Middle school created limited public forum and could not censor, court says

Fifth grader attempted to sell ornament with religious message during civic exercise

MICHIGAN -- A federal district court ruled last month that the Saginaw School District violated a fifth-grade student’s First Amendment rights when school officials stopped him from handing out a religious message distributed to his classmates as part of a school project.

Handley Elementary School student Joel Curry and his parents sued the district for not allowing him to distribute a handmade ornament with a religious message during an educational exercise called "Classroom City." The exercise was intended to teach students civics through marketing, literature and government. The students were told to create a product that would be "sold" to their classmates -- using fake money -- during a three-day market in the school gym. With help from his parents, Curry created a candy cane-like ornament with a religious message attached.

Curry said the message showed the religious meaning of the candy cane. Part of the message read, “Hard candy: Reminds us that Jesus is like a “rock,’ strong and dependable. The color red: Is for God’s love that sent Jesus to give his life for us on the cross. The stripes: Remind is of Jesus’ suffering ? his crown of thorns, the wounds in his hands and feet; and the cross on which he died.”

Curry’s lawyer, Jeff Shafer of the Alliance Defense Fund, an Arizona group that advocates and defends religious freedom, said that the court found the assignment did not restrict the content of speech or the product sold.

“The students were told to be creative,” Shafer said. “Joel wanted to attach a religious note to this product.”

Curry’s teacher, Lisa Sweebe, told him he could not sell the card until she showed it to the school's principal. The principal, Irene Hensinger, forwarded the card to another administrator and they agreed to prohibit Curry's distribution of the candy cane with the religious card.

According to the court's opinion, Hensinger argued that the cards "could not be permitted" because they contained religious material and because Classroom City was considered "instructional time." Hensinger told Curry he could sell the ornament and card after school in the parking lot.

Curry did not sell the candy canes after school, but sold the ornament without the card during Classroom City.

In his ruling, Judge David M. Lawson acknowledged that the sides disagreed about how to classify Classroom City. Curry argued that Classroom City should be characterized as a "limited public forum," where the school's authority to restrict student speech was limited and students should generally be allowed to determine for themselves what they would sell. The school argued that the exercise was a "closed forum" where student speech could be subject to the more restrictive regulations allowed by the U.S. Supreme Court's 1988 decision in Hazelwood School District vs. Kuhlmeier

The judge found that the school’s own assignment and project guidelines hurt its argument against Curry.

“Classroom city was designed to be a mock city that resembled a town’s market place where free speech traditionally is allowed," the judge wrote. "The school made the choice not to limit the products that students could make outside of a few established guidelines. The exercise and its objectives did not preclude incorporating religion."

While the judge eventually found that "Classroom City should be viewed by the reasonable observer as creating a limited public forum," he concluded that the school's "restriction of Joel Curry's speech cannot be justified even under Hazelwood's more generous standards."

The judge found that Curry complied with the assignment and that there was no evidence to support the school's claim that the candy cane’s religious message posed a threat of disruption to the educational setting. He also dismissed the school's claim that the candy cane message might be perceived by outsiders as an official endorsement of religion.

The judge noted that the Supreme Court has found that "[t]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion which the Free Speech and Free Exercise Clauses protect."

Shafer said winning the case is a “great affirmation of First Amendment rights for students that find themselves in this context ? where their assignments are being censored.”

Shafer also said he considered the case a procedural loss because the judge granted qualified immunity to Hensinger, which would prevent Curry from taking further legal action against her.

The family has until mid-October to appeal the decision.

Handley Elementary School, Michigan, news