*2 GREENBERG, Before SCIRICA and FULLAM, Judges, District Circuit Judge.* * Fullam, Pennsylvania, sitting by designation. The Honorable John P. United States Judge District for the Eastern District of recess, supervising observed the teachers THE COURT OF
OPINION of students around Walker-Serra- group SCIRICA, Judge. Circuit playground. of ice on the patch no near a action, plaintiff, a In this civil one of the Carpenter then noticed that student, elementary school grade *3 crying had fall- students was female —she teachers, principal and sued her Carpenter bleeding. ice and was en on the under 42 U.S.C. damages school board pencil a or with observed Walker-Serrano preventing her from allegedly § 1983 for middle of the pen petition and the the objecting to circulating petition might that a student fearing students outing to the circus. planned grade third by pencil pen, the or instructed injured summary judg- granted The District Court put objects away. the to Walker-Serrano will affirm. We ment to defendants. Carpenter that contends Walker-Serrano “put away” “you it can’t told her either I. have that here.”1 was a Amanda Walker-Serrano Plaintiff punished for Walker-Serrano was never grade student at the nine-year-old third signatures petition for her or for soliciting Elementary Trail School. Lackawanna Furthermore, possessing petition. the grade class Walker-Serrano’s Lackawanna attended the Walker-Serrano trip to the Shri- planned voluntary field 22, February on meeting Board April on circus Wilkes-Barre ner’s opposition to express in order to her approve did not 1999. Walker-Serrano trip. circus field the scheduled voluntary outing because she believed the As a circus was cruel to animals. the 7, 1999, April grade the third class On result, petition prepared she a handwritten planned. attended the Shriner circus as grade kids don’t want stating, “We 3rd mother and her stood Walker-Serrano hurt they animals. go to the circus because protested alleged outside the circus and trip.” a better feild On [sic] We want Local covered cruelty to animals. media brought the February Walker-Serrano protest. recess, playground to the at where day prior, April The Walker-Serrano thirty than of her persuaded she more permission pass sought it. sign classmates to received— —and which dealt coloring out books and stickers day, February Walker- following The to her cruelty with to animals the circus during classroom desk Serrano was her fellow students at school. period reading of silent and inde- class pendent gathered A few students work. interplay There was also some between at Walker-Serrano’s desk. The classroom parents Walker Walker-Serrano’s —Lisa teacher, Mercanti, breaking while Elaine school officials. and Michael Serrano —and on up gathering, observed returned home on Walker-Serrano When put desk and told her to Walker-Serrano’s mother that February she informed her away. permitted circulate her she was not petition. telephoned Walker defen- day, again Walker-Serrano Mrs.
Later Simon, principal of the Lacka- schoolyard Nancy dant brought to the School, Elementary Trail and de- Carpenter, Pat one of wanna recess. Defendant parties elementary playground. dispute whether safety, The 1. For reasons of policy Carpenter’s maintains it had an unwritten was the reason for action. this —since prohibiting writing implements on codified— Leonard, school, president fendant Donald Walker-Serrano could circulate the petition. school board. Boyle responded peti- that the tion had not been properly “presented for thereafter, Shortly Lisa Mi- Walker and request review.” No to circulate peti- chael Serrano retained an attorney, who tion was made after this time. raising sent school district a letter Walker-Serrano, possible concerns about by violations of Walk- her parents, sued president First rights. er-Serrano’s Amendment The of the Lackawanna School solicitor, Board, district’s Boyle, respond- Leonard; Sandra Donald superinten- district, ed no were violated dent because of the school Clyde Ells- worth; prevented Walker-Serrano was not Principal Nancy Simon; and teach- circus; expressing her views on Carpenter, she er Pat all personal in their *4 simply put capacities. was told to the official away They seek damages when her “activities from briefly disrupted the defendants individually and from classroom instruction and the may have con- school district for alleged violations of tributed to a situation where another child Walker-Serrano’s rights to freedom of during fell down Boyle speech association, recess.” also ex- and violations of her pressed “[ejlementary right the view that for grievances, redress of generally schools are not the environment and also under several state constitutional for circulation.” and common law causes of action. 22,1999, February
On The District granted Walker-Serrano’s Court defendants’ parents accompanied motion summary judgment, to the school concluding meeting board to raise their concerns Walker-Serrano’s First Amendment rights petition. law, about the of the were not violated handling as a matter of Walk- and parents finding spoke, er-Serrano’s and the defendants entitled to qualified board im- Principal munity. and copies Simon received The District Court also concluded petition, but no the school person action was taken. Three district —in the of Don- later, days ald in Boyle Solicitor sent a Leonard his official capacity letter to —could liable, not be attorney noting Walker-Serrano’s lacked sufficient involve- policy2 requires prior ment complained review of mate- actions of. Plain- by appealed. rials to be distributed tiff students. Walker-Serrano’s suggested counsel II. presentation meeting the board satisfy
