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A recent mass Open Records request by the American Civil Liberties Union led many local school leaders to seek guidance on distribution of religious materials in schools by outside groups.  In particular, the ACLU letter addresses the active distribution of Bibles to students during school hours by outside groups. 

To help schools avoid potential violations of the Establishment Clause of the U.S. Constitution, KSBA, the Kentucky Association of School Administrators and the Kentucky Association of School Superintendents collaborated to develop some general guidelines on the topic.

Materials distribution issues

·        Each district may either permit or prohibit outside groups or individuals not connected with the school, access to school property for the purpose of distributing materials to students. These groups/individuals could range from the local skating rink wanting to distribute flyers offering discounts, parties, etc., to a youth cheerleading training facility seeking participants, and from the public local library promoting after-school programs to churches promoting youth events or concerts.

·         Districts can simply prohibit distribution of all materials from non-school sources. This type of blanket ban is probably impractical, as it would include Boy Scouts/Girl Scouts, local parks and recreation sports and activity programs, and many other worthwhile activities. It would likely create community friction with other entities, and a loss of goodwill.

·        Districts or school officials can always refuse to distribute materials that advocate illegal behavior or behavior or activities that violate school rules or policies; materials that are lewd or vulgar; and materials that would cause a substantial disruption of, or material interference with, the normal operation of the school or school activities, regardless of the subject matter.

·        If distribution of materials by outside groups is permitted, the law allows some discretion to restrict the types of materials that may be distributed to students, provided the restrictions are thoughtfully designed or applied. For example, distribution of materials may be permitted only from governmental, charitable, educational, and other nonprofit entities, thus excluding commercial or for-profit enterprises (the skating rink flyers, for example). Again, this may prove to be impractical for the same reasons as above.

·        Districts and school officials cannot engage in “viewpoint discrimination” in determining which materials to allow or prohibit. In general, this refers to restricting the distribution of materials simply because the subject matter is unpopular or controversial;  because it expresses a particular social, political, or religious message; or simply because school officials disagree with the message.

·        Rules or practices can allow for reasonable “time, place, and manner” restrictions on distribution, and should be applied consistently to all materials that are permitted to be distributed. For example, a school could require materials to be placed on a table outside the cafeteria to be accessible to students as they go to and from lunch.

·        The district may require those who want to distribute materials to make a request in writing, and to provide a sample of the materials prior to being granted permission to distribute their materials, so long as the purpose of this process is to assure compliance with their policies and practices, rather than to discriminate.

·        Rules and practices should avoid placing students in awkward, coercive or embarrassing situations related to accepting or refusing to accept materials. In particular, allowing outside adults or school employees to distribute non-school related materials within a classroom calls for caution. 

The age of students should also be considered in determining the method of distribution. Elementary-age students are more likely to feel peer pressure or a need to comply with adults in accepting materials. The concern about a student’s age should not be considered a “hard and fast” rule applicable in all circumstances, however. Thus, in Rusk v. Crestview Local School Dist., 379 F.3d 418 (6^thCir. 2004), the court held that a school practice allowing a variety of nonprofit group flyers (including flyers advertising religious activities) to be distributed to elementary students during the school day did not violate the federal Constitution. The court reached this conclusion in part because it reasoned that the inclusion of the flyers promoting religious events among other community materials would not have a coercive effect; and that the intended recipients for the flyers were parents who were ultimately in a position to decide whether their children would actually attend the religious-affiliated events.

·        In the particularly sensitive area of religious materials, schools must strive to remain neutral while avoiding practices that promote or endorse a particular religion. To avoid the aforementioned viewpoint discrimination, the distribution of religious materials in schools should not be prohibited solely because the materials are religious in nature. The same rules that apply to secular materials should apply to religious materials, although school leaders may need to pay particular attention to the use of “disclaimer” language as relates to students potentially receiving religious materials in the school setting. See, for example, Peck v. Upshur¸ 155 F.3d 274 (4^thCir. 1998). If districts permit the distribution of materials, it is critical that advice be obtained from school district counsel as relates to these issues.