The Stanly News and Press (Albemarle, NC)

Opinion & Letters to the Editor

March 26, 2013

Children in schools & First Amendment right

Tuesday, March 26, 2013 —

When people ask if kids in public schools have First Amendment rights, I’m tempted to answer “only if you think they’re human.”

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 of 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.

Charles C. Haynes is director of the Religious Freedom Education Project in Washington, D.C. Contact him at chaynes@freedomforum.org

 

1
Text Only
Opinion & Letters to the Editor
  • Do White Castle prices tell us anything about the minimum wage?

    NEW YORK - Economists love hamburgers. Specifically fast-food burgers. This is partly because all right-thinking human beings love ground meat on a bun, but it's also because the sandwich makes a handy yardstick for international financial comparisons. The ingredients and labor involved in preparing a Big Mac are pretty much the same no matter where you are in the world, so by looking at how many hours of toiling it takes a worker to earn enough to purchase one, you can get a sense of how wages really stack up across countries. The Economist famously created the Big Mac index in 1986 to see which currencies were overvalued. It started as a joke. Now, as the magazine proudly notes, it's a subject of academic study.

    April 22, 2014

  • Can Hillary Clinton rock the cradle and the world?

    WASHINGTON - What's most interesting to contemplate is the effect becoming a grandmother will have on Hillary's ambition. It's one of life's unfairnesses that a woman's peak career years often coincide with her peak childbearing years.

    April 22, 2014

  • Doug Creamer All in the Family

    We had a family get-together at my brother’s house on Easter Sunday. It’s hard to get our family together because we are spread out, especially when you consider nieces and nephews. My parents and siblings all made the gathering this year. Some of my nieces and nephews are far away, but they all remember gathering at my brother’s house for the holidays. Easter is known for the Jell-O eggs and the famous Easter egg hunt.

    April 22, 2014 1 Photo

  • Victimized by the 'marriage penalty'

    In a few short months, I'll pass the milestone that every little girl dreams of: the day she swears - before family and God, in sickness and in health, all in the name of love - that she's willing to pay a much higher tax rate.

    April 19, 2014

  • The case for separate beds

    WASHINGTON - The other night I slept on a twin bed in the guest room of the house I share with my husband and our two kids.
    It was the best night's sleep I've had in years.

    April 19, 2014

  • taylor.armerding.jpg Obama's equal pay exaggeration leads us all into danger

    The president's claims of national shame over gender-based pay inequity spring from distorted calculations, as well as some convenient political math.

    April 12, 2014 1 Photo

  • Teens trading naked selfies for mugshots

    Will teenagers ever learn? You think yours will. Maybe so. But it's likely that was also the hope of the parents of children who were so shamed by nude photos of themselves that went south - how else can they go - that they killed themselves.

    April 12, 2014

  • Brent Laurenz If you want to vote in primary, you need to register to vote now

    RALEIGH – North Carolina voters will head to the polls on May 6 this year to cast ballots in important primary elections across the state.

    April 11, 2014 1 Photo

  • Scott Mooneyham Heeding the voter fraud call in N.C.

    RALEIGH – Legislators found the findings outrageous.

    April 11, 2014 1 Photo

  • Doug Creamer Roots

    I took a few minutes over the weekend to enjoy our yard and the arrival of spring. There seems to be so much work that needs to be done, it is hard to decide what to do first. I am excited that I got to run my tiller through the garden. I didn’t go very deep, but I did at least break up the soil. I have a couple of raised beds and the soil in them was in very good shape. I didn’t plant my peas and now after the big rain we got on Monday I realize that I missed a window of opportunity.

    April 11, 2014 1 Photo

House Ads
Seasonal Content