School districts have two legally safe choices for distributing fliers for nonschoolsponsored activities to students and parents, a state education attorney advised Wednesday: Pass out all or none.
The Arizona School Boards Association made the recommendation in response to a lawsuit Bible camp operator Joseph Hills filed against the Scottsdale Unified School District in 1998 and subsequent court action.
In May, the 9th U.S. Circuit Court of Appeals ruled the district could not have a policy that treated religious fliers differently from other materials sent home. However, the court ruled that districts could prohibit fliers that used language advocating religion. That left district officials wondering how to create a definition of prohibited religious materials that did not treat religious fliers differently from other fliers.
On Tuesday, the U.S. Supreme Court turned down the district’s request to clarify the lower court decision.
"I think a lot of districts were confused," said Chris Thomas, attorney for the state school boards association. "We took what exactly was said in that decision and put it into policy."
The first choice in the recommendation to school districts, is to distribute all fliers given to the schools by private groups, with a disclaimer that the school and district do not endorse the materials. The second, Thomas said, is to prohibit all fliers from groups except for schoolsponsored activities. Any middle ground is fair game for school districts but has not been legally tested under the ruling, Thomas said.
The choices, he said, create a difficult decision for schools. Allowing all fliers means that anyone who isn’t violating law can submit materials, he said.
"If I was a pagan ritualist and wanted to put out fliers for a camp celebrating pagan rituals, you’d have to do it on the same basis," Thomas said.
"The bad thing is, some schools, because they’re not going to want to be put in this situation, are going to cut out all fliers," he said. "That includes Boy Scouts, Camp Fire (Boys and Girls), all those things everybody agrees on."
Hill’s attorney Gary McCaleb, a senior attorney for the Alliance Defense Fund, said the idea that a controversial group will come forward demanding to disburse fliers is a "red herring," and that it would be legally safe for a school district to send home all materials with disclaimers.
"There is not a blank check being written for the KKK and the Satanists of America and every other wacko group out there," he said. Past federal rulings protect schools from accepting materials from groups that may be disruptive to education, he said.
"After doing this for years, the only time I have seen this an issue is in people’s imaginations. I have never once seen a far-out obnoxious group actually come into a forum like this and bring up access."
The Scottsdale school board will review its policy, now restricting nonschoolsponsored fliers under a moratorium, at 7 p.m. Tuesday at 3811 N. 44th St., Phoenix.