DUFF, WHITE & TURNER, L.L.C.

Attorneys and Counselors at Law

SCHOOL LAW
August 2008

APPEALS COURT UPHOLDS LEXINGTON ONE RULING

AND CLEARS WAY FOR ADVOCACY EFFORTS

In a case of significance for school board and district advocacy efforts, the federal appeals court covering South Carolina and four other southern states has issued a decision upholding a lower court ruling in favor of Lexington County School District One (District). On July 21, 2008, the Fourth Circuit Court of Appeals, sitting in Richmond, finalized its consideration of the appeal of the plaintiff in Page v. Lexington County School District One , rejecting once and for all the argument that Page should be allowed to use the District's website and other communication channels to disseminate his "pro-voucher" message. The appellate court agreed with the trial court that the District did not violate Page's First Amendment right to speak when it used its website and other communication mechanisms to convey to the school community and the public its message of opposition to a voucher bill pending in the General Assembly, but denied Page "equal access" to those same channels to communicate his contrary views on the bill. The court held that the District had engaged in "government speech" and that it had not created a forum through which it would be required to air opposing views.

The plaintiff in the case, Randall S. Page, is the executive director of South Carolinians for Responsible Government (SCRG), an organization dedicated to the passage of voucher legislation and support of pro-voucher political candidates. In December 2004, the District Board of Trustees passed a resolution expressing opposition to passage of the Put Parents in Charge Act, a voucher bill pending in the Legislature, and urging members of the General Assembly to vote against the bill. Following adoption of the resolution, the Superintendent and the District's Director of School/Community Relations communicated the Board's position to staff and students, the school community, and the public at large in the "current issues" page of the District's website, its e-mail system, school newsletters, and other channels of communication. In some instances, the District, in communicating its message of opposition, linked to or incorporated third-party websites or materials that conveyed the same message. Mr. Page sought to have his views aired through these same communication channels, but the District denied his request. Mr. Page then brought suit, taking the position that the District had created a forum by which it had invited third parties to express views opposing the voucher bill, and that he and his pro voucher views could not be excluded. Mr. Page asserted that under the First Amendment the District had engaged in viewpoint-based discrimination.

The court held that the District had not created a forum for debate on the issue because it had engaged in "government speech." Under the government speech doctrine, the government, in this case a public school district, is permitted to take a position on a matter related to its mission, even a controversial issue, and to communicate that position to the public and legislators, without "sharing the stage" with those who hold opposing views. Furthermore, the government can speak through or jointly with non-governmental parties who share the government's view. The rationale for government speech and the exclusion of opposing views is that the government should be able to maintain the integrity of its message and not have it garbled by inclusion of contrary messages. The justification for government speech is the availability of the "ballot box" remedy -- if the public disagrees with the government's position, it can vote the officials who adopted the position out of office.

The court stated that the question of whether speech is government speech depends on the government's ownership and control of the message. It identified two factors for determining message ownership and control: (1) the government's establishment of the message, and (2) its effective control over the content and dissemination of the message. In this case, the court found that the Board itself had established the message in an official manner by formally adopting a resolution. The court also found that the District maintained sufficient control over the message and its channels of communication to claim government speech protection. The most interesting aspect of the court's discussion of the control-of-message issue was its analysis of the website links to active sites of other organizations, like the anti-voucher group Choose Children First. The court concluded that at the time the District set up the links to other sites, it knew that the message conveyed by those sites was consistent with the District's message and, if the message is changed, the District can take down the link.

The lesson to be learned from the Page decision is that school districts and boards need not be reluctant to vigorously engage in advocacy efforts concerning issues that are vital to the existence and viability of public education. Government speech is important because it informs the public andlaw makers how the governmental body feels about an issue. A school district should establish its message whenever possible by official action of the governing body or at least by its superintendent. Others in the district can be in charge of communicating the message, but care should be taken to "stay on message," particularly if the district speaks through or jointly with third parties. The district's website may be used to communicate the message, even by creating hyperlinks to the sites of other groups with consistent messages; however, some level of monitoring of those third-party sites should occur so that adequate control of the message is maintained. If it is determined that the message of a third-party's site changes, the link should be removed.

Page is an outstanding decision for school districts from the standpoint of the legal issues involved, and it offers important practical guidance as districts advocate in favor of public schools in an era when public education is constantly under attack. Should you have questions about school district advocacy efforts, or the appropriate policies and procedures for implementing advocacy efforts, please feel free to contact this firm.