ROANOKE TIMES 
                      Copyright (c) 1996, Roanoke Times

DATE: Friday, May 24, 1996                   TAG: 9605240083
SECTION: VIRGINIA                 PAGE: A-1  EDITION: METRO 
SOURCE: JENNIFER MILLER STAFF WRITER
NOTE: Below 

FATHER UNDERTAKES `RUSH' TO JUDGMENT

RUSH LIMBAUGH OR MARK TWAIN, a kid can read what he wants, a First Amendment group says.

The father of the 9-year-old boy who had his Rush Limbaugh book taken away by his teacher during reading period filed a federal lawsuit in Lynchburg on Thursday against the teacher and the principal at Montvale Elementary School.

Thomas Gardner claims that his son's First Amendment rights and his own rights as a parent were violated.

By seizing the book, the suit says, the teacher and principal closed "the door of learning afforded by the First Amendment" to fourth-grader Jason Gardner.

It also infringed on Thomas Gardner's right to decide what his son reads, the suit says.

Lawyers John Lichtenstein and John Fishwick are representing Gardner in his lawsuit, which also names the Bedford County School Board and Superintendent John Kent as defendants.

"The First Amendment and case law surrounding it does not allow the state, through the teacher, to restrict what a child reads," Lichtenstein said at a news conference in front of the Poff Federal Building in Roanoke. The book was "clearly not obscene and clearly did not interfere with school materials."

"We are confident in our position and look forward to our day in court," Fishwick added.

Because it is the end of the school year, Gardner's lawyers hope to get a preliminary hearing in U.S. District Court next week. Gardner is not seeking monetary or punitive damages. He simply wants the judge to affirm that the school's actions were unconstitutional.

The case began May 16, when Gardner allowed his son to take conservative radio and TV personality Rush Limbaugh's "The Way Things Ought To Be" to school. Montvale Elementary teacher Bruce Bays confiscated the book during independent reading period after noticing the content of the book.

Jason was reading the section on "condom-bungee jumping" - a commercial parody that bashes condom distribution in public schools - when the book was seized and turned in to the principal's office. Principal Ronald Mason said the content of the book was inappropriate for a fourth-grader and called his parents to retrieve it.

Instead, Gardner called WFIR-AM radio talk show host Craig Wright, who then called Limbaugh's radio program. Limbaugh denounced the incident as censorship.

Mason has said he was only following school policy. The confiscated book is sitting on his desk, and Jason's parents are welcome to pick it up any time, he has said.

Kent had no comment about the lawsuit. However, he said the school board has the responsibility to make sure the materials used in class are appropriate for the students' age and grade.

Frank Wilkinson, executive director of the First Amendment Foundation in Los Angeles, said the school's actions were "an outrageous violation of the First Amendment."

He said the teacher could have spoken with the boy's parents about his concerns, but that he had no right to take away the book since it was being read during "free reading" time. He said his opinion would be the same whether the book was Rush Limbaugh's or "Huckleberry Finn."

"I think Rush Limbaugh is a poor journalist, to put it mildly," he said. "But I'll defend the First Amendment rights of the child to read his book."

David Kysilko, public relations officer for the National Association of State Boards of Education, cited a 1989 Supreme Court case, Hazelwood vs. Kuhlmeier. The majority opinion in that case, which involved a high school newspaper, said school officials have the right to decide what students can read in school.

"It looks like the parent has little to stand on," Kysilko said.

Gwendolyn Gregory of the National School Boards Association in Northern Virginia said it generally is up to the school board to decide school rules and regulations.

"There is a duty [in public schools] to apply rules and regulations for all students," Gregory said. "Otherwise, we would have total chaos in the schools."

Staff writer Jan Vertefeuille contributed to this story.

LENGTH: Medium:   83 lines
ILLUSTRATION: PHOTO:  ARNE KUHLMANN/Staff. Thomas Gardner says confiscating a 
          book violated his rights as a parent and his son's First Amendment 
          rights. color.