Peck v. Upshur County Board of Education, 155 F.3d 274 (4th Cir. 1998), arose in West Virginia and involved a policy adopted by the local school board prohibiting the distribution of religious materials to students in the district. The policy resulted from concerns over the district's past practice of allowing the Gideons to distribute Bibles and converse with students in the classroom. A number of years after the adoption of the policy, a request was made by a local minister to make Bibles "available" to secondary school students on a predetermined date, at a predetermined location in the schools. Concluding that making Bibles "available" was not the same as "distributing" them, the board agreed to the request, provided certain guidelines were followed by the individual or group wishing to make the Bibles available.
Specifically, the guidelines included the requirement that the individual or group making the Bibles available set up the display tables to be used. The tables were to be set up in locations where students normally congregate and where they would not feel they were being watched or pressured. A sign was to be placed on the table which read "Please feel free to take one," and the source of the Bibles was not to be identified. No announcement about the Bibles was to be made and no one was to stand by the tables to encourage students to take the Bibles. Additionally, no district employees were to participate in any way in the process. Finally, any Bibles remaining at the end of the day were to be collected by the those making the Bibles available.
Soon after these new procedures were announced, a group of individuals brought suit against the district, the superintendent, and others, asking the court to issue an injunction prohibiting the Bible placement. A preliminary injunction was issued, then lifted, and the request for a permanent injunction was denied. The court did, however, order the district to post a disclaimer on the table where the Bibles were to be placed, indicating that the district neither sponsored nor endorsed the materials being provided. The case was appealed to the Fourth Circuit Court of Appeals, which upheld the policy based on its neutrality toward religion.
In discussing the neutrality requirements, the Fourth Circuit first looked at whether the policy and guidelines had been adopted for some purpose other than advancing religion. The court concluded that the policy and guidelines were promulgated for the purpose of providing an open forum in the schools and to avoid discrimination against religious speech. In effect, the guidelines affirmed the right of religious speakers to use the school forum in the same way that non-religious groups are allowed to use the forum. Additionally, the court noted that the guidelines adequately provided for the district to disassociate itself from the religious speech by placing the disclaimer on the table where the Bibles were to be displayed and by taking additional steps to ensure that students were not encouraged or coerced to take the Bibles. The court compared the policy to the federal law known as the Equal Access Act, which allows student groups of a religious nature to meet on school grounds, if other non-curriculum related student groups are allowed to meet. The Equal Access Act only applies to secondary students, as does the Bible distribution in this case, and the court reasoned that secondary students are capable of distinguishing between equal access and actual sponsorship or endorsement.
It should be noted that a school district would be free to adopt a policy which prohibits any outside individual or group from distributing materials, or making them available, to students on school grounds. If a district does adopt such a policy, the district in effect is deciding not to create an open forum. However, if an open forum is created, then any group who wishes to distribute materials, or make them available, must be allowed to do so, as long as the guidelines are followed. For example, if an unconventional religious group wanted to make information about the group available to students, the group would have to be given the same privilege provided to a group wishing to make Bibles available.
If districts wish to allow for religious materials to be made available to students, the school board must first adopt a policy which allows for the same access to any group who wishes to provide information to students. The policy also should address how information of a religious nature will be made "available," as opposed to information of a non-religious nature which can be "distributed." Additionally, specific steps should be outlined, such as those adopted in the Peck case, to ensure neutrality. These steps include limiting the availability to secondary students, who presumably are capable of understanding the difference between neutrality toward religion and endorsement of religion. Finally, policies should provide for the discretion to deny requests to distribute or make information available. However, the district may not arbitrarily deny requests because the district disagrees with the content of the materials. Denials normally would need to be based on objective criteria, such as the illegality of an activity being promoted in the materials.