School Can’t Blot Out Christmas Party Flyers

     SCRANTON, Pa. (CN) – A sixth-grade girl won an injunction to hand out flyers for her church’s Christmas party after a school forbade her from doing so last year.
     The injunction order says that student, described in court filings as K.A., “is permitted to distribute religious flyers to her friends and classmates during non-instructional time at Barrett Elementary Center,” and the school cannot legally prohibit her from distributing literature that promotes religious events and activities.
     K.A.’s father, Michael Ayers, filed suit on her behalf in March 2011. He said the dispute arose when K.A. planned to distribute Christmas party flyers among her classmates in the Pocono Mountain School District last December. When K.A.’s teacher saw the flyer, she told K.A. that the principal needed to approve it first. Principal Heidi Donohue than told K.A. and Ayers that the superintendent had to approve nonschool flyers, but that he had not given such approval to K.A.
     Ayers said Superintendent Dwight Pfenning emailed him and told him that Policy 913 gave him the authority to prohibit the distribution of the flyer because it was “for an event run by an organization the school was unfamiliar with, rather than the flyer’s promotion of a religious holiday.”
     The flyer in question promoted what was dubbed an “iKidz Rock Night Christmas Party,” a “just for kids” event with face-painting, pingpong, foosball, snacks, games and prizes.
     The school did later adapt Policy 913 to state that “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,” but they made this change after they banned the distribution of K.A.’s flyer.
     Pocono school officials claimed that their actions passed the test set out in Tinker v. Des Moines Independent Community School District – a landmark 1969 ruling in which the court held that a school had discriminated by suspending students who wore black wristbands to protest the Vietnam War. For Pocono, blocking distribution of K.A.’s Christmas flyer was reasonable “out of concerns for safety and to avoid classroom disruptions.”
     Caputo agreed that Tinker applies because “this case is primarily about the expressive speech of a student.” But the school did not articulate “a specific and significant fear of disruption if K.A. was allowed to pass out her flyers,” according to the 11-page decision.
     “The school argues that since it did not know the relevant details regarding the Christmas party: who was running it, the food that would be served, who would be supervising, etc., it did not want to send home a flyer that might mislead parents into believing it was a school-sanctioned event,” Caputo wrote. “However, the superintendent does not appear to have taken any steps to acquaint himself with the church or find out additional information.”
     “Additionally, the superintendent testified that students frequently bring home invitations to student birthday parties, as well as solicitations and other material from outside organizations,” he added. “Parents were therefore on notice that much of the material that came home was for non-school sponsored events.”
     K.A. can distribute flyers about future church events in the take-home folders and the literature-distribution table at the school, and the district “is prohibited from enforcing 913 as applied to prohibit Plaintiff from distributing literature promoting religious events and activities.”

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