Bluefield Daily Telegraph, Bluefield, WV

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March 25, 2013

Children in schools & First Amendment rights

(Continued)

That’s because both courts relied on Tinker v. Des Moines Independent School District, the 1969 U.S. Supreme Court ruling considered the high water mark for student rights in public schools.

In Tinker, you may recall, school officials prohibited students from wearing black armbands to school in protest of the Vietnam War. Ruling in favor of the students, the U.S. Supreme Court famously stated that students do not “shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”

The High Court created what is now known at the Tinker standard: School officials may not censor student expression unless they can reasonably forecast that the expression would lead to a “substantial disruption” of the school environment or interfere with the rights of others.

Since that decision, high school students have fought censorship of their speech by invoking Tinker — frequently winning in court when they do. Few judges have applied Tinker to younger students.

But in the K.A. decision, the 3rd circuit panel held that “the Tinker analysis has sufficient flexibility to accommodate the educational, developmental, and disciplinary interests at play in the elementary school environment.”

This means that K.A. gets to hand out her invitations because the school did not show that her doing so would cause any disruption — much less a substantial disruption.

Moreover, the court said that K.A.’s flier should be treated like other fliers handed out by students. If students get to distribute materials with secular content, then students get to distribute materials with religious references as well.

Even in elementary schools, students are able to distinguish what comes from a classmate from what is sponsored by the school.

The court also made clear that elementary school administrators may place reasonable time, place and manner restrictions on student distribution of fliers and other materials — as long as all students are treated in the same way. What public schools may not do is ban student expression simply because it mentions religion.

If this court got it right — and I think it did — elementary school children not only have First Amendment rights, they get to exercise them as well.

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Charles C. Haynes is director of the Religious Freedom Education Project in Washington, D.C. Contact him at chaynes@freedomforum.org

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