Bluefield Daily Telegraph, Bluefield, WV

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March 25, 2013

Children in schools & First Amendment rights

— 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 re-framing 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.

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