Court rules school can halt third-grader’s petition against circus

PENNSYLVANIA — A federal appellatecourt ruled April 15 that, although elementary school children do have someFirst Amendment protection at school, school officials did not violate athird-grader’s free-speech rights when they stopped her from circulating apetition against a planned fieldtrip to the circus. With this decision,the U.S. Court of Appeals for the Third Circuit becomes the first federal courtof appeals to address whether elementary school students are provided the samefree-speech rights as older students under the Supreme Court’s 1969decision Tinker v. Des Moines Independent Community School District.The three-judge panel unanimously affirmed the district court’sdecision, finding Lackawanna Trail School District did not violate the rights of9-year-old Amanda Walker-Serrano because she was never punished for askingclassmates to sign her petition that protested a class trip to the circus. Thecourt said the school and its employees were within their rights in stoppingWalker-Serrano from soliciting signatures during a silent-reading class time andon the playground. The court also ruled that school officials did not exerciseviewpoint discrimination because they later allowed Walker-Serrano to distributecoloring books that explained her views about alleged mistreatment of circusanimals.The three separate concurring decisions by the Third Circuitjudges expressed some hesitancy to agree with district courts that have ruledthat Tinker is appropriately applied to elementary school students in thesame way that it is applied to older students. The Supreme Court’s Tinkerstandard says that student expression is constitutionally protected unlessit materially and substantially disrupts normal school activities or invades therights of others. Two of the judges seemed to suggest that althoughTinker is applicable to elementary school students, it ought to belimited by the age of the students and applied rarely. “If thirdgraders enjoy rights under Tinker, those rights will necessarily be verylimited,” Judge Anthony J. Scirica said. “Elementary school officials willundoubtedly be able to regulate much — perhaps most — of the speechthat is protected in higher grades.””Younger students are at a stage inwhich learning how to develop relationships and behave in society is as or evenmore important than their forming particular views on controversial topics,”Scirica said.Judge Morton I. Greenberg said an 8- or 9-year-old mightnot be able to resist the peer pressure to sign a petition and thus might do soeven if the petition advocates a position with which he or she does not agree.“It seems to me that it will be a rare case in which such conductshould be protected when the signatures are sought from children as young asthose involved here, particularly in a school setting,” he said.Greenberg emphasized that under Tinker the rights of otherstudents must be considered, which he said should take precedent over the rightof a young student to circulate a petition.The third judge, John P.Fullam, a district judge who was sitting on the circuit court by designation,did not directly rule regarding Tinker, stating that the criticalquestion as he saw it was whether the school had imposed reasonable time, placeand manner restrictions on the distribution of Walker-Serrano’s petition.Judge Fullam, however, showed less skepticism than his colleagues as towhether third-graders are mature enough to understand a petition.“To suggest that neither Amanda Walker-Serrano nor her classmateshad sufficient maturity to express or form valid opinions concerning theproposed class trip to the circus, I find unacceptable.”AttorneyGordon Einhorn, who represented Walker-Serrano, said that although the rulingwas obviously not the outcome he hoped for, it was significant that two judgesruled that Tinker applies elementary school student’srights.“I was pleased to see that the court seemed to reflect thatTinker applies [and] that there’s enough flexibility inTinker itself to make it applicable to elementary school students andstill take into account their age,” he said.Einhorn said there isno plan to appeal the decision.

Walker-Serrano v. Leonard, 325 F.3d 412 (3rd Cir. 2003)