Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Like many towns in Connecticut, events leading to the local budget referendum have been contentious and unfriendly. I have tried hard to ensure that such issues stay out of our schools, but now politicians on both sides of the aisle are threatening to sue me for what I’ve done toward that end. What do I do?
One question is about sign placement. One of my district’s schools is on a side street from the main road through town; there’s a traffic island at the intersection with a sign for the school. A local group put a sign up right next to the school sign, telling voters to “pass the budget!” Since this placement implied that the school wanted the budget to pass, I instructed a custodian to walk down and take the sign down. Within hours, I had received an irate phone call from the group that put up the sign, accusing me of censorship and violating the First Amendment. Can’t I decide what gets posted next to a sign for one of my schools?
The other question came from the anti-budget group. Voting happens within one of my other schools, and the signs go up every year marking the 75-foot “no campaigning” zone around the polling place. The teachers’ union encouraged teachers to wear their “union strong – teachers supporting teachers” shirts on the day of the referendum, since they knew that teacher cuts would be coming if the budget was voted down. Now I have another complaint coming in from the anti-budget side that teachers wearing such shirts in the school were within the 75-foot zone and therefore violated the law, even though voters could not see them.
Can I just ignore their complaint?
Vexed by Voting
Legal Mailbag presumes that your school sign is posted on school property (or town property). If so, you have (or the town has) the right to take the action you described. Similarly, based on the wording of the applicable statute, the teachers’ wearing the T-shirts expressing union solidarity did not violate the applicable statute, as described below.
As to the sign (which you describe as posted on “traffic island at the intersection”), the location of the sign will determine whether you had the right to take it down. You are an agent of the board of education, and as such you have control over the posting of signs on school property. Boards of education (and their agents) have “care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes,” Conn. Gen. Stat. § 10-220(a), and outside groups do not have the right to post signs on school property. Similarly, if the sign was on town property, then the town (or you as its agent) had the right to take down the sign.
Indeed, any First Amendment issue here would arise if you permitted an outside group to post a sign on school property. In such case, the district could inadvertently create a public forum for the expression of opinion, and other groups would then have the same right to post their signs to express themselves in that forum. In short, by taking the sign down, you may have avoided a claim by others that they too have the right to post their signs on school property.
Legal Mailbag also rejects the claim that the teachers violated state law by wearing the described T-shirts within seventy-five feet of the polling place on the day of the referendum. The applicable statute is Conn. Gen. Stat. § 9-236, which provides in relevant part:
Sec. 9-236. Activities prohibited in and near polling place; distance markers; entry restricted; exceptions. (a) On the day of any primary, referendum or election, no person shall solicit on behalf of or in opposition to the candidacy of another or himself or on behalf of or in opposition to any question being submitted at the election or referendum, or loiter or peddle or offer any advertising matter, ballot or circular to another person within a radius of seventy-five feet of any outside entrance in use as an entry to any polling place or in any corridor, passageway or other approach leading from any such outside entrance to such polling place or in any room opening upon any such corridor, passageway or approach.
To be sure, the prohibition against these activities do indeed extend to the entire area within the circle formed by a radius of seventy-five feet from the outside entrance to the polling place, including the area behind the polling place. However, Legal Mailbag notes that wearing a T-shirt expressing union solidarity is not included in the prohibited activities, which include:
• “soliciting” on behalf of or in opposition to the question being voted on; or
• “loitering,” peddling” or “offering” “advertising matter, ballot or circular” to another person.
To be clear, in consulting with an expert on our election laws, Legal Mailbag learned that a T-shirt with a message urging a “yes” or “no” vote on the referendum could be considered “soliciting” under the law. However, as you describe the facts, the T-shirts in question did not urge readers to vote in a certain way, but rather they expressed union solidarity. Accordingly, Legal Mailbag sees no basis for claiming an election law violation.
Finally, Legal Mailbag is uncertain what you mean by asking whether you can just ignore the complaint. You can certainly ignore the chatter by the anti-budget group. However, if this group files a formal complaint, make sure that the district formally responds to protect the district’s interests.