The Volokh Conspiracy
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Public School May Hang "Black Lives Matter" Posters Without Displaying Other Viewpoints
The government gets to pick and choose which speech it displays on its property, and doesn't have to give others a right to reply (except in public fora, which don't include school walls).
From yesterday's decision in Cajune v. Indep. School Dist. 194, by Judge Jerry Blackwell (D. Minn.):
Following George Floyd's murder in May 2020, school administrators, staff, and teachers joined much of the country in finding ways to support their students, including Black students. For its part in those efforts, in April 2021, the school board for the Lakeville, Minnesota public school district vetted and authorized a multicultural poster series that included two posters with the phrase "Black Lives Matter."
Not everyone supported the decision. Believing the posters carried political messages, some parents and students objected to hanging "Black Lives Matter" posters without also displaying posters offering various other viewpoints. After the school board denied those requests, the objectors challenged the school board's action by filing this lawsuit, claiming First Amendment violations…. Because display of the posters constitutes government speech not subject to First Amendment challenge, the school board's motion is granted, and Plaintiffs' lawsuit is dismissed with prejudice.
I think that's correct: A school is entitled to decide what messages it wants to spread—whether about science, history, morality, or anything else—without having to spread contrary messages. (There's a narrow exception as to religious messages by a public school, because of the Establishment Clause, and some opinions have suggested that there might be an exception as to outright partisan election-related speech, e.g., "Vote Democrat," but these are indeed narrow exceptions to the general rule.)
The government generally can't discriminate based on viewpoint when it comes to nongovernmental speech on its property; see, for instance, the D.C. Circuit's recent Frederick Douglass Foundation v. D.C. opinion. But the government's own speech inevitably requires choosing which viewpoints to convey. And there's no First Amendment right of reply to government speech on the walls of a public school, or in other places that aren't public fora.
Here's how the court dealt with the plaintiffs' countarguments:
Plaintiffs contend that the specific history of the Inclusive Poster Series shows that the District "laundered the Black Lives Matter activists' personal political expression under the guise of so-called 'government speech.'" However, District school board meeting recordings—which are directly referenced, quoted, and embraced by the Amended Complaint—belie Plaintiffs' suspicions. The recordings show that the District reviewed, authorized, and provided the posters "to support staff in creating school communities where students are respected, valued, and welcome" and "to help our BIPOC students feel welcome in our classrooms." The specific history of the Inclusive Poster Series shows it was developed as a method for the District to communicate with its students….
Plaintiffs argue that the phrase "Black Lives Matter" is so intertwined with private political speech that it cannot be government speech.
Plaintiffs acknowledge that the two "Black Lives Matter" posters include the following statement: "At Lakeville Area Schools we believe Black Lives Matter and stand with the social justice movement the statement represents. This poster is aligned to School Board policy and an unwavering commitment to our Black students, staff[,] and community members." At oral argument, Plaintiffs' counsel also acknowledged that the school board chair made the following statement at the April 27, 2021 school board meeting: "Black Lives Matter on a couple of these posters affirms and acknowledges black students and black families in our communities…. We are addressing the need to improve our students' academic achievements."
Despite Plaintiffs' awareness of the District's stated intent to communicate support to its students through the posters, Plaintiffs nonetheless allege that hanging the posters was private political speech because "[t]o a reasonable member of the public, this means that [the District] supports the viewpoint that Black Lives Matter and its Marxist and Black separatist, supremacist, and racist ideology that is hostile to White people as well as demeaning to Black people."
Even assuming the posters are political, Plaintiffs offer no authority supporting a "political speech" exception to the government speech doctrine. Such an exception would be absurd because it would discourage elected officials and government figures from taking positions on political issues—which is the very reason for their election and appointment…. "When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says…. Were the Free Speech Clause interpreted otherwise, government would not work." … "If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed." …
The contested "Black Lives Matter" posters bear the District logo, slogan, website link, and an explicit statement that the District stands by the message. When displayed in District schools' hallways and classrooms, the public would likely and reasonably perceive the posters to be a message from the District to its students, and not a message from unidentified political actors.
Plaintiffs' conclusory allegations that the District did not create the posters are of little consequence. Just as the Texas Department of Motor Vehicles did not design the applied—for specialty license plates in Walker, and Pleasant Grove City did not create the donated monuments in Summum, the District could have simply adopted the posters without alteration, and still the posters would be considered the District's speech.
The Court is also not persuaded by Plaintiffs' argument that the District ceded control over the posters by allowing teachers to choose which posters, if any, to hang in their classrooms. Offering teachers their choice of which posters to display (or not display) does not change the fact that the District first shaped the posters' design, content, and message, and exercised final approval authority….
The court also responded to some of plaintiffs' arguments by concluding,
It is neither reasonable nor likely that the public would perceive the posters to be a reference to what Plaintiffs call a "neo-Marxist," "Black separatist, supremacist, and racist ideology" that "identifies Black Americans as part of the global Black family and seeks to disrupt the Western-prescribed nuclear family structure," especially when Plaintiffs' own attorney could not explain at oral argument what those phrases mean.
But that wouldn't matter from a First Amendment perspective, it seems to me, since the government is free to express that ideology as it is to express other contested ideologies.
Trevor S. Helmers & Zachary J. Cronen (Rupp, Anderson, Squires & Waldspurger) represent defendants. Thanks to Cory D. Olson for the pointer.
