The Shriners brought their circus to Wilkes-Barre, Pa., in April 1999. The event triggered a lawsuit that ended last month in a fizzle of First Amendment law. It was fun while it lasted.
This is the story. At Lackawanna Trail Elementary School, members of the faculty organized a trip to the circus. Lisa Walker and Michael Serrano, parents of 9-year-old Amanda, learned of the coming attraction. Amanda was then in the third grade. During a recess period on Feb. 4, she obtained the signatures of 30 classmates on a statement that read:
"We third-grade kids don't want to go to the circus because they hurt animals. We want a better feild trip."
As an exercise in English composition the manifesto would have failed in both its grammar and its spelling, but the meaning was clear.
The next day Amanda continued her crusade. During a silent reading period, she offered the petition to other pupils. A teacher, Elaine Mercanti, told her to put it away. During an outside recess, Amanda was ready to try again. The playground was frozen. Pat Carpenter, another teacher, feared that Amanda's sharp pencil might injure someone who slipped on the ice. Amanda put it away.
On Feb. 22, Amanda and her mother attended a meeting of the school board. There they vocally renewed their opposition to the field trip and complained that Amanda's opinions had been wrongly suppressed. Sandra Doyle, the district solicitor, suggested that they cool it; no one had throttled a child in the expression of her opinions. She had been told only to put away her pencil.
The family retained a lawyer, who sent a First Amendment warning to principal Nancy Simon and to Donald Leonard, president of the school board. At some point, Amanda asked and received permission to distribute a coloring book and stickers defending animal rights. On April 7, when the circus finally came to town, Amanda and her mother stood outside and protested. Eventually, they sued Leonard, Simon and the school board for violation of Amanda's constitutional rights.
Question: What rights?
It was a preposterous suit to begin with. Nine-year-old Amanda never had been punished in any way — never suspended, never sent to the principal's office, never even reprimanded by her teacher for proselytizing during a quiet period. On the contrary, she was given permission to hand out material from the humane society. Last month a panel of the U.S. Court of Appeals for the 3rd Circuit easily concluded that she had suffered no constitutional wrong.
Circuit Judge Anthony J. Sirica conceded that students in public schools do not check their constitutional rights at the schoolhouse door. As a general matter, the circulation of a petition is protected speech. Indeed, such solicitation "in a manner consistent with educational goals can be a significant learning experience for children." The rule is that school authorities must tolerate student speech until there is a well-founded expectation that the speech will lead to disruption. Even so, authorities must be given great leeway, and they necessarily must take into account the age and maturity of students.
The leading case is the Tinker case of 1969. It involved four children of a Quaker family in Des Moines. Just before Christmas in 1965, to protest the war in Vietnam, they went to school wearing black armbands. They were all sent home and briefly suspended for violating a vague policy against disruptive conduct. Speaking through Justice Abe Fortas, six members of the court eloquently defended the right of students to engage in "silent, passive expression of opinion."
Justice Potter Stewart, concurring, emphasized his belief that the First Amendment rights of children "are not coextensive" with the rights of adults. Justices Hugo Black and John Marshall Harlan filed strong dissenting opinions in support of the public school authorities in Des Moines.
Both sides make good arguments. I speak from experience. At the tender age of 13, I was threatened with suspension from Taft Junior High School in Oklahoma City for publishing and distributing The Weekly Keyhole. (It ceased publication after its second week.) My journalistic zeal was further restrained in 1936 as editor of my high school paper. We reporters and editors have some rights of free speech, but these are not rights that publishers are bound to respect.
In the Pennsylvania case at hand, Amanda was accorded all the rights of free speech that a 9-year-old had coming to her. Her time is yet to come.
Contact Jack Kilpatrick at kilpatjj@aol.com.
Universal Press Syndicate