PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 12

- 1728

_____________

K.A., a minor, by and through her next friend, Michael Ayers

v.

POCONO MOUNTAIN SCHOOL DISTRICT, Appellant

___________

On Appeal from the United States District Court

for the Middle District of Pennsylvania (D.C. Civil No. 3 : 11

- cv

- 00417 ) District Judge: Honorable A. Richard Caputo

___________

Argued October 24 , 2012

Before: HARDIMAN, GREENAWAY, J R

., and

VANASKIE

, Circuit Judges

(Fil ed: March 12 , 2013 )

Keely J. Espinar, Esq. [ARGUED] John E. Freund, III, Esq.2 King, Spry, Herman, Freund & Faul, LLC One W. Broad Street, Suite 700 Bethlehem, PA 18018 Counsel for Appellants

David A. Cortman, Esq. [ARGUED]
John M. Sharp, Esq.

Alliance Defense Fund 1000 Hurricane Shoals Road, N.E., Suite D

- 1100 Lawrenceville, Georgia 30043 Counsel for Appellees

Jeremy D. Tedesco, Esq.
Alliance Defending Freedom
15100 N. 90th Street Scottsdale, Arizona 85260 Counsel for Appellees

Randall L. Wenger , Esq. Independence Law Center

23 North Front Street Harrisburg, P A 17101 Counsel for A

ppellees

William T. McEnroe, Esq.
Will W. Sachse , Esq.
Dechert LLP
2929 Arch Street , 18th Floor , Circa Centre Philadelphia, PA 19104 Counsel for Amicus Curiae , the American Civil Liberties Union of Pennsylvania

___________3 OPINION OF THE COURT

___________

VANASKIE, Circuit Judge.

K.A. was a fifth

- grade student a t the Barrett Elementary Center of the Pocono Mountain School District (the ―School District‖)

, who was prohibited from distributing
invitati ons to her classmates to a Christmas pa rty at her
church. Her father filed suit on K.A.‘s behalf, alleging that

the School District had violated her First and Fourteenth Amendment rights. The District Court

, applying the test
announced in Tinker v. Des M oines Independent Community
School District , 393 U.S. 503 (1969)

, and finding no evidence
that distribution of the invitations would threaten a ―substantial disruption‖ of the school environment or interfere with the rights of others, id. at 514

, granted K.A. ‘s motion for preliminary i njunctive relief

. For the following reasons, we
will affirm the District Court.

I.

I n December 2010, K.A. attempted before the start of
class to hand out invitations to her classmates to a Christmas party at her church . The invitation was a flyer prepared by
the church and stated the following:

iKidzROCK Night Christmas Party

Just for KIDS! (Grades K

- 6)4 Friday, December 10 th

6:45

- 8:30pm

Face Painting, Ping Pong, Foosball, Cup

- Stacking, Games, Prizes, Puppets, Music, Snacks, and more!

Admission and all activities are
free!

BRING A FRIEND!

INNOVATION CHURCH ROUTE 940, 3 MILES EAST OF
MT POCONO
592

- 2000, EXT. 102

(A. 100.)

K.A. maintains that she wanted to hand out the invitations to share her religious faith with her classmates. While students at the Barrett Elementary Center are normally allowed to p ass out invitations to birt hday parties, Halloween parties, Valentine‘s dances

, and the like during non

instructional time, K.A.‘s teacher, Christina Sopko, informed K.A. that the principal, Heidi Donohue, would have to approve the flyer before she could distribute it. After K.A.

s ubmitted the invitation for review, K.A.‘s father e

- mailed Donohue to see if the flyer had been approved. Donohue

informed K.A.‘s father that non

- school related flyers had to be approved by the superintendent, and the superintendent5 had not approved K.A.‘ s invitation. When the father asked for a written explanation for the denial, Donohue referred to District Policy 913. W hen he sought more clarification, the superintendent, Dr. Dwig ht Pfenni g, informed him that Policy 913 provided Pfennig with the autho rity to prohibit the distribution of such a flyer.

At that time, Policy 913 stated, in pertinent part, that:

Any requests from civic organizations or special interest groups which involve such activities as patriotic functions, contests, exhibits, sale s of products to or by students, sending promotional materials home with students, graduation prizes or fund raising must be examined
to insure that such activities promote student interests primarily, rather than the special interests of any particular gr oup. .

. .

No individual, firm or corporation shall be permitted to engage in commercial advertising, promotion, solicitation or sales with regard to the student body, faculty, staff or the public on school district property or at any school sponsored ac tivities unless6 the same shall have been previously approved in writing by
the District.

(A. 116.)

K.A.‘s father filed suit on her behalf in March 2011, alleging the School District had violated her First and Fourteenth Amendment rights when it denied her permission to distribute the flyer

. K.A. filed a motion for a preliminary injunction in July 2011, requesting an order from the District

Court barring the School District from prohibiting her distribution of religious flyers and materials

.

