May students distribute religious literature in a public school?

Thursday, December 23, 2004

Court decisions on the issue generally fall into two categories.

Most courts hold that although schools may place some restrictions on distribution of religious materials by students, they may not ban them altogether. The courts base their decisions on the landmark case of Tinker v. Des Moines School District, which upheld the right of students to wear black armbands protesting the Vietnam War, even in a public school. Included in this right of free speech is not only the right to speak for oneself but also to distribute the writings (i.e., speech) of others. Thus, courts have generally upheld the rights of students to distribute non-school religious literature subject to the school’s right to suppress such materials if they create substantial disruption, harm the rights of other students or infringe upon other compelling interests of the school. Again, the Mergens decision makes clear that the fear of a First Amendment violation is not sufficient justification to suppress a student distribution of material that happens to be religious. Some states, such as California, have incorporated the majority view into their own state education codes.

A minority of decisions hold that schools can prohibit the distribution of any material that is not sponsored by the school. Of course, the ban must be applied even-handedly to all students. A school could not, for example, allow the distribution of political literature while barring religious publications. This is particularly evident in light of the Supreme Court’s 1990 decision in Westside Community Board of Education v.
upholding the federal Equal Access Act. Under this minority view, however, a blanket prohibition on all student distributions would be permissible.