                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

Walker-Serrano v. Leonard
Precedential or Non-Precedential: Precedential

Docket 01-4098




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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.
                               2


                  (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
                                 3


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.
                                    4


   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).
                             5


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
                                    6


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.”).
                                  7


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 age-
sensitive 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.
                              8


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
                              9


—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
                              10


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
                             11


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
                             12


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.
                                  13


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.
                             14


  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),
                             15


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.
                             16


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 nine-
year-old child should be treated as if she were a pre-
schooler. 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-
                             17


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
