School can bar teen from handing out anti-abortion fliers

Friday, October 10, 2008

A public school can prohibit a student from distributing anti-abortion leaflets in the halls in order to prevent “hallway clutter and congestion,” a unanimous three-judge panel of the 6th U.S. Circuit Court of Appeals ruled this week in M.A.L. v. Kinsland.

A student at Jefferson Middle School in Monroe, Mich., and his parents sued in federal court on Jan. 24, 2007, after school officials refused to allow the student to distribute his leaflets in the hallways. The school’s literature-distribution policy required students to obtain approval from school officials before distribution. The policy also limited students to posting leaflets on bulletin boards in school hallways and to distributing the materials in the cafeteria at selected times.

The then-14-year-old student — known in court papers as M.A.L. and Michael — had joined the “Pro Life Group of Silent Solidarity” organized by the national group Stand True in October 2006. The group advocates the pro-life position and seeks to bring about greater public awareness of the harms of abortion.

Michael filed suit, indicating that he wished to distribute his anti-abortion leaflets on Stand True’s national protest day on Jan. 31, 2007. On Jan. 30, 2007, U.S. District Judge Victoria A. Roberts invalidated the school’s literature-distribution policy, finding that the policy did not satisfy the standard articulated by the U.S. Supreme Court in its seminal student free-expression decision Tinker v. Des Moines Independent Community School Dist. In that 1969 ruling, the Court found that school officials had failed to show that students’ wearing black armbands to protest the Vietnam War would cause a substantial disruption of school activities. The Tinker standard requires public school officials to forecast reasonably that student expression will disrupt school activities or violate the rights of others.

Judge Roberts found that Michael’s “leafleting in the school hallways is unintrusive and unlikely to cause a material and substantial disruption.” In March 2007, Roberts converted her original ruling into a permanent injunction, preventing the school from enforcing its literature-distribution policy. The school had sought to limit distribution of materials like Michael’s to bulletin boards and the cafeteria.

On appeal, the school and its principal, Stephen Kinsland, argued that the district court erred in applying Tinker. Instead — according to the school — Roberts should have asked whether the distribution policy was reasonable and viewpoint-neutral. The school contended that the distribution policy did not restrict speech because of the anti-abortion content, but merely sought to regulate when and where the leafleting could occur. The school also argued that a public school hallway is not a public forum — that is, a place where free-speech rights must receive heightened protection.

On Oct. 7, the 6th Circuit sided with the school’s arguments and found Tinker inapplicable. The panel reasoned that “there is no indication that Jefferson’s proposed time, place regulation of Michael’s speech is based on a desire to suppress Michael’s anti-abortion viewpoint.” The appeals court panel also determined that a public school hallway is not a public forum.

The appeals court read Tinker as a case about viewpoint discrimination. In Tinker, the U.S. Supreme Court noted that public school officials singled out black armbands while allowing students to wear other forms of symbolic speech, such as Iron Crosses and political campaign buttons. The appeals court said: “While Tinker requires schools to demonstrate a ‘material and substantial interference’ with the educational process in order constitutionally to silence a student on the basis of the student’s particular viewpoint, Jefferson School District certainly need not satisfy this demanding standard merely to impose a viewpoint-neutral regulation of the manner of Michael’s speech to prevent hallway clutter and congestion.”

Byron J. Babione, a senior legal counsel with the Alliance Defense Fund and one of the attorneys representing Michael, said it was likely his clients would appeal the Oct. 7 ruling.

Babione disagreed that officials at Michael’s middle school were following a viewpoint-neutral policy.

“School officials singled out Michael’s literature because it had a pro-life message,” he said. “This was a clear case of speech suppression and viewpoint discrimination. School officials told Michael to not hand out leaflets because it comprises our interest in separation of church and state and the school said it wanted to remain neutral on such issues.”