Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
At my school, we like to treat everyone like family. Over the years, we have been more than happy to help publicize various events and causes for members of our school “family.” Whenever a parent or other community member has asked us to do so, we have put a little announcement on our school website. A couple of years ago, we learned our lesson that we cannot send home advocacy information when a referendum is pending, but otherwise it has pretty much been open season. We have posted announcements on a wide range of topics, including PTO meetings and fundraisers for various community organizations.
This month we got two requests that really bothered us. The local taxpayer group is a particularly grumpy bunch, and they are always railing against school spending. If they had their way, we wouldn’t even have a website because we wouldn’t be able to afford computers. But now they want us to post announcements of their meetings, including a statement that describes the group’s mission as the “unflagging commitment to ending wasteful spending by school officials.” Then, to make matters worse, a local church has asked us to post an announcement about Saturday Bible study classes. Since we don’t have any legal duty to post any of these announcements, I am presuming that we can pick and choose, posting “friendly” announcements but not those with which we disagree or those that could make it look like we are promoting religion. But in these crazy times, I thought that I had better check with the expert.
Free Legal Advice, Please
At least you got two things right. Legal Mailbag is expert; and we are free. But your analysis is incorrect. You may not have any legal duty to post announcements for the school community on your website, but once you do so, you have assumed a constitutional obligation.
In your role in running a public school, you are the “government.” The Bill of Rights protects us from people like you because the Fourteenth Amendment extends the protections of the Bill of Rights to the states. In running a public school, you are a state actor, and in that role you may not violate the constitutional rights of others. Those rights include, of course, the right of free speech.
You are correct in your understanding that a public school has no legal obligation to post announcements on behalf of members of the school community. However, once you do so, you create a public forum, and as a governmental actor, you may not censor speech expressed within that forum. You may not like the message of the taxpayers, and you may love the message of the PTO, and they are each free to express their views. But if you create a forum and post some messages, you cannot decide not to post other messages simply because you disagree with their viewpoint.
You may accept all of this but still feel that you should not post announcements from churches, because of the prohibition against state support for religion in the Establishment Clause, which is also contained in the First Amendment. Again, you would be wrong. As a public entity, you must remain neutral in matters of religion, and you may not single out religious speech for special disfavor. Applying the “forum” analysis applicable here, a number of court decisions hold that school officials who permit the distribution of flyers for some groups must also permit the distribution of flyers for church groups. The same analysis applies to announcements on the website.
The watchword is equal treatment – no special favor or disfavor for those who want to “speak” in the forum you have created, even taxpayer groups or religious organizations. Accordingly, you may want to rethink your practice of posting announcements for outside groups.
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