The Scho ol District revised Policy 913 twice since the
suit was filed. When the District Court first ruled on the
motion for a preliminary injunction, the revised policy stated, in pertinent part, that:

The Board prohibits the use of
students and staff members for soliciting, advertising, or promoting nonschool events, organizations, groups, or individuals during the school day
or at school

- sponsored locations or events not otherwise open to nonschool organizations, groups,
or individuals.

During the school d ay, only literature and materials directly
related to school district activities7 or that contribute significantly to district instructional programs may be disseminated to or through students and staff
members. Prohibited materials may never be distribute d or used at any time.

A review of any nonschool
written materials under [ t ] his policy will not discriminate on the basis of content or viewpoint, except that prohibited materials will be rejected, as will any materials that do not comply with Board polic y, administrative procedures, or written announcements relating to the proposed nonschool [

- ] sponsored
materials.

Appropriate literature and
materials relevant to nonschool organizations, groups or individuals may be disseminated by school [

- ] sponsored

orga nizations involved in such activities as fundraising and community service, contingent upon approval by the Superintendent and/or designee.8 K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist.

, No. 3:11

- CV

- 417, 2011 WL 5008358, at *2 (M.D. Pa. Oct. 20, 2011)

.

After the District Court granted K.A.‘s motion for a preliminary injunction

, the School District remov ed the word

―A ppropriate‖ from the final paragraph quoted above, and additionally added to the first paragraph the following language: ―An authorized representative of the nonschool organization or group must issue any and all requests to
distribute and/or post nonschool materials. The request must be made in writing to the building principal.‖ ( Appellee‘s Br.

Addendum 4

- 5.)

Subsequent to the initiation of this lawsuit, t he School
District also revised Policy 220, which deals with ―Student Expression.‖ 1 ( Appellee‘s Br. Addendum 1.) Policy 220 now states, in pertinent part, that:

Only literature and materials directly related to school district
activities or that contribute significantly to district instructional programs may be
disseminated to or thr ough
students and staff members. However, invitations to individual

1 The School District claims Policy 220 was not
considered in the denial of K.A.‘s flyer, because Pfennig and
Donohue had considered the invitation ―as the solicitation materials of a nonschool organization, not student speech.‖ (Appellant‘s Br. 7.)9 student hosted social events (i.e. birthday parties, holiday parties, etc.) and/or holiday recognition cards may be distributed during designated non

- instructional times during the school day upon approval of the Superintendent or designee.

The Board shall require that
students who wish to distribute such materials request administrative approval prior to
distribution.

( Appellee‘s Br. Addendum 2.) 2

The District Court analyzed the Sc hool District‘s refusal to allow K.A. to distribute the flyers under the test established by Tinker

. Sp ecifically, the District Court
considered whether the School District‘s decision was justified by ―  ̳ a specific and significant fear of disruption, not j ust some rem ote apprehension of disturbance. ‘ ‖ K.A. , 2011
WL 5008358 , at *3 (quoting Saxe v. State Coll. Area Sch.

Dist. , 240 F.3d 200, 211 (3d Cir. 200 1) )

.

2 At the time K.A. sought to hand out the flyers, Policy

220 st ated that the School District could prohibit student expressions which ―[s]eek to establish the supremacy of a particular religious denomination, sect or point of view.‖ (A. 114.) This language has since been removed from Policy

220.10 The School District contended that its refusal to allow distribution of the flyer was supported by safety concerns and the possibility that parents might believe the party was a
school

- sanctioned event if it was sent home with students.
The District Court rejected these concerns, noting that ―the Superintendent does not appear to have taken any steps to acquaint himself with the church or find out additional
information‖ that would have led him to believe the Christmas pa rty was unsafe in any way. Id. at *4. T he
District Court further observed that Pfennig testified that students at Barrett Elementary Center ―frequently bring home invitations to student birthday parties, as well as solicitations
and other material from o utside organizations,‖ putting parents ―on notice that much of the material that came home

was for non

- school sponsored events.‖ Id. As such, the
District Court held that the School District could not ―articulate a specific and si gnificant fear of disruption if K.A. was allowed to pass out her flyers.‖ Id.

Responding to the School District‘s contention that its restrictions on K.A.‘s flyer distribu tion should be evaluated
under forum analysis, rather th an under Tinker , the District Court concluded that, ―[e]ven assuming a nonpublic forum analysis was appropriate, the [S]chool [D]istrict‘s actions were likely too broad and arbitrary to stand up to constitutional challenge. ‖ Id. at *5. The District Court explained that it did not appear that the School District‘s

restr ictions were applied neutrally ―given the fact that materials for activities hosted by third

- parties fre quently went
home with students. ‖ Id. The District Court als o noted that ―the Superintendent‘s elusive criteria for determining which

materials could be distributed is simply too broad and va gue to be considered reasonable,‖ as ―[t] he Superintendent‘s11  ̳unfamiliarity‘ with a given organization

– without any procedur e for establishing  ̳familiarity‘

– is a criteria ripe for
abuse.‖ Id. The District Court further observed that the revised Policy 913 was also unconstitutional , since ―[a]n across the board ban on any type of  ̳solicitation,‘ given the established vagaries of that term, clearly runs afoul of both
Tinker and a nonpublic forum analysis.‖ Id.

