On March 12, a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued its ruling in the case of K.A. v. Pocono Mountain School District, which concerned a public school superintendent’s decision to prohibit a fifth grader –who is known simply as K.A. for purposes of the lawsuit, as she is a juvenile—from passing out invitations, at her school, to a Christmas party that would soon be occurring at the church her family attends. K.A.’s father sued the school on her behalf, and eventually K.A. was vindicated by the court in the invitation controversy. In this column, I’ll explain why I agree with the Third Circuit panel’s ruling in the case.
Why the District Court Rejected the School’s Claimed Reasons for Its Actions
District court fact findings played a significant role in K.A.’s case, under the relevant Supreme Court decision, Tinker v. Des Moines Independent Community School District, decided in 1969, which asks whether a particular instance of student speech that school officials seek to punish caused “substantial disruption” in the school, and thus can be regulated, suppressed and/or punished.
The school cited two reasons why it claimed that K.A., in its view, should not have been allowed to pass out her flyers about her church’s Christmas party. The first reason was that the party would pose a safety risk, but the district court refused to credit that claim, because the school had failed to do any investigation at all to find out if it was, in fact, true.
Then, citing a second reason, the school claimed that parents might erroneously think that the church party invitations that came home with their children from school, after K.A. had distributed them, were being sent to them under the auspices of the school—which would, of course, have been a violation of the separation of church and state. But the district judge had noted that it would have been plain to parents that not all of the myriad materials that their children brought home from school were school-sponsored.
After all, as the district judge had made clear, the materials that, like K.A.’s invitations, were passed out during what the school called “non-instructional time” and were taken home at the end of the school day had, in the past, included a mélange of communications, including student birthday party invitations, solicitations, and other materials from outside organizations. Since many and diverse third-party materials had gone home with students in the past, the district judge concluded, parents were on notice that the same practice might well continue. Thus, it was unlikely that any parent would assume that any or all of the materials that he or she received came with the endorsement of the school itself.
(The district judge also faulted the school’s policy on the topic of the distribution of materials, noting that the policy’s criterion of whether the school superintendent was familiar with a given organization was “ripe for abuse.” On this point, I think the district judge was entirely correct, for organizations with which few are familiar are likely to also be small and perhaps unpopular ones. Such organizations have enough difficulty spreading their messages as it is, without being penalized by a school policy that cuts directly against them for no good reason at all, in order to favor organizations that represent an established status quo.)
The Third Circuit Panel’s Ruling, and the Question Whether Tinker Should Apply Even to Elementary School Students
The Third Circuit panel’s unanimous opinion in favor of K.A. raised an interesting question: Does the Tinker test, regarding substantial disruption, apply even to elementary school students?
The panel thought so, but it also noted that “this appeal raises the issue of whether the age-related developmental, disciplinary, and educational concerns specific to elementary school students” ought to void Tinker analysis in favor of another approach to student speech, devised especially for elementary school students.
As noted above, K.A. was a fifth grader when the events at issue occurred. Notably, even younger students have also sought to vindicate their First Amendment rights. For instance, a 2003 Third Circuit precedent, Walker-Serrano ex rel. Walker v. Leonard, that the court cites suggests that even elementary students deserve to have their First Amendment rights honored under Tinker. In Walker-Serrano, a third-grade student sought to circulate, during her school’s recess, a petition objecting to a planned school trip to the circus, due to the cruelty that she had learned that circus animals suffer (as has, indeed, been documented by The Animal Legal Defense Fund, and other groups). The girl collected thirty signatures. The circus trip still occurred, but afterward, the girl was at least allowed to pass out materials—in the form of coloring books and stickers—to make her anti-circus animal cruelty case. To deny an extraordinary young person like this—who already has her own, deeply-held political views—the protection of the First Amendment would be a travesty, regardless of what her age happened to be.
It’s because of students like this young girl, who are wise beyond their years, that it would be foolish to set a grade or age limit, under which Tinker would no longer apply. Instead of setting an arbitrary grade or age, the Third Circuit panel wisely described the point at which Tinker would not apply as “subject to reasonable debate.” The panel also discussed the possibility of future courts’ applying a very limited version of Tinker even in elementary school—perhaps when faced with a young Stephen (or Stephanie) Hawking.
Ultimately, the Third Circuit affirmed the District Court’s decision to grant young K.A. the preliminary injunction that she sought, on the ground that she was reasonably likely to prevail in the litigation. I believe that decision was clearly the right one.
In the end, it’s unfortunate that a fifth-grader’s innocent party invitations literally became a federal case. It also seems ironic that in our age of bullying, and kids’ feeling left out because they aren’t popular, K.A. ended up in court because she simply wanted to share her church’s party with her classmates. That kind of inclusiveness should be celebrated, not litigated.