- The Washington Times - Thursday, July 1, 2004

RICHMOND — An evangelical group’s plan to distribute fliers to students in two Montgomery County, Md., elementary schools does not amount to an unconstitutional endorsement of religion, a divided federal appeals court has ruled.

In a 2-1 decision on Wednesday, a panel of the 4th U.S. Circuit Court of Appeals reversed a federal judge’s ruling blocking the Child Evangelic Fellowship’s (CEF) access to the Montgomery schools’ take-home flier program.

The court sent the matter back to U.S. District Judge Peter J. Messitte of Greenbelt, Md., for further proceedings.

Judge Messitte’s ruling barred CEF from giving literature to students at Mill Creek Towne Elementary School in Rockville and Clearspring Elementary School in Damascus. The materials, to be taken home to parents, invited students to attend Good News Club meetings, which offer Bible lessons and other religious activities after school.

CEF had asked in August 2001 to include fliers and permission slips in informational packets compiled by the school and sent home with students. Packets typically include day care information, forms for community sports leagues and fliers from a variety of groups.

Among the religious groups that have been allowed to send fliers home are the Norbeck Community Church, the Jewish Community Center and the Holy Redeemer Summer Play School, the appeals court said.

The school district said it barred CEF because the flier program is not open to “proselytization” or “evangelical groups.” The appeals court said that amounted to unconstitutional viewpoint discrimination.

The court relied in part on a 2001 U.S. Supreme Court ruling requiring public schools to give CEF equal access to school space for Good News Club meetings.

Montgomery school officials said their case was different because teachers or other employees would be distributing the fliers during school hours, when students are required to be in school.

Judge Diana Gribbon Motz wrote that simply issuing a communication involving a religious organization during school hours does not render the communication state speech, nor does it invariably create a perception of endorsement or coercion by government officials.”

She also said that teachers’ involvement was minimal and that distribution of the literature did not rise to the level of unconstitutional government coercion.

Students have received hundreds of fliers promoting environmental, athletic, artistic and religious activities.

“Directing them to take home these diverse materials does not coerce them to engage in a religious activity, any more than it coerces them to engage in an environmental activity,” Judge Motz wrote in the majority opinion, which was joined by Judge Dennis Shedd.

Judge M. Blane Michael wrote in a dissenting opinion that the distribution of CEF fliers would, in effect, force students to engage in religious activity in violation of the Constitution.

“The school system’s interest in avoiding an establishment clause violation should prevail in order to protect the individual freedom of the students,” Judge Michael wrote.

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