Political Cortex: Brain Food for the Body Politic

Child Evangelism asked the school if it could pass out flyers to students, permission slips for its meetings, and to use the school for its after-school student meetings. The school district refused. The reasons described included:

"[C]oncerns about violating the Establishment Clause, the effect of [Child Evangelism's] requests on the children in the school system's care, the effect of [Child Evangelism's] requests on the relationship between the schools and the parents as well as the effect of opening the schools as limited public fora in the future if the schools ... compl[ied] with [Child Evangelism's] requests." JA 201. Stafford also believed that distributing Child Evangelism's materials would "tend to create divisiveness between and amongst parents to parents and children to children, as well as the staff." .

ANALYSIS: Child Evangelism sued to force the public school to allow it to evangelize on campus. And Scalito sided with the group. Here's where judicial activism comes in. The school had set criteria as to which community groups could be allowed to distribute materials:

Thus, the relevant requirements seem to be as follows: the group must be non-profit and the speech must: (1) receive prior approval by the district, (2) have a nexus with the students or school, (3) be non-partisan and unrelated to an election or labor negotiations, (4) not seek to "exploit [ ]" children "for the benefit of any individual, group, or profit-making organization," and (5) not solicit money (except for the PTA). See JA 189-91.

Notice I highlighted #4. Now, watch the subtle Scalito shift that results in a finding that Child Evangelism fulfills ALL the requirements, including #4:

Child Evangelism and its materials satisfy all the viewpoint-neutral requirements set out in this list. Indeed, Stafford's briefs make no direct effort to show that Child Evangelism's materials fail to meet any of these requirements, and any such effort would be fruitless. Child Evangelism is a non-profit group, and (1) it sought advance approval from the superintendent; (2) its materials, which invite students to attend club meetings on school premises after school, relate to the students and the school; (3) the materials are not "partisan" and have nothing to do with elections or negotiations; (4) they do not seek to exploit children for commercial gain; and (5) they do not solicit money.

Scalito misstates the the fourth requirement, saying it is merely for "financial gain" where the original rule is clearly written in the disjunctive: exploitation to benefit an "individual, group or profit-making organization."

Now, this group's specific purpose is to use children and "convert" them to follow not only Jesus Christ, but that particular group's interpretation of the Bible. Frankly, Child Evangelism is a recruiting organization which exists to convert impressionable young minds to expand its ranks. If that's not exploitation, I don't know what is.

But in ScalitoWorld^tm, you can manipulate the facts to fit your agenda. Giving the group a pass merely because it doesn't use the kids for "finanical gain" is judicial activism at its worst.