The District Court denied the School District‘s motion
for reconsideration. The District Court held that the School

D istrict‘s reliance on Morse v. Frederick , 551 U.S. 393 (2007)

, was misplaced, because ―[t]he flyers distribu ted by K.A. contain quite a different message from the banner unfurled by the student in Morse ,‖ as the former was ―religious literature‖ while the latter was ―  ̳ just nonsense
meant to attract television cameras. ‘ ‖ K.A. , 2012 WL
715304 , at *2 (quoting Morse , 551 U.S. at 401 )

. The School District timely appealed.

II.

The District Court had jurisdiction under 28 U.S.C. §

1331

, and w e have appellate jurisd iction under 28 U.S.C. § 1292(a)(1)

.

A.

― We employ a tripartite standard of review for . . . preliminary injunctions. W e review the District Court‘ s findin gs of fact for clear error. Legal conclusions are assessed de novo. The ultimate decision to grant or deny the injunction is reviewed for abuse of discretion.‖ Sypniewski v. Warren Hills Reg ’ l Bd. of Educ. , 307 F.3d 243, 252 (3d Cir.12 2002) (citing Highmark, Inc. v. UPMC Health Plan, Inc. , 276 F.3d 160, 170 (3d Cir. 2001)).

The decision to issue a preliminary injunc tion is governed by a four

- factor test:

To obtain an injunction, the plaintiffs had to demonstrate (1) that they are reasonably likely to prevail eventually in the litigation and (2) that they are likely to suffer irreparable injury without
relief. If th ese two threshold showings are made the District Court then considers, to the extent relevant, (3) whether an injunction would harm the [defendants] more than denying relief would harm the plaintiffs and (4) whether granting relief would serve the public i nterest.

Tenafly Eruv Ass’n v. Borough of Tenafly , 309 F.3d 144, 157 (3d Cir. 2002) (citation omitted).

B.

The main issue in this a ppeal is the first prong of the preliminary injunction test: whether K.A. has demonstrated that she is reasonably likely to prevail in the litigation. This requires that we first examine the legal standard applied by

the District Court to K.A.‘s First Amendment claim

.13 1.

First Amendment claims are generally examined through the lens of forum analysis, under which ―the Government‘s interest in limiting the use of its property to its intended purpose‖ is weighed against ―the interest of those wishing to use the pr operty for other purposes.‖ Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.

, 47 3 U.S. 788, 800 (1985) ; see also Christian Legal Soc’y Chapter of the Univ. of Cal. Hastings Coll. of the Law v. Martinez , 130 S. Ct. 2971, 2984 (2010) (―[I]n a progre ssion of cases, this Court has employed forum analysis to determine when a government entity, in regulating property in its charge, may place limitations on speech.‖) . Under forum analysis, regulation s of speech in public forums such as sidewalks and park s are ―subject to the highest scrutiny‖ and ―survive only if they are narrowly drawn to achieve a compelling state interest,‖ while identical regulations in n onpublic forums such as prisons and public schools ―must survive only a much more limited review,‖ and ―need only be reasonable, as long as the regulation is not an effort to suppress the speaker‘s activity due to disagreement with the speaker‘s view. ‖ Int’l Soc’y for Krishna Consciousness, Inc. v. Lee , 505 U.S. 672, 678

- 79 (1992)

.

In the student

- speech context, however, the leading
case is Tinker

, where the Supreme Court affirmed that students ―do not shed their constitutional rights t o freedom of speech or expression at the schoolhouse gate.‖ 393 U.S. at

506 . The Court held that , while in school, a student ―may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so wit hout  ̳materially and substantially interfer(ing) with the requirements of14 appropriate discipline in the operation of the school‘ and without colliding with the rights of others.‖ 393 U.S. at 513 (quoting Burnside v. Byars , 36 3 F.2d 744, 749 (5th Cir.
1966 )).

