An elementary school student in the Pocono Mountain School District in Pennsylvania sued the district in 2010 because she was banned from distributing fliers at the school for her birthday party, which was to take place at her church, the Pittsburgh Post-Gazette reports. The district, unfamiliar with the church, barred the fliers.
The district argued that passing out the fliers amounted to advertising and said schools need to “protect our school children from an influx of outside advertising,” but the district court granted the student a temporary injunction, allowing her to pass out the invitations. The Third Circuit, which is hearing the case on appeal from the school district, heard arguments earlier this month.
The district asserted that the schools’ superintendent should reserve the right to deny distribution of offensive fliers. She brought up the possibility that students would distribute material from the Aryan Nation as an example, stating that children, especially young ones, should be protected from this material.
However, in response to that argument, one judge said giving the superintendent that power would “seem to invite content and viewpoint discrimination, which is anathema to the First Amendment.”
Attorneys for the student argue that if the district allows one student to pass out fliers during non-instructional time, it must allow other students to do the same, regardless of the content of the fliers or their source.
The original ruling in the district court ordered the district to allow the student to distribute the fliers, despite the fact that the fliers promoted a religious event. 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 fliers.