should the requirements poli- of the public The school environment that, cy and the policy presents because allows dis- special challenges for determin days tribution after two by of inaction ing the extent of the First Amendment’s portion Policy 2. provides: The relevant of the unprotected, may materials are such material respects right "The Board of students to Appeal prior be distributed. review express symbol themselves in word or and to permitted Superintendent shall be to the and part expres- distribute materials aas of that the Board in accordance with district rules.” sion, recognizes but that the exercise of that policy developed pursuant This was to 22 right by must be limited the need to maintain Pa.Code, 12.9(e), § provides, which "School orderly protect school environment and to may require officials students to submit for rights all of members of the school com- prior approval copy of materials to be dis- munity require .... The Board shall that stu- played, posted prop- distributed or on school dents who wish to distribute materials submit erty.” (applies Pennsylvania public to all prior them for review. Where the reviewer students). days cannot show within two school that the 416 (3d Cir.2002); Saxe, 243, 240 253 F.3d That the First Amendment
protections. expression within schools protects student F.3d v. Des challenge. See Tinker beyond any analysis of the students’ But Disk, U.S. Cmty. Sch. 393 Indep.
Moines hand, expression on the one and rights to 731 21 L.Ed.2d 89 S.Ct. (1969) (“It need control and hardly argued that ei- of schools’ behavior can their con- conducive to learn teachers shed foster an environment ther students or speech other, necessarily to freedom take ing stitutional on the must But gate.”). expression at the schoolhouse maturity of the age into account never in- has been Fraser, the First Amendment 683-84, 106 student. 478 U.S. authority with terpreted interfere 3159; by Muller Muller v. S.Ct. Jefferson an environment condu- to maintain schools (7th Sch., F.3d Lighthouse “has Supreme The Court learning. cive to Cir.1996) (“Age critical factor in stu is a need affirm- emphasized the repeatedly ”); by Bax dent cases.... Baxter authority ing comprehensive Corp., 26 F.3d Vigo County ter Sch. officials, consistent States (7th Cir.1994) (“[A]ge is a relevant safe- with fundamental constitutional extent of a assessing factor student’s prescribe and control conduct guards, to school.”). speech rights signif free The *5 507, 733. 89 the schools.” Id. S.Ct. in inquiry icance has called into age of this student, by the Accordingly, “conduct question appropriateness employing the of it, any which for reason— or out of class the the Tinker framework assess consti time, place, type it or whether stems expression tutionality of restrictions on the behavior—materially disrupts of classwork No elementary of school students. other invasion or disorder or involves substantial Appeals4 appli on the Court of has ruled is, course, not of rights of the of others cability Tinker in this context. of District guarantee by immunized the constitutional generally this issue have engaging courts 513, 89 speech.”3 of Id. at freedom of provides appropriate found that Tinker S.Ct. 733. analysis elementary mode of of school stu has used generally This framework been rights. dents’ John First Amendment constitutionality restric to assess the of O’Brien, F.Supp. v. 575 ston-Loehner 859 speech high schools and middle tions on (M.D.Fla.1994) (distribution religious of lit contexts, re In we have schools. those erature); Jeglin v. Jeglin ex rel. San Ja a “well- quired that the school demonstrate Dist., F.Supp. cinto 827 1459 Sch. Unified of expectation disruption” of or founded (school code). (C.D.Cal.1993) dress others, rights the of be interference with that speech There can be little doubt upholding Sypniew fore the restriction. Ed., appropriate eighteen-year-old high 307 for Reg’l ski v. Hills Bd. Warren of 2001) may ("Speech falling these cate- disruptive, outside of Even when not school speech gories subject general control over that bears exercise to Tinker’s rule: is school, imprimatur as that in of such may substantially regulated only it be if would v. newspaper, Sch. Dist. school Hazelwood disrupt operations or school interfere with 562, Kuhlmeier, 260, U.S. 108 S.Ct. 98 484 others."). rights of (1988), plainly or or offen- L.Ed.2d 592 lewd v. expression, Bethel Dist. No. 403 sive Sch. Muller, 4. This matter discussed in 98 F.3d 675, 3159, Fraser, 92 478 U.S. 106 S.Ct. views, 1535-39, 1545-47, varying but with (1986). party urges us 549 Neither L.Ed.2d majority none which commanded a of either consider this case under Hazel- court. analyses. v. Coll. or Saxe State wood Fraser Dist., 200, (3d 240 Cir. Area Sch. F.3d 214
417
necessarily accept
permits
regulation
students is not
school
school
of student
seven-year-old grammar
speech
able for
school
whenever the school can show that
sexuality provides
Human
students.