Under Tinker many ―reasonable‖ speech regulations in our public schools that would survive constitutional scrutiny under nonpublic forum analysis would not pa ss muster because such restrictions infringe on a student‘s ability to express her opinions in a way that would not disrupt or interfere with the rights of others. The critical distinction is the identity of the speaker. Tinker and its progeny plainly

ap ply to student expression. See J.S. ex rel. Snyder v. Blue
Mountain Sch. Dist. , 650 F.3d 915, 927 (3d Cir. 2011) (en banc) (―As t his Court has emphasized, with then

- Judge Alito writing for the majority, Tinker sets the general rule for regulating school speech

. . . . ‖ (citing Saxe , 240 F.3d at

212 ) ) ; see also Saxe , 240 F.3d at 211 (―U nder Tinker , then, regulation of student speech is generally permissible only when the speech would substantially disrupt or interfere with the work of the school or the rights of other students.‖)

. Forum analysis, on the other hand, generally applies to the rights of outsiders who attempt to speak in our public schools.

See Victory Through Jesus Sports Ministry Found. v. Lee’s

Summit R

- 7 Sch. Dist. , 640 F.3d 329, 333

- 37 (8th Cir. 2011) ( applying forum analysis to regulations that barred non

- profit organization from participating in school district‘s ―Backpack Flyers for Students‖ program); Child Evangelism Fel lowship of N.J. Inc. v. Stafford Twp. Sch. Dist. , 386 F.3d 514, 526

- 30 (3d Cir. 2004) (applying forum analysis to sc hool district regulations that barred religious organization from disseminating materials and staffing informational table at school events).15 To be sure, the Supreme Court has made clear in the context of student speech that ―the mode of analysis set for th

in Tinker is not absolute. ‖ Morse , 551 U.S. at 405

. Specifically, the Court has held that a student‘s First

Amendme nt rights may be circumscribed ― ̳ in light of the special characteri stics of the school environment. ‘ ‖ I d. (quoting Tinker , 393 U.S. at 506 )

. In this regard , the Court
has recognized several ―narrow categories of speech that a school may restr ict even without the threat of substantial disruption.‖ Saxe , 240 F.3d at 212

. In Bethel School Disrict
No. 403 v. Fraser , 478 U.S. 675 (1986) , the Court held that schools may restrict the manner in which a studen t conveys his message by forbidding and punishing the use of lewd, vulgar, indecent, and plainly offensive speech. Id. at 680

- 86

. Next, in Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260 (1988)

, the Court found that school officials may regulate speech t hat is school

- sponsored or can reasonably be viewed as the school‘s own speech. Id. at 273 . Most recently, in

Morse , the Cou rt held that ―schools may take steps to safeguard those entrusted to the ir care from speech that can reasonably be regarded as encouraging illegal drug use.‖ 551

U.S. at 397

.

In none of these cases was the school first required t o show that the speech would ―materially and substantially disrupt the work and discipline of the school,‖ Tinker , 393 U.S. at 513, as Tinker had established. See Saxe , 240 F.3d at

212

- 13 . Instead, in each case, the Court identifi ed certain
vital interests that enable school officials to exercise control over student speech even in the absence of a substantial disruption. See Morse , 551 U.S. at 408 (noting ―the special

characteristics of the school environm ent

, and the16 governmental interest in stopping student drug abuse . . . allow schools to restrict student expression that they reasonably regard as promoting illegal drug use‖ (citation and
internal quotation marks omitted) ) ; Hazelwood , 484 U.S. at

271 (―Educators are entitled to exercise greater control over [school

- sponsored publications] to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.‖); Fraser , 478 U.S. at 681 (―The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society‘s countervailing interest in teaching students the boundaries of socially appropriate behavior.‖ ). Nonetheless, in the absence of a showing of such vital interests, the Tinker material r isk of substantial disruption test is the standard against which regulation of student expression on school grounds is to be judged.

This appeal presents the question of the extent to
which Tinker applies in the elementary school context. In particular , this appeal raises the issue of whether the age

related developmental, disciplinary and educational concerns specific to elementary school students present the type of vital
interests to school administration that render Tinker analysis inapplicable. Th is appeal also presents the question of whether forum analysis trumps Tinker when the elementary school student is distributing materials prepared by an outside organization. We answer each question in the negative.

2.17 Neither the Supreme Court nor o ur Court has definitively addressed the question of the extent to which
Tinker applies in the elementary school context

. Our prior precedents, however, have raised questions about application
of the Tinker material risk of substantial disruption test to

e lementary school student speech.

Our strongest statement in this regard appears in
Walker

- Serrano ex rel. Walker v. Leonard , 325 F.3d 412 (3d Cir. 2003) . In that case, a teacher told a third

- grade student that she could not circulate during instructional time or recess a petition objecting to a school trip to the circus. Id. at 414

. The student was, however, later permitted to pass out coloring books and stickers which dealt with cruelty to circus animals.
Id. Before affirming the district court‘s dismissal of the plaintiff‘s First Amendment claim, we explicitly questioned the applicability of Tinker to student speech in elementary
schools:

Instilling appropriate values is a primary goal for our public schools, one that is especially important in the earlier grades. Accordingly, young students demand a far greater level of guidance

- guidance that is fu nd amental to our public schools‘ mission.

