Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
Ever since the election, everyone seems out of sorts. Case in point, one of our teachers put up a sign in her classroom, and now a student and his father are demanding that we take it down or put theirs up! The sign is innocuous enough. It is about two feet wide and a foot tall, and it simply says “No one is an ‘Illegal’ here!” What’s not to love about that enlightened and caring sentiment?
When I got the complaint, I met with the father and son. The father accused the teacher and by extension the school district of brainwashing his son with a “leftist view that the laws don’t matter.” The son is a real chip off the old block, and he kept complaining disingenuously about how “confused” the sign has made him on the issue of illegal immigration and compliance with the law and school rules more generally.
I explained that it is a free country and teachers should be able to post a little sign every so often, but the father was all over me, complaining that he pays taxes and should have some say over the messages that our public schools send. In fact, he was so agitated that I was a bit concerned when he reached into a bag he had with him to pull something out. But it turned out to be just another sign about the same size as the teacher’s, stating “Be NICE to ICE! Obey the Immigration Laws or Else!”
Now I was really confused, and I asked him what I was supposed to do with that. With a tight grin, the father told me that fair is fair and that he would be suing the school district if we do not post his sign next to the teacher’s sign. I told him that I would think it over, and he finally left my office. I don’t have to post his nasty sign, do I?
You may not end up having to post the parent’s sign, but you do have a problem that would best be solved by having the teacher take down the first sign. The problem here relates to the First Amendment. Like it or not, the school district is a government actor and, as such, you are all subject to the provisions of the Bill of Rights, which of course protects the people from the government.
Here, the question is whether by posting a sign that takes a position on a matter of legitimate public debate and concern, the teacher (and by extension the school district) has created a forum for political speech. The classroom is public property dedicated to use for school purposes. The teacher has every right to post materials related to the curriculum in her classroom, and the teacher has every right to express her political views outside of school. But the “No one is an ‘Illegal’ here!” sign is not related to the curriculum but, rather, the expression of the teacher’s political views. By leaving the sign posted, the teacher and the school district invite a claim that (1) the teacher has created a forum for political speech; and, (2) the teacher is violating the free speech rights of the student and/or parent by not permitting either to also express their views in this political forum that the teacher created.
Of course, you can do what you want, including leaving the sign up. I will do my best not to say I told you so if you do, get sued and lose. But you may want to think it through and ask the teacher to take down the sign and stick to the curriculum.