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September/October 2022

Legal Matters: First Amendment Decisions Impact Public Schools

By Debra Jacobson

In a term filled with many controversial cases, the U.S. Supreme Court issued several decisions addressing First Amendment rights in the K-12 setting. Board members and administrators should be aware of these rulings because they may provide guidance on issues that arise in their own districts.

Kennedy v. Bremerton High School
This case involved a football coach at a public high school who had a practice of praying at the 50-yard line immediately following each game. The district dismissed the coach after he failed to comply with a directive to stop praying on the field, because he was still on duty and his conduct could be viewed as the district endorsing religion, which would be a violation of the First Amendment’s Establishment Clause. The Establishment Clause prohibits the government from establishing an official religion.

The majority of the Court held that the coach had a right to engage in the prayer. Even though the coach’s religious conduct was highly visible to those attending games, the court ruled that he was engaged in a “brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.” The Court found that the coach’s prayers were private speech and must be allowed because coaches were generally permitted to briefly attend to personal matters after games. The district could not apply a different standard to religious speech during that brief period.

The dissenting justices found the coach’s conduct to have a coercive effect on students, especially in light of Kennedy’s history of inviting and leading students in prayer before and after games. The dissent noted the coach’s prayers were anything but “quiet,” as he invited media and others to a game to bear witness to his 50-yard line prayer. This decision suggests that boards that have a policy or practice of prohibiting private, “quiet” prayer of employees during a period of downtime on the job, even when in the presence of students, will run afoul of the U.S. Constitution. For boards that subscribe to PRESS, this case will be discussed in the fall issue in the footnotes of sample policy 6:255, Assemblies and Ceremonies.

Houston Community College System v. Wilson
The Houston Community College’s Board of Trustees adopted a public resolution issuing a “disciplinary censure” against one of its elected trustees, David Wilson, for conduct “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” Specifically, Wilson publicly complained of ethical and bylaw violations by the board, arranged robocalls to constituents of certain trustees to publicize his views, hired a private investigator to determine the residency of a trustee, and filed multiple lawsuits against the board, costing it considerable sums of money to defend. 

Wilson challenged the board’s censure of him in court, claiming his First Amendment free speech rights were violated when the board issued the “disciplinary censure” against him. Wilson did not claim the contents of the censure resolution were false or defamatory. The Court dismissed his claim, finding that the board’s mere verbal censure did not rise to the level of an “adverse action” necessary to obtain relief. The Court noted this country’s long tradition of publicly censuring lawmakers for their misconduct, stating that elected officials are expected to “shoulder a degree of criticism about their public service.” The Court held that the board’s censure against Wilson was not actionable because it did not deter Wilson, also an elected official, from exercising his own right to speak. Nor did the censure deny Wilson any privilege of his office or prevent him from doing his job as a board member. 

This case affirms that formal censure is a tool that boards can use in the (hopefully) rare instance that a board member is “behaving badly.” Boards should work with their board attorneys in crafting any sort of censure resolution. Board members also need to keep in mind that this case was limited to censure of public officials, and that, depending upon the facts, a board reprimand issued in response to the speech of an employee or student may be a violation of that individual’s First Amendment rights.

Shurtleff v. Boston
A Christian group sued the City of Boston after it denied its request to fly the group’s flag for a community event on a flagpole outside of Boston’s City Hall. The city denied the request because it was concerned it would be promoting religion in violation of the Establishment Clause of the First Amendment. The case turned on the question of whether the private group’s flag was government speech. If so, then the city could control the content or viewpoint of the flag. However, the Court held the flag was not government speech because the city had a well-established history of allowing groups to raise flags for various events on a third flagpole outside City Hall (including a pride flag, local bank flag, and many more), and it had never denied a group’s request before the Christian group. The city also had no policy regarding the content of flags. Based on these facts, the Court found the city had opened a “public forum” for outside groups to engage in private speech by displaying flags, therefore, it could not discriminate against flag applicants based on religious viewpoint.

Although this case did not involve a school, the same non-discrimination principle applies to boards that decide to open their facilities for use by outside groups. If a school board allows community organizations to use school facilities, state law requires the board to adopt a policy that prohibits the use of the facilities if the use will “interfere with any school functions or the safety of students or school personnel or affects the property or liability of the school district.” (105 ILCS 5/10-20.41). Including this standard in a policy creates what is known as a “limited public forum,” which allows a board to exercise some control over access, but like the City of Boston in this case, a board cannot deny a group use of school facilities based upon its viewpoint. Boards that subscribe to PRESS can learn more about outside group access to school facilities by consulting sample policy 8:20, Community Use of School Facilities, and the information in its footnotes.

Debra Jacobson is Assistant General Counsel for IASB.