That age is a crucial factor in this calculus
does not necessar [il] y mean that third graders do not have First Amendment rights under Tinker.
Tinker provides a flexible standard that arguably is able to incorporate these considerations. Tinker permits school regulation of student speech whenever the school can show that the speech18 would be disruptive, or would interfere with the rights of other students. In essence, Tinker requires that schools have a legitimate
educ ational 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. At the very least, anythin g that interferes with the legitimate educational and disciplinary functions of elementary schools could be regulated under
Tinker.

. . . .

Nonetheless, a t a certain point, a school child is so young that it might reasonably be presumed the First Amendmen t does not protect the kind of speech at issue here. Where that point falls is subject to reasonable debate.

Id. at 417

. Thus, while acknowledging the reality that the risk of disruption of educational and disciplinary functions may be different depending upon the age and maturity of the students,
Walker

- Serrano did not hold that Tinker analysis has no place in the elementary school setting.

In Walz ex rel. Walz v. Egg Harbor Township Board of
Education , 342 F.3d 271 (3d Cir. 200 3) , we again acknowledged that ―[i] n the elementary school setting, age and context are key.‖ Id. at 275 . Furthermore, we noted that ―the age of the students bears an important inverse relationship to the degree of control a school may exercise: as a general matter, the younger the students, the more control a19 school may exercise.‖ Id. at 276 . And in S.G. ex rel A.G. v. Sayreville Board of Education , 333 F.3d 417, 423 (3d Cir. 2003) , we observed that ―a school‘s authority to control student speech in an elementary school setting is undoubtedly greater than in a high school setting.‖ See also Busch v. Marple Newto w n S ch. Dist. , 567 F.3d 89, 101 (3d Cir. 2009) (Barry, J., concurring) (lamenting the fact that ―while recognizing the crucial importance of age in determining the extent of the First Amendment‘s protections . . . [we] continue to scrutinize and analyze purported violations of the First Amendment rights of children at the pre

- K and kindergarten levels‖).

Yet, in none of these cases did we find that Tinker’s material risk of substantial disruption test must be abandoned in the elementary school context. On the contrary, our prior precedents seem to recognize that the Tinker test has the requisite flexibility to accommodate the age

- related developmental, educa tional, and disciplinary concerns of elementary school students.

The School District relies upon the Seventh Circuit‘s

decision in Muller by Muller v. Jefferson Lighthouse Sch ool

, 98 F.3d 1530 (7th Cir. 1996) , to argue that Tinker does not apply in the elementary school context . In that case, a fourth

gr ader requested permission from his elementary school‘s principal to hand out invitations to a religious meeting to be held at the church his family attends. The principal denied the request, and the fourth

- grader‘s family sued. Significantly, the Distric t Court found that the policies at issue in that case, as applied, abridged the student‘s First Amendment rights and enjoined the school officials from prohibiting the student‘s distribution of the invitations. This20 holding by the District Court was not c hallenged on appeal.

See id. at 1535 (―Neither party contests the court‘s as

- applied ruling.‖). I n the matter sub judice

, the District Court similarly enjoined the School District ―from enforcing [Policy] 913 as applied to prohibi t Plaintiff from distributing literature promoting religious events and activities . . . .‖ K.A. , 2011 WL 5008358, at *5 (emphasis added). Thus, the ―as applied‖ ruling by the District Court in Muller is consistent with the
result here.

It was in the context of the facial challenge to the school‘s policies in Muller that the Seventh Circuit
considered whether Tinker or forum analysis was appropriate in the elementary school context. While one member of the
Muller panel, Judge Manion, opined that ―it i s unlikely that
Tinker and its progeny apply to public elementary (or preschool) students ‖ due to ―the important role age plays in student speech cases,‖ he was not joined by the other members of the panel in this assertion. 3 Muller , 98 F.3d at

3 Judge Eschbach ―co ncur[red] in all respects with the court‘s opinion except for Part II ,‖ where Judge Manion had considered the applicability of Tinker

. Muller , 98 F.3d at
1545 (Eschbach, J., concurring) (emphasis added). As Judge Eschbach explaine d, because the panel majority had chosen to decide the matter under forum analysis, ―[i]t is unnecessary . . . for this court to speculate that the free speech rights
elaborated in the Tinker line of cases do not extend to elementary school children.‖ Id. Judge Rovner, meanwhile, resisted the application of forum analysis, and ―disagree[d] with the suggestion that the standard articulated in Tinker is unlikely to apply to grammar school students.‖ Id. at 1546 (Rovner, J., concurring in part and in the ju dgment).21 1539 . Furthermore, Judge Manion retreated from this
tentative conclusion in the very next sentence of his opinion, writing that ―because the Supreme Court has not directly decided this question, the following analysis will assume that grade schoolers partake in certain of the speech rights set out
in the Tinker line of cases .‖ Id. T he Muller court ultimately
held that the elementary school was a nonpublic forum, noting that ―[e]ven assuming Tinker expression rights a pply to children in public elementary schools, an elementary school‘s nonpublic forum status remains, and we apply the most recent standard elaborated by the Supreme Court in Hazelwood , that of  ̳reasonableness.‘‖ Id. at 1540

.

