Employment Law Daily School district’s picketing ban violated First Amendment rights of striking teachers. supporters
Wednesday, January 31, 2018

School district’s picketing ban violated First Amendment rights of striking teachers. supporters

By Ronald Miller, J.D.

A school district’s adoption of policies prohibiting picketing on its property and banning signs and banners at its facilities in anticipation of a teacher’s strike, violated the First Amendment rights of the strikers and their supporters, ruled the Ninth Circuit. The appeals court found that the government speech doctrine argued by the school district did not authorize the government’s suppression of contrary views. The school district had asserted that its official position that it could not accede to the demands of the union was government speech. In this instance, the court noted that no reasonable observer would think that the pro-strike message of the strikers and their supporters was a statement made or endorsed by the school district. Finding that the strikers’ speech was subject to the First Amendment, the court concluded that the district could not implement policies aimed at stifling expressions of dissent (Eagle Point Education Association/SOBC/OEA v. Jackson County School District No. 9, January 26, 2018, Clifton, R.).

Picketing prohibition. In anticipation of the teacher’s strike, the school district put in place policies that prohibited picketing on property owned or leased by the district, prohibited strikers from coming on school grounds, even for reasons unrelated to the strike, and prohibited signs and banners at any facilities owned or leased by the district without advance written approval. The policies were motivated by the strike, and they were formally rescinded shortly after the strike ended.

The district court granted summary judgment in favor of the plaintiffs. The school district appealed, primarily arguing that the policies enacted by it during the strike should be viewed as “government speech” by the district itself and should not be judged as restrictions on the free speech rights of teachers and students.

At about the same time the school district adopted its new policies, it entered a three-month lease for a vacant lot across the street from its headquarters that had been used by the union in the past for organizing. After renting the lot, the district notified the union that it could not use that lot. Union members were also required to sign a statement that they agreed not to enter school property during the strike.

Civic activities. When the union went on strike, the school district enforced its policies. As a consequence, use of the newly rented vacant lot was prohibited. Further, school district security personnel directed picketers to stay off district property. Striking employees were also prohibited from entering school grounds, even for reasons unrelated to picketing. After the strike ended, the union, one of its members and a student filed suit under 42 U.S.C. § 1983, alleging that the school district infringed on their First Amendment rights.

Prior to the strike, the school district’s policies officially encouraged parental visits and the use of school facilities for civic and recreational activities. School-sponsored events were permitted on school grounds without a permit.

Government speech. The primary argument presented by the school district was that its policies were a form of government speech. If the policies were government speech, then they would not be subject to the Free Speech Clause. On the other hand, if the policies were regulatory, restricting private speech on government property, then the Free Speech Clause would apply and the policies would be subject to a “forum analysis.”

In this instance, the Ninth Circuit found that the school district’s argument stretched the government speech doctrine beyond logical bounds. While the district was entitled to make its own position known, the doctrine did not give it leave to suppress speech by others.

Policies subject to the First Amendment. Here, the school district argued that its official position that it could not accede to the demands of the union was government speech. However, the appeals court observed that nobody contested the district’s ability to express its position. Rather, the issue was whether the school district could, through its policies, limit the ability of the union, teachers and students to express their views. The government speech doctrine would be relevant to those policies only if observers might reasonably have concluded that the district itself endorsed pro-strike positions which the plaintiffs sought to express.

The school district’s position would authorize any government to block expression of views on government property that did not match the government’s own favored position, out of fear that the government’s “resolve” might be questioned. Because the speech restricted by the district’s policies would have been recognized as speech by the striking teachers and their supporters, not the district’s own speech, it was subject to the First Amendment.

Forum analysis. Because the school district’s policies were restrictions on private speech, the First Amendment’s Free Speech Clause was implicated. While there was no doubt that the school district had a legitimate interest in keeping its schools open and in avoiding disruption of its mission to educate students that did not end the discussion. It has long been established that teachers and students have First Amendment rights.

As had the district court, the Ninth Circuit assumed that locations covered by the school district’s policies were non-public forum. The government has the greatest authority to restrict speech in a non-public forum. While speech in a non-public forum can be restricted, the restrictions must be (1) “reasonable” and (2) “not an effort to suppress expression merely because public officials oppose the speaker’s view.” The school district’s policies did not satisfy either requirement.

The school district did not submit evidence sufficient to justify its sweeping prohibitions. While it may have had a genuine concern for keeping schools open, a generalized fear of disruption was not enough. The district needed “reasonable ground to fear” that some disruption would occur. Here, such evidence was missing. Similarly, the appeals agreed with the district court that the policies were not viewpoint neutral. There was no issue of material fact as to the motivation behind the policies. They were enacted because of the impending strike and were rescinded after the strike ended. More than simply avoiding disruption from the strike, the district sought specifically to restrict pro-union speech.

Because the school district policies were neither reasonable nor viewpoint neutral, they failed the non-public forum test. As a result, the school district was properly held liable because implementation of its official policies inflicted constitutional injury.

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