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SPOTLIGHT
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Can schools draw line on abortion protests?

Published on -5/6/2013, 9:29 AM

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Students with deep religious convictions are fast turning public schools into the newest battleground over abortion -- much to the dismay of beleaguered school officials.

The most recent controversy involves Annie Zinos, a sixth-grade student in Minnesota, who was prohibited by her school from sharing pro-life literature with her classmates. Last week, Annie and her family filed suit against school officials for violating her First Amendment rights.

Meanwhile in New Mexico, a group of evangelical high school students lost a round last month in their fight to give classmates "fetus dolls" with a pro-life message attached. A three-judge panel of the U.S. 10th Circuit Court of Appeals upheld the school district's authority to stop the doll distribution.

Pro-life protesters in schools are a recent development, but students protesting for what they believe during the school day are a familiar part of our history.

From Billy Gobitis refusing to salute the flag in the 1930s, to Barbara Johns organizing against miserable conditions in black schools in the 1950s, to Mary Beth Tinker wearing an armband to protest the Vietnam War in the 1960s, students of conviction have not been shy about exercising their First Amendment rights in public schools.

In every generation, school officials react (and often over-react) by attempting to keep the lid on student protests. And in every generation, the courts are faced with determining when and where schools may draw the line on student religious and political speech.

Now pro-life kids are taking their turn defining student rights by challenging school officials in court.

In the New Mexico appeals court decision, students have already bumped up against the limits of freedom allowed under the First Amendment -- not because of the point of view they espouse, but because of the disruption they stirred by espousing it.

When the pro-life students first distributed the fetus dolls, chaos ensued. According to Education Week, teachers complained that students were throwing the dolls, using them to plug toilets, and in other ways causing serious trouble.

Not surprisingly, the court sided with the school district by ruling that further distribution of the fetus dolls would likely cause major disruption.

Even the strongest U.S. Supreme Court decision upholding free speech rights of students, Tinker vs. Des Moines Independent School District, makes clear that school officials may draw the line of student expression when they can reasonably forecast that it would cause substantial disruption.

The censorship of Annie in Minnesota, however, is a very different case.

The pro-life fliers she distributed -- "Save the baby humans. Stop abortion." -- caused some students to complain that they were offended. But the school failed to show that the fliers caused any significant disruption.

Under the First Amendment, students are free to share their religious or political views, even if those views offend others. But they are not free to create mayhem in the school.

School officials at Annie's school appear to have misread Supreme Court precedents to mean that schools may censor any distribution of literature by students they deem contrary to the school's mission or not age appropriate for middle school.

It's true the Supreme Court has upheld the authority of schools to censor vulgar or obscene student speech and to censor student speech that occurs in a school-sponsored context such as the school newspaper.

But otherwise, Tinker still rules: School officials might not censor student religious or political speech unless they can show that such speech will substantially disrupt the school or interfere with the rights of others.

Chances are very good that Annie Zinos will prevail in her fight to distribute her pro-life fliers. And if she does, she'll have Billy, Barbara, and especially Mary Beth to thank.

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

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