Sixth Circuit upholds middle school censorship of abortion leaflets

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October 10, 2008


MICHIGAN — In another decision eroding the First Amendment rights of students, a federal appeals court ruled against a middle-school student who was told to refrain from handing out anti-abortion leaflets in his school’s hallway.


A three-judge panel at the 6th Circuit U.S. Court of Appeals ruled [LINK POSTED BY MEMBER] Only Members Can View This No Hillary For President Forum Link. that hallways in public middle schools are not public forums, so school officials have wide discretion over regulating student speech in the hallways.


“Repeated statements by the Supreme Court and multiple circuits, including this one, make it clear that school areas such as hallways constitute nonpublic forums,” Judge John M. Rogers wrote in the case of M.A.L. v. Kindsland. “M.A.L” is a minor and was only referred to as “Michael” in the lawsuit.


Rogers cited Hazelwood v. Kuhlmeier and several other U.S. Circuit Court rulings as the court’s reasoning, which included two separate 7th Circuit Court of Appeals decisions in which that court decided that elementary and junior-high schools are not public forums. Under Hazelwood, a 1988 U.S. Supreme Court case, high school administrators can censor many school-sponsored student publications simply by showing they have a legitimate educational reason for doing so.


On Oct. 24, 2006, Michael, a 14-year old, eighth-grade student at Jefferson Middle School distributed anti-abortion leaflets to schoolmates during the “3rd Annual Pro-Life Day of Silent Solidarity.” He also wore a piece of red duct tape over his mouth and on his wrists in addition to wearing a sweatshirt that read, “Pray to End Abortion.” Organizers of the protest, “Stand True,” say taping one’s mouth shut symbolizes that “they speak for unborn children,” court records show.


During Michael’s first class, he was instructed by his teacher to go the office because he was “causing a disruption,” according to court documents. He was sent to guidance counselor, Andrea Werner, who confirmed through the superintendent that his shirt needed to be changed and the duct tape removed. Werner made him turn his sweatshirt inside-out.

“According to Michael,” the opinion stated, “Mrs. Werner explained to him that his message was ‘political’ and that the school ‘could speak about abstinence, but not about abortion, and that the school had to remain neutral and people couldn’t take sides.’”

Later that day, Werner sent Michael to the principal’s office again after she saw Michael adjusting his sweatshirt so that it was no longer inside-out. While in the office, he brought up the distribution of leaflets. The principal denied Michael’s request because he did not have a chance to approve the leaflets’ content in a timely manner, as stated in the school’s policies.

While no disciplinary action was taken against Michael that day, his parents filed a lawsuit Jan. 24, 2007, citing an “urgent need” for a temporary restraining order so Michael could perform the same protest seven days later. Michael also sought to “vindicate his constitutional rights which were violated by (the school).”

A U.S. district court ruled in favor of Michael, leading to the school’s appeal to the Sixth Circuit. The district court ruled Jefferson Middle School’s distribution policy was unconstitutionally overbroad and that it could potentially prohibit students from passing out magazines to their friends without approval. Michael was also awarded one dollar in nominal damages.

But the Sixth Circuit reversed that ruling saying that Michael’s conduct was not entitled to the strong First Amendment protections set forth by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District. Under Tinker, student expression is constitutionally protected unless it is unlawful (libelous, obscene, constitutes an invasion of privacy, etc.) or it seriously and physically disrupts normal school activities.

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