William C. Odle, Thursday, June 02, 2011 | Filed under: First Amendment
Exactly one year ago today, we
blogged about the federal district court's decision in V
ictory Through Jesus Sports Ministry Foundation v. Lee's Summit School District. Victory challenged a policy that permitted youth and community groups closely affiliated with the school district the unlimited opportunity to have their informational flyers sent home with students, but which allowed other outside groups such as Victory only three distributions per year. Victory contended the flyer policy created an unlimited public forum and that providing it less access than other groups violated the First Amendment. Following a bench trial, the district court rejected this argument, finding that the school district's "backpack flyer" program did not create a public forum under the First Amendment and that the restrictions were a reasonable response to an otherwise unmanageable number of distribution requests.
Victory appealed and, on May 20, 2011, the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment below. (The opinion can be found
here and, for those interested, an audio recording of the
oral argument is available as well.) The three judge panel agreed with the district court's conclusion that the flyer policy did not create a public forum open to all. This may seem an obvious point. However, while the use of school premises by religious groups is fairly well defined under the
Equal Access Act, the law regarding the application of the First Amendment to speech that takes place in a non-physical forum is opaque at best.
Some courts have indeed found that a school district can create a public forum by agreeing to distribute flyers for outside groups, thus risking constitutional liability if they exclude anyone for almost any reason.
It is also worth noting that, in addition to rejecting Victory's public forum argument, the Court found that the school district’s restrictions were reasonable because the policy provided for an alternative avenue of communication by posting the flyer information on the school district’s website. Finally, the panel rejected Victory's facial challenge to the policy based on the argument that policy gives school district officials “unbridled discretion” to grant or deny access, leading to suppression of free speech.