Written by Don Byrd
When a fifth-grader in Pocono Mountain, Pennsylvania tried to distribute fliers to classmates inviting them to a Christmas party at her church, the school superintendent denied the request, citing a policy that gave him authority to decline to send home non-school events or organizations. Her parents filed suit claiming a violation of First Amendment rights.
Today, the 3rd Circuit affirmed the trial court’s holding (pdf) that the student may not be barred from distributing material so long as there is no “specific and significant fear of disruption.” That was the standard set in a landmark student speech case called Tinker. The 3rd Circuit’s ruling here takes the view that it is the proper standard for evaluating restrictions on elementary school speech as well.
while acknowledging the reality that the risk of disruption of educational and disciplinary functions may be different depending upon the age and maturity of the students, [we have not held] that Tinker analysis has no place in the elementary school setting.
…
[O]ur prior precedents seem to recognize that the Tinker test has the requisite flexibility to accommodate the age-related developmental, educational, and disciplinary concerns of elementary school students.
The religious nature of the underlying event did not play into the decision. The ruling today means, essentially, that a 5th-grader has the same right to deliver a non-disruptive religious message to her classmates as older students have to deliver any other sort of message, so long as it is not lewd, and does not advocate illegal drug use.
