The Bill of Rights: Not just for the big kids anymore. (At least in three states.)



Students in Pennsylvania, New Jersey and Delaware are fortunate to live within the boundaries of the federal Third Circuit, one of the last remaining provinces in America that honors the promise of the First Amendment to all citizens, even the youngest.

Three judges on the Third Circuit U.S. Court of Appeals carefully applied Supreme Court precedent in reaching their March 12 ruling in the case of K.A. v. Pocono Mountain School District, a decision that reinforced the continued vitality of the First Amendment in public education even down to the elementary-school level.

The case involved a Pennsylvania fifth-grader, K.A., whose principal blocked her from distributing invitations to a Christmas party at her church. The flyer prepared by the church said nothing about religion, and students had always been allowed to use breaks to hand out invitations to other social events.

This one was different. The school vetoed the invitations, invoking a school policy that gave the principal total discretion to decide whether literature was "appropriate" to be distributed at school.

On paper, this is an easy case. The Supreme Court's landmark 1969 ruling, Tinker v. Des Moines Independent Community School District, prohibits content-based censorship of speech absent a threat to substantially disrupt school operations.

Lawyers for Barrett Elementary Center could come up with only one justification for the principal's action: that K.A.'s church was "a nonschool organization with which the School District has no familiarity." Which, on paper, falls well short of a lawful justification if Tinker is faithfully applied.

And this is the problem. Courts long ago ceased faithfully applying Tinker, which requires concrete proof of a disruptive impact that goes beyond (as Justice Abe Fortas wrote) "undifferentiated fear or apprehension of disturbance."

Many judges, regrettably, have bought into school lawyers' effort to narrow Tinker out of existence, using the Court's more recent ruling in Hazelwood School District v. Kuhlmeier. In that 1988 case, the Court gave schools greater authority over speech that uses a government-provided medium (such as a class-produced newspaper) in a way that might suggest school approval of the message.

K.A. was not using a school medium. No school funding went into her invitations, nor did they bear the school's name, logo or any other implicit endorsement.

The justices said it clearly in Hazelwood: Tinker is about speech the school is asked to "tolerate," and Hazelwood is about speech the school is asked to "promote."

Again, easy case -- if you accurately interpret and apply Supreme Court precedent. But that tolerate/promote distinction increasingly is being obliterated by courts looking for expedient ways to clear their dockets of unwelcome student-rights claims.

Most recently, the federal Sixth Circuit decided that Hazelwood applied to comments that an Eastern Michigan graduate student made in a private one-on-one meeting with her instructor -- comments the college was asked merely to tolerate, not to promote -- on the grounds that the student's remarks were "class related."

The judges in the K.A. case wisely chose a different path. U.S. District Judge A. Richard Caputo did apply the law faithfully, ruling in the student's favor, and a three-judge panel of the Third Circuit now has unanimously agreed.

The opinion written by Judge Thomas I. Vanaskie is noteworthy in three main respects:

(1) It reinforces that Hazelwood applies only to a narrow subset of student speech in which a student actually uses government property as the vehicle for her expression. If the speech merely takes place on government property (i.e., school grounds), then it is Tinker speech, with Tinker's heightened level of protection.

In a nimble bit of backpedaling, the judges retreated from their mistaken ruling in another elementary-school speech case, Walz ex rel. Walz v. Egg Harbor Township Board of Education. In that 2003 case, a school's decision to prevent a student from handing out "Jesus Loves You" pencils at a school Christmas party was found to be lawful under Hazelwood. The judges in K.A. said (a) that Walz really was more about Tinker than Hazelwood and (b) that Hazelwood applied only because the school convinced the court that the Christmas party was "an organized and structured educational activity" with which the student's behavior interfered.

(2) It reaffirms that the right of free speech includes the right to distribute literature written by other people, even those with no connection to the school. This is a common-sense principle -- if the First Amendment protects anything, it should protect the right to hand out a candidate's campaign brochure -- but it is not a uniformly accepted one.

(3) It clears up lingering doubt left after the Third Circuit's ruling a decade ago in another elementary-school speech case, Walker-Serrano ex rel. Walker v. Leonard, in which the judges expressed skepticism whether Tinker -- a case about high-school and middle-school students -- was a fit for elementary schools where greater control of student behavior is accepted. K.A. answers the question that Walker-Serrano left dangling: The burden is on schools at every level -- even fifth grade -- to demonstrate an imminent threat of disruption before they may censor.

The K.A. ruling solidifies the Third Circuit's reputation as the most careful and thoughtful arbiter of the First Amendment rights of young people, even where the school presents a sympathetic case. While other circuits were flinging open the schoolhouse gates and unleashing school punitive authority on everything students say 24/7, the Third Circuit said "no" in J.S. v. Blue Mountain School District, which precluded a school from suspending a middle-schooler for a crude humor site she created at home on MySpace to mock her principal.

We will know exactly where the circuit stands within just a few months, when the entire en banc roster of 14 judges decides the case, argued in February, of two Pennsylvania middle-schoolers threatened with discipline for refusing to remove their "I ? Boobies" cancer awareness bracelets. The omen of K.A. bodes favorably for their prospects.

 

Tagged: Christmas party invitations, elementary school, First Amendment, First Amendment, Judge Thomas I. Vanaskie, K.A. v. Pocono Mountain School District, religious speech, Third Circuit