8th Circuit Upholds School's Literature Distribution Policy

In Roark v. South Iron R-1 School District, (8th Cir., July 16, 2009), the U.S. 8th Circuit Court of Appeals upheld a school district's policy on distribution of "printed material" in schools by outside organizations. The policy requires the organization to obtain advance approval, but approval will be given unless the material is libelous, obscene, or unlawful; advertises products or services; endorses a candidate; promotes alcohol, tobacco, drugs, or other illegal activity; or is likely to cause substantial disruption at the school. Distribution is limited to before and after school and lunch hour, and can take place only in front of the administrative offices or in a corner of the cafeteria.

Under a prior school policy, members of the Gideons were permitted to distribute Bibles in 5th grade classrooms during school hours. In a challenge to the policy, the district court entered a permanent injunction prohibiting any distribution of Bibles to elementary school children on school property during the school day. (See prior posting.) The Court of Appeals upheld the continuation of that injunction. The court then moved to consider whether to uphold the district court's declaratory judgment relating to the new policy. Chief Judge Loken, writing the primary opinion, said:

the Judgment neither enjoined the District from implementing the new policy nor declared that policy unconstitutional. Rather, it cross referenced an amended complaint seeking a declaration “that Defendants’ actions in instituting” the new policy violated the Establishment Clause. The precise import of the declaratory judgment is hopelessly obscure. Given its impact on the operations of a state governmental entity, this ambiguity alone requires reversal.

He then went on to also reject a facial Establishment Clause challenge to the new policy, finding that any major objection to it was obviated by the injunction that, as he read it, precluded the distribution of Bibles even under the new policy. Judge Beam concurring said he believes that the injunction only prohibits the earlier practice of distributing Bibles in classrooms. Judge Kyle concurred, saying that while he believes that the new literature distribution policy was passed for the purpose of promoting Christianity, he could concur because, in his view, "the portion of the court’s opinion discussing the new policy under Lemon is dicta...." Liberty Counsel yesterday issued a press release on the decision, as did Americans United.