Instrument Supplier Has No Right to Attend School Band Forum, Court Rules

By Mark Walsh — January 17, 2019 2 min read

In a decision stemming from the apparently cutthroat world of supplying band instruments to public schools, a federal appeals court has ruled that a vendor has no First Amendment right to be included in a school district’s “Band Night,” when parents and students gather to learn about music opportunities and to buy or rent instruments from the district’s designated provider.

“At issue here is whether school districts can influence commercial transactions between students and parents and a private vendor by creating an exclusive forum for a preferred vendor and excluding non-preferred vendors from access to that forum,” says the opinion by a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

Court papers say West Michigan Band Instruments LLC, a family-owned supplier with many school district clients, participated in the past in the Band Night of the Coopersville Area Public Schools, a 2,600-student district that offers a variety of music opportunities, such as marching band, concert band, jazz band, and pep band.

In the spring of 2017, the district issued an invitation to bid to vendors to become instrument-repair vendor and to become the exclusive vendor at Band Night. West Michigan Band Instruments submitted a bid, but also sent a letter objecting to the exclusive-vendor policy on legal grounds.

The district didn’t budge, and selected a competitor, Meyer Music, as the exclusive vendor. (It isn’t clear from court papers whether families with students participating in band must rent or purchase from the authorized vendor, or whether they can buy or rent from other vendors or otherwise supply their own instruments.)

West Michigan Band Instruments sued, alleging that the Coopersville district engaged in unconstitutional First Amendment viewpoint discrimination by permitting only Meyer Music as the Band Night vendor.

The losing vendor claimed that the district was discriminating in the area of commercial speech and was applying a “paternalistic government policy” designed to steer the public toward its preferred vendor by restricting the free flow of commercial information and the ability of band students and parents to make informed decisions about where to purchase or rent their instruments.

In its Jan. 16 decision in West Michigan Band Instruments LLC v. Coopersville Area Public Schools, the 6th Circuit panel concluded that the losing vendor was not really expressing any viewpoint that the school district discriminated against. Also, the business “fails to distinguish [the district’s] preferred-vendor policy from other acceptable governmental contracts.”

These include services or products purchased directly by schools, such as textbooks, buses, school security services, or office supplies, the court said. It also includes situations in which schools facilitate relationships between families and vendors, such as with student photos, class rings, sports gear, and school uniforms.

The district “is acting as a facilitator, providing one instrument company exclusive access in a limited time and space to potential non- governmental customers, i.e., students and parents who purchase or rent instruments,” the court said.

“We hold that [West Michigan Band Instruments] is a vendor who was excluded from a school forum, not because of its viewpoint, but because of its status as a non-preferred vendor who lost to Meyer Music in the bidding process,” the court added. “This type of ‘discrimination’ occurs every time a governmental entity chooses a private company after a competitive bidding process.”

A version of this news article first appeared in The School Law Blog.

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