This week, every public school in West Virginia was shut down due to a teacher’s strike. Teacher protests, such as the one in West Virginia, implicate First Amendment rights. When can a school district enforce restrictions on teacher and student speech in these situations? One federal appellate court recently took up this issue in Eagle Point Educ. Ass’n v. Jackson Cty Sch. Dist. No. 9, Docket No. 15-35704, 15-35972 (9th Cir. January 26, 2018).

In anticipation of a teachers’ strike, the Oregon public school district adopted policies that prohibited picketing on property owned or leased by the school district, prohibited strikers from coming on school grounds, even for reasons unrelated to the strike, and prohibited signs and banners at any facilities owned or leased by the school district without advance written approval by the district superintendent. The policies were motivated by the strike, and they were formally rescinded shortly after the strike ended. During the strike, a security officer prohibited a student from parking in the student parking lot because the car had a sign with a pro-strike message.  The union, one of its members, and the student filed a civil rights action against the school district, contending that the district infringed on their First Amendment rights. The trial court granted summary judgment in favor of the plaintiffs and subsequently awarded them attorney’s fees and costs.

The school district appealed, arguing that its policies were a form of government speech and, therefore, not subject to the Free Speech Clause.  The court of appeals disagreed.  To be considered government speech falling outside the protection of the First Amendment, a reasonable observer would have to view the statement to be a statement by the government.  For example, in a separate case against the Texas Department of Motor Vehicles, a license plate bearing the confederate flag could be confused by a reasonable observer to be a statement of the government.  Therefore, the motor vehicles board did not violate the First Amendment by rejecting a request for confederate flag license plates.  In contrast, the teachers striking against the government would not be confused by a reasonable observer as a statement of the government.  Therefore, the Ninth Circuit determined that the teachers’ speech was not government speech.  Instead, the district’s policies imposed restrictions on private speech and the First Amendment’s Free Speech Clause was implicated.

The district’s policies applied to actions on property owned or leased by the school district.  The Court assumed that the policies, therefore, involved speech in a non-public forum, where the government has the greatest authority to restrict speech.  Speech in a non-public forum can be restricted, but the restrictions must be (1) reasonable and (2) not an effort to suppress expression merely because public officials oppose the speaker’s view.  According to the court of appeals, the district’s policies did not satisfy either requirement.

First, the district’s policies were not reasonable.  While the district had a legitimate interest in keeping its schools open and in avoiding disruption of its mission to educate students, there was no evidence of any disruptions or a reasonable fear of disruption.  Second, the policies were not viewpoint neutral.  The policies were enacted specifically to restrict pro-union speech and “aimed at stifling disagreement with the district’s position.”  Because the policies were not reasonable or viewpoint neutral, the court of appeals affirmed the judgment in favor of the plaintiffs.

The Ninth Circuit also upheld the judgment in favor of the student.  According to the court, the student was prohibited from parking in the student parking lot because the security guard was trying to enforce the district’s policies prohibiting protests supporting the teachers’ strike.  Because enforcement of the policy resulted in the constitutional violation, the district could be held liable for suppressing the student’s speech.

This case confirms that a school district cannot enact policies specifically targeted to prohibit speech that it disfavors.  To be constitutional, policies restricting speech in a non-public forum must be reasonable and viewpoint neutral.

National School Boards Association Issues New Checklist On Student Protests

In the wake of the tragic events at Marjory Stoneman Douglas High School in Parkland, Florida, students across the nation have staged walk outs and other protests on campus.  These protests, like the teacher strike discussed above, implicate student First Amendment rights.  The National School Boards Association has just issued a checklist on student protests to help school officials navigate student walk outs and mass protests.  The checklist is accompanied by the NSBA’s First Amendment Guide, and offers several instructive scenarios.  Administrators dealing with walk outs and other types of protests are encouraged to read these guides and consult legal counsel in formulating a plan to address student speech on campus.

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