3rd Grader Sues School over Planned Trip to Circus

Old news but worthy of a replay;
Win or Lose, its still GREAT news.
Maybe there is hope for our youth yet!

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PRECEDENTIAL

Filed April 15, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-4098

AMANDA WALKER-SERRANO, by her parents;

LISA WALKER; MICHAEL SERRANO

v.

DONALD LEONARD, Individually and in his official

capacity as President of the Lackawanna Trail School

Board; CLYDE ELLSWORTH, Dr., Individually and in his

official capacity as Superintendent of the Lackawanna

Trail School District; NANCY SIMON, Individually and in

her official capacity as Principal of the Lackawanna Trail

Elementary School; PAT CARPENTER, Individually and in

her official capacity as a teacher at the Lackawanna Trail

Elementary School

Amanda Walker-Serrano,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Civil Action No. 99-cv-00716

(Honorable A. Richard Caputo)

Argued/Submitted Pursuant to Third Circuit LAR 34.1(a)

July 12, 2002

Before: SCIRICA and GREENBERG, Circuit Judges,

and FULLAM, District Judge*

* The Honorable John P. Fullam, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

(Filed: April 15, 2003)

GORDON A. EINHORN, ESQUIRE

(ARGUED)

Schnader, Harrison, Segal & Lewis

30 North Third Street, Suite 700

Harrisburg, Pennsylvania 17101

Attorney for Appellants

STEPHEN S. RUSSELL, ESQUIRE

(ARGUED)

MELINDA B. KAUFMANN, ESQUIRE

Stock & Leader

221 West Philadelphia Street

Susquehanna Commerce Center,

East Building

York, Pennsylvania 17404

Attorneys for Appellees

OPINION OF THE COURT

SCIRICA, Circuit Judge:

In this civil rights action, plaintiff, a third grade

elementary school student, sued her teachers, school

principal and school board for damages under 42 U.S.C.

§ 1983 for allegedly preventing her from circulating a

petition objecting to a planned third grade outing to the

circus. The District Court granted summary judgment to

defendants. We will affirm.

I.

Plaintiff Amanda Walker-Serrano was a nine-year-old

third grade student at the Lackawanna Trail Elementary

School. Walker-Serrano’s third grade class planned a

voluntary field trip to the Shriner’s circus in Wilkes-Barre

on April 7, 1999. Walker-Serrano did not approve of the

voluntary outing because she believed the circus was cruel

to animals. As a result, she prepared a handwritten petition

stating, “We 3rd grade kids don’t want to go to the circus

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because they hurt animals. We want a better feild [sic]

trip.” On February 4, Walker-Serrano brought the petition

to the playground at recess, where she persuaded more

than thirty of her classmates to sign it.

The following day, February 5, Walker-Serrano was at her

classroom desk during a class period of silent reading and

independent work. A few students gathered at Walker-

Serrano’s desk. The classroom teacher, Elaine Mercanti,

while breaking up the gathering, observed the petition on

Walker-Serrano’s desk and told her to put it away.

Later that day, Walker-Serrano again brought her

petition to the schoolyard at recess. Defendant Pat

Carpenter, one of the teachers supervising recess, observed

a group of students around Walker-Serrano near a patch of

ice on the playground. Carpenter then noticed that one of

the female students was crying—she had fallen on the ice

and was bleeding. Carpenter observed Walker-Serrano with

a pencil or pen and the petition in the middle of the

students and fearing that a student might be injured by the

pencil or pen, instructed Walker-Serrano to put the objects

away. Walker-Serrano contends that Carpenter told her

either “put it away” or “you can’t have that here.”1

Walker-Serrano was never punished for soliciting

signatures for her petition or for possessing the petition.

Furthermore, Walker-Serrano attended the Lackawanna

School Board meeting on February 22, 1999 in order to

express her opposition to the scheduled circus field trip.

On April 7, 1999, the third grade class attended the

Shriner circus as planned. Walker-Serrano and her mother

stood outside the circus and protested alleged cruelty to

animals. Local media covered the protest.

