See You In Court - September 2024

Members of the Nutmeg Board of Education have been concerned that the upcoming national election will cause distraction and disruption in the Nutmeg Public Schools.  Veteran Board member Bob Bombast has been so concerned that, under New Business at the Board’s August meeting, he proposed that the Board adopt the following policy:

No member of the Nutmeg school community shall engage in political activity when on the property of the Nutmeg Public Schools.  Accordingly, the Board prohibits employees and students from displaying any messages conveying support for any political candidate for state or federal office.  This prohibition extends to buttons, hats, T-shirts or other apparel, and to messages on personal vehicles, including but not limited to bumper stickers or signs.

As soon as Bob stopped talking, fellow Board member Mal Content expressed outrage that Bob would suggest a policy that would, in his words, “trample the First Amendment rights of staff and students.”  Other Board members joined the discussion, and a lively debate ensued.  Finally, Mr. Chairperson cut off the discussion, stating that Bob should refer his proposed policy to the Policy Committee, which is chaired by Penny Pincher.

“But I am not a member of the Policy Committee!” Bob protested.

“With good reason,” Mr. Board Chairperson responded.  “But you can certainly attend the meeting of the Policy Committee and pitch your policy there.  Let’s move on.”

As expected, Bob attended the next meeting of the Policy Committee, as did Mal Content, who, though also not a member of the Policy Committee, wanted to voice his opposition to the proposed policy.  All told, four of the five members of the Nutmeg Board of Education attended the meeting.

Penny Pincher opened the meeting by welcoming Bob and inviting him to present his proposed policy.  Bob thanked Penny and launched into a prepared speech about how the Board needs to keep politics out of the Nutmeg Public Schools, and he renewed his call that the Board should approve his policy.  As soon as Bob finished, Mal jumped in.  “This policy is an embarrassment.  Bumper stickers?  Really?  We are going to monitor the parking lot and police bumper stickers?  Give me a break!”

Penny nodded in agreement, stating that Mal makes a good point. However, Bob pushed back, stating that half measures will not do.  “The parking lot is school property!  We either keep politics out of our schools or we don’t!” 

After further discussion, Penny proposed a compromise.  “Let’s do this.  I move that we recommend Bob’s policy with one change.  We need to delete the prohibition against political messages on personal vehicles.  

Mal immediately raised his hand and was recognized.  “I move that the Committee approve the proposed policy without the reference to personal vehicles.”  Penny seconded the motion, and after further discussion that included Bob’s objection to revising the policy, Penny called for a vote.  Penny, Red Cent and Mal voted in favor, and Bob voted in the negative.  Penny announced that the motion passed, and she informed the Committee members that she would forward the revised policy with Committee’s recommendation to the full Board.

Is this policy legal?  Did the Committee do its work appropriately?

*          *          *

The policy proposed by Bob raises significant issues under the First Amendment, and the actions of the Nutmeg Board raise FOIA issues as well.

Reasonable restrictions as to time, place and manner of speech are permissible under the First Amendment.  However, such restrictions must be “narrowly tailored,” i.e., the restrictions must not impinge on free speech more than necessary to achieve an important government goal.  Accordingly, the policy proposed by Bob would violate the First Amendment because it is overly broad in its blanket prohibition of political activity. 

As one considers the scope of free speech rights in the school setting, we note that the rules that govern such rights are different for employees and for students.

Public employees have free speech rights as first enunciated by the United States Supreme Court in 1968 and as elaborated in 1983 in Connick v. Myers.  First, we must ask whether the speech relates to a matter of public concern.  If it does not it, the speech is not protected by the First Amendment.  If it does, then we must balance the importance of the speech against the disruptive impact of the speech, if any, on governmental operations.  However, the First Amendment does not apply to speech of public employees that is “pursuant to duty,” i.e., speech to fulfill job responsibilities.  Garcetti v. Ceballos (2006).

Applying these principles to teachers and other school employees, board policies or administrative rules can prohibit teachers from expressing support for political candidates when teaching, as well as the wearing of campaign buttons in school or the display of political signs in classrooms.  Any such prohibition, however, must be uniformly enforced; restrictions based on political viewpoint would violate the First Amendment.  In any event, prohibiting bumper stickers on teachers’ cars at school cuts too broadly because such bumper stickers are common, and they would not cause any disruption to justify interfering with such speech. 

The rules governing student speech are different, and students have greater rights to engage in political speech in the school setting.  In Tinker v. Des Moines Independent Community School District (1969), the United States Supreme Court held that students have free speech rights in school, subject to regulation only if school administrators reasonably forecast substantial disruption of the educational process, material interference with school activities, or the invasion of the rights of others.  

Applying these principles to student political speech, it is clear that students may wear campaign buttons or T-shirts with political messages because they would not be disruptive in almost all cases.  Accordingly, a policy applying a blanket prohibition on such student political speech is not permitted.  Under Tinker, such restrictions would be permitted only in unique cases when such speech is seriously disruptive of the educational process.

The actions of the Nutmeg Board also raise at least two FOIA concerns.  First, the topic of regulating political speech was not on the agenda for the Board meeting, and it was therefore not proper for the Board to engage in an extended discussion of that topic under “New Business.”  The FOIA requires that the agenda for public agencies fairly apprise the public of the business to be transacted, and the agenda item “New Business” did not inform the public that the Board would be discussing Bob Bombast’s proposal for a new Board policy.

Second, the Policy Committee let its meeting morph into a meeting of the full Board, which meeting was not posted.  To be sure, it is fine for a quorum of a board of education to attend a properly-posted committee meeting.  Conn. Gen. Stat. § 1-200(2) provides:

A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.

The problem was not that a quorum of the Nutmeg Board attended the meeting of the Policy Committee, but rather that a quorum of the Board actively participated in the meeting.