Student religious fliers probably OK in Pa. school, court says

Tuesday, October 25, 2011

A Pennsylvania school district likely violated the First Amendment when it prohibited a fifth-grader from distributing invitations to a party at her church, a federal district court has ruled.

K.A., formerly a fifth grader at Barrett Elementary in Cresco, Pa., sought to hand out fliers about her church’s Christmas party in December 2010. Other students had been allowed to distribute birthday party invitations and other community groups has been allowed to have notices put in the school mailboxes.

School officials denied K.A. the right to hand out the fliers under a school policy that gives officials broad authority to restrict information that promotes the interests of particular groups as opposed to student interests.

Michael Ayers, K.A.’s father, filed suit on her behalf in federal court in March 2011, claiming a violation of her First Amendment rights. The school district countered that allowing the fliers might cause a disruption in school in the future.

On Oct. 20, U.S. District Judge A. Richard Caputo granted a preliminary injunction to K.A. in K.A. v. Pocono Mountain School District. The judge reasoned that the applicable legal standard was whether school officials could reasonably forecast that the student’s speech, in the form of the flier, would cause a substantial disruption of school activities. The U.S. Supreme Court articulated this standard in Tinker v. Des Moines Independent Community School District (1969).

“Since Pocono Mountain appears only to be able to demonstrate vague concerns over possible disruption, its actions will likely have failed the Tinker test,” Caputo wrote.

The school district had argued that the proper legal standard was under the Supreme Court’s public-forum jurisprudence rather than Tinker. Its hallways and mailboxes, the school district contended, were nonpublic forums under the First Amendment.

But Caputo said that even under this deferential standard, the school district likely would lose. He reasoned that in a nonpublic forum, government restrictions on speech must be viewpoint-neutral and reasonable.

“The Superintendent’s elusive criteria for determining which materials could be distributed is simply too broad and vague to be considered reasonable,” Caputo wrote. “An across the board ban on ‘solicitation’, given the established vagaries of that term, clearly runs afoul of both Tinker and a nonpublic forum analysis.”

The Alliance Defense Fund is representing K.A.

“Christian students have positive messages to share with other students that are not only protected by the Constitution, but that should be welcomed in public schools,” said Alliance Defense Fund Senior Counsel David Cortman in a news release. “The court was right to stop this unconstitutional ban on Christmas party invitations as our lawsuit moves forward.”

The school district did not respond to queries.

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