disruptive,
would be
or would
of
mat
example
age-sensitive
most obvious
interfere with the
of other students.
Fraser,
ter,
688-84,
see
478 U.S.
106
essence,
In
Tinker requires that schools
but there are
number of
S.Ct.
legitimate
have a
educational
disciplin-
topics
appropriate
that are more
older
ary justification
regulating
student ex-
younger
than
ones.
Peck v.
students
pression. That elementary
Cf.
schools require
Ed.,
Upshur County Bd.
155 F.3d
control,
greater
of
of
degree
or a different
(4th Cir.1998) (holding
policy
288 n.
that a
control,
kind of
might
over
be
students
permitting
by
distribution
non-students
accommodated within the Tinker analysis.
religious
high
material constitutional
least,
At
very
anything that interferes
but
setting,
school
unconstitutional
legitimate
with the
educational and disci-
elementary
setting
because
“the plinary functions of elementary schools
impressionability
young elementary-age
could
regulated
under Tinker.
children”); Slotterback ex rel. Slotterback
Supporting recognition
qualified
of a
Dist,
F.Supp.
v. Interboro Sch.
right
Tinker
elementary
is that
school stu
(E.D.Pa.1991) (noting
“impression
dents’
freedom conscience has been con
ability”
elementary
of children at
See,
stitutionally protected for decades.
in determining
level is
factor
whether to
e.g.,
Ed.,
Ill. ex
rel. McCollum Board of
uphold
policy). Furthermore,
a school
383 U.S.
S.Ct.
lus not does mean that third reasonable debate. graders do not have First Amendment event, if rights provides any graders enjoy under Tinker. a In Tinker Tinker, rights flexible to will nec arguably rights standard that is able under those incorporate very Elementary these Tinker essarily considerations. be limited.
418 students, of possibility subtle and the able to undoubtedly be will officials it petitioner, part most—of on the perhaps coercion
regulate much—
higher grades.
must be
authorities
protected
that is
clear that school
education-
legitimate
have a
re-
regulate
officials
leeway to
given great
When
need
on the
grounded
reason —whether
al
elementary schools.
petitioning in
strict
order,
learning or
to facilitate
preserve
to
petitions is
circulating
while
Yet
inter-
protect
to
development, or
social
appropriate for elemen
always
not
clearly
they may ordinari-
ests of other students —
students,
to
we see no reason
tary school
chil-
elementary school
public
ly regulate
it
is.
juncture that
never
at this
conclude
speech.
dren’s
that one Walker-
points
Plaintiff
out
case,
elementary
if
even
to this
Turning
a lesson
contained
textbooks
Serrano’s
protec-
to some
children are entitled
are asked
circulate
which the students
Amendment, might
it
the First
tion under
community
on a matter of
concern.
Tinker,
that,
they have
under
argued
assump
confirms the common-sense
This
from their
right
signatures
to seek
no
time,
that,
some of the
ele
tion
at least
the kind at issue
on a
peers
capable of
may be
mentary school students
here.
in a manner consistent
circulating petitions
matter, collecting pe
a general
As
petitioning
goals, and that
with educational
under the
protected activity
is a
titions
experience for
learning
significant
can be a
Grant,
Meyer
First Amendment.
signature gath
where
these children. But
414, 421-22,
S.Ct.
