Judge rejects school’s ‘forum’ argument, orders student be allowed to pass out religious invitations

A Pennsylvania fifth grader can resume handing out invitations to church events after a judge ruled Thursday that her school district inhibited personal speech protected by the First Amendment and the Tinker standard.

Judge A. Richard Caputo granted a preliminary injunction to the student, identified only as “K.A.,” who was prevented from handing out fliers to a church Christmas party through student mailboxes last November in the Pocono Mountain School District.

The district’s policy at the time required all outside materials sent home with students to be reviewed to make sure they “promote student interests primarily, rather than the special interests of any particular group.”

Lawyers for the district argued that the restriction was permissible because the school is a nonpublic forum. But Caputa rejected any forum analysis, concluding that the landmark Tinker standard – which allows censorship only to prevent a substantial disruption – governs K.A.’s personal expression.

He wrote the flier was a “hybrid of commercial and personal speech,” but erred on the side of personal speech. Still, even if the school was a nonpublic forum, he wrote the district’s policy on fliers was “too broad and arbitrary to stand up to constitutional challenge.”

Matt Sharp, an attorney with the Alliance Defense Fund, argued the case for K.A. and said he was “extremely happy” with the decision.

“Our client has a great point of view she wanted to bring by inviting her friends to community events sponsored by her church, and the Constitution protects her right to do so as long as under Tinker it doesn’t cause a substantial disruption to school,” he said.

The decision includes a lengthy discussion of student speech in public schools and is an interesting parallel to a case decided just last month in Florida. In that case, a different federal court allowed a school to prohibit students from wearing “Islam is of the Devil” shirts. The judge there relied heavily on the school’s designation as a non-public forum and suggested speech at school can be regulated in any “reasonable” way.

Thursday’s order prevents the Pennsylvania school district from enforcing its policy against K.A. The judge also rejected a revised version of the policy, approved in August, that flat out banned “promoting non school events, organizations, groups, or individuals.”

Wendy Frable, Pocono Mountain School District spokeswoman, said the district is reviewing the decision.

“We just have received it and have to review it. We haven’t had time to thoroughly review it, and we’ll certainly present it to our school board and proceed from there.”

Lehigh Valley Live reported that John Freund, counsel for PMSD, advised another Pennsylvania school district to stop distributing fliers from the Boy Scouts of America until this court case was decided. That same district is also involved in an ongoing lawsuit after it banned the “I Heart Boobies” cancer awareness bracelets. A lower court struck down that ban in April but Freund is appealing.

Freund did not respond to multiple requests for comment.