POLICY: DISTRIBUTION
OF NON-SCHOOL SPONSORED LITERATURE IN THE SCHOOLS
Option A - for school districts that do not allow any distribution of
non-school literature: [1]
The _______ School District does not allow any distribution of non-school sponsored[2] literature on school grounds or at school events by community members or district employees acting in their own behalf or on behalf of a community group.[3]
Non-school sponsored literature
means any printed, written, or electronic
materials prepared by non-school organizations, groups or individuals for
posting or general distribution that are not prepared as a part of the
curricular or approved extracurricular programs of the district. This includes
such things as fliers, invitations, announcements, pamphlets, posters,
photographs, pictures, films, audio recordings, digital media recordings, and
electronic messages.
Distribution means handing non-school sponsored literature to others on school property or during school-sponsored events; posting on school property such as walls, bulletin boards, and district web-sites; placing upon desks, tables, on or in lockers; making available in principal’s office; or engaging in any other manner of delivery of non-school sponsored literature to others while on school property or during school functions.
Option B - for school districts that allow distribution of non-school
literature:
It is the policy of the _________________School District to allow limited distribution of non-school sponsored literature on school grounds or at school events by community members or district employees acting in their own behalf or on behalf of a community group. Accordingly, the Superintendent may permit the distribution of non-school sponsored literature without discrimination as to the viewpoint of the literature in accordance with this policy.[4]
Non-school sponsored literature
means any printed, written, or electronic
materials prepared by non-school organizations, groups or individuals for
posting or general distribution that are not prepared as a part of the
curricular or approved extracurricular programs of the district. It also includes materials prepared by school
district employees acting in their own behalf or on behalf of a community
group. Non-school sponsored materials
includes such things as fliers, invitations, announcements, pamphlets, posters,
photographs, pictures, films, audio recordings, digital media recordings, and
electronic messages.
Distribution means handing non-school literature to others on school property or during school-sponsored events; posting on school property such as walls, bulletin boards, and district web-sites; placing upon desks, tables, on or in lockers; making available in principal’s office; or engaging in any other manner of delivery of non-school sponsored literature to others while on school property or during school functions.
This policy prohibits the distribution of literature that:
a) Is libelous, defamatory, obscene, lewd, vulgar,
or profane;
b) Violates federal, state or local laws;
c) Advocates the use or availability of any
substance or material that may reasonably be believed to constitute a direct
and substantial danger to the health or welfare of students, such as tobacco,
alcohol or illegal drugs;
d) Incites
violence;
e) Interferes with or advocates interference with the rights of any individual or the orderly operation of the schools and their programs;[5]
f) Is primarily of a commercial nature, including
but not limited to all material that primarily seeks to advertise for sale
products or services;[6]
or
g) Whose primary purpose is fundraising.[7]
All non-school sponsored literature intended for distribution on school
property or at school-sponsored events shall be submitted to the
superintendent/principal for prior review as to the following:[8]
a)
to
confirm that the literature includes the name of the person or organization
sponsoring the distribution, and that there is no implication that the
literature is endorsed by the school district, and
b)
to confirm that the literature does not fall in
one of the prohibited categories listed above.
Prior review of literature is not required when the non-school sponsored
literature is distributed by an attendee to other attendees at a meeting
intended for adults held after school hours.[9]
The superintendent may place reasonable time, place, and manner restrictions on the distribution of non-school sponsored literature.[10]
Non-school sponsored literature may not be used during instructional time or school-sponsored activities unless it is of educational value to the school program, benefits district students or the school community, and is factually accurate.
Notwithstanding anything in this policy, the school district may adopt more restrictive rules for signs or messages on school property that bears the school imprimatur due to their location. For example, the school district may restrict the content of messages on advertising displayed on baseball field fences or brick pavers in walkways if advertising space is sold in those locations to raise money for the school district. Selling advertising in that way does not create a public forum in those locations.[11]
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Date Warned: |
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Date Adopted: |
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Legal Reference(s): |
Good News Club v. Milford Central Schools, 533 U.S. 98 (2001) Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 390 (1993) Cornelius v. NAACP Legal Defense and Ed. Fund, Inc., 473 U.S. 788 (1985) Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37 (1983) Travis v. Owego-Apalachin School Dist., 927 F.2d 688 (2d Cir. 1991) Chiu v. Plano Indep. Sch. Dist., 339
F.3d 273 (5th Cir. 2003) DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999), cert. denied 529 U.S. 1067 (2000) Hedges v. Wauconda Community Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993) Kiesinger v. Mexico Academy and Cent. Sch., 427 F. Supp. 2d 182 (N.D.N.Y. 2006) |
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Cross Reference: |
Student Self-Expression Policy H3 Community Use of Facilities |
[1] A school
district has the legal right to preserve its facilities exclusively for the
purpose of conducting its educational programs.
