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Appeals Court Backs 5th Grader's Religious Flier

A federal appeals court has upheld an injunction that sets aside a Pennsylvania school district's rules that had barred a 5th grader from passing out invitations to a church youth party to her classmates.

In ruling on the party invitations, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, weighed in on an important issue that has divided other federal appeals courts: whether elementary school students have free-speech rights that are protected by the First Amendment. The panel agreed unanimously that they did.

The court said it agreed with the U.S. Court of Appeals for the 5th Circuit, in New Orleans, which held in a 2011 decision that elementary school students are covered by the U.S. Supreme Court's landmark 1969 decision in Tinker v. Des Moines Independent Community School District, which upheld the rights of secondary school students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

"We agree with this conclusion, and hold that the Tinker analysis has sufficient flexibility to accommodate the educational, developmental, and disciplinary interests at play in the elementary school environment," the 3rd Circuit court said in its March 12 opinion in K.A. v. Pocono Mountain School District.

The case involves a student identified as K.A., who was a 5th grader in December 2010 when she sought to distribute fliers inviting fellow students to the "iKidsROCK Night Christmas Party," a night of face painting, foosball, ping-pong, and other activities at his place of worship, the Innovation Church of Mt. Pocono, Pa.

K.A.'s teacher said she would need the permission of the principal of Barrett Elementary Center to distribute the fliers. The district's superintendent later barred the distribution, citing school board policies that only materials directly related to school district activities or that contribute significantly to instructional programs could be disseminated in school.

K.A.'s father, noting that students at the school frequently passed out invitations to birthdays parties and similar activities, sued the Pocono Mountain district on free-expression grounds.

The district changed the wording of its policies somewhat after the suit was filed to avoid an impression that it was targeting student religious expression. But a federal district court said that in any event, the Supreme Court's Tinker standard applied and that because there was no evidence of disruption, K.A. could distribute her flier.

The 3rd Circuit court panel agreed with the district court. "The school district's failure in this appeal to identify any disruption caused by K.A.'s invitation makes it reasonably likely that K.A. will prevail in this litigation," the court said. Furthermore, the student would suffer substantial First Amendment harm if her expression continues to be suppressed, and nothing would bar the district from regulating the speech if it became disruptive, the court said.

"The injunction does not harm the school district more than denying relief would harm K.A.," the court said.

(Hat Tip to the How Appealing blog.)

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