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, JR., and 

VANASKIE, Circuit Judges

(Filed: 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, PA 17101

Counsel for Appellees

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 at the Barrett 

Elementary Center of the Pocono Mountain School District 

(the ―School District‖), who was prohibited from distributing 

invitations to her classmates to a Christmas party 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 Moines 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 injunctive relief. For the following reasons, we 

will affirm the District Court.

I.

In 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 10th

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 pass out invitations to birthday parties, Halloween 

parties, Valentine‘s dances, and the like during noninstructional 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. 

submitted 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 superintendent 
5

had not approved K.A.‘s invitation. When the father asked 

for a written explanation for the denial, Donohue referred to 

District Policy 913. When he sought more clarification, the 

superintendent, Dr. Dwight Pfennig, informed him that Policy 

913 provided Pfennig with the authority 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, sales 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 group. . 

. . 

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 activities unless 
6

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 School 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 day, only 

literature and materials directly 

related to school district activities 
7

or that contribute significantly to 

district instructional programs 

may be disseminated to or 

through students and staff 

members. Prohibited materials 

may never be distributed 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 policy, 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 

organizations 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 removed the word 

―Appropriate‖ 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, the 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 through 

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 School District‘s 

refusal to allow K.A. to distribute the flyers under the test 

established by Tinker. Specifically, the District Court 

considered whether the School District‘s decision was 

justified by ― ̳a specific and significant fear of disruption, not 

just some remote 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. 2001)). 

 

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

220 stated 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 party was unsafe in any way. Id. at *4. The 

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 outside 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 significant 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 distribution should be evaluated 

under forum analysis, rather than 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

restrictions were applied neutrally ―given the fact that 

materials for activities hosted by third-parties frequently went 

home with students.‖ Id. The District Court also noted that 

―the Superintendent‘s elusive criteria for determining which 

materials could be distributed is simply too broad and vague 

to be considered reasonable,‖ as ―[t]he Superintendent‘s 
11

 ̳unfamiliarity‘ with a given organization – without any 

procedure 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 

District‘s reliance on Morse v. Frederick, 551 U.S. 393 

(2007), was misplaced, because ―[t]he flyers distributed 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 we have appellate jurisdiction under 28 U.S.C. § 

1292(a)(1).

A.

―We employ a tripartite standard of review for . . . 

preliminary injunctions. We review the District Court‘s 

findings 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 injunction 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 these 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 interest.

Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 157 

(3d Cir. 2002) (citation omitted).

B.

The main issue in this appeal 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 property for other purposes.‖ Cornelius v. 

NAACP Legal Def. & Educ. Fund, Inc., 473 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 progression 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, regulations

of speech in public forums such as sidewalks and parks are 

―subject to the highest scrutiny‖ and ―survive only if they are 

narrowly drawn to achieve a compelling state interest,‖ while

identical regulations in nonpublic 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 to 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 without  ̳materially and 

substantially interfer(ing) with the requirements of 
14

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, 363 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 pass 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 

apply 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 this 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 (―Under 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 Fellowship 

of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 526-30 

(3d Cir. 2004) (applying forum analysis to school 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 forth 

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

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

Amendment rights may be circumscribed ― ̳in light of the 

special characteristics of the school environment.‘‖ Id.

(quoting Tinker, 393 U.S. at 506). In this regard, the Court 

has recognized several ―narrow categories of speech that a 

school may restrict 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 student 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 that is school-sponsored or can reasonably be viewed 

as the school‘s own speech. Id. at 273. Most recently, in 

Morse, the Court held that ―schools may take steps to 

safeguard those entrusted to their 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 to 

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 identified 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 environment, and the 
16

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 risk 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 agerelated developmental, disciplinary and educational concerns

specific to elementary school students present the type of vital 

interests to school administration that render Tinker analysis 

inapplicable. This 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 our 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 

elementary 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 fundamental 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 speech 
18

would be disruptive, or would interfere with the 

rights of other students. 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. At the 

very least, anything that interferes with the 

legitimate educational and disciplinary functions 

of elementary schools could be regulated under 

Tinker.

. . . .

Nonetheless, at a certain point, a school 

child is so young that it might reasonably be 

presumed the First Amendment 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. 2003), 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 a 
19

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 Newtown Sch. 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, educational, and disciplinary concerns of 

elementary school students.

The School District relies upon the Seventh Circuit‘s 

decision in Muller by Muller v. Jefferson Lighthouse School, 

98 F.3d 1530 (7th Cir. 1996), to argue that Tinker does not 

apply in the elementary school context. In that case, a fourthgrader 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 District 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. This 
20

holding by the District Court was not challenged on appeal. 

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

ruling.‖). In the matter sub judice, the District Court similarly 

enjoined the School District ―from enforcing [Policy] 913 as 

applied to prohibit 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 is 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 ―concur[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 explained, 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 judgment). 
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. The Muller court ultimately 

held that the elementary school was a nonpublic forum, 

noting that ―[e]ven assuming Tinker expression rights apply 

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 

 ̳legitimate 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 reliance 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 student or from an outside source.
22

requisite analytic framework for even an elementary school 

student‘s speech or expression.

The School District persists that if Tinker applies in the 

context presented here, Walker-Serrano supports use of a 

―limited‖ Tinker analysis. In Walker-Serrano, we stated: 

[I]f third graders enjoy rights under Tinker, 

those rights will necessaryily 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 order, 

to facilitate learning or social development, or 

to protect the interests of other students – they 

may ordinarily regulate public elementary 

school children‘s speech.

325 F.3d at 417-18. This passage from Walker-Serrano 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 Walker-Serrano to 

suggest that Tinker analysis can apply even in the elementary 

school context.5

 

5 Although in Walker-Serrano, we analyzed the 

applicability of Tinker to elementary school students, we 

decided the case on other grounds — that there was no 
23

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 Fifth Circuit, sitting 

en banc, has held that Tinker applies to elementary school 

student speech. See Morgan v. Swanson, 659 F.3d 359, 407-

09 (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 preliminary 

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 

Amendment 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 interests 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 

outlets 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 Amendment 

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 distinction 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 do 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 it 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 

noted 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 distribution of 

the pencils constituted Daniel’s 
25

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 Wallace 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 ―elementary 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 school 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 exceptions. It is not 

 

6 However, we relied on Hazelwood in determining 

that the school was justified 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 

214. 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 402. ―Speech falling outside of 

these 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 

newspaper 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: ―Hazelwood‘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 demonstrated 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 familiarity.‖ (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 WalkerSerrano that ―[a]bsent punishment for expression, a 

significant pattern of concrete suppression, or some other 

form of clear suppression of the expression of elementary 
28

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 thirty 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 [WalkerSerrano‘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  ̳inappropriate‘ 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 allowed 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 caused by K.A.‘s invitation, 

makes it reasonably likely that K.A. will prevail in this

litigation.9 The District Court 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 distributing any invitation to a churchsponsored 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 religiousthemed 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 

narrow 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 the 

preliminary injunction test. First, K.A. will suffer irreparable 

injury without an injunction, because as the Supreme Court 

held in Elrod v. Burns, 427 U.S. 347 (1976), ―[t]he loss of 

First Amendment freedoms, for even minimal 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 nonschool 

solicitation materials via 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 instructional time, for 

example, or was otherwise disruptive or interfering with the 

rights of other students, the School District would remain free 

to regulate such speech. In this particular instance, however, 

the School District failed to identify any disruption caused by 
31

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. 2003)

(―[N]either the Government nor the public generally can 

claim an interest in the enforcement of an unconstitutional 

law.‖ (citation and international quotation marks 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.