concluding that an analysis of whether student speech infringes on the right to be let alone may “look different in the elementary- school context” given that elementary students are “more susceptible to coercion and peer pressure” than older students
How later courts described this case
- concluding that an analysis of whether student speech infringes on the right to be let alone may “look different in the elementary- school context” given that elementary students are “more susceptible to coercion and peer pressure” than older students
- holding, for the majority, that discriminating against student speech on the basis of religious viewpoint violated the First Amendment and concluding, in dissent, that the right was clearly established
- holding that student passing out pencils with the word “Jesus” on them during non-curricular time was protected by the First Amendment
- holding “[t]he defendants in this case are entitled to qualified immunity because existing precedent failed to place the constitutionality of their conduct ‘beyond debate’ ”
Written by the judges who cited it.
The opinion
PRADO, Circuit Judge,
partially concurring:
I agree that Tinker and its progeny clearly establish that elementary-school students enjoy some degree of First Amendment rights at school. This includes a general, but not unrestricted, right to express personal, religious views and to be free from viewpoint discrimination. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969). The Supreme Court was sweeping in its pronouncement that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the sehoolhouse gate.” Id. at 506 , 89 S.Ct. 733 . Based on the nature of the restriction in Tinker , a school policy forbidding students to wear armbands to protest the Vietnam War, id. at 504 , 89 S.Ct. 733 , and the Court’s broad language, this declaration surely encompasses a general prohibition on viewpoint discrimination that extends to all students.
Context matters significantly, however, in the intersection of the First Amendment, elementary education, and qualified immunity. In Hazelwood, the Supreme Court reaffirmed that the First Amendment “must be ‘applied in light of the special characteristics of the school environment.’ ” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 , 108 S.Ct. 562 , 98 L.Ed.2d 592 (1988) (quoting Tinker, 393 U.S. at 506 , 89 S.Ct. 733 ). Particularly, the Court held that schools may exercise greater control over “activities [that] may fairly be characterized as part of the school curriculum,” in part because of a concern that “the views of the individual speaker [might be] erroneously attributed to the school.” Id. at 272, 108 S.Ct. 562 . While the Hazelwood case dealt with a high-school newspaper, the Third Circuit has preseiently noted that when applying the Hazelwood test “[i]n the elementary school setting, age and context are key.” Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 , 275 (3d Cir.2003). The ability of high-school students to express opinions about political and social issues, and to distinguish between the speech of other students and the school, must be considered in contrast to the abilities of much younger students. Young students may easily confuse student advocacy in the classroom or during other school-organized activities for school-endorsed speech. See *395 id. at 277, 108 S.Ct. 562 (noting that “in an elementary school classroom, the line between school-endorsed speech and merely allowable speech is blurred, ... for [ ] young, impressionable students”). Lacking clearer guidance from the Supreme Court on the application of Tinker and Hazelwood in the elementary-school context, we should tread carefully in exposing school officials charged with making sensitive, context-specific decisions to personal liability.
Nonetheless, the incidents described in the complaint involving Principal Bomchill’s attempts to restrict Versher’s distribution of (1) religious materials on the school lawn after school and (2) play tickets outside of class to students who expressed interest do not reasonably fall into this gray area where students might confuse Versher’s speech for that of the school, see Hazelwood, 484 U.S. at 272 , 108 S.Ct. 562 , or where Versher’s actions might interfere with the school’s ability to preserve order or facilitate learning. See Tinker, 393 U.S. at 514 , 89 S.Ct. 733 . At this stage of the proceedings, I would therefore affirm the denial of qualified immunity on these two incidents. 1
The other two incidents — involving distribution of religious materials (1) at a “winter break party” inside the classroom and (2) at a half-birthday party facilitated by the school — are not so clear-cut. Given the risk of young students imputing religious speech to the school, and the similarities between the facts in the latter incident and Walz, Bomchill’s and Swanson’s actions were not objectively unreasonable in light of clearly-established law. I would therefore grant qualified immunity with respect to those incidents.
For the foregoing reasons, I join in Sections III.A, III.C, IV.B, and IV.C of Judge Elrod’s opinion.
. The district court may later find that qualified immunity is warranted on one or both of these incidents after further factual development in this case.