The Volokh Conspiracy

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Free Speech

Court: Students Can Have Statement Opposing Michigan Pro-Abortion-Rights Ballot Measure Read Over P/A System …

when the school generally allows other non-election-related but still political statements to be read, and is allowing an election-related pro-abortion-rights student walkout.


In Nielsen v. Ann Arbor Public Schools, handed down yesterday by Judge Paul Borman (E.D. Mich.) (the decision itself had been announced Friday), the Skyline High School student Republican park (represented by student S.N.) sought to have an announcement read over the school's public address system, "which also announces proposals from other student groups" (the Complaint had cited many such past announcements, including on controversial political issues):

Attention Students

Are you interested in joining our efforts to protect the health of women and children by joining us in our fight to defeat Proposal 3?

If proposal 3 is passed it would eliminate health and safety regulations, legalize late term and partial birth abortion, no longer require physicians to perform abortions, and eliminate informed consent laws.

If so, email us at ….

The school said no, citing a school district policy:

The Superintendent shall notify any political parties, organizations, and/or candidates that they are expressly prohibited from promoting political activities and/or individuals on school property during school hours.

A secretary at the school allegedly also told S.N. that "he is 'the one who controls the announcements' and that the announcement was rejected due to being 'political' and that the proposed announcement was 'subjective.'" The principal agreed, "stating that 'on the advice of counsel,' the announcement was not allowed 'due to campaign finance law.'" In its court papers, the school also said that it had refused to run an announcement from the National Organization of Women Club that stated "Considering that Roe v. Wade was recently overturned, the elections coming up on November 8th are very important," because "the reference to Roe v. Wade was a nod to the current ballot initiative"; the announcement was modified to remove the "Considering that Roe v. Wade was recently overturned" clause.

Plaintiffs sued, claiming the exclusion of their announcement violated their First Amendment rights to speak within the school's announcement program, and violated the Equal Access Act, which provides:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings….

A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time….

The term "meeting" includes those activities of student groups which are permitted under a school's limited open forum and are not directly related to the school curriculum.

Prince v. Jacoby (9th Cir. 2002) concluded that the Act applies to access to public address systems, even though that's not literally a "meeting," though Herdahl v. Pontotoc County School Dist. (N.D. Miss. 1996) concluded otherwise.

At a court hearing on November 4,

counsel for Defendants provided to the Court an Affidavit of Defendant Jefferson Bilsborrow, which attached an hours-earlier Friday, November 4th memorandum from Defendant Cory McElmeel, Principal of Skyline High School, to Skyline staff acknowledging that the school would be facilitating a student class walk-out and an onsite demonstration at 9 a.m. Monday, November 7, 2022 in response to Roe v. Wade that is organized in part by students "from our QRSA."

In materials submitted for that hearing, Plaintiff also alleged that school "[o]fficials and employees have organized [the walkout] with NOW," and that "[d]igital flyers have been shared over email and throughout the school day"; and at the hearing, Plaintiffs agreed to remove "by joining us in our fight to defeat Proposal 3" from the proposal, so it would state:

Attention Students

Are you interested in joining our efforts to protect the health of women and children?

If proposal 3 is passed it would eliminate health and safety regulations, legalize late term and partial birth abortion, no longer require physicians to perform abortions, and eliminate informed consent laws.

If so, email us at ….

But defendants wouldn't go along with this.

The court held that the plaintiffs were likely to succeed on their First Amendment and Equal Access Act claims:

Significantly, Defendants were aware of the planned walkout from classes, by students, in support of the Skyline High School NOW student organization calling for a "Yes" vote on Proposal 3, that is scheduled to take place on school property and during school hours today, Monday, November 7th….

The Court finds that Defendants seek to silence Plaintiffs' appropriate First Amendment speech as to Michigan Proposal 3, and violate the Equal Access Act by refusing to broadcast Defendants' modified announcement with their morning announcements, while permitting—indeed facilitating—its students to walkout from classes and join a demonstration in favor of Proposal 3 at the main entrance to Skyline High School.

[S]chool facilities may be deemed to be public forums only if school authorities have "by policy or by practice" opened those facilities "for indiscriminate use by the general public," or by some segment of the public, such as student organizations. Hazelwood School Dist. v. Kuhlmeier (1988). That is exactly what has occurred in the instant case. Skyline High School has opened the school for student organization participation. Defendant has rejected Plaintiffs' request to participate as a student organization. Yet Defendant has facilitated another student organization's request to open the school property for a political rally to promote the vote "For" Proposal 3….

The court ordered "Defendants to post the Plaintiffs' modified announcement on the Skyline High School's morning announcements today, Monday, November 7, 2022, or Tuesday, November 8, 2022, prior to noon …."

My thoughts:

  1. Generally speaking, a school doesn't have to open up its public announcement system to any club announcements.
  2. If it does open them up, it generally has to be viewpoint-neutral in its policies—but excluding electioneering, which is to say urging people to vote a particular way, wouldn't violate the First Amendment.
  3. It's not clear to me that the school's allowing the election-related student walkout, or even helping organize it (if it did so), should affect the school's ability to exclude electioneering from the separate public announcement program. Perhaps it should just require the school to equally allow walkouts supporting other viewpoints. But the court here did seem to view the toleration of the walkout and the public announcement policy as connected (maybe based on something that had come up orally at the November 4 hearing).
  4. The Equal Access Act, though, requires more than just viewpoint-neutrality: It forbids discrimination based on, among other things, the "political" content of "meetings" (which, as I noted, some courts had read as extending to speech over public announcement systems, and not just physical meetings). And perhaps exclusion of election-related speech, even as to all sides of the election, might be seen as qualifying as "deny[ing] equal access or a fair opportunity to, or discriminat[ing] against, [speech] … on the basis of the … political … content of the speech ….

Congratulations to Richard Thompson and Erin Mersino of the Thomas More Law Center, who represent the plaintiffs, and thanks to Prof. Howard Friedman (Religion Clause) for the pointer.