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Appeals Courts Grapple With Issue of Access to Public Schools

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Two federal appeals courts have handed down rulings in an unsettled area of law that is of growing concern to school administrators: the rights of students and teachers to use school facilities to express religious and political views.

In the first ruling of its kind, a panel of the U.S. Court of Appeals for the Third Circuit has held that the Congress intended to give high-school students the right to file lawsuits--a so-called private right of action--under the Equal Access Act of 1984 in order to force school officials to let them hold meetings on school grounds.

The Third Circuit judges, in a Nov. 7 ruling in Student Coalition for Peace v. Lower Merion (Pa.) School District Board of Directors, also held that the law applies to student-initiated groups involving nonstudents, provided that the nonstudents neither control nor regularly attend the groups' activities.

In the second case, a panel of the U.S. Court of Appeals for the Fifth Circuit upheld a Texas school district's rule that prohibits a teachers' union from holding meetings and recruiting members on school grounds during the school day and denies the group access to teachers' mailboxes and school bulletin boards.

But, added the Fifth Circuit panel in its Dec. 6 decision in Texas State Teachers Association v. Garland Independent School District, the school system cannot use the same rule to bar individual teachers from simply mentioning union affairs to one another during school hours or from leaving notes about union matters in one another's mailboxes.

Access to 'Public Forums'

Both cases decided by the appeals-court panels confront the same core question: Do student and teacher 4groups have constitutional or statutory rights of access to school property because the schools involved created "public forums" by granting such access to other groups?

The U.S. Supreme Court addressed the issue as it relates to teachers' unions in 1983 in Perry Education Association v. Perry Local Educators' Association. In that case, the Court upheld a labor contract that gave one teachers' union access to a school district's interschool mail system while denying such access to a rival union. School mail facilities, the Court said, represent a "limited open forum," access to which can be regulated by local school boards.

This spring, the Court is expected to rule on the issue of student groups' access to school property in Bender v. Williamsport Area School District. In Bender--in which the Justices heard oral arguments last October--the Court has agreed to decide whether members of a student-initiated prayer group were denied religious freedom when school officials refused to let them meet in school facilities.

The Bender and Student Coalition for Peace cases were both decided by the Third Circuit court, but by different three-judge panels. In both cases, the judges ruled that the school officials' decisions not to grant the groups access to school property violated the students' First Amendment rights to freedom of speech. Both panels ruled that the school administrators had created limited open forums by permitting other student groups to meet on school grounds.

In Bender, however, the appeals court ruled that even though the Williamsport students' free-speech rights were violated, the school had to bar them from meeting on school grounds because to do otherwise would violate the First Amend8ment's prohibition against government establishment of religion.

Peace Fair

The Student Coalition for Peace case began in early 1983 when the group--which includes a significant number of nonstudents--was denied permission by the principal of suburban Philadelphia's Lower Merion High School to use an athletic field for a peace fair. The principal based his decision on a school-district regulation that permits nonschool groups to use school property "for appropriate purposes," provided that the activity does not interfere with the school's educational program.

The peace group filed suit in federal district court, arguing that its members' rights to freedom of speech and association under the First and 14th Amendments had been violated. In September 1984, the district court ruled against the group, holding that the athletic field in question was not a public fourm.

The organization then asked for, and was denied, permission to amend its complaint to allege a violation of the federal Equal Access Act, which had been signed by President Reagan a month earlier. On appeal, the Third Circuit court sent the case back to the district court, instructing it to decide whether the new federal law had been violated.

Union Activities

The union case was brought against the Garland Independent School District by the Texas State Teachers Association and the Garland Education Association, both affiliates of the National Education Association.

The suit challenged the constitutionality of a school-board policy that prohibits all "employee organizations" from recruiting and meeting on school grounds during the school day. According to evidence entered in the case, the policy also prohibits the use of teachers' mailboxes for the dissemination of union-related information and can be interpreted as prohibiting teachers from privately discussing union matters in school during school hours.

In its decision, the Fifth Circuit panel held that tsta representatives had no constitutionally guaranteed right of access to the Garland schools and to teachers' mailboxes, because district officials had never taken actions that converted the school facilities into public forums. The appeals-court judges also ruled that the district's regulation had a legitimate and rational purpose--that of maximizing instructional time by limiting interruptions during the school day.

The court also ruled, however, that the district could not use the rule to prohibit teachers from discussing union business during nonclass hours. The district, according to the ruling, had not demonstrated that such conversations would result in substantial interference with the schools' educational mission. The judges followed the same rationale in overturning the part of the regulation that prohibited teachers from leaving union-related information in one another's mailboxes.

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