The day prior, April 6, Walker-Serrano sought—and

received—permission to pass out coloring books and

stickers which dealt with cruelty to animals at the circus to

her fellow students at school.

1. For reasons of safety, the elementary school maintains it had an

unwritten policy—since codified—prohibiting writing implements on the

playground. The parties dispute whether this was the reason for

Carpenter’s action.

3

There was also some interplay between Walker-Serrano’s

parents—Lisa Walker and Michael Serrano—and school

officials. When Walker-Serrano returned home on February

5, she informed her mother that she was not permitted to

circulate her petition. Mrs. Walker telephoned defendant

Nancy Simon, principal of the Lackawanna Trail

Elementary School, and defendant Donald Leonard,

president of the school board.

Shortly thereafter, Lisa Walker and Michael Serrano

retained an attorney, who sent the school district a letter

raising concerns about possible violations of Walker-

Serrano’s First Amendment rights. The district’s solicitor,

Sandra Boyle, responded that no rights were violated

because Walker-Serrano was not prevented from expressing

her views on the circus; she was simply told to put the

petition away when her “activities briefly disrupted

classroom instruction and may have contributed to a

situation where another child fell down during recess.”

Boyle also expressed the view that “[e]lementary schools are

not generally the environment for petition circulation.”

On February 22, 1999, Walker-Serrano’s parents

accompanied her to the school board meeting to raise their

concerns about the handling of the petition. Walker-

Serrano’s parents spoke, and the board and Principal

Simon received copies of the petition, but no action was

taken. Three days later, Solicitor Boyle sent a letter to

Walker-Serrano’s attorney noting a school policy2 that

2. The relevant portion of the Policy provides: “The Board respects the

right of students to express themselves in word or symbol and to

distribute materials as a part of that expression, but recognizes that the

exercise of that right must be limited by the need to maintain an orderly

school environment and to protect the rights of all members of the

school community . . . . The Board shall require that students who wish

to distribute materials submit them for prior review. Where the reviewer

cannot show within two school days that the materials are unprotected,

such material may be distributed. Appeal from prior review shall be

permitted to the Superintendent and the Board in accordance with

district rules.” This policy was developed pursuant to 22 Pa. Code.

§ 12.9(e), which provides, “School officials may require students to

submit for prior approval a copy of materials to be displayed, posted or

distributed on school property.” (applies to all Pennsylvania public

school students).

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requires prior review of materials to be distributed by

students.

Walker-Serrano’s counsel suggested that the presentation

at the board meeting should satisfy the requirements of the

policy and that, because the policy allows distribution after

two days of inaction by the school, Walker-Serrano could

circulate the petition. Boyle responded that the petition had

not been properly “presented for review.” No request to

circulate the petition was made after this time.

Walker-Serrano, by her parents, sued the president of the

Lackawanna School Board, Donald Leonard; the

superintendent of the school district, Clyde Ellsworth;

Principal Nancy Simon; and teacher Pat Carpenter, all in

their personal and official capacities. They seek damages

from the defendants individually and from the school

district for alleged violations of Walker-Serrano’s rights to

freedom of speech and association, violations of her right to

petition for redress of grievances, and also under several

state constitutional and common law causes of action.

The District Court granted defendants’ motion for

summary judgment, concluding Walker-Serrano’s First

Amendment rights were not violated as a matter of law, and

finding defendants entitled to qualified immunity. The

District Court also concluded the school district—in the

person of Donald Leonard in his official capacity—could not

be liable, as it lacked sufficient involvement in the actions

complained of. Plaintiff appealed.

II.

The public school environment presents special

challenges for determining the extent of the First

Amendment’s protections. That the First Amendment

protects student expression within schools is beyond

challenge. See Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503, 506 (1969) (“It can hardly be argued that

either students or teachers shed their constitutional rights

to freedom of speech or expression at the schoolhouse

gate.”). But the First Amendment has never been

interpreted to interfere with the authority of schools to

maintain an environment conducive to learning. The

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Supreme Court “has repeatedly emphasized the need for

affirming the comprehensive authority of the States and of

school officials, consistent with fundamental constitutional

safeguards, to prescribe and control conduct in the

schools.” Id. at 507. Accordingly, “conduct by the student,

in class or out of it, which for any reason—whether it stems

from time, place, or type of behavior—materially disrupts

classwork or involves substantial disorder or invasion of the

rights of others is, of course, not immunized by the

constitutional guarantee of freedom of speech.”3 Id. at 513.

