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K.A., A Minor, By and Through Her Next Friend, Michael v. Pocono Mountain School District

October 20, 2011


The opinion of the court was delivered by: (judge Caputo)


Plaintiff K.A.'s moves for preliminary injunction to prohibit defendant Pocono Mountain School District from preventing her from distributing flyers promoting religious events. Last December, K.A. was told she was not allowed to distribute an invitation to a Christmas party at a local church. Pocono Mountain argues its decision was solely based on the flyer's being a solicitation for an event run by an organization the school was unfamiliar with, rather than the flyer's promotion of a religious holiday. Pocono Mountain claims that, under a First Amendment nonpublic forum analysis, it was well within its rights in prohibiting the flyer's distribution. Additionally, the school district claims that its actions were based on safety concerns, satisfying the Tinker test. The school district further argues that, even if the operative policies did not pass constitutional muster, the issue is moot since it has subsequently amended them. K.A. argues the relevant framework for analyzing the school district's policies is not a forum-analysis, but rather Tinker. K.A. claims both Pocono Mountain's original and revised regulations on student speech fail the Tinker test. The Court agrees with K.A. and will grant the preliminary injunction.


A Hearing was held on the Motion for Preliminary Injunction and the following facts were developed.

K.A., a minor, is a student at Barrett Elementary Center and a resident of Cresco, Pennsylvania. At the time relevant to the complaint, she was in fifth grade. K.A. is a Christian. Barrett Elementary Center is operated by Pocono Mountain School District. Students at Barett are ordinarily allowed to pass out birthday invitations and the like during non-instructional time or through "mailboxes" assigned to the students by the school. Local community groups and organizations also distribute materials through the mailbox system. In December 2010, K.A. wished to hand out flyers inviting her classmates to a Christmas party at her church. The flyer contained the following information: iKidz Rock Night Christmas Party

Just for Kids!

Grades K-6

Friday, December 10

6:45 - 8:30 p.m.

Face Painting, Ping Pong, Foosball, Cup-Stacking, Games, Prizes, Puppets, Music, Snacks, and more!

Admission and all activities are free!


When her teacher saw the flyer, she told K.A. that Principal Heidi Donohue had to approve it before K.A. could distribute it. After K.A. submitted the flyer, her father, Michael Ayers, contacted Principal Donohue to see if the flyer was approved. Principal Donohue told Mr. Ayers that non-school related flyers had to be approved by the Superintendent and that the Superintendent had not approved K.A.'s flyer. When Mr. Ayers asked Principal Donohue for a written explanation for the denial, Principal Donohue pointed him to District Policy 913. After Mr. Ayers sought further clarification, Superintendent Dwight Pfenning emailed him and told Mr. Ayers that Policy 913 provided him with the authority to prohibit the distribution of K.A.'s flyer.

The version of Policy 913 in effect in December 2010 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 the same shall have been previously approved in writing by the District.

K.A.'s father filed suit on K.A.'s behalf in March 2011, claiming the school district's actions violated K.A.'s First and Fourteenth Amendment rights. A preliminary injunction was then filed in July 2011. In her motion for preliminary injunction, K.A. states that she wishes to pass out religious flyers and materials in the future and she requests that the Court prohibit the school district from preventing her from doing so. In August, the school district revised Policy 913. The revised version of Policy 913 states, 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 ...

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