Federal Appeals Court Ruling on Student Speech Spurs Policy Reviews

From The Tribune-Review By Brian C. Rittmeyer , January 16, 2014

A faith-based legal advocacy group says hundreds of Pennsylvania school districts, including at least five in the Alle-Kiski Valley, must change their policies on student speech because of a recent federal appeals court ruling.

In March, the U.S. Court of Appeals for the 3rd Circuit affirmed a lower court order finding two policies at Pocono Mountain School District in Northeastern Pennsylvania unconstitutional.

The policies were used to prevent a fifth-grade student from handing out invitations to a Christmas party at her church. The speech and literature distribution policies of many Pennsylvania school districts are “virtually identical” to the one struck down, says the Arizona-based Alliance for Defending Freedom, which represented the student involved in the case.

“These policies violate the First Amendment right of students to distribute religious materials at school,” said Alliance legal counsel Matt Sharp, based in Atlanta.

While the court’s opinion applies to Pennsylvania, New Jersey and Delaware, the Alliance is focusing its efforts on Pennsylvania, Sharp said.

“What we sought to do with our letter campaign was reach out to schools with problematic policies, let them know they are unconstitutional and urge them to take immediate steps to remedy it,” Sharp said. “Our primary goal is to get school districts on top of recent changes in the law and make sure no student in Pennsylvania has their rights trampled on by outdated, unconstitutional policy.”

The Pennsylvania School Boards Association is recommending districts evaluate their policies in response to the ruling, said Emily Leader, deputy chief counsel. A majority of school districts are members of the association’s policy maintenance service, through which they receive recommended policy updates and revisions.

“I agree it’s possible there are school districts in Pennsylvania that have policies that require revisions in light of the (Pocono Mountain) case,” Leader said.

The Alliance has sent letters to 100 districts, with another 200 going out in the next few weeks, spokeswoman Katie Skvarce said.

Alle-Kiski Valley Schools Affected

In the Alle-Kiski Valley, the Allegheny Valley, Apollo-Ridge, Armstrong, Burrell and New Kensington-Arnold districts have been contacted about their policies being non-compliant, according to Skvarce.

The Allegheny Valley School Board is considering changes to two policies: one on student expression and distribution and posting of materials, and another on non-school organizations, groups and individuals.

The non-school organizations policy would be changed to focus on employees, while students would be governed under the policy on student expression.

“There are different standards when you’re dealing with employees acting in their capacity as employees versus students within a school environment,” Allegheny Valley solicitor Matt Hoffman said. “The school is not looking to be involved with benign student expression that doesn’t interfere with instruction or create safety issues.”

Hoffman said that in reviewing the policies in light of the letter, they found various statements that were too broadly worded and were changed “to align with the legally recognized expressive rights of students.”

Although the Alliance letter prompted the review, Hoffman said, the changes were drafted by his office and are his firm’s recommendation.

“I don’t believe that the policy amendments would result in any change in practice at Allegheny Valley, and the district has not received any complaints from parents or students,” he said.

Armstrong School District solicitor Lee Price confirmed the district received a copy of the letter, but district officials have no immediate plans to adjust their policies.

“Armstrong periodically goes through their policies, but it might be one we look at in the future,” Price said. “The Alliance Defending Freedom is not a government agency, so they have no jurisdiction over any school district.”

Representatives of the Apollo-Ridge, Burrell and New Kensington-Arnold school districts could not be reached for comment.

New Kensington-Arnold has been facing a court challenge from the Wisconsin-based Freedom from Religion Foundation over a Ten Commandments monument in front of Valley High School.

That organization, seeking to maintain the separation of church and state also guaranteed in the Constitution, wants the monument removed. A hearing is not expected until late summer or fall.

The Alliance for Defending Freedom was created in 1994 in response to “growing attacks on religious freedom.”

It describes itself as “a servant ministry building an alliance to keep the door open for the spread of the Gospel by transforming the legal system and advocating for religious liberty, the sanctity of life, and marriage and family.”

“If we learn that these policies are still in place and the district is applying them against a student, telling them they can’t hand out literature or engage in religious speech, we’re going to take steps to defend that student’s rights,” Sharp said.


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