations on what is acceptable speech, the court said
its decision flowed from a U.S. Supreme Court ruling in 2001 in which the
justices said that a public school district could not bar a New York youth
group from studying the Bible on campus while granting access to nonreligious
groups.
Scottsdale district spokeswoman Carol Hughes said the district has not reviewed
the ruling, but said the district would comply with the decision and review its
policy.
"If we need to do something, we will do that," Hughes said.
The court's decision affects public schools in Alaska, Arizona, California,
Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
"The appeals court decision sends an important message about the constitutional
rights of religious speakers," said Walter M. Weber, an attorney with the
American Center for Law and Justice. "School districts cannot legally
discriminate against the type of literature distributed at schools simply
because that literature promotes an event that includes religious speech."
The case centered on the Scottsdale district's policy of permitting nonprofits
to distribute literature through its schools to promote events and activities
of student interest. Administrators must approve the literature before allowing
it on campus. Works of a "religious nature" are prohibited.
At issue was a summer camp advertisement from a nonprofit educational
corporation called "A Little Sonshine from Arizona." Among other
things, the ad, which the group wanted to post at the district, touted two
classes called "Bible Heroes" and "Bible Tales." The
district granted, then repealed, its decision to allow the advertisement.
The nonprofit sued in 2000, saying its First Amendment rights were being
treaded on. The appeals court partly agreed, saying the district went too far
in blocking the ad's distribution, but said the district could censor its
content.
The decision overturns U.S. District Judge Susan Bolton, who sided with the
district's decision to ban the ad in its entirety.
"The more religious material comes through the state, it really puts an
image that it really supports religion," said C.N. Coby Cohen, an attorney
with the Anti-Defamation League, which urged the court to uphold Bolton's
decision.
The appeals court, meanwhile, said it was not "called upon to parse each
individual line" in the camp's advertisement. Instead, the court returned
the case to Judge Bolton to determine which parts of the ad were protected and
which parts were nonprotected proselytizing speech.
The literature in question, while referring to dancing, singing and appearances
by "Bob the Tomato" and "Larry the Cucumber," also urged
youths to read the Bible at an early age and become familiar with Jesus Christ.
The case is Hills v. Scottsdale Unified, 01-17518.