In K.A. v. Pocono Mountain School District, 710 F.3d 99 (3d Cir. 2013), the U.S. Court of Appeals for the Third Circuit decided, as a matter of first impression, that the advertising material of third parties constitutes "student speech," if distributed by a student in the public school. This decision is significant: Without the intervention of a student, third-party material would be regulated under a First Amendment forum analysis, allowing the district more discretion to exclude nonschool material from the schoolhouse.

However, because the Third Circuit dubbed third-party material brought to school by a student "student speech," the "substantial disruption" standard applies when nonschool materials are distributed by a student. This article explains the significance of the K.A. holding.

To provide a brief background, the speech rights of third parties in public schools stands in stark contrast to the speech rights of students in public schools. First Amendment jurisprudence has firmly established that third-party organizations have no inherent right to access the schoolhouse. If a school district voluntarily opens a forum for the messages of third parties, it may impose restrictions mitigated only by reasonableness and viewpoint neutrality.

In contrast, student speech, absent disruption, is generally protected from censorship. In the case of Tinker v. Des Moines Independent Community School District, 393 U.S.503 (1969), the U.S. Supreme Court held that student speech may not be restrained without showing a "substantial disruption" or a reasonable forecast of substantial disruption. Subsequently, exceptions were carved out for lewd, vulgar or obscene speech; school-sponsored speech; and pro-drug speech. Unlike the regulation of third-party speech, a school district is generally restrained from excluding student speech based upon subject matter.

In the case of K.A., the primary issue before the Third Circuit was whether to apply the rigors of the Tinker standard or the flexibility of a forum analysis to the Pocono Mountain School District's decision to deny a student's distribution of third-party materials. K.A., then a fifth-grade student in the Barrett Elementary Center of the Pocono Mountain School District, was passing out flyers during her homeroom when she was instructed by her classroom teacher that the building principal needed to approve the distribution of all flyers. The flyer, an invitation for all students in grades K-6 to attend a Christmas party at the Innovation Church, advertised activities including "face painting, ping pong, and foosball." There was no overtly religious message on the face of the flyer, nor was there any indication that religious expression would occur at the Christmas party, particularly because all of the identified activities were secular in nature.

As required by the school district's policy for the distribution of third-party materials, the building principal submitted K.A.'s flyer to the superintendent for final approval. According to his testimony, for reasons unrelated to religion, the superintendent denied distribution of the flyers. On a motion for preliminary injunction filed by Michael Ayers, K.A.'s father, the U.S. District Court for the Middle District of Pennsylvania applied the Tinker standard to review the school district's decision. The Middle District court found as fact that K.A., an observant Christian, personally desired to distribute the flyers in order to share her religious faith. Accordingly, the Middle District held that, because no evidence of disruption was shown, the school district must permit K.A.'s distribution.

The school district appealed to the Third Circuit, arguing that, because the flyers contained no religious expression that could be adopted by a child, the Tinker standard was misplaced and improperly applied in the elementary school context. In contrast, Ayers argued that, because student K.A. initiated distribution of the flyers to invite classmates to a religious event, a Tinker analysis should be applied. Ultimately, the court applied the Tinker analysis, allowing for the distribution of nonschool materials via a student, absent disruption. Unlike the district court, a factual finding of K.A.'s own religious observation was not critical to the Third Circuit's decision. Although the Third Circuit found that the invitation originated from the Innovation Church, the analytical framework was guided by the court's factual finding that it was K.A., not Innovation Church, who brought the flyers to school. Citing the case of Walz v. Egg Harbor Township Board of Education, 342 F.d 271 (3d Cir. 2003), which applied the Tinker standard despite the court's observation that it was the parent, not the child, who was the driving force behind the distribution, the Third Circuit held that Tinker must be applied. Moreover, contradicting the dicta statements in Walker-Serrano v. Leonard, 325 F.3d 412 (3d Cir. 2003), the Third Circuit recognized that Tinker must be applied, in its full force, even in the elementary school.

According to the Third Circuit's analysis in K.A., Tinker must be applied to the distribution of third-party materials by a student, even if the driving force of the distribution is a third party. Because flyers are taken home with students to be read and understood in the community, not during the school day, the Tinker standard may rarely, if ever, be satisfied. Therefore, unless one of the exceptions to Tinker applies, third-party solicitations distributed via a school child will evade school district review, even primarily commercial messages, which could ordinarily be restrained under a forum analysis.

The primary import of the K.A. case was the Third Circuit's perspective on untangling the amalgamation of third-party speech and student speech. Interestingly, the court concluded that speech is deemed "student speech" if brought into the school by a student, notwithstanding the origination of the message and the will of the speaker. Therefore, in its effect, K.A. breaks down the traditional authority of school districts to exclude the messages of third-party speakers, allowing a loophole for third parties who can secure a student to distribute their messages.

Keely Jac Collins is an employment and education attorney with King, Spry, Herman, Freund & Faul and is a frequent author and speaker. For a complete biography and copies of her publications, visit www.kingspry.com.