We do not agree with the Muller court‘s application of forum analysis in this context, and as Judge Rovner explains in her concurrence, the court‘s reliance on Hazelwood and the standard set forth therein, was misplaced. Id. at 1546 ( Rovner, J., concurring). Hazelwood’s use of forum analysis is limited to cases where the student speech at issue bears the imprimatur of the school. 484 U.S. at 271

- 73; see also Saxe

, 240 F.3d at 213

- 14 (explaining that ― Hazelwood’ s permissive  ̳legitimat e pedagogical concern‘ test governs only when a
student‘s school

- sponsored speech could reasonably be viewed as speech of the school itself ‖) . Because the student speech at issue in Muller was not school

- sponsored speech,
its relia nce on Hazelwood and its use of forum analysis was misguided

. 4 Instead, Tinker’s ―more searching review,‖

Muller , 98 F.3d at 1546 (Rovner, J., concurring), provides the

4 We also note that Muller engaged in forum analysis because it adopted the standard set out in Hazelwood , not because of any distinction it drew between speech that originated with the stu dent or from an outside source.22 requisite analytic framework for even an elementary school student‘s speech or express ion.

The School District persists that if Tinker applies in the context presented here, Walker

- Serrano supports use of a ―limited‖ Tinker analysis. I n Walker

- Serrano , we stated:

[ I ] f third graders enjoy rights under Tinker

, those rights will necessary il y be very limited. Elementary school officials will undoubtedly be able to regulate much

– perhaps most

– of the speech that is protected in higher grades. When
officials have a legitimate educational reason

– whether grounded on the need to preserve o rder, to facilitate learning or social development, or
to protect t he interests of other students

– they may ordinarily regulate public elementary school children‘s speech.

325 F.3d at 417

- 18

. T his passage from Walker

- S errano is

, however, dicta

. Moreover, we did not say in Walker

- Serrano
that the Tinker test of material risk of substantial disruption will not work effectively in the elementary school context. Indeed, Walker

- Serrano

– albeit also in dicta

– recognized
that ― Tinker provides a flexible standard that arguably is able to incorporate [age

- related] considerations.‖ Walker

- Serrano

, 325 F.3d at 417

. We thus understand Wa lker

- Serrano to suggest that Tinker analysis can apply even in the elementary
school context. 5

5 Although in Walker

- Serr ano , we analyzed the applicability of Tinker to elementary school students, we decided the case on other grounds

— that there was no23 In Walker

- Serrano , we noted that at that time, no other Court of Appeals had ruled on the applicability of Tinker in the elementary school context. 325 F.3d at 416 . However,
since Walker

- Serrano was decided, the F ifth Circuit, sitting en banc, has held that Tinker applies to elementary school student speech. See Morgan v. Swanson , 659 F.3d 359, 407

- 0 9 (5th Cir. 2011) (en banc) (Elrod, J., writing for the majority on this point) (applying Tinker’s ―substantial disruption‖ standard to elementary school student speech to find viewpoint discrimination unconstitutional ). Writing separately, Judge Benavides explained, ―[a]s a preli minary matter, because it has been unclear, it should be clarified today that the student

- speech rights announced in Tinker inhere in the elementary school context. It is difficult to identify a constitutional justification for cabining the First
Amendmen t protections announced in Tinker to older
students.‖ Id. at 385

- 86

. We agree with this conclusion, and
hold that the Tinker analysis has sufficient flexibility to accommodate the educational, developmental, and disciplinary inter ests at play in the elementary school
environment.

3.

violation of the student‘s First Amendment rights because she was never punished, and because the school provided other

out lets for her to express her opposition to the school field trip. 325 F.3d at 418

- 19 (―Regardless of the extent the Tinker analysis is properly employed in the elementary school context, the record here does not support a First Amen dment violation claim.‖). Therefore, the discussion on the applicability of the Tinker analysis to elementary school
students in Walker

- Serrano did not form part of our holding.24 While the School District may have identified an interesting distin ction in this case

– that the invitation originated from the Innovation Church, not K.A.

– it has failed to identify any persuasive authority that states that this distinction changes the analytical framework to forum analysis . The speaker is still K.A. , and not the Innovation
Church . Even in Muller

, the fact that the invitation originated from an outside organization rather than the student himself
did not dictate use of forum analysis

. 98 F.3d at 1545 (―The Code . . . is a facially reasonable tool for ensuring that
student

- sponsored publications d o not interfere with the
school‘ s critical educational mission .‖ (emphasis added))

. And, as noted above, the school officials in Muller were enjoined from prohibiting distribution of the religious

- themed
invitations. Id. (―Andrew‘s right not to have his expression suppressed solely because i t is religious was vindicated in the district court and not appealed by defendants.‖).