This framework has generally been used to assess the

constitutionality of restrictions on speech in high schools

and middle schools. In those contexts, we have required

that the school demonstrate a “well-founded expectation of

disruption” or of interference with the rights of others,

before upholding the restriction. Sypniewski v. Warren Hills

Reg’l Bd. of Ed., 307 F.3d 243, 253 (3d Cir. 2002); Saxe,

240 F.3d at 212.

But any analysis of the students’ rights to expression on

the one hand, and of schools’ need to control behavior and

foster an environment conducive to learning on the other,

must necessarily take into account the age and maturity of

the student. Fraser, 478 U.S. at 683-84; Muller by Muller v.

Jefferson Lighthouse Sch., 98 F.3d 1530, 1538 (7th Cir.

1996) (“Age is a critical factor in student speech cases

. . . .”); Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d

728, 738 (7th Cir. 1994) (“[A]ge is a relevant factor in

assessing the extent of a student’s free speech rights in

school.”). The significance of age in this inquiry has called

into question the appropriateness of employing the Tinker

framework to assess the constitutionality of restrictions on

3. Even when not disruptive, a school may exercise control over speech

that bears the imprimatur of the school, such as that in a school

newspaper, Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), or

lewd or plainly offensive expression, Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986). Neither party urges us to consider this case under

either the Hazelwood or Fraser analyses. Saxe v. State Coll. Area Sch.

Dist., 240 F.3d 200, 214 (3d Cir. 2001) (“Speech falling outside of these

categories is subject to Tinker’s general rule: it may be regulated only if

it would substantially disrupt school operations or interfere with the

rights of others.”).

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the expression of elementary school students. No other

Court of Appeals4 has ruled on the applicability of Tinker in

this context. District courts engaging this issue have

generally found that Tinker provides an appropriate mode of

analysis of elementary school students’ First Amendment

rights. Johnston-Loehner v. O’Brien, 859 F. Supp. 575 (M.D.

Fla. 1994) (distribution of religious literature); Jeglin ex rel.

Jeglin v. San Jacinto Unified Sch. Dist., 827 F. Supp. 1459

(C.D. Cal. 1993) (school dress code).

There can be little doubt that speech appropriate for

eighteen-year-old high school students is not necessarily

acceptable for seven-year-old grammar school students.

Human sexuality provides the most obvious example of agesensitive

matter, see Fraser, 478 U.S. 683-84, but there are

any number of topics that are more appropriate for older

students than younger ones. Cf. Peck v. Upshur County Bd.

of Ed., 155 F.3d 274, 288 n. (4th Cir. 1998) (holding that

a policy permitting distribution by non-students of religious

material constitutional in the high school setting, but

unconstitutional in the elementary school setting because

of “the impressionability of young elementary-age

children”); Slotterback ex rel. Slotterback v. Interboro Sch.

Dist., 766 F. Supp. 280, 296 (E.D. Pa. 1991) (noting the

“impressionability” of children at elementary school level is

a factor in determining whether to uphold a school policy).

Furthermore, as students approach adulthood, their ability

to form and express their own views becomes increasingly

important. Younger students are at a stage in which

learning how to develop relationships and behave in society

is as or even more important than their forming particular

views on controversial topics. See Muller, 98 F.3d at 1538

(“The ‘marketplace of ideas,’ an important theme in the high

school student expression cases, is a less appropriate

description of an elementary school, where children are just

beginning to acquire the means of expression.”) (opinion of

Manion, J.). 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

4. This matter is discussed in Muller, 98 F.3d at 1535-39, 1545-47, but

with varying views, none of which commanded a majority of the court.

