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Schools’ flier policy thrown out

Board will re-examine which notices can go home with students following federal court’s decision

Wednesday, Aug. 16, 2006

Update, Aug. 17: On Wednesday, the school system announced that schools would distribute only fliers from the school system and other governmental agencies. Other materials may be displayed in schools.

The county school board violated the U.S. Constitution’s First Amendment because its policy on taking home fliers does not adequately protect against viewpoint discrimination, a federal appeals court says.

The ruling last week leaves the school system without a policy for deciding what should go home in students’ backpacks less than two weeks from the Aug. 28 opening of the school year.

‘‘It seems to make it very difficult for us to distribute any material,” said school board President Charles Haughey (At large) of Rockville. He said he was ‘‘disappointed” by the opinion and eager to speak with colleagues about what it means. The board is likely take up the matter during its Aug. 24 meeting, he said.

‘‘The Supreme Court has long held that the government violates the First Amendment when it gives a public official unbounded discretion to decide which speakers may access a traditional public forum,” Judge Diana Gribbon Motz wrote in the Aug. 10 opinion of the three-judge panel for the Fourth Circuit Court of Appeals in Richmond.

‘‘Clearly we will have to review our policy in light of the court’s comments,” schools Superintendent Jerry D. Weast said in a statement. ‘‘But I continue to believe that the volume of material, unrelated to school, delivered home through the time and energy of our staff and students, must be limited.”

Child Evangelism Fellowship, a Christian organization, sued the school system in 2001 for refusing to allow it to distribute fliers promoting its after-school Bible study group at Clearspring Elementary in Damascus and Mill Creek Towne Elementary in Rockville. Last week’s ruling reversed a March 2005 federal court decision that found the policy to be fair. The policy limited flier distribution to PTA groups, child care providers who use school buildings, nonprofit sports leagues and county- or city-sponsored activities.

The school board said its policy was designed to ease the workload for school employees who were deluged by fliers from businesses, after-school activities and community groups. But some groups called the policy too restrictive, saying it made it hard for groups such as the Boy Scouts of America, which used fliers to announce meetings and activities.

‘‘The government cannot exclude some speech while allowing others,” said Timothy J. Tracey, an attorney with the Center for Law and Religious Freedom in Springfield, Va., which represented Child Evangelism Fellowship. ‘‘It leaves the door open to exclude people because of their viewpoint, because they don’t like what they stand for. The First Amendment doesn’t allow government officials to have that discretion.”

This is the second time the case has been before the Fourth Circuit. In July 2004, a three-judge panel said the board discriminated against Child Evangelism Fellowship when it denied the group’s request to send fliers home. But the appeals court refused the school board’s request for a full court review and sent the case back to U.S. District Court, which prompted the board to draft the policy rejected last week.

‘‘The problem with the policy was they didn’t provide any criteria for people in Montgomery County to determine which fliers should be allowed to be distributed,” Tracey said.

The National School Boards Association and the Maryland Association of School Boards filed briefs supporting the county school system’s position.

Judith S. Bresler, who represented the school system in the case, said the court’s opinion demonstrated a ‘‘misunderstanding of how the policy operated.”

Under the policy, she said, fliers were put in one of two categories: approved for students to take home, or approved for display only. ‘‘Either they were one of the groups approved for backpack distribution or they weren’t,” Bresler said. ‘‘There was really no discretion in that.”

But the judges disagreed.

‘‘Put simply, notwithstanding the vehemence of MCPS’s protestations, nothing in the policy prohibits viewpoint discrimination, requires viewpoint neutrality, or prevents exclusion of flyers [sic] based on MCPS’s assessment of the viewpoint expressed,” Motz wrote.

‘‘It was a very fair ruling from my understanding,” said Myron Tschetter, vice president of U.S. ministries for Child Evangelism Fellowship. ‘‘They were making their policy to allow them to make decisions without the proper structure in place so it’d be possible to discriminate against one group versus another for their policy.”

Child Evangelism Fellowship plans to hold Good News Clubs this year at Damascus Elementary, Mill Creek Towne, Glenallan in Silver Spring and Maryvale in Rockville. The organization is also considering sponsoring a group at Clearspring Elementary and several other schools.

Jane Bittner, director emeritus of Olney’s Children’s Ballet Theatre, said she is pleased by the ruling. The school system also prohibited the ballet company and other arts groups from sending home fliers while sports teams and cheerleading squads could. The fliers were an inexpensive way of telling parents and children about upcoming arts programs and kept costs down so ticket prices could be affordable, she said. ‘‘They [the school board] obviously were against the religious group,” Bittner said. ‘‘Children’s arts groups were left out in the cold, too.”