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Since 1969, when the U.S. Supreme Court held that high school students had a First Amendment right to wear black armbands to protest the war in Vietnam, none of the federal appellate courts has tackled the question of whether that decision also applies to elementary school students. And then along came Amanda Walker-Serrano, a third-grader who says she objected to a school trip to the circus because of the mistreatment of circus animals, but that officials at the Lackawanna Trail Elementary School in Factoryville, Pa., blocked her from circulating a petition to her fellow students. Walker-Serrano’s appeal to the 3rd U.S. Circuit Court of Appeals from a ruling that dismissed her case raised the question of whether the 1969 decision in Tinker v. Des Moines Independent Community School District can be applied to the youngest students. Now the 3rd U.S. Circuit Court of Appeals has ruled that while the Tinker test might be useful in the elementary school setting, it must be modified to allow school officials to exercise greater control over younger students. All three judges on the panel authored opinions. And while all three voted to uphold the lower court’s dismissal of the suit, one judge said he disagreed with his colleagues’ reasoning. “That age is a crucial factor in this calculus does not necessary mean that third graders do not have First Amendment rights under Tinker,” 3rd Circuit Judge Anthony J. Scirica wrote in an opinion joined by Senior Circuit Judge Morton I. Greenberg. “ Tinker provides a flexible standard that arguably is able to incorporate these considerations,” Scirica wrote. Under Tinker, schools can regulate student speech whenever the school can show that the speech would be disruptive, or would interfere with the rights of other students, Scirica said. “In essence, Tinker requires that schools have a legitimate educational or disciplinary justification for regulating student expression. That elementary schools require a greater degree of control, or a different kind of control, over students might be accommodated within the Tinker analysis,” Scirica said. Scirica found that Walker-Serrano was never punished for collecting signatures on her petition, and that even if school officials had blocked her from continuing, they also “encouraged other expressions of Walker-Serrano’s opposition to the circus” by allowing her to pass out coloring books and stickers that dealt with cruelty to animals at the circus to her fellow students. As a result, Scirica found that any decision to stop her petition was “not based on animus to the position she expressed, but to the particular mode of expression in particular circumstances.” Walker-Serrano’s lawyers argued that the petition did not cause disruption either on the playground or in the classroom. But Scirica found that “a school must be able to regulate the times and circumstances a petition may be circulated in order to fulfill its custodial and pedagogical roles.” In a concurring opinion, Greenberg said he would have gone further and held that Walker-Serrano had no right to circulate the petition because it potentially infringed on the rights of the other students. “An eight- or nine-year-old child might not be able to resist the peer pressure to sign a petition and thus might do so even if the petition advocates a position with which he or she does not agree. In any event, a child of such age should not be confronted with having to make the choice to sign or not sign,” Greenberg wrote. “I think that it is unlikely that the third grade children here could have had knowledge of how a circus treats its animals. After all, I have no such knowledge myself,” Greenberg wrote. Greenberg said he believed it was “not at all appropriate for third grade children to be asked to state their views by signing a petition, at least until they have an opportunity to ask for their parents’ advice and guidance on the issue involved.” But Senior U.S. District Judge John P. Fullam, sitting on the 3rd Circuit by invitation, said he was “unable to join fully in the opinions of my colleagues.” Fullam said he agreed with Scirica that the First Amendment rights of school children are “undoubtedly somewhat more limited than the First Amendment rights of adults.” “But that does not mean that a 9-year-old child should be treated as if she were a pre-schooler,” Fullam said. Fullam said he found it “unacceptable” to suggest that neither Walker-Serrano nor her classmates had “sufficient maturity to express or form valid opinions concerning the proposed class trip to the circus.” As a result, Fullam said he did not share his colleagues’ “seeming reluctance” to hold that Walker-Serrano had a First Amendment right to circulate her petition. Instead, Fullam found that the “crucial question” in the case was whether any of the school officials violated Walker-Serrano’s constitutional rights, or whether they were “merely imposing reasonable time, place and manner restrictions upon her exercise of those rights.” Fullam said he voted to uphold U.S. District Judge A. Richard Caputo’s decision to dismiss the suit because “although Amanda was prevented from circulating her petition in the classroom, and on one occasion, in the playground at recess, the undisputed evidence establishes that she circulated her petition and otherwise exercised her First Amendment rights without interference from the defendants.” Fullam said he also agreed with Caputo’s ruling that the defendants were entitled to qualified immunity. Walker-Serrano and her parents were represented by attorney Gordon A. Einhorn of Schnader Harrison Segal & Lewis in Harrisburg, Pa. The Lackawanna Trail School District was represented by attorneys Stephen S. Russell and Melinda B. Kaufmann of Stock and Leader in York, Pa.

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