Principal May Restrict Student's Sale of Candy Canes With Religious Message

The Sixth Circuit Court of Appeals recently ruled that
a student's First Amendment speech rights were not violated
when a Michigan elementary school principal denied the
student's request to sell candy canes containing a religious
message. Curry v School Dist of the City of Saginaw, 2008
US App LEXIS 881 (January 16, 2008), affirming 452 F
Supp 2d 723 (ED Mich, 2006).
The issue, as articulated by the Sixth Circuit, was
"whether an elementary school student has a First Amendment
right to promote an unsolicited religious message
during an organized curricular activity." Joel Curry, a 5th
grade student, wanted to "sell" (using faux school currency)
pipecleaner candy canes with religious message cards during
an academic exercise called "Classroom City." The principal
denied Joel's request because the Classroom City activity
was instructional. The principal, however, told Joel that he
could sell the candy canes with the religious cards after
school in the parking lot. Instead, Joel appropriately sold
the candy canes (without the religious cards) during the
Classroom City activity. His parents then sued the district
and the principal.
Because it was undisputed that the "Classroom City"
activity was part of the school curriculum, the Sixth Circuit
applied the free speech standard for school-sponsored
activities enunciated by the U.S. Supreme Court in
Hazelwood Sch Dist v Kuhlmeier, 484 US 260 (1988). In
Hazelwood, the Supreme Court upheld a high school
principal's action of removing two articles from the schoolsponsored
newspaper, ruling that "educators do not offend
the First Amendment by exercising editorial control over the
style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns."
In considering whether the principal's conduct was
reasonably related to legitimate pedagogical concerns in an
elementary school setting, the Sixth Circuit considered
"several factors, including the type of speech, the age of the
locutor and audience, the school's control over the activity
in which the expression occurs, and whether the school
solicits individual views from students during the activity."
The court found the following factors to be significant:
• The Classroom City activity encouraged creative
products and did not solicit student viewpoints;
• The school had complete control over the Classroom
City activity, including a formal approval
process for the products to be "sold" (which Joel
evaded by presenting only his candy canes, and
not the religious cards);
• The potential audience included younger and
impressionable elementary students;
• Joel's speech went beyond individual religious
expression to proselytizing; and
• An observer reasonably could perceive Joel's
speech (an unsolicited religious promotional
message) to bear the school's imprimatur.
Accordingly, the Sixth Circuit held that the principal did not
violate Joel's free speech rights because the decision to
exclude the religious card was a "reasonable evaluation of
legitimate pedagogical concerns" within her "discretion as
a school administrator."
While the Sixth Circuit's decision reinforces the
Hazelwood doctrine that school administrators may reasonably
limit a student's school-sponsored expressive activities
for legitimate pedagogical concerns, it also highlights the
fact-driven complexity of free speech analysis, even in an
elementary school setting. As noted by the trial court, the
principal was forced "to make a difficult choice in a complicated situation."