A school district is a non-public forum, so it is not required to be
made open to all. Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U.S. 384, 390 (1993). Once a district prohibits all distribution of
non-school sponsored materials, it must be consistent.
While a forum will not become open by
inadvertence, a district following this Option A must not allow community
members to distribute any non-school sponsored materials. In addition, the district must not distribute
such materials on behalf of any community group. Districts adopting this prohibition would not
be allowed to post fliers announcing community sports events, would not be
allowed to send home fliers inviting children to join community organizations,
and would not be allowed to have a shelf in the office for private summer camp
brochures.
[2] The district
should clearly delineate in its policy whether or not parent-teacher
organizations are school-sponsored organizations. If they are not, then any distribution of
literature by such groups will violate this policy and will open the door for
all other community groups to distribute literature. Policies that allow decisions as to which
groups will be considered school-sponsored organizations in the “sole
discretion” of the superintendent are vulnerable to legal attack; it is better
to spell them out in policy.
[3] This policy
does not apply to student distribution of materials. The rules for student speech are
different. See Policy
___.
[4] A totally
public forum is one where all materials may be distributed; the classic example
is a public park. A limited public forum
is one where certain categories of material may be distributed. See Cornelius v. NAACP Legal
Defense and Ed. Fund, Inc., 473 U.S. 788 (1985) and Travis v. Owego-Apalachin School Dist., 927 F.2d 688 (2d Cir. 1991)
(good overview of differences among types of public forums). School districts may create a limited public
forum by allowing outside groups to distribute literature on a limited basis as
long as the criteria for allowing or prohibiting distribution are reasonable
and viewpoint neutral.
In a limited public forum, once the district
allows a community group to distribute materials for one purpose then it and
must allow all other community groups wishing to distribute materials dealing
with the same topic, even if their view of the topic is different. The basic principle is that restrictions on
distribution of materials may not be based on a group’s viewpoint. Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S.
384 (1993); Good News Club v. Milford
Central Schools, 533 U.S. 98 (2001).
In these cases, the Supreme Court specifically held that religious
groups’ use of school facilities must be permitted when other groups seeking to
teach morals have been permitted to use facilities; the same approach applies
to distribution of materials.
[5] Prohibitions
that maintain discipline or prevent school disruption are always allowed. Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th
Cir. 2003).
[6] As indicated
here, a district could choose to prohibit all distribution of literature that
promotes the sale of products or services.
As with all viewpoint neutral prohibitions, care must be taken that the
prohibition is evenly enforced without exceptions. If a district wishes to allow distribution of
materials supporting some commercial activity (such as literature related to the
sale of college testing preparation services) but not others, it must make the
distinction based on criteria that are objective and viewpoint neutral.
[7] A common
question may be whether fundraising by parent-teacher organizations is
permitted. If such organizations are
clearly delineated (either in this policy or elsewhere) as school-sponsored
groups, then they are not restricted by this policy.
[8] Prior review of
literature by a school official is allowed when the policy sets forth narrow
and clear standards for that review. Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir. 2003).
[9] Prior review of
literature is allowed by the law primarily for the purpose of preventing
disruption of the school’s educational activities. Those concerns are not present when
literature is distributed after school hours to adults, so prior review can be
viewed as an unconstitutional prior restraint.
Chiu v. Plano
Indep. Sch.
Dist., 339 F.3d 273 (5th Cir. 2003).
[10] Examples of a
“time” restriction are that literature be distributed before or after regular
school hours. A “place” restriction
might be that literature be posted only on bulletin boards and not on windows,
or that it be made available on a specified table in the principal’s
office. A “manner” restriction might
specify whether or not persons distributing the material may stand at the main
entrance to the building, or might limit the number of copies of a pamphlet
that may be distributed. Hedges
v. Wauconda Community Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th
Cir. 1993). Such restrictions
must be applied without discrimination as to viewpoint of group or individual
who wishes to distribute non-school sponsored literature. Note that the courts have held a school
district’s internal mail distribution system is not a public forum, and thus
school districts are not required to allow the mail system to be used for
distribution of non-school sponsored materials.
Perry Educ.
Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37 (1983).
[11] Kiesinger v. Mexico Academy and
Cent. Sch., 427 F. Supp.
2d 182 (N.D.N.Y. 2006) (holding that school district may constitutionally
exclude bricks in walkway containing religious or political messages, but may
not restrict references to God by certain names and not others based on the particular
religious viewpoint of those references); DiLoreto
v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th
Cir. 1999), cert. denied 529 U.S.
1067 (2000) (holding that school district may restrict advertising on baseball
fence to messages that contain no political or religious content).