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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

necessary 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

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.

Supporting recognition of a qualified Tinker right is that

elementary school students’ freedom of conscience has been

constitutionally protected for decades. See, e.g., Ill. ex rel.

McCollum v. Board of Ed., 333 U.S. 203 (1948) (religious

education in public school grades four through nine

unconstitutional); Meyer v. Nebraska, 262 U.S. 390 (1923)

(right to teach foreign language to ten-year-old). For over

fifty years, the law has protected elementary students’

rights to refrain from reciting the pledge of allegiance to our

flag. W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624

(1943). Punishing a child for non-disruptively expressing

her opposition to recitation of the pledge would seem to be

as offensive to the First Amendment as requiring its

oration.

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.

In any event, if third graders enjoy rights under Tinker,

those rights will necessarily 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

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—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.

Turning to this case, even if elementary school children

are entitled to some protection under the First Amendment,

it might be argued that, under Tinker, they have no right to

seek signatures from their peers on a petition of the kind at

issue here.

As a general matter, collecting petitions is a protected

activity under the First Amendment. Meyer v. Grant, 486

U.S. 414, 421-22 (1988). It involves an encounter in which

the petitioner advocates a position, seeking to persuade the

listener to sign on to the cause. In response, the signer

expresses his support for the position expressed. The

petition creates an environment that encourages speech of

a kind central to the First Amendment’s concern. See id.

(“[T]he circulation of a petition involves the type of

interactive communication concerning political change that

is appropriately described as ‘core political speech.’ ”).

Nonetheless, a school setting, especially an elementary

school setting, may require a different application. As Judge

Greenberg elucidates in his concurring opinion, implicit in

petitioning activity is that the young listener is capable of

comprehending the advocated position. Furthermore,

whether or not the young petitioner is reflecting and acting

on her parents’ views is relevant. When other legitimate

factors are added to the mix, like the undoubtedly valid

parental role and prerogatives with respect to other

students, and the possibility of subtle coercion on the part

of the petitioner, it is clear that school authorities must be

given great leeway to regulate and restrict petitioning in

elementary schools.

Yet while circulating petitions is clearly not always

appropriate for elementary school students, we see no

reason to conclude at this juncture that it never is. Plaintiff

points out that one of Walker-Serrano’s textbooks

contained a lesson in which the students are asked to

circulate a petition on a matter of community concern. This

confirms the common-sense assumption that, at least some

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of the time, elementary school students may be capable of

circulating petitions in a manner consistent with

educational goals, and that petitioning can be a significant

learning experience for these children. But where signature

gathering interferes with educational goals or interferes

with the rights of other students, it can, of course, be

restricted. In any event, we see no reason at this point to

conclude that, as a general matter, these concerns cannot

be addressed under the case-by-case approach specified in

Tinker. Yet it bears noting that in an elementary school

setting, the Tinker proscription against interfering with the

rights of other young students is especially important.

III.

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. There

is no evidence that defendants acted outside of the

permissible scope of their authority over third grade

students, even if Walker-Serrano’s petition caused no

disruption.

Defendants contend they prevented Walker-Serrano from

circulating the petition only when the petition appeared to

cause disruption under Tinker. That may be so. That they

encouraged other expressions of Walker-Serrano’s

opposition to the circus supports their view that their

decisions were not based on animus to the position she

expressed, but to the particular mode of expression in

particular circumstances. Walker-Serrano contends her

petition did not cause disruption either on the playground

or in the classroom. She does not address whether her

petition may have infringed on the rights of fellow students.

But even if permitted, a school must be able to regulate the

times and circumstances a petition may be circulated in

order to fulfill its custodial and pedagogical roles. There can

be no constitutional right, if any, to circulate a petition in

an elementary school in class during a quiet reading period

or on an icy playground.

It is undisputed that defendants did not discipline

Walker-Serrano for circulating her petition, in which she

10

collected over thirty signatures. Because Walker-Serrano

and her parents never petitioned the school for permission

to circulate the petition (even beyond the signatures already

collected) we cannot know that she would not have been

permitted to circulate the petition on other occasions.

