MICHIGAN — In another decision eroding the First Amendmentrights of students, a federal appeals court ruled against a middle-schoolstudent who was told to refrain from handing out anti-abortion leaflets in hisschool’s hallway.
A three-judge panel at the 6th Circuit U.S. Court of Appeals ruled in anopinion released Oct. 7 that hallways in public middle schools are not publicforums, so school officials have wide discretion over regulating student speechin the hallways.
”Repeated statements by the Supreme Court and multiple circuits,including this one, make it clear that school areas such as hallways constitutenonpublic forums,” Judge John M. Rogers wrote in the case of M.A.L. v.Kindsland. ”M.A.L” is a minor and was only referred to as”Michael” in the lawsuit.
Rogers cited Hazelwood v. Kuhlmeier and several other U.S. CircuitCourt rulings as the court’s reasoning, which included two separate 7thCircuit Court of Appeals decisions in which that court decided that elementaryand junior-high schools are not public forums. Under Hazelwood, a 1988U.S. Supreme Court case, high school administrators can censor manyschool-sponsored student publications simply by showing they have a legitimateeducational reason for doing so.
On Oct. 24, 2006, Michael, a 14-year old, eighth-grade student at JeffersonMiddle School distributed anti-abortion leaflets to schoolmates during the”3rd Annual Pro-Life Day of Silent Solidarity.” He also wore a pieceof red duct tape over his mouth and on his wrists in addition to wearing asweatshirt that read, ”Pray to End Abortion.” Organizers of theprotest, ”Stand True,” say taping one’s mouth shut symbolizesthat ”they speak for unborn children,” court records show.
During Michael’s first class, he was instructed by his teacher to gothe office because he was ”causing a disruption,” according to courtdocuments. He was sent to guidance counselor, Andrea Werner, who confirmedthrough the superintendent that his shirt needed to be changed and the duct taperemoved. Werner made him turn his sweatshirt inside-out.
”According to Michael,” the opinion stated, ”Mrs. Werner explained to him that his message was ‘political’ and that the school ‘could speak about abstinence, but not about abortion, and that the school had to remain neutral and people couldn’t take sides.”’
Later that day, Werner sent Michael to the principal’s office again after she saw Michael adjusting his sweatshirt so that it was no longer inside-out. While in the office, he brought up the distribution of leaflets. The principal denied Michael’s request because he did not have a chance to approve the leaflets’ content in a timely manner, as stated in the school’s policies.
While no disciplinary action was taken against Michael that day, his parents filed a lawsuit Jan. 24, 2007, citing an ”urgent need” for a temporary restraining order so Michael could perform the same protest seven days later. Michael also sought to ”vindicate his constitutional rights which were violated by (the school).”
A U.S. district court ruled in favor of Michael, leading to the school’s appeal to the Sixth Circuit. The district court ruled Jefferson Middle School’s distribution policy was unconstitutionally overbroad and that it could potentially prohibit students from passing out magazines to their friends without approval. Michael was also awarded one dollar in nominal damages.
But the Sixth Circuit reversed that ruling saying that Michael’s conduct was not entitled to the strong First Amendment protections set forth by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District. Under Tinker, student expression is constitutionally protected unless it is unlawful (libelous, obscene, constitutes an invasion of privacy, etc.) or it seriously and physically disrupts normal school activities.
”The key difference between Tinker and the instant case is that the school officials in Tinker sought to silence the student because of the particular viewpoint he expressed, while the Jefferson school authorities have merely sought to regulate the time, place, and manner of Michael’s speech irrespective of its content or his viewpoint,” Rogers wrote.
The court went on further to write that Tinker’s ”demanding standard” was inappropriate to evaluate a viewpoint-neutral regulation of the manner of a student’s speech when the school’s motive is to prevent hallway clutter and congestion.
”Indeed, requiring the Jefferson school district to satisfy Tinker’s heightened standard in the present circumstances would produce numerous legal anomalies, the most obvious of which is that schools would have less discretion over the use of school facilities than is exercised by any other public entity over any other forum on public property,” the court wrote. ”This is not the law.”
Roy H. Henley, attorney representing the Jefferson School District, said he did not see the court’s decision as a manner of speech restraint.
”The way that we viewed it, it wasn’t about suppression of speech,” Henley said. ”But it was just about making sure that school district officials had the authority so that they could require their students to communicate what they wanted to communicate in a manner and at a time that would be appropriate for a middle-school environment. I think that’s a little different than other environments you may run into.”
Michael’s legal representative with the Alliance Defense Fund of Scottsville, Ariz., did not immediately return a phone call to determine whether further legal challenges are planned.