U.S.
goals or
educational
ering interferes with
(1988).
an
involves
encoun
L.Ed.2d 425
It
other
rights
with the
stu
interferes
advocates a
petitioner
which
ter
course,
can,
In
dents,
be restricted.
it
the listener
seeking
persuade
position,
event,
point
we see no reason
this
response,
In
sign on to
cause.
matter,
that,
these
general
to conclude
posi
expresses
support
his
signer
under the
cannot be addressed
concerns
The
creates
expressed.
tion
specified in Tinker.
case-by-case approach
speech of
encourages
environment
elementary
in an
noting
Yet
bears
Amendment’s
to the First
kind central
proscription
setting,
the Tinker
(“[T]he
circulation of
See id.
concern.
of other
against interfering with
type
of interactive
petition involves
*7
important.
especially
young students is
change
concerning political
communication
as ‘core
appropriately described
is
”).
speech.’
III.
political
Nonetheless,
setting, es
a school
of the extent the Tink
Regardless
elementary
setting,
school
an
pecially
employed in the
analysis
properly
is
er
application. As
may require a different
context, the record here
elementary school
in his concur
Greenberg elucidates
Judge
Amendment
support
not
a First
viola
does
activi
opinion, implicit
petitioning
ring
no evidence that de
claim. There is
tion
capable of
young
listener is
is that
ty
permissible
acted
fendants
outside
position.
comprehending the advocated
grade
third
authority over
scope of their
Furthermore,
young
whether or not the
students,
petition
if
even Walker-Serrano’s
acting
and
on her
petitioner
reflecting
is
disruption.
caused no
other
views is relevant. When
parents’
they prevented
Defendants contend
mix,
are added to
legitimate factors
peti
circulating
Walker-Serrano
role
undoubtedly
parental
valid
like
to
petition appeared
only when the
other
tion
respect
to
prerogatives with
disruption
cause
under Tinker. That may
“[tjhere
As in Fraser,
is no suggestion that
be so. That they encouraged other ex-
school officials attempted
regulate
to
pressions of Walker-Serrano’s opposition
[Walker-Serrano’s]
because they
to the circus supports their view that their
disagreed with the views
sought
[she]
decisions were not based on
animus
express. Nor does this case involve an
position
expressed,
she
but to the particu-
attempt by school officials to ban written
lar
of expression
mode
in particular cir-
they
materials
consider ‘inappropriate’ for
cumstances. Walker-Serrano
contends
[elementary]
students,
school
or to limit
petition
her
did not
disruption
cause
either what students
hear,
should
read, or learn
on the playground
inor
the classroom.
about.”
U.S.
rights, their adults from own immunity obligation protect or of to qualified defendants’ liability by per- other importuning Leonard’s conduct or the Board President capacities. hand, or official are in personal students either his On the other sons. custody of the school au- temporary judgment affirm the we will Accordingly, during protect them who tnust thorities of the District Court. custody. See Bd. period of the GREENBERG, Judge, Earls, Circuit No. 92 v. Indep. Dist. Educ. Sch. concurring. 122 S.Ct. 536 U.S. (2002). Moreover, eight- L.Ed.2d opinion, though my majority join I in the to might child not be able nine-year or old file this leads me to to this case approach sign to a par- peer pressure emphasize to resist concurring opinion First Amend- even if the might of the claimed and thus do so nature ticular This is not a here. which he or she right position issue a with ment advocates precluded event, in which the defendants a child of case In agree. does not Walker-Serrano, student-plaintiff, Amanda with not be confronted age such should her views on the circus setting forth sign choice to or not having to make the her punished authorities or to the school sign. Rather, a Amanda asserts doing so. Pennsylvania significant that It is also signa- right to collect First Amendment thus, I mandatory and while education is her petition and thus have on a tures parents that would send do not doubt most grade nine-year or old third eight- fellow a legal to school without their children While, as the join protest.1 her students so, they that do the children requirement out, maj. op. at opinion points majority presented Amanda to whom collecting peti- general a matter “[a]s statutory of a were in school satisfaction First protected activity under the is a tions mandate. See Pa. Stat. Ann. tit. Amendment,” that it will be it seems to me 1992). (West 13-1326, §§ At the 13-1327 in which such conduct should rare case it,” as “not with being regarded risk of signatures are protected when be fashioned,” “out-of-date,” “political- “old young as those sought from children as incorrect,” acknowledge being I ly here, in a set- particularly involved their parents that do not send chil- view ting. children, dren, particularly young unlikely I think that it is them to solicited to state in order for have had knowl- grade children here could public on opinions their matters concern treats its animals. edge of how circus or school administration. all, knowledge myself. I no After have such it at all I think it clear that is not of them Amanda induced more than 30 Yet children to be appropriate grade for third they did not want sign petition by signing asked to state their views ani- go “hurt[s] to the circus because they oppor- have an petition, at least until course, I that even recognize mals.” Of parents’ advice and tunity to ask for their under- sign petitions will without adults Thus, it on the involved. guidance issue doing and in the issues involved standing vel non of a to me that the existence seems protected constitutionally, likely will be so right Amendment here should take First peti- persons circulating as will be of the children into account the interests adults differs But the status of tions. *9 relationships and their in other than Amanda gener- that of children school as at from argu- age at ment. We oral were told students’
421
join
within their families. When this case is
am unable to
in
fully
opinions
of
perspective
from that
considered
it be- my colleagues. The First Amendment
quite
comes
evident that Amanda has not
rights of school children are undoubtedly
any
worthy
advanced
interest
of First
somewhat more limited than the First
protection.
