Middle schooler asks U.S. Supreme Court to hear First Amendment case

MICHIGAN -- Attorneys for a Saginaw, Mich. fifth-grader who was ordered to refrain from distributing religious messages at school filed a petition to the U.S. Supreme Court Monday with hopes the court will reexamine a 6th Circuit U.S. Court of Appeals ruling that said his middle school principal did not violate his First Amendment rights.

The step comes after a September 2006 ruling by a federal district court that said although Joel Curry's principal had violated his Constitutional rights when he was told he could not sell candy canes with a religious message as a part of a school project, she was protected by qualified immunity.

In January 2008, the 6th Circuit reversed the ruling and said that Irene Hensinger did not violate Curry's rights because the project was a part of school curriculum, citing Hazelwood School District v. Kuhlmeier.

In Hazelwood, the court ruled that speech as a part of school-sponsored events could be censored provided that school officials presented a legitimate educational justification. In Curry's case, the appellate court said the candy canes were created as a part of school curriculum, so the Hazelwood standard applied.

Jeff Shafer, the Alliance Defense Fund attorney representing Curry, said the court made a mistake in applying the Hazelwood standard instead of

Tinker v. Des Moines Indep. Cmty. Sch. Dist., which says that student speech may not be censored unless it substantially disrupts the school or invades the rights of others.

"We would like to see a narrower reading of the Hazelwood case that doesn't displace the Tinker rule from the classroom," Shafer said.

Shafer said he hopes the Supreme Court will decide to hear the case to repair the "poor decision" the 6th Circuit made by departing from past precedent.

"The 6th Circuit decision seems to make a categorical designation of religious speech as susceptible to censorship all the time," Shafer said. "So I think it has rather dramatic impact for religious students who would respond to assignments in a way that reveals their religious viewpoints."

Shafer said he anticipated the Supreme Court would announce by October whether it would hear Curry's case.

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