School boards often have programs allowing private businesses or organizations to hang banners on school property in return for donations to support school activities. The banners are a way of saying “thank you” to these businesses and organizations for their financial support. These banner programs raise a host of liability issues for school boards under the First Amendment – depending upon whether the banners are considered “private speech” or “government speech.”
If a court decides that the banners are “private speech,” the business or organization has a constitutional First Amendment right to freedom of speech in its banners, even though the banners are placed on school district property. On the other hand, if a court decides that the banners are “government speech,” the banner is not entitled to free-speech protection, but the banner could violate the Establishment Clause as an unconstitutional “endorsement of religion” if the banner is religious in nature.
The Eleventh Circuit Court of Appeals recently held that the Palm Beach County School Board could lawfully remove a business’s commercial banner from its school’s fences because the banners constituted “government speech,” not “private speech.” In Mech v. School Board of Palm Beach County, a local business called “The Happy/Fun Math Tutor” made a donation and placed banners on the fences of three schools in Palm Beach County. However, the School Board later learned that the owner of “The Happy/Fun Math Tutor” was a retired porn star (having performed in hundreds of pornographic films) and that he also owned a film production company that had formerly produced pornography. When several parents complained, the School Board removed the banners.
The owner of “The Happy/Fun Math Tutor” sued the School Board for violation of his First Amendment rights of free speech. The Court ruled in favor of the School Board, holding that the banners were “government speech,” and not “private speech.” Thus, the banners were not entitled to any free-speech protection under the First Amendment.
Significantly, the Court concluded that the banners were “government speech” because the School Board’s banner program policy gave the School Board substantial control over the content of the messages on the banners, such that a reasonable observer would believe that the School Board had endorsed the message on the banners. The Court reached this conclusion based on the following circumstances:
- the banners were hung on school fences
- the banners were subject to uniform design requirements imposed by the schools
- the banners had to include the initials of the school where the banner was hung
- the banners had to be printed in the school colors
- the banners had to identify the organization/business as a “Partner in Excellence” with
the particular school - the banners had to be approved by the school principal before they could be hung on the school’s fences and
- the banners were not purely private advertising
The teaching of Mech v. School Board of Palm Beach County is that School Boards and District administrators must exercise caution when allowing private businesses and organizations to place banners on school property. Enactment of policies like those in Palm Beach County – which give the School District substantial control over the design and content of the banners – will help to avoid liability exposure for First Amendment free-speech claims. A copy of the Palm Beach County School Board’s policy 7.151 may be found at: http://www.boarddocs.com/fl/palmbeach/Board.nsf/goto?open&id=9R8NDB5AD0A1#.
For more information on this case and other education law related matters, please contact James Dean at [email protected]