By Nicole Soll
In 2010, a fifth grader in Pennsylvania attempted to pass out invitations to a church event in the Poconos to her classmates. Her teacher stopped her, saying she needed permission from the principal, who then said she needed permission from the superintendent. The superintendent refused the request. Backed by the Alliance Defense Fund (ADF), a conservative Christian legal group, the family of the girl, identified as K.A., sued the Pocono Mountain School District for infringing on the her freedom of speech.
The original court ruled in the girl’s favor, so the school district appealed, claiming their decision wasn’t motivated by the fact that the girl’s flyers were religious, but rather due to a policy of the district to not allow civic organizations or special interests groups to hand out materials that promoted their interests over the students. They also cited safety concerns and concern that parents would think the event was school-sanctioned. During the trial, the school district revised the policy to state that students and staff were prohibited from passing out any materials during the school day that did not relate directly to or contributing to school district related activates. They also added another policy which allowed students to pass out invitations to social events with permission from the superintendent.
The case went to Third U.S. Circuit Court of Appeals, where the panel of three judges upheld the lower court’s decision. The Court’s decision was made largely from the basis of the 1969 case Tinker v. Des Moines (Tinker v. Des Moines Independent Community School District, 393 U.S. 503). In this case, students were prohibited from wearing black armbands protesting the Vietnam War because the school district claimed they would disrupt the other students. However, the judge ruled the school could not have known what the students wearing the armbands would have done, and in fact, they had very little impact on the school. This created the Tinker Standard, which allows students to still have freedom of expression in schools so long as it doesn’t disrupt their fellow students.
The 3rd Circuit also pointed out that the school could not restrict a student’s expression of handing out the flyers because it did not cause a “substantial disruption”. The Superintendent had made no effort to see if the church posed a safety threat or if parents would have thought the event was school sanctioned. The court also cited the fact that other outside organizations had sent home flyers with children in the past and children had passed out invitations to birthday parties and that the fact that the invitation came from a church should not have changed the approach the school took to handing out material.
Finally, the judges ruled the policy of the school district in regards to handing out materials was unconstitutional because it relied on the judgment of the superintendent to decide what was appropriate or not and wasn’t specific enough. In a previous Third Circuit Court case, Saxe v. State College Area School District (Saxe v. State College Area School District, 240 F3d 200), the State College Area School District had also had policy restricting unwelcome or offensive speech struck down due to the general nature of the policy. This case lent itself to the decision made in K.A.
The difference between Tinker, Saxe and K.A. is that the latter two dealt with high school students. K.A.’s case raises the issue of how Tinker should apply in younger children, specifically elementary school students. In 2003, the Third Circuit Court ruled on a case, in which they stated “in the elementary school setting, age and context are key”. The case, Walz v. Egg Harbor Township Board of Education, involved a preschooler, Daniel Walz, who handed out pencils with a religious message on them to classmates during a holiday party and later distributed candy canes with a religious story attached (Walz v. Egg Harbor Township Board Of Education. 342 F3d 271).
In this case, the Court said whether or not the expression was appropriate depended on “the type of speech, the age of the locutor and audience, the school’s control over the activity in which the expression occurs, and whether the school solicits individual views from students during the activity”. The Court also decided that younger children in elementary school, specifically those in preschool and kindergarten could had more controlled exercised over their speech and expression because they require more guidance than older children.
However, in Walz, it was decided that Daniel Walz’s mother was the guiding factor behind the pencils therefore Daniel’s freedom of expression had not been intruded upon. It was also ruled that the school district had made it clear that no gifts with religious, commercial or political undertones could be exchanged and the pencils had a clear religious message along with intent to spread that message.
In K.A., the Court reiterates their point that younger children require more guidance and therefore more control, but hesitate applying it directly to the case. Although K.A. was technically still an elementary school student, she was older than Walz and by the Court’s reasoning should have still been allowed more rights than Walz. The Court did maintain that regardless of the age of the child, they saw no reason the “substantial disruption test” from Tinker couldn’t be used in an elementary school setting.
It is clear from K.A. that the issue of freedom of speech and expression for younger students is still being debated. The Third Circuit Court is hesitant to determine at exactly what age school children gain what rights and seem to most likely be waiting for a ruling to be made by the Supreme Court before making any definite judgments for themselves. Instead, cases like K.A. are decided on a case by case basis and in K.A. it was decided that the school district didn’t have enough evidence that the flyers would cause a substantial disruption to stop K.A. from distributing them.