But the school authorities did something more. They

permitted Walker-Serrano to distribute other materials to

her fellow classmates — coloring books and stickers —

expressing her views about the circus’s alleged ill-treatment

of animals. Whatever rights of expression Walker-Serrano

may have possessed, her teachers, with insight and

flexibility, more than accommodated them.

In sum, not 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 [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 ‘inappropriate’ for

[elementary] school students, or to limit what students

should hear, read, or learn about.” 478 U.S. at 689

(Brennan J., concurring). Therefore, the record does not

permit a finding that Walker-Serrano suffered an injury of

constitutional dimension.

Whether or not similar interference with expression may

result in a First Amendment violation in other contexts, the

special responsibilities of elementary school educators, and

our deference to the choices they make in operating

schools, precludes elevating this dispute to the level of a

constitutional violation. See Sypniewski, 307 F.3d at 260

(noting “leeway” granted public secondary and elementary

schools). The number of everyday decisions that must be

made with respect to the boundaries of acceptable behavior

of third graders is so great that courts cannot second guess

elementary school officials on every minor dispute involving

third graders’ expression. To do so would be to turn the

courts into the guardians of elementary school discipline,

an area within “the comprehensive authority of the States

11

and of school officials.” Tinker, 393 U.S. at 507. Absent

punishment for expression, a significant pattern of concrete

suppression, or some other form of clear suppression of the

expression of elementary school students, a federal First

Amendment action is not an appropriate forum for

resolution of disputes over schools’ control of third graders’

conduct.

Because this record does not support Walker-Serrano’s

contention that defendants violated her First Amendment

rights, we need not reach the questions of defendants’

qualified immunity or of School Board President Leonard’s

liability in either his personal or official capacities.

Accordingly, we will affirm the judgment of the District

Court.

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GREENBERG, Circuit Judge, concurring:

I join in the majority opinion, though my approach to this

case leads me to file this concurring opinion to emphasize

the particular nature of the claimed First Amendment right

at issue here. This is not a case in which the defendants

precluded the student-plaintiff, Amanda Walker-Serrano,

from setting forth her views on the circus to the school

authorities or punished her for doing so. Rather, Amanda

asserts a First Amendment right to collect signatures on a

petition and thus have her fellow eight- or nine-year old

third grade students join her protest.1 While, as the

majority opinion points out, maj. op. at 9, “[a]s a general

matter collecting petitions is a protected activity under the

First Amendment,” it seems to me that it will be a rare case

in which such conduct should be protected when the

signatures are sought from children as young as those

involved here, particularly in a school setting.

I think that it is unlikely that the third grade children

here could have had knowledge of how a circus treats its

animals. After all, I have no such knowledge myself. Yet

Amanda induced more than 30 of them to sign a petition

that they did not want to go to the circus because it

“hurt[s] animals.” Of course, I recognize that even adults

will sign petitions without understanding the issues

involved and in doing so likely will be protected

constitutionally, as will be the persons circulating the

petitions. But the status of adults differs from that of

children at school as in general public officers and agencies

have no obligation to protect adults from their own conduct

or the importuning by other persons. On the other hand,

students are in the temporary custody of the school

authorities who must protect them during the period of the

custody. See Bd. of Educ. of Indep. Sch. Dist. No. 92 v.

Earls, 122 S.Ct. 2559, 2565 (2002). Moreover, an eight- or

nine-year old child might not be able to resist the peer

pressure to sign a petition and thus might do so even if the

petition advocates a position with which he or she does not

agree. In any event, a child of such age should not be

confronted with having to make the choice to sign or not

sign.

1. We were told the students’ age at oral argument.

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It is also significant that in Pennsylvania education is

mandatory and thus, while I do not doubt that most

parents would send their children to school without a legal

requirement that they do so, the children to whom Amanda

presented her petition were in school in satisfaction of a

statutory mandate. See Pa. Stat. Ann. tit. 24, §§ 13-1326,

13-1327 (West 1992). At the risk of being regarded as “not

with it,” “old fashioned,” “out-of-date,” or “politically

incorrect,” I acknowledge being of the view that parents do

not send their children, particularly young children, to

school in order for them to be solicited to state their

opinions on matters of public concern or school

administration.

