« ASBJ offers tips for keeping student athletes safe | Main | Moviefest: the greatest cinematic endeavor since Snakes on a Plane »
August 21, 2006
Thou Shalt Not Give Thy Administrators Unfettered DiscretionA Maryland school district recently lost the latest round in a litigation saga over teachers distributing promotional materials for religious groups to elementary school kids. NSBA's Legal Clips summary of the latest decision by the Fourth Circuit in Child Evangelism Fellowship v. Montgomery County Public Schools is posted online here.
Not so long ago, school boards were getting sued from both directions over this particular issue. If they granted a religious group's request to distribute the fliers to kids, they got sued for violating the separation of church and state. But if they declined to do so, they got sued for violating the religious group's free speech rights. What's worse, they were losing these lawsuits from both directions.
The courts finally all came around more or less to the same direction. Generally speaking (things are a little trickier in the much maligned Ninth Circuit), a school district can't refuse to distribute religious materials just because they are religious if it distributes materials for other outside groups.
The earlier round of the Montgomery County cases over fliers for the Good News Club was among the decisions that made this general rule clear. What led to the second round was that the school board then adopted a new policy that authorized distribution only for a few types of group. The new criteria had nothing to do with content, religious or otherwise. But the Good News Club didn't fall into one of the categories, so the group sued again.
The Fourth Circuit just struck down the new policy. The problem this time, the court found, was that the policy gave school officials "unfettered discretion" to approve or withdraw approval for distributing materials for one of the approved groups, without setting very explicit guidelines for these decisions. The district's attorney thinks the court misunderstood how the policy works in practice, and until the school board can revisit the matter this fall, the district has announced teachers will distribute materials only for schools and other government agencies.
NSBA had submitted this brief urging the court not to issue a ruling that could force school boards into "all-or-nothing" decisions. Here's the problem. More than ever, schools need to work with the larger community to help students and need to be centers for the communities they serve. But in a society suffocating in marketing, everyone wants access to America's school children and their parents. If school boards are deprived of any discretion to manage the volume or have to worry about getting sued every time they say no, NSBA warned, they may just decide to close the doors.
Hopefully not. The good news (so to speak) is that the Fourth Circuit rejected the suggestion that any viewpoint neutral policy under which the plaintiffs happen not to get access is, by definition, discriminatory.
But the lesson on this issue is that school boards have to consider very carefully what rules they set and how they are to be implemented. Typically school boards are criticized for not giving administrators enough discretion. In this case, the opposite was the problem.
Posted August 21, 2006 12:44 PM | School Law
Trackback Pings
Listed below are links to weblogs that reference Thou Shalt Not Give Thy Administrators Unfettered Discretion:
» To flyer or not to flyer... from SchoolMatters Weblog
At church this morning, several friends approached me to inquire about the flyer controversy which was covered in a Daily Progress article last week (and before that in C-Ville Weekly). Given their questions, I thought it might be helpful to [Read More]
Tracked on September 10, 2006 1:47 PM
BoardBuzz Feed
