K.A. v. Pocono Mountain Sch. Dist., No. 11-347 (M.D. Pa. Oct. 20, 2011)
Abstract: A Pennsylvania federal district court has granted an elementary student’s motion for a preliminary injunction ordering a school district to allow the student to distribute flyers promoting religious events until the court decides the merits of the student’s First Amendment claim. Rejecting the school district’s argument that the student’s free speech claim should be to subject to forum analysis, the court applied the substantial disruption standard enunciated in Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969). Based on that standard, the court concluded that the school district had failed to demonstrate that it reasonably foresaw disruption if it allowed distribution of the flyers.
Even assuming that forum analysis was appropriate, the district court concluded, neither the district’s original materials distribution policy nor its revised policy would pass constitutional muster because both policies were vague and arbitrary. It determined that neither policy satisfied the nonpublic forum standard requiring time, place and manner restrictions on distribution of materials to be ”viewpoint neutral and reasonable in light of the school’s interest in the effectiveness of the forum’s intended purpose.”
Facts/Issues: K.A., a student at Barrett Elementary Center (BEC), wanted to distribute flyers promoting her church’s Christmas party to her classmates via their assigned “mailboxes.” K.A.’s teacher informed her that Principal Heidi Donohue had to approve the flyer before K.A. could distribute it. After K.A. submitted the flyer, her father contacted Donohue regarding its status. Donohue informed him that non-school related flyers had to be approved by the superintendent and that the superintendent had not approved this one. Her father asked Donohue for a written explanation for the denial. She pointed him to Pocono Mountain School District (PMSD) Policy 913. After he sought further clarification, Superintendent Dwight Pfenning told him via email that Policy 913 provided the superintendent with the authority to prohibit the distribution of K.A.’s flyer.
The relevant portion of Poliy 913 states:
Any requests from civic organizations or special interest groups which involve such activities as patriotic functions, contests, exhibits, sales of products to or by students, sending promotional materials home with students, graduation prizes or fund raising must be examined to insure that such activities promote student interests primarily, rather than the special interests of any particular group. No individual, firm or corporation shall be permitted to engage in commercial advertising, promotion, solicitation or sales with regard to the student body, faculty, staff or the public on school district property or at any school sponsored activities unless the same shall have been previously approved in writing by the District.
K.A.’s father filed suit on her behalf alleging that PMSD’s refusal to approve the flyer for distribution violated K.A.’s First and Fourteenth Amendment rights. He then filed a motion with the federal district court seeking a preliminary injunction ordering PMSD to allow K.A. to distribute the flyers.
After the motion was filed, PMSD revised Policy 913. The relevant part of revised Policy 913 states:
The Board prohibits the use of students and staff members for soliciting, advertising, or promoting nonschool events, organizations, groups, or individuals during the school day or at school-sponsored locations or events not otherwise open to nonschool organizations, groups, or individuals.
During the school day, only literature and materials directly related to school district activities or that contribute significantly to district instructional programs may be disseminated to or through students and staff members. Prohibited materials may never be distributed or used at any time.
A review of any nonschool written materials under this policy will not discriminate on the basis of content or viewpoint, except that prohibited materials will be rejected, as will any materials that do not comply with Board policy, administrative procedures, or written announcements relating to the proposed nonschool sponsored materials.
Appropriate literature and materials relevant to nonschool organizations, groups or individuals may be disseminated by school sponsored organizations involved in such activities as fundraising and community service, contingent upon approval by the Superintendent and/or designee.
In its argument against the motion, PMSD asserted that K.A. will not succeed on the merits of her claims. PMSD argued: (a) K.A.’s speech was not personal; (b) Policy 913 comports with the First Amendment under a nonpublic forum analysis; (c) the school district’s actions also pass the Tinker test because the school acted out of concerns for safety and to avoid classroom disruptions; and (d) the suit is moot since the revised Policy 913 removes any ambiguities in the school district’s policy on the distribution of non-school related materials.
Ruling/Rationale: The district court granted K.A.’s motion for a preliminary injunction, allowing K.A. to distribute religious flyers to fellow students during non-instructional time at BEC, which includes the the school’s “mailboxes’ and literature distribution table. It concluded that K.A. was likely to succeed on the merits of her free speech claim because both original Policy 913 and revised Policy 913 failed to pass the Tinker test. The court rejected PMSD’s argument that the speech at issue is properly subject to forum analysis. Instead, it found that the expressive speech at issue was student speech. It pointed out that forum analysis is typically employed in the context of speech at school when outside groups are seeking access to school facilities.
The court first noted that, in addition to the Tinker standard allowing school officials to prohibit personal student speech that causes substantial disruption, Supreme Court precedent allows school officials to regulate other type of student speech. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986); allows school officials to prohibit lewd, vulgar or profane student speech; Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to regulate school-sponsored speech; and Morse v. Frederick, 551 U.S. 393 (2007), allows school officials to restrict student speech advocating drug use. The court also stressed that student speech is “personal” if it is “voluntary and not dictated by an individual or group.”
Although the court allowed that the speech in question, i.e., the flyer, is ”something of a hybrid of commercial and personal speech,” it rejected PMSD’s contention that the flyer “was not personal speech, but rather a solicitation from a third-party organization, and therefore Tinker should not apply.” Instead, the court determined Tinker provided the appropriate analytical framework because it found the flyer could be reasonably viewed as an attempt to proselytize K.A.’s personal religious beliefs. Determining that none of the carve-outs articulated in Tinker‘s progeny applied here, the court stated the question “is whether the school can articulate a specific and significant fear of disruption if K.A. was allowed to pass out her flyers.” It determined that PMSD’s citation of ”general safety concerns in allowing children to pass out flyers for events the school is unfamiliar with” was insufficient to satisfy the substantial disruption standard. The court, likewise, found PMSD’s argument “that allowing any type of third-party solicitation to be passed out would disrupt the learning environment” would not satisfy the standard. As a result, the court concluded that PMSD’s actions would fail the Tinker standard.
Although the district court had already disposed of the forum analysis argument, it stated that even assuming such analysis was appropriate, PMSD’s “actions were likely too broad and arbitrary to stand up to constitutional challenge.” While acknowledging “[t]he school district, as a nonpublic forum, would be entitled to put time, place, and manner restrictions on speech made on the school grounds so long as the restrictions were viewpoint neutral and reasonable in light of the school’s interest in the effectiveness of the forum’s intended purpose,” the court concluded “the Superintendent’s elusive criteria for determining which materials could be distributed is simply too broad and vague to be considered reasonable.” The court noted that the Superintendent’s “‘unfamiliarity’ with a given organization – without any procedure for establishing ‘familiarity’ – is a criteria ripe for abuse.”
K.A. v. Pocono Mountain Sch. Dist., No. 11-347 (M.D. Pa. Oct. 20, 2011)
[Editor's Note: Background on the suit is available in a March 2011 Legal Clips summary of an article in the Scranton Times-Tribune. The lawsuit, in which K.A. and her father are represented by Alliance Defense Fund, alleged that PMSD’s decision to censor the girl’s religious flyers violated her constitutional rights to free speech and equal protection. ADF's news release about the court's ruling is available here.
In a case highlighting the use of forum analysis involving access by an outside group, Legal Clips summarized a Minnesota federal district court's decision in Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1 in October 2011. The court denied an outside religious organization’s motion for a preliminary injunction that would have required a school district to grant it the additional benefits provided to participants in the district-sponsored after school program. The court determined that the school district had created a limited designated public forum when it set up its after school program, which allowed it to restrict access to the forum provided the restrictions were reasonable and viewpoint neutral.]