I think it clear that it is not at all appropriate for third

grade children to be asked to state their views by signing a

petition, at least until they have an opportunity to ask for

their parents’ advice and guidance on the issue involved.

Thus, it seems to me that the existence vel non of a First

Amendment right here should take into account the

interests of the children other than Amanda and their

relationships within their families. When this case is

considered from that perspective it becomes quite evident

that Amanda has not advanced any interest worthy of First

Amendment protection.

In considering this matter from the perspective of the

interests of all the children I am on solid ground. While

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503, 506, 89 S.Ct. 733, 736 (1969), made

it clear that students do not shed their First Amendment

rights at the schoolhouse gate, the case also indicated that

there can be regulation of student speech interfering with

the rights of other students. Id. at 509, 89 S.Ct. at 738.

When Amanda presented her petition to the other children

she was infringing on their rights as they were entitled

while at school to be free from her solicitation of their

signatures. Recently, in upholding a drug testing

requirement for students participating in extracurricular

activities against a claim that the requirement infringed the

students’ privacy interests, the Supreme Court, quoting

Justice Powell’s concurring opinion in New Jersey v. T.L.O.,

469 U.S. 325, 348, 350, 105 S.Ct. 733, 746, 747 (1985),

14

pointed out that “apart from education, the school has the

obligation to protect pupils from mistreatment by other

children . . . .” Bd. of Educ. v. Earls, 122 S.Ct. at 2565.

While I recognize that some people are of the opinion that

it is never too early for a person to learn to challenge

authority, I believe that a school should protect an eight- or

nine-year old child from the solicitation of another child to

sign a petition and thus this case is without merit.

In the circumstances I agree that we should affirm.

15

FULLAM, District Judge, concurring:

Although I agree that the judgment of the District Court

should be affirmed, I am unable to join fully in the opinions

of my colleagues. The First Amendment rights of school

children are undoubtedly somewhat more limited than the

First Amendment rights of adults, as Judge Scirica’s

Opinion demonstrates. But that does not mean that a nineyear-

old child should be treated as if she were a preschooler.

To suggest that neither Amanda Walker-Serrano

nor her classmates had sufficient maturity to express or

form valid opinions concerning the proposed class trip to

the circus, I find unacceptable. I therefore do not share my

colleagues’ seeming reluctance to hold that Amanda did

indeed have a First Amendment right to circulate her

petition. The crucial question, in my view, is whether any of

the appellees violated Amanda’s Constitutional rights, or

whether they were merely imposing reasonable time, place

and manner restrictions upon her exercise of those rights.

That, in turn, depends upon whether the circumstances

gave rise to a reasonable perception of a “well-founded

expectation of disruption”, Sypniewski v. Warren Hills Reg’l

Board of Education, 307 F.3d 243, 253 (3rd Circ. 2002).

We are reviewing a grant of summary judgment. Although

the record discloses significant factual disputes as to

whether there was any actual disruption or interference

with the rights of other students, the District Court’s

conclusion that, even if all such disputes were resolved in

favor of the appellants, a distinct likelihood of disruption

was present, is, in my view, unassailable. And, although

Amanda was prevented from circulating her petition in the

classroom, and on one occasion, in the playground at

recess, the undisputed evidence establishes that she

circulated her petition and otherwise exercised her First

Amendment rights without interference from the

defendants. The record as a whole clearly demonstrates

that no Constitutional violation occurred.

Finally, I note my agreement with the District Court’s

ruling that, in any event, the defendants in their individual

capacities are entitled to qualified immunity; that Mr.

Leonard, the President of the School Board, had no liability

in his official capacity; and that none of the named-

16

defendants was responsible for any policy which infringed

Constitutional rights.

For all of these reasons, I agree that the judgment

appealed from should be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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