Circuit Blasts School District for Free-Speech Violations

(CN) – A rural Oregon school district violated the Constitution when it banned striking teachers from school grounds along with students who publicly supported the strike, the Ninth Circuit ruled Friday.

In early 2012, the Jackson County School District knew the teachers’ union was about to strike. So on May 2 of that year, it adopted a policy to prohibit picketing on school grounds and bar strikers from school property “for any reason whatsoever.” The policy included all land owned or leased by the district – including a vacant lot across the street from district headquarters that was the union’s usual organizing place.

Another new resolution prohibited striking teachers from visiting their kids if they were students at that school on any day when the teachers also participated in the picket line. And a third barred all signs and banners from any property owned or leased by the district, unless previously approved by the superintendent.

The strike lasted nine days. Teachers returned to work, the district and the union reached an agreement and the district rescinded its rules against striking.

But the union still sued, along with a high school senior who said a security guard kicked her off school grounds for displaying a sign in the back window of her car that declared her support of striking teachers.

The federal court in Medford found in favor of the union, agreeing that the district’s policy infringed on its First Amendment right to free speech and the Oregon Constitution. It awarded a $100 judgment, plus $150,000 in attorney fees and costs.

But the school district appealed, arguing that its policy should be viewed as government speech.

The Ninth Circuit on Friday called that argument a “fundamental misunderstanding” of the government speech doctrine, which does not allow the government to suppress contrary views. Even if they were allowed to strike on district property, the court ruled, no reasonable observer would mistake the views of those on the picket line for views held by the district. Therefore, the union’s speech could not be regulated as government speech.

“The district’s argument stretches the government speech doctrine beyond logical bounds,” U.S. Circuit Judge Richard R. Clifton wrote in the panel’s 22-page opinion. “The district was entitled to make its own position known, and it did, but the doctrine did not give the district leave to suppress speech by others.”

If allowed to stand, the district’s claim would effectively squelch any opposition to government positions on government property, Clifton said.

“The district’s position would authorize any government to block the expression of views on government property that did not match the government’s own favored position,” Clifton wrote. “The government speech doctrine has not so swallowed the First Amendment.”

U.S. Circuit Judges Susan P. Graber and Richard A. Paez joined the ruling.


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