Equal Access with a Twist...

A district court in Minnesota recently decided an equal access case that has some important implications.  Child Evangelism Fellowship had sued the Elk River School District, having wanted to distribute its literature on school bulletin boards and at school open houses.  Elk River refused to let it; CEF claimed this violated the Free Speech Clause.  The Court's opinion grants CEF a preliminary injunction, but the way the opinion decides things suggests that a permanent injunction is certainly on the way.

The interesting thing about this case is the role of this federal statute, 20 U.S.C. § 7905, known as the Boy Scouts of America Equal Access Act.  Passed in 2002, Section B of the Act states that:

[No school or school district] that has a designated open forum or a limited public forum and that receives funds made available through the Department shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other youth group listed in Title 36 of the United States Code (as a patriotic society) that wishes to conduct a meeting within that designated open forum or limited public forum, including denying such access or opportunity or discriminating for reasons based on the membership or leadership criteria or oath of allegiance to God and country of the Boy Scouts of America or of the youth group listed in Title 36 of the United States Code (as a patriotic society).

Now in part because of this statute, Elk River's policy was to permit distribution of three types of material -- (1) "materials directly relating to official and school-sponsored actvities," (2) "materials directly in support of school activities," and (3) "materials from [these patriotic organizations] after staff review."  Btw, these patriotic organizations are listed in 36 U.S.C. § 20101 et seq. -- they include groups like Future Farmers of America (§ 70901) and Little League Baseball (§ 201036).

Anyway, CEF's claim was straightforward: If you allow distribution of messages from these "patriotic" organizations, you have to allow our messages.  Whether an organization is listed as "patriotic" in Title 36 is hardly a viewpoint-neutral classification.  And apparently, Elk River made the ill-advised concession that there was a public forum here (see p. 6).  And so, under settled First Amendment law, CEF wins.

There are some important issues here.  There's always the aside that I don't know why school districts concede the public forum point.  Here the only outside organizations that Elk River permitted to send flyers are the patriotic ones that Congress singled out for special treatment.  Everyone else -- including political groups offering flyers with high-value political speech -- are banned.  (As another aside, note that if Elk River argues no public forum, Section 7905 suggests that it can exclude even the patriotic groups.)

Most importantly though -- and this is the heart of the post -- if the Free Speech Clause gives CEF rights co-extensive with the statutory rights of the aforementioned "patriotic" organizations, then one of the big unresolved issues in church/state law is now resolved.  Because the patriotic organizations don't just have the right to meet -- Section 7905 also gives them freedom to establish "membership or leadership criteria" and to have an "oath of allegiance to God."  That would mean CEF (and CLS and so on) would have the right to exclude gays and lesbians from joining or from leadership posts, anti-discrimination rules apparently notwithstanding.  CEF can claim that "patriotic" organizations have the right to meet without gays and lesbians, and that the Free Speech Clause prevents that right being given only to organizations the government defines as "patriotic."