Court: schools cannot bar literature with religious content

SAN FRANCISCO -- 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 school district attorney Mary Ellen Simonson said the district may ask the appeals court to review its ruling or petition the U.S. Supreme Court to take the case. The court's decision, she said, puts school districts in the "untenable position" of assessing "how far a brochure can go in promoting a religious event in its advertising."

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.

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Editors: David Kravets has been covering state and federal courts for a decade.