Amendment
adults,
rights
Amendment
Judge
of
Sci-
Opinion
rica’s
demonstrates. But
that
considering
In
this matter
per-
from the
does not mean that a nine-year-old child
spective of the interests of all the children
should be treated as if
pre-
she were a
I
ground.
am on solid
Tinker
While
schooler. To suggest that neither Amanda
Independent
Des Moines
Community
Walker-Serrano nor her classmates had
District,
503, 506,
398 U.S.
89 S.Ct.
maturity
sufficient
express
or form valid
733, 736,
(1969),
sented her to the other children lated Amanda’s rights, Constitutional infringing rights she was on their as they whether they merely were imposing rea- were entitled while at school to be free time, place sonable and manner restric- from her solicitation signatures. of their upon tions her exercise of rights. those Recently, upholding a drug testing re- That, turn, depends upon whether the quirement for students participating ex- gave circumstances a tracurricular rise to reasonable against activities a claim that perception expectation of a requirement infringed “well-founded the students’ privacy interests, Court, disruption”, Supreme Sypniewski v. Warren Hills Education, Reg’l quoting Justice Powell’s Board concurring opin- F.3d (3rd Cir.2002). T.L.O., ion in New Jersey v. 469 U.S. 348, 350, 733, 746, 747, 105 S.Ct. reviewing grant We are summary (1985), L.Ed.2d 720 pointed “apart out that judgment. Although the record discloses education, the school has the obli- significant disputes factual as to whether gation protect pupils from mistreatment disruption there was actual or inter- ” by other children.... Bd. Educ. v. students, ference with rights of other Earls, 122 recog- S.Ct. 2565. While I that, the District Court’s conclusion even if people nize some are of opinion all disputes such were resolved in favor of early that it is never too person for a appellants, a distinct likelihood of dis- challenge authority, learn to I believe that is, view, ruption present, in my was unas- protect school should an eight- or nine- And, although pre- sailable. Amanda was year old child from the solicitation of an- vented from circulating her sign petition other child to and thus this classroom, occasion, and on one in the case is without merit. recess, playground undisputed evi-
In the I agree circumstances that we dence establishes that she circulated her should affirm. petition and otherwise exercised her First Amendment without interference
FULLAM, Judge, concurring. District from the defendants. The record as Although agree I judgment clearly that the of whole demonstrates no Consti- affirmed, the District Court should be I tutional violation occurred. *10 with the agreement
Finally, my I note that, event, ruling
District Court’s capaci- in their individual
the defendants immunity; qualified are entitled to
ties 'Leonard, Mr. the President Board, liability in his official had no none of the named-
capacity; and that any policy responsible was
defendants rights. Constitutional infringed
which reasons, I that the agree
For all of these be af- appealed from should
judgment
firmed. CONTRACTING,
SCAFAR
INC., Petitioner Occupa- LABOR; OF
SECRETARY Safety and Health Review
tional Respondents.
Commission
No. 02-3335. Appeals,
United States Court
Third Circuit. March 2003.
Argued April
Filed Paranac, (Argued),
Joseph Jr. St. John Newark, NJ, Wayne, for Petitioner.