First Amendment Protection Only For Those Who Believe

After a lengthy legal battle, the 4th U.S. Circuit Court of Appeals ruled last year that the Montgomery County (MD) Public Schools’ “policy for distributing fliers by community groups [via a "backpack mail" program] is unconstitutional because it gives school officials unlimited power to approve or reject materials.” 

The ruling stemmed from a lawsuit filed by Child Evangelism Fellowship of Maryland, with the backing of the Alliance Defense Fund and the Christian Legal Society, after its request to distribute fliers regarding its Good News Club - which is designed to “evangelize boys and girls with the Gospel of the Lord Jesus Christ and establish (disciple) them in the Word of God and in a local church for Christian living” – was rejected. 

The Circuit Court sided with Child Evangelism Fellowship, ruling [PDF] that the school district’s policy granted it “unbridled discretion to deny access to the oft-used forum — for any reason at all, including antipathy to a particular viewpoint — [and] does not ensure the requisite viewpoint neutrality.”

Around the same time, the Liberty Counsel, which is directly tied to the late Jerry Falwell and his Liberty University, sent a letter to Albemarle County School Board in Virginia, warning it that its refusal to distribute fliers about a church-sponsored vacation bible school via its own "backpack mail" program was unconstitutional.

The school district quickly changed its policy and the Liberty Counsel’s Mat Staver was quite pleased:

"We're pleased the school changed its policy so quickly and correctly," says Mat Staver, Liberty Counsel founder and chairman. "The law is clear-- when schools allow the distribution of secular material, they must accommodate religious material."

Staver refers to a recent 4th Circuit Court of Appeals decision upholding a Good News Club's right to distribute fliers in Montgomery County schools in Maryland.

"They're not required to accept everything," he says, citing exemptions for libelous, obscene or pornographic material. Nor does he object if Muslim or Jewish groups want to distribute information about their events in schools. "The First Amendment is not just for the Liberty Counsel," he says. "You can't just pick and choose."

But one year later, it seems as if some on the Right are not so happy about Albemarle’s new policy now that students are bringing home fliers for a summer camp for atheists and freethinkers.

As Vision America’s Rick Scarborough fumes:   

Teachers in the Albemarle, Virginia School District are rebelling at being required to distribute flyers for an atheist summer camp. According to the left, while the First Amendment forbids an "establishment of religion," an establishment of disbelief is apparently quite acceptable.

The flyers advertise Camp Quest, billed as "the first residential summer camp in the history of the United States for the children of atheists, freethinkers, humanists, 'brights,' or whatever other terms might be applied to those who hold to a naturalistic, not a supernatural, lifestance."

[I]t’s outrageous to force teachers to distribute these flyers

Who thinks Scarborough would have responded similarly to a non-Christian teacher who resisted sending home flyers proselytizing for an evangelical Christian group?

For its part, the school board claims that it is required to distribute the fliers because of the 4th Circuit’s ruling regarding the Good News Club in Maryland, which Scarborough isn’t buying:

The district claims an appellate court decision gives it no alternative. Nonsense! In ruling on a ban on promotional material from the Christian Evangelism Fellowship, the court held that school officials lack "unbridled discretion to deny access" to material for non-school functions. The operative words here are "unbridled discretion."

Of course, Scarborough either misunderstands or is intentionally misrepresenting the 4th Circuit’s ruling.  As noted above, the court did not rule that that school officials lacked "’unbridled discretion to deny access’ to material for non-school functions,” but rather that its policy granted it “unbridled discretion to deny access” to its “backpack mail” program for any reason it saw fit and thus was unconstitutional. 

It appears as if the Albemarle County School Board attempted to comply with the court’s “viewpoint neutral” requirement for such programs, just as it was reportedly instructed to do by The Liberty Counsel.  So if Scarborough is upset that students are now bringing home fliers for an atheist summer camp, he ought to take it up with Liberty Counsel, Child Evangelism Fellowship, the Alliance Defense Fund, and the Christian Legal Society.

This isn’t the first time that Religious Right leaders have resisted others’ use of legal rights they demand for themselves.  The federal Equal Access Act was passed by Congress in 1984 at the urging of Religious Right groups that said schools were violating the rights of students who wanted to form Bible clubs.  But when students who want to form gay-straight alliances have asserted the same legal right (first affirmed by federal courts in Colin v. Orange Unified School District), Religious Right leaders and their political allies frequently resist or try to erect barriers to those clubs.

- via AU’s Wall of Separation