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Why fifth-graders have rights too

Published on -3/29/2013, 8:38 AM

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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 reframing 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 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 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.

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 elementary school administrators can 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, but they also get to exercise them.

Charles C. Haynes is director of the Religious Freedom Education Project at the Washington-based Newseum. chaynes@freedomforum.org

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