FLORIDA — A Ft. Myers student is appealing a federal court’s decision rejecting her claim that the Lee County School Board violated her First Amendment rights by denying her permission to distribute anti-abortion literature.
The court ruled against Michelle Heinkel on July 1, despite calling the school board policy that was used to prevent her from handing out the pamphlets “unconstitutional.”
In April 2003, the district denied permission for Heinkel, then a student at Cypress Lake Middle School, to hand out anti-abortion literature at the school on the Day of Remembrance, a day objecting to the practice of abortion sponsored annually by Freedom to Learn, a Florida non-profit organization. Freedom to Learn was also denied permission to distribute. The district said the literature would be disruptive to the school.
Heinkel and her mother filed a complaint in March 2004, and asked for an injunction requesting permission from the board to distribute similar literature for the 2004 Day of Remembrance. The court denied the request for the injunction.
The district’s policy says the superintendent must review all literature prior to distribution, each piece of literature must include a disclaimer, and “No advertisement shall include political, religious or organizational symbols.” The court found the latter requirement to be unconstitutional.
However, the court did not rule that the use of the unconstitutional policy violated Heinkel’s First Amendment rights because, it said, the nature of her literature could be disruptive to the school.
Mat Staver, Heinkel’s attorney, said they appealed to the 11th Circuit Court of Appeals in Atlanta, calling the recent decision “silly.”
“To find that a school can have an unconstitutional policy, apply it and not strike it down would allow schools to act unconstitutionally across the country,” he said.
“That is absolutely nonsensical reasoning that would allow schools to pass unconstitutional policies, for students to govern themselves based upon an unconstitutional policy and for school boards to get away with their unconstitutional acts,” Staver continued.
Keith Martin, the attorney for the school board, welcomed the decision.
“We think it reinforces our original belief that [the superintendent’s] decision was reasonable,” Martin told the News-Press of Ft. Myers.
Staver said he would ask for an expedited appeal so that the decision will be made soon enough for Heinkel to distribute the literature in the coming school year.
“[Heinkel is] committed to rectifying this unconstitutional policy, not only for her, but also for other students,” he said.
Heinkel said she is optimistic even though the recent decision was disappointing.
“I know that it’s going to take half my lifetime to get this over with but I really hope that this goes through the next time,” she said.
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