A federal appellate court ruledApril 15 that, although elementary school children do have some First Amendmentprotection at school, school officials did not violate a third-grader’sfree-speech rights when they stopped her from circulating a petition against aplanned fieldtrip to the circus.
This is the first time the U.S. Court ofAppeals for the Third Circuit has addressed whether elementary school studentsare provided the same free-speech rights as older students under the SupremeCourt’s 1969 decision Tinker v. Des Moines Independent Community SchoolDistrict.
A three-judge panel unanimously affirmed a district court’sdecision, which found that Lackawanna Trail School District did not violate therights of 9-year-old Amanda Walker-Serrano because she was never punished forasking classmates to sign her petition that protested a class trip to thecircus. The court said the school and its employees did not act unlawfully instopping Walker-Serrano from soliciting signatures during a silent-reading classtime and on the playground. The court also ruled that school officials did notexercise viewpoint discrimination because they later allowed Walker-Serrano todistribute coloring books that explained her views about alleged mistreatment ofcircus animals.
The three separate concurring decisions by the ThirdCircuit judges expressed some hesitancy to agree with lower courts that haveruled that Tinker is appropriately applied to elementary school studentsin the same way that it is applied to older students. The Supreme Court’sTinker standard says that student expression is constitutionally protectedunless it materially and substantially disrupts normal school activities orinvades the rights of others.
Two of the judges seemed to suggest thatalthough Tinker is applicable to elementary school students, it ought tobe limited 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 speech that isprotected in higher grades.”
The third judge, John P. Fullam, did notdirectly rule regarding Tinker, stating that he believed the criticalquestion was whether the school had imposed reasonable restrictions on thedistribution of Walker-Serrano’s petition.
Judge Fullam, however, showedless skepticism than his colleagues as to whether third-graders are matureenough to understand a petition.
“To suggest that neither AmandaWalker-Serrano nor her classmates had sufficient maturity to express or formvalid opinions concerning the proposed class trip to the circus, I findunacceptable.”
Attorney Gordon Einhorn, who represented Walker-Serrano,said that although the ruling was obviously not the outcome he hoped for, it wassignificant that two judges ruled that Tinker applies elementary schoolstudent’s rights.
“I was pleased to see that the court seemed to reflectthat Tinker applies [and] that there’s enough flexibility inTinker itself to make it applicable to elementary school students and stilltake into account their age,” he said.
Einhorn said there is no plan toappeal the decision.
SPLC View: After being largely ignored foryears, there has been a recent flurry of cases that have raised the issue ofwhether and to what degree elementary-aged students are protected by the FirstAmendment when engaged in speech activities at school. The Supreme Court’s1969 Tinker case actually involved a 13-year-old junior high schoolstudent and most post-Tinker cases have involved the free expressionrights of high school and college students. While this court agreed in theorythat Tinker is applicable to elementary school student speech, it has, inpractice, established a standard that can be described, at best, asTinker-Lite. A handful of lower courts have shown more deference to the freespeech rights of younger students and it is virtually certain that debate on theissue is not over.