Legal View: Sixth-grader wins round for religious expression

By Charles C. Haynes The Daily Record Newswire If you wonder why many Christian parents view public schools as hostile to their faith, talk to Michael Ayers -- father of a sixth-grader in the Pocono Mountain School District in northeastern Pennsylvania. Last December, his little girl wanted to hand out invitations to schoolmates inviting them to a church Christmas party. Because kids were routinely allowed to distribute fliers inviting students to birthday parties, dances and other activities, K.A. (as she is described in court filings) assumed she could pass hers out, too. But after reviewing the flier, school officials said no. Angered by what the family viewed as school censorship of religion, Ayers filed a lawsuit on behalf of his then fifth-grade daughter. On Oct. 20, a federal judge awarded round one to the family, issuing a preliminary injunction ordering the school district to permit K.A. to hand out religious fliers during non-instructional time. What's striking about this case -- and, sadly, many others like it -- is how hard some school officials will work to make public schools religion-free zones. Despite numerous court rulings upholding the First Amendment right of students to express their faith during the school day, some administrators still confuse government speech promoting religion (which the Establishment Clause prohibits) and student religious expression (which the Free-Exercise and Free-Speech Clauses protect). Pocono's superintendent tried to duck the religion issue by claiming that he turned down the flier because of safety concerns as he didn't know enough about the event or the sponsoring church. Moreover, he argued, the invitation wasn't "personal speech" but rather a third-party solicitation. The judge disagreed, noting that the superintendent apparently had done little to acquaint himself with the church. And while acknowledging that the flier's message was from the church, the judge held that K.A. wished to invite her classmates to the Christmas party because she wanted to share her faith -- very personal speech indeed. In ruling for K.A., the judge relied heavily on the Supreme Court's decision in Tinker v. Des Moines Independent Community School District (1969), the high-water mark for student freedom of expression in public schools. Since Tinker, student speech (which is not lewd or school-sponsored) can be prohibited only if it is likely to cause a substantial disruption. According to the court, Pocono schools failed to make the case that letting K.A. pass out her invitations would have caused any "disruption," substantial or otherwise. The judge's ruling in this case is consistent with a line of lower court decisions upholding the right of students to distribute religious literature in a public school. Of course, since public schools aren't the public park, school officials may impose reasonable restrictions on when, where and how the distribution may occur. Despite this clear legal trend, some school districts have continued to resist any accommodation of student religious expression, however long the court battle and whatever the cost (look for Pocono schools to appeal). Consider Plano, Texas, where administrators refused to allow an elementary student to give out candy canes with a religious message at the class party. Or Baldwinsville, N.Y., where school officials folded over a child's poster on the environment in order to hide the Jesus figure he drew in the corner. In both cases, the school districts spent years in court and spent hundreds of thousands of taxpayer dollars -- apparently because of an overwrought fear that the school might be seen as "endorsing" religion. Memo to school officials: Divisive lawsuits and bitter conflicts might be avoided if you remember that students are not the government. As long as they aren't harassing anyone or disrupting the school, students should be free to share their faith with classmates. Issue a disclaimer, set ground rules for distribution -- but let the student voices be heard, including those with a religious message. ---------- Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: firstamendmentcenter.org. E-mail: chaynes@freedomforum.org. Published: Wed, Nov 16, 2011