Federal appeals panel: School district’s bulletin boards not free-speech zones

Wednesday, September 13, 2000

A California public high school teacher does not have a First
Amendment right to post messages criticizing district policies on school
bulletin boards, a federal appeals court panel has ruled.

The Los Angeles Unified School District in 1997 adopted a policy to
designate the month of June each year as Gay and Lesbian Awareness Month. The
school put up posters titled “The Civil Rights Movement,” “Diversity is
Beautiful,” “The Rainbow Flag” and other materials supportive of the

Stephen Downs, a teacher at Doris S. Leichman High School in the
district, responded by creating his own bulletin board titled “Testing
Tolerance.” Downs posted material questioning the school district’s policy on
the issue, including the Bible verses:

“Do not lie with a man as one lies with a woman; that is detestable.
Do not have sexual relations with an animal and defile yourself with it. A
woman must not present herself to an animal to have sexual relations with it;
that is a perversion. Do not defile yourselves in any of these ways because
this is how the nations that I am going to drive out before you become
defiled.” Leviticus 18:22-24.

Other members of the school faculty and staff complained that Downs’
material was “offensive” and “disrespectful.”

Downs sued the school district in November 1998 after school officials
removed the bulletin-board materials he had posted.

In July 1999, a federal district court granted summary judgment to the
school, ruling that the school’s policy on “tolerance” was reasonably related
to a legitimate educational concern, a standard derived from the U.S. Supreme
Court’s 1988 decision in Hazelwood School District
v. Kuhlmeier

On appeal, a three-judge panel of the 9th U.S. Circuit Court of
Appeals also ruled in favor of the school district in
Downs v. Los Angeles Unified School
— but for different reasons.

The panel reasoned that Downs’ lawsuit is “not controlled by Hazelwood
because it is a case of the government itself speaking, whether the government
is characterized as Leichman High, LAUSD, or the school board.”

According to the panel, the Hazelwood standard applies when a public school
sponsors student expression. However, Downs’ case “is clearly distinguishable
from cases involving student-written articles in a school-sponsored

The panel determined that Downs’ case involved government speech and
that the school district did not have to allow messages contrary to the
government’s viewpoint. “Simply because the government opens its mouth to speak
does not give every outside individual or group a First Amendment right to play
ventriloquist,” the panel wrote in its Sept. 7 opinion.

The panel concluded: “We hold that when the school district speaks
through bulletin boards that are not ‘free speech zones,’ but instead are
vehicles for conveying a message from the school district, the school district
may formulate that message without the constraint of viewpoint neutrality.”

Nicole Meyers, an attorney with the Orlando, Fla.-based American
Liberties Institute which represented Downs, said the decision would be
appealed before the full 9th Circuit.

“The decision is contrary to established law in the 9th Circuit which
supports the principle that public school officials must act in a
viewpoint-neutral manner when dealing with speech,” she said.

“One of our main concerns is that part of the school district’s
original policy on Gay and Lesbian Awareness Month was to allow other
viewpoints,” she said. “However, when they received opposing viewpoints from
Downs, they ripped up his posters and prohibited him from advocating his

However, Mary Kay Jackson, staff counsel for the school district said:
“Downs’ speech didn’t go along with the district’s curriculum of tolerance.
This was not an open forum, but it was simply the school’s curriculum. Teachers
have free-speech rights but this is an issue of the district implementing its
policy and curriculum,” she said.

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