Policy Alert – Student Expression and Nonschool Organizations

As a result of the 2013 Third Circuit Court of Appeals case, K.A. v. Pocono Mountain School District, the advocate for K.A., the Alliance Defending Freedom for Faith and Justice, recently sent “notice letters” to school districts throughout the Commonwealth regarding Board Policy 220 involving Student Expression/ Distribution and Posting of Materials and Policy 913 regarding Nonschool Organizations/ Groups/Individuals.

In K.A a student sued the school district alleging that the school district violated her Firstand Fourteenth Amendment rights.  K.A. attempted, before the start of class, to hand out invitations to her classmates to a Christmas party at her church. The principal denied the student permission to distribute the flyer arguing that letting the student distribute these flyers was tantamount to letting the church itself distribute them.  The United States District Court for the Middle District of Pennsylvania granted the student’s motion for preliminary injunctive relief and the school district appealed.  The Third Circuit Court of Appeals determined that the District Court properly granted the student’s motion for preliminary injunctive relief.  The Third Circuit agreed with K.A. that the case must be analyzed under the First Amendment cases relating to student expression.  Two of these cases, Bethel School District v. Frasier and B.H. v. Easton Area School District provided guidance to the Third Circuit in K.A. The former case focused on the content of the student’s nomination speech itself rather than using the substantial and material disruption analysis used in Tinker. The latter created a new test for analyzing student speech by requiring it to either be plainly lewd or substantially disruptive to the educational environment in order for it to be prohibited.  K.A. demonstrated that she was reasonably likely to prevail in the litigation.  First, she argued that the Tinker analysis, in which the court held that in order to prohibit student speech, the school district was required to demonstrate more than a mere desire to “avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” had sufficient flexibility to accommodate the educational, developmental, and disciplinary interests at play in the elementary school environment. Second, the District Court correctly chose not to employ ‘forum analysis’, which is the regulation of speech in a public forum i.e. a public sidewalk or another public location.  Her speech was not the type to cause a substantial disruption in the classroom, and the fact that she was only in the fifth grade and the invitation originated from her church did not mandate a different approach.  Third,  the school district failed to identify any disruption to the school environment caused by her invitation. Also, the court found that the loss of First Amendment freedoms unquestionably constituted irreparable injury, and the injunction did not harm the school district more than denying relief would harm the student.  The court determined that the material in question could not be suppressed as uncivil, vulgar or obscene, that it did not promote illegal drug use and that it could not reasonably be viewed as school sponsored-speech.

As a result of the decision in K.A., the Pennsylvania School Boards Association (PSBA) reviewed Policies 220 and 913 which the PSBA had significantly revised in 2005/2006.  In December of 2013, the PSBA advised school districts, in consultation with district solicitors, to review their Policies 220 and 913, considering the new recommendations from PSBA post K.A.  School districts that have never adopted Policies 220 and 913 are encouraged to review the PSBA recommendations and consider the adoption of these Policies.

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