After all, the U.S. Constitution recognizes that
every person is born with certain inalienable rights not granted by the
government, including freedom of expression guaranteed by the First Amendment.
But to be polite, I answer by re-framing the
question to ask “to what extent are students free to exercise their inherent
rights in public schools.”
No right, of course, is absolute. That’s why we have
argued for more than 200 years over when society’s compelling interests
requires limits on the exercise of our freedoms of religion, speech, press,
assembly and petition.
Now a three judge panel of the U.S. 3rd Circuit
Court of Appeals has written another chapter in that debate by ruling in favor
of a fifth grader who was barred by school officials from handing out
invitations to a Christmas party at her church.
Other students in the Pennsylvania school district
were routinely allowed to pass out fliers and messages of various kinds – from
birthday party invites to Valentine’s cards. But in order to avoid allowing religious
content to be distributed, school officials claimed that K.A. (as the student
is described in court filings) was distributing material from an outside group
– a practice school policy prohibited.
A lower court disagreed and issued a preliminary injunction
ordering the school to allow K.A. to hand out her invitations during
non-instructional time. On March 12, the appeals court upheld that ruling,
determining that K.A. and her family would likely prevail in the litigation. (K.A. v. Pocono Mountain School District)
Although the incident may seem minor, the court’s
decision may prove to have major implications for how the First Amendment is
applied in elementary schools.
That’s because both courts relied on Tinker v. Des
Moines Independent School District, the 1969 U.S. Supreme Court ruling
considered the high water mark for student rights in public schools.
In Tinker, you may recall, school officials
prohibited students from wearing black armbands to school in protest the
Vietnam War. Ruling in favor of the students, the U.S. Supreme Court famously
stated that students do not “shed their constitutional rights to freedom of
speech and expression at the schoolhouse gate.”
The High Court created what is now known at the
Tinker standard: School officials may not censor student expression unless they
can reasonably forecast that the expression would lead to a “substantial
disruption” of the school environment or interfere with the rights of others.
Since that decision, high school students have
fought censorship of their speech by invoking Tinker – frequently winning in
court when they do. Few judges have
applied Tinker to younger students.
But in the K.A. decision, the 3rd circuit panel held
that “the Tinker analysis has sufficient flexibility to accommodate the
educational, developmental, and disciplinary interests at play in the
elementary school environment.”
This means that K.A. gets to hand out her
invitations because the school did not show that her doing so would cause any
disruption – much less a substantial disruption.
Moreover, the court said that K.A.’s flier should be
treated like other fliers handed out by students. If students get to distribute
materials with secular content, then students get to distribute materials with
religious references as well.
Even in elementary schools, students are able to
distinguish what comes from a classmate from what is sponsored by the school.
The court also made clear that elementary school
administrators may place reasonable time, place and manner restrictions on
student distribution of fliers and other materials – as long as all students
are treated in the same way. What public schools may not do is ban student
expression simply because it mentions religion.
If this court got it right – and I think it did –
elementary school children not only have First Amendment rights, they get to
exercise them as well.
About the author: Charles C. Haynes is director of
the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave.,
N.W., Washington, D.C., 20001. Web: http://www.firstamendmentcenter.org/.
E-mail: chaynes[at]freedomforum.org.
This article was published by the First Amendment
Center.
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