The Volokh Conspiracy
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School Board Member's Objection to No-Indigenous-School-Team-Logos Claim Can Proceed
as a First Amendment claim, though only as to his own right to wear "Wantagh Warriors"-related gear at games and school functions.
From Wantagh Union Free School Dist. v. N.Y. State Bd. of Regents, decided Thursday by Second Circuit Judges John Walker, Michael Park, and Eunice Lee:
Plaintiffs-Appellants Wantagh Union Free School District, the Wantagh Union Free School District Board of Education, and Board member Anthony Greco appeal from the district court's April 28, 2025 judgment dismissing their challenge to Part 123 of the Regulations of the New York Commissioner of Education. Part 123 regulates the use of Indigenous names, logos, and mascots in New York public schools. Section 123.2 prohibits public schools from using or displaying such names, logos, or mascots "other than for purposes of classroom instruction." Section 123.5 requires schools to bar their officers and employees from "utilizing or promoting" them while on school property or at a school function.
The District's middle and high school sports teams have competed as the "Wantagh Warriors," using a logo of a Native American man in a headdress. To comply with Part 123, Wantagh planned to retire the logo but keep the "Warriors" name. The New York State Education Department rejected that plan, and this suit followed….
The court concluded that plaintiffs had no power to sue the state in their official capacities:
"New York follows the traditional capacity-to-sue rule, which states that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation." There are "four limited exceptions" to this general rule, including when "compliance with the statute would force the municipal challengers to violate a constitutional proscription."
The district court properly dismissed the claims of the District, the Board, and Greco in his official capacity (the "Municipal Plaintiffs") for lack of capacity. The Municipal Plaintiffs allege that enforcing § 123.5 against their employees and officers "creates an unnecessary risk of chilling [their] speech and expression." But a mere "risk" of chilling speech does not amount to a compelled constitutional violation for purposes of New York's capacity-to-sue rule. Further, the Municipal Plaintiffs cannot show that "every conceivable application" of § 123.5 compels a constitutional violation.
But it allowed Greco had standing to sue in his personal capacity:
Greco has standing to challenge § 123.5 and the sections supplying its definitions (§ 123.1) and exceptions (§ 123.4). His alleged injury is that he is "prohibited from wearing Warriors apparel" while attending games and school functions ….
First, expressive conduct, including the choice of what to wear, may warrant First Amendment protection in some settings. Here, Greco has alleged sufficient facts to support that wearing Warriors apparel is a course of conduct "arguably affected with a constitutional interest." Greco need not show that he "will win on the merits of [his] constitutional claims" at this stage.
Second, wearing Warriors apparel to school events is arguably proscribed by § 123.5, which bars officers and employees from "utilizing or promoting" Indigenous logos. Third, the threat of enforcement is sufficiently imminent where the Board of Regents has explicitly opposed using the Warriors name: a plaintiff challenging a regulation that proscribes certain conduct need not show an "intent by the government to enforce" the regulation against him.
Greco's … claim, however, does not extend his standing to challenge §§ 123.2 or 123.3. Those sections regulate school districts, not board members….
On the merits, the court rejected Greco's vagueness claim, but allowed his free speech claim to go forward:
The district court dismissed Greco's free speech claim, concluding that the amended complaint failed to allege speech on a matter of public concern, as Pickering requires. See Pickering v. Bd. of Educ. (1968). Greco challenges that ruling on two grounds: that the Pickering framework does not govern this case at all because it "does not involve … an employer-employee relationship," and that, even if it does, he adequately alleged speech on a matter of public concern.
First, Greco's status as a volunteer, elected official raises a threshold question about the reach of Pickering. Generally, the government is "severely restricted by the First Amendment from placing restraints on speech." "But when government acts as an employer, the constraints of the First Amendment are less severe," because public employers need "control over their employees' words and actions to ensure the efficient provision of public services." Thus, "[i]n order to bring a First Amendment violation claim, a public employee must first establish that the employee spoke 'as a citizen on a matter of public concern.'"
Greco, however, is an elected member of the Wantagh Board of Education. We remand for the district court to consider in the first instance whether the Pickering framework applies to Greco as a volunteer, elected school board official.
Second, the district court erred by failing to account for the context of Greco's speech. Whether speech is on "a matter of public concern" is a question of law "to be answered by the court after examining the content, form, and context of a given statement, as revealed by the whole record." Speech qualifies when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," or when it is a subject of legitimate news interest. A court may also weigh the speaker's motive and "the forum and manner in which an employee makes a statement." …
[T]he amended complaint frames this litigation as a "fight to keep the 'Warriors' name"—one that "73.7% of the community members … surveyed indicated the district should" pursue. And it alleges that Greco wears Warriors apparel to "support not only student athletes, but the school community as a whole." These allegations of expressing support for the Warriors, in the context of the ban imposed by Part 123.5 and in light of Greco's involvement in this litigation, suffice to encompass opposition to Part 123.5 as a message….
