Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
I am a high school administrator, and like many of my colleagues I’m concerned about vaping, fighting, vandalism, and other inappropriate activities happening in our restrooms. The worst time for us is at the start of our lunch waves. When students are dismissed for lunch, many of them head to the restrooms to hang out instead of going to the cafeteria. To get ahead of this, we started locking most of the restrooms for the first five to ten minutes of each lunch wave. There is always at least one set of male and female restrooms open, usually the ones nearest to the cafeteria. Students have not been thrilled about the policy, but the negative behaviors are way down since it has been implemented.
Now, however, a couple reporters from our school newspaper want to do a story on the new policy and how students feel about it. I’m concerned that if the story is published and parents and district officials get wind of it, the backlash will force us to reopen the bathrooms for the entire lunch block and we will be right back to where we started. I tried explaining this to our newspaper adviser, but he thinks he’s Ben Bradlee and wants the kids to write the article.
Are we breaking any laws by closing the bathrooms? Can I veto the news story on the grounds that it will disrupt our educational environment and possibly harm our students?
Stop the Presses!
Legal Mailbag applauds your industry in asking two separate questions in one email.
Taking the first question first, Legal Mailbag does not see any immediate legal problem in your temporarily locking some of the bathrooms during the lunch period as you describe, especially given that other bathrooms near the cafeteria remain available. Presumably, there are public health or building code standards for the number of bathrooms to serve a specified population, and someone could at some point cite such standards and complain that you have made some of the required bathrooms unavailable. However, if and when the closing of some of the bathrooms is challenged, you can reassess this practice.
While the first question raises practical issues, the issues raised by your second question are constitutional in nature. Specifically, student editors have free speech rights under the First Amendment, albeit limited as described below, and we must ask whether a prohibition against such a story would be justified by legitimate educational concerns, as required by the First Amendment.
In 1988, the United States Supreme Court addressed the scope of First Amendment protection afforded to student editors of the school newspaper. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the high school principal spiked stories written for the school newspaper on teen pregnancy and children of divorce. The students claimed that prohibiting them from running those stories violated their free speech rights. The Eighth Circuit Court of Appeals ruled in their favor because school officials were unable to show that the articles would cause material disruption or substantial interference with the educational process or invasion of the rights of others, the conditions required for regulating student speech as announced by the Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
The United States Supreme Court reversed, ruling in favor of school officials, and in so doing announced an exception to the Tinker standard for school-sponsored activities like the school newspaper. When an activity is sponsored by the school, the Court ruled, it carries with it the imprimatur of the school, and therefore school officials have a special interest in regulating the speech. While the Court thus gave school officials broad authority to regulate student speech in school-sponsored activities, it did require that any restriction on such student speech be justified by a legitimate educational interest. While the courts have thus been deferential to school officials in such matters, school officials must still show a legitimate educational interest as the reason for regulating student speech in school-sponsored activities. For example, in Dean v. Utica Community Schools, 345 F. Supp. 2d 799 (E.D. Mich. 2004), the federal district court ruled against school officials when they censored a story proposed for the school newspaper. The story described a pending lawsuit by town residents alleging that exhaust from school buses at the bus depot had harmed their health. The court held that the prohibition was based on viewpoint discrimination, not legitimate educational concerns.
Here, it seems that you can show a legitimate educational interest in prohibiting the story because its publication could undermine your efforts to address student misconduct during the lunch period. However, now that you know the rules, Legal Mailbag must leave that determination to you and your administrative team.