Furthermore, we have applied Tinker even in cases where it appeared the speech originated from an outside
source rather than the student. In Walz

, for example, we

not ed that:

Daniel was in pre

- kindergarten

when he brought the ―Jesus [Loves] The Little Children‖ pencils to the holiday party. Furthermore, Dana Walz appears to have driven her son’s activity and this litigation. Although we
doubt whether the distributio n of the pencils constituted Daniel’s25 own expression, other courts have recognized that a student of similar age can understand and interpret basic principles of religious expression.

342 F.3d at 275 (emphasis added) (citing Wallac e v. Jaffree

, 472 U.S. 38, 42 (1985) ) ; DeSpain v. DeKalb Cnty. Comm.
Sch. Dist. , 384 F.2d 836, 837 (7th Cir. 1967)). Despite this observation, we conducted no forum analysis in Walz

. Instead, we quoted Tinker and based our analysis on the premise that ―e lementary school students retain certain First Amendment rights of expression.‖ Id. at 276, 280 (citing
Wallace , 472 U.S. at 42 ). 6

As we observed in J.S.

, ― Tinker sets the general rule for regulating scho ol speech, and that rule is subject to several

narrow exceptions.‖ J.S.

, 650 F.3d at 927 (citing Saxe , 240 F.3d at 212). The District Court correctly held that K.A.‘s speech does not fall into any of these excep tions. It is not

6 However, we relied on Hazelwood in determining that the school was justifie d in restricting the student‘s distribution of the pencils because in seeking to hand them out, he ―controvert[ed] the rules of a structured classroom activity with the intention of promoting an unsolicited message.‖ Walz , 342 F.3d at 280 . We explained that ―where an elementary school‘s purpose in restricting student speech within an organized and structured educational activity is reasonably directed towards preserving its educational goals, we will ordinarily defer to the school‘ s judgment.‖ Id. at 277

- 78 (emphasis added).26 ― lewd, vulgar or profane ‖ under Fraser

. Saxe , 240 F.3d at

21 4 . It is not ―school

- sponsored speech (that is, speech that a reasonable observer would view as the school‘s own speech)‖

under Hazelwood

. Id. 7 And it is not ―promoting illegal drug
use.‖ Morse , 551 U.S. at 40 2

. ―Speech falling outside of

t hese categories . . . may be regulated only if it would

7 The School District‘s reliance on Perry Education Ass’n. v. Perry Local Educators’ Ass’n , 460 U.S. 37 (1983)

, misses this fundamental distinction between school

- sponsored speech and an individual student‘s own speech. The Supreme

Court stated in Hazelwood that Perry , ―rather than our

decision in Tinker . . . governs this case,‖ because a school

newspap er is ―a supervised learning experience for journalism students‖ and an ―expressive activit[y] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.‖ 484 U.S. at 270

- 71

. As the
Hazelwood Court explained, ―[t]he question whether the First Amendment requires a school to tolerate particular student speech

– the question that we addressed in Tinker

– is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.‖ Id. Hazelwood drew a line between student speech
and school

- sponsored speech: while Tinker applied to the former, Perry and Hazelwood applied to the latter. We recognized this distinction in Saxe : ― H azelwood ‘s permissive  ̳legitimate pedagogical concern‘ test governs only when a
student‘s school

- sponsored speech could reasonably be viewed as speech of the school itself . . . .‖ 240 F.3d at 213

- 14 (citing Rosenberger v. Rector & Visitors of the Univ. of

Va. , 515 U.S. 819 (1995)). Because school

- sponsored speech is not at issue here, Tinker governs, and the School District‘s

reliance on Perry is misplaced.27 substantially disrupt school operations or interfere with the right[s] of others.‖ Saxe , 240 F.3d at 214

.

Because K.A.‘s speech did not fall within any of the categories that obviate the material risk of substantial disruption test, the District Court correctly chose not to employ forum analysis. The fact that K.A. was only in the

fifth

- grade and the invitation originated from her church does not mandate a different approach.

C

.

We now evaluate whether K.A. has de monstrated that she is reasonably likely to prevail in this litigation under the
Tinker standard.

As we explained in Walker

- Serrano : ― Tinker permits school regulation of student speech whenever the school can show that the speech would be disruptive, or would interfere with the rights of other students.‖ 325 F.3d at 417

. At most, the School District justifies its regulation by arguing that the Innovation Church is ―a nonschool organization with which

the School District has no f amiliarity.‖ (Reply Br. at 8

- 9.) The School District makes no argument whatsoever in this appeal that K.A.‘s speech was ―disruptive, or would interfere with the rights of other students.‖ Walker

- Serrano , 325 F.3d

at 417

.

