Legal Question of the Week – 11/27/13

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagatcasciacdotorg. _________________________________________________________________________________________


Dear Legal Mailbag:

One of the teachers at my middle school may be in the soup. It all started when one of the students in her class started passing out cards before school one day. She didn’t think anything of it, because students pass things out from time to time, ranging from birthday invitations to Valentine’s Day cards. However, when one of the students opened the card in front of her, she noticed religious iconography and asked to see the card. She was concerned when she read the message in the card because it was deeply religious in nature, imploring the readers to accept Jesus Christ into their hearts. Given the need to keep religion out of our schools, she promptly collected all the cards and gave them back to the student who had distributed them. She did not impose discipline, but she told the student in no uncertain terms that he should not bring such religious messages into the public schools.

When the teacher first told me about this situation, I thought that the teacher’s actions were fine. In fact, I may have done the same thing myself. However, I am having second thoughts. The student’s mother just left my office and, while she was polite, she was insistent that her son’s rights were violated. Moreover, she told me that she would be discussing this situation with her pastor and with the American Civil Liberties Union. Should I be worried about this?

Fearing God and the ALCU

Dear Fearing:

You do have a problem and, in considering this matter, you should keep two things in mind.

First, as you know, students have free speech rights in school. In 1969, the United States Supreme Court announced in Tinker v. Des Moines Independent Community School District that student speech is protected by the First Amendment unless school officials reasonably forecast that the speech will cause substantial disruption or material interference with the educational process or will violate the rights of others. From the situation you describe, I see no basis for the teacher (or you) to claim that the student’s action in passing out the cards was disruptive. Indeed, passing out cards in school is apparently allowed, as occurs with birthday invitations, Valentines, and other situations.

Second, the religious nature of the cards is not your problem. The courts have distinguished between the speech of teachers and other school officials, which can be ascribed to the government, and student speech, which is not. It remains clear that school officials must be neutral in matters of religion; and it would have been a constitutional problem if it had been the teacher who was passing out cards with a religious message. However, student speech is different, and school officials must be careful not to treat religious speech by students with disfavor.

To be sure, when the speech is school-sponsored (as with student speech at a school assembly), a different standard applies; and, school officials may regulate school-sponsored speech as long as they have a legitimate pedagogical interest in taking such action. But student-initiated speech concerning religious matters must be treated in the same way as any other student speech and, absent disruption, it must be allowed. Just this year, for example, a fifth grade student in Pennsylvania successfully sued the school district when school officials prohibited her from passing out an invitation to a Christmas party at her church. K.A. v. Pocono Mountain School District, 710 F.3d 99 (3d Cir. 2013). Perhaps a prayer for forgiveness is in order.