Middle schooler asks U.S. Supreme Court to hear First Amendment case

MICHIGAN — Attorneys for a Saginaw, Mich. fifth-grader who wasordered to refrain from distributing religious messages at school filed a petition to the U.S. Supreme Court Monday with hopes the court will reexamine a6th Circuit U.S. Court of Appeals ruling that said his middle school principaldid not violate his First Amendment rights.

The step comes after a September 2006 ruling by a federal district courtthat said although Joel Curry’s principal had violated his Constitutional rightswhen he was told he could not sell candy canes with a religious message as apart of a school project, she was protected by qualified immunity.

In January 2008, the 6th Circuit reversed the ruling and said that IreneHensinger did not violate Curry’s rights because the project was a part ofschool curriculum, citing Hazelwood School District v. Kuhlmeier.

In Hazelwood, the court ruled that speech as a part ofschool-sponsored events could be censored provided that school officialspresented a legitimate educational justification. In Curry’s case, the appellatecourt said the candy canes were created as a part of school curriculum, so theHazelwood standard applied.

Jeff Shafer, the Alliance Defense Fund attorney representing Curry, saidthe court made a mistake in applying the Hazelwood standard instead of

Tinker v. Des Moines Indep. Cmty. Sch. Dist., which says thatstudent speech may not be censored unless it substantially disrupts the schoolor invades the rights of others.

“We would like to see a narrower reading of the Hazelwood case thatdoesn’t displace the Tinker rule from the classroom,” Shafer said.

Shafer said he hopes the Supreme Court will decide to hear the case torepair the “poor decision” the 6th Circuit made by departing from pastprecedent.

“The 6th Circuit decision seems to make a categorical designation ofreligious speech as susceptible to censorship all the time,” Shafer said. “So Ithink it has rather dramatic impact for religious students who would respond toassignments in a way that reveals their religious viewpoints.”

Shafer said he anticipated the Supreme Court would announce by Octoberwhether it would hear Curry’s case.