Elementary school student's free-speech rights upheld

Court rules that 11-year-old may distribute religious flyers at her elementary school

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A U.S. District Court for the Middle District of Pennsylvania judge has upheld his initial decision to allow an elementary school student to hand out religious flyers at her school inviting classmates to a Christmas party at her church.

In ruling on the Pocono Mountain School District's motion for reconsideration, Judge A. Richard Caputo said he was correct to apply the Tinker standard, rather than the forum standard, to the case.

He also differentiated the case, K.A. v. Pocono Mountain School District, from a 2007 U.S. Supreme Court ruling in Morse v. Frederick that green-lighted the punishment of a student who held up a sign at a school function that read, "Bong Hits 4 Jesus."

K.A., in a suit filed by her father, Michael Ayers, in March 2011, alleged the school district violated her rights unter the First and Fourteenth Amendments by prohibiting her from passing out the religious flyers. She sought injunctive relief to ensure the district did not try to stop her from distributing similar material in the future.

In October 2011, Judge Caputo granted the motion for preliminary injunction. He permitted K.A. to distribute religious flyers to her friends and classmates during non-instructional time at her elementary school. She was also allowed to distribute the literature in take-home folders and at a distribution table at the school, he said.

As part of his ruling, Judge Caputo enjoined the school district from enforcing a policy that prohibited the distribution of literature promoting religious events and activities.

In its motion for reconsideration, the school district argued the court inappropriately applied the Tinker standard, referring to the 1969 case Tinker v. Des Moines Independent Community School District, in which the U.S. Supreme Court said schools could only control students' speech when the conduct materially disrupts classwork or involves substantial disorder or the invasion of rights of others.

The district said Judge Caputo should have applied the "forum standard" test, found in Morse v. Frederick, instead of the Tinker test.

In Morse, a group of students attended a school-sanctioned and school-sponsored event. During the event, the school's principal noticed a number of them unfurl a large banner with the phrase, "Bong Hits 4 Jesus." One student was suspended related to the incident.

The student admitted the banner was "nonsense," done simply to get the attention of television cameras and did not convey any sort of political or religious message.

The Supreme Court ruled in Morse that the school has a right to prohibit what it views as messages promoting illegal drug use and did not violate the student's rights when it confiscated the sign and suspended him.

Judge Caputo also reiterated his position that the school district's flyer policy, which banned all solicitations, ran afoul of both Tinker and the nonpublic forum analysis.

He said the flyers were K.A.'s "personal student expression." The Tinker court found that without a "showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression," he said.

"Here, defendant's generalized safety concern over solicitation does not serve as an adequate justification to ban all materials which may contain personal student expression," Judge Caputo said.

John E. Freund III, who represented the school district, said the judge "misapprehended the law." He said the school district's policy is that the superintendent has to approve any literature distributed by outside groups in the form of take-home flyers. He said the superintendent did not approve the flyer in this case, in part, because it wasn't clear who would be at this party.


Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com . To read more articles like this, visit www.thelegalintelligencer.com .


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