Instead , the School District argues that it does not have to make such a showing because this Court stated in Walker

Serrano that ―[a]bsent punishment for expression, a significant pattern of concrete suppression, or some other form of clear suppression of the ex pression of elementary28 school students, a federal First Amendment action is not an appropriate forum for resolution of disputes over schools‘ control of third graders‘ conduct.‖ Id. at 419

. The School
District claims that K.A. was never punished for her attempt to distribute the flyers, and that she was never discouraged from expressing her religious faith. This standard from
Walker

- Serrano can be easily distinguished . In that case:

[N]ot only did Walker

- Serrano
collect over thi rty signatures on her petition, she was never punished for this activity. Furthermore, the school authorities encouraged and permitted her to express her views in what they properly regarded as a pedagogically appropriate
manner. As in Fraser , ―[t]here is no suggestion that school officials attempted to regulate [Walker

Serrano‘s] speech because they disagreed with the views [she] sought to express. Nor does this case involve an attempt by school
officials to ban written materials they consider  ̳inappropr iate‘ for [elementary] school students, or to limit what students should hear, read, or learn about.‖ Therefore, the record does not permit a finding that Walker

- Serrano suffered an injury of
constitutional dimension.29 Id. (quoting Fraser , 478 U.S. at 689 (Brennan, J., concurring) ). The facts here are markedly different: unlike
Walker

- Serrano, K.A. was not allowe d to distribute her
invitation

– a ―clear suppression of‖ her expression. Id. 8

Accordingly, the School District‘s failure in this appeal to identify any disruption cause d by K.A.‘s invitation,

makes it r easonably likely that K.A. will prevail in this litigation. 9 The District C ourt did not err in finding that the first prong of the preliminary injunction test was satisfied.

We also hold that the original and revised versions of Policy 220 and 913 are unconstitutional as applied to the form of student expression at issue here. Under either Policy 220 or 913, ―[o]nly literature and materials directly related to school district activities or that contribute significantly to district instructional programs may be disseminated to or through students and staff members.‖ (Appellee‘ s Br. Addendum 2, 4.) These policies are broader than what is

8 Moreover, under Policies 913 and 220, K.A. is prohibited from distributi ng any invitation to a church

sponsored event on school grounds, even to a single student.

9 No evidence was presented that the flyers were likely to cause K.A. to be held up to ridicule or bullying. Nor was there evidence that distribution of the flyers would disrupt the school environment. K.A. only sought to distribute the flyers during non

- instructional time. Finally, the School District did not present any evidence to suggest that there would be a misperception that the school was sponsoring a reli gious

themed gathering of students.30 allowed under Tinker and its progeny, which state that student expression can be regulated only if it causes disruption or interferes with the rights of others, or if it falls into one of the

n arrow exceptions to this rule (i.e., it is lewd, it promotes illegal drug use, or it is school

- sponsored). See J.S. , 650 F.3d
at 926

- 27

.

D

.

K.A. also satisfies the other three prongs of th e preli minary injunction test. First, K .A. will suffer irreparable injury without a n injunction, because a s the Supreme Court
held in Elrod v. Burns , 427 U.S. 347 (1976) , ―[t]he loss of First Amendment freedoms, for even mini mal periods of time, unquestionably constitutes irreparable injury.‖ Id. at
373

- 74 (citing N.Y. Times Co. v. United States , 403 U.S. 713 (1971) (per curiam) ).

Second, we fail to see how any harm results to the School District because of the preliminary injunction. The
School District claims it ―would be essentially required to maintain an open forum for the distribution of nonscho ol
solicitation materials v ia an elementary school conduit, ‖ and that ―nonschool organization[s] would use children for the

distribution of materials to evade School District review and approval under Policy 913.‖ (Appellant‘s Br. at 39 .) We
observe that the School District can still regulate the
distribution of materials under the Tinker standard. If a student distributed materials during instruct ional time, for example, or was otherwise disruptive or interfering with the rights of other students, the S chool District would remain free

to regulate such speech . I n this particular instance, however,
the School District failed to identify any disruption caused by31 K.A.‘s invitation . As such, the injunction does not harm the School District more than denying relief would harm K.A.

Lastly, we hold that granting preliminary injunctive relief here is in the public interest because the enforcement of an unconstitutional law vindicates no public interest. See

ACLU v. Ashcroft , 322 F.3d 240, 251 n.11 (3d Cir. 2 003) ( ― [N] either the Government nor the public generally can
claim an interest in the enforcem ent of an unconstitutional
law. ‖ ( citation and international quotation m arks omitted) ).

Accordingly, the District Court did not abuse its discretion in granting a preliminary injunction.

III.

For the foregoing reasons, we will affirm the District
Court‘s Order

.