Every school year presents challenges — some long standing, some new — which is why Kirk Strang spoke extensively about Wisconsin’s school-year challenges at this year’s CESA 11 Legal Summit.
In this four-part series, we’ll share what Kirk had to say about challenges associated with:
- Part 1: School Board Meetings
- Part 2: Public Access to School Grounds
- Part 3: Gender Identity
- Part 4: Curriculum & Library Materials
Today, in part 2 of the series, we’ll be focusing on public access to school grounds …
Government Property, Public School Districts & the First Amendment
AKA: The law, best practices and “tidbits” on how to handle public access to school grounds.
Government Property, in General
- The United States Supreme Court has established, as a general rule, that an individual does not have an absolute right to access government property.
In Cornelius v. NAACP Legal Defense & Educ. Fund, the federal government excluded a legal defense fund from participation in an annual charitable fund-raising drive. Multiple legal defense funds brought suit against the federal government, alleging that the exclusion violated the First Amendment.
The Court held, in part:- “[T]he government does not violate the First Amendment when it limits participation in a charity drive aimed at federal employees, which is a nonpublic forum, in order to minimize disruption of the federal workplace…”
The Court based its decision on its recognition that:- [n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.
Public School Districts
- Public schools are not presumed to be open to the public.
In 1992, the Seventh Circuit Court of Appeals considered whether a former teacher had a right to access school grounds. The teacher, Brian Vukadinovich, was discharged in March of 1988. Upon discovering Vukadinovich’s continued frequent visits to the school, the school principal ordered Vukadinovich to stay off of school grounds.
The Court of Appeals held that restricting the teacher's access to the school following his discharge did not violate the First Amendment.
The Court reasoned that even though he was a member of the public, the former teacher had no right of access to the school.
Public schools… become public for a “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. Where a school is not made a public forum, “[t]he public is not invited to use its facilities as a soapbox.” In fact, “[t]he public is not invited in, period…” Vukadinovich has failed to overcome the general rule that “[a] school is not presumed to be a public forum…” Members of the public have no constitutional right of access to public schools.
Vukadinovich v. Board of School Trustees of Michigan City Area Schools, 978 F.2d 403, 409, 78 Ed. Law Rep. 269 (7th Cir. 1992) (internal citations omitted).
- In 2012, the Seventh Circuit Court of Appeals reaffirmed its decision in Vukadinovich.
The Court held that an expelled student’s ban from all activities on school grounds did not violate any previously recognized Wisconsin state law. The expelled student, Derek Hannemann, had a history of disruptive, violent behavior while on school grounds.
School officials barred Hannemann from entering school district property “for any purpose effective immediately.”
The Court concluded that the District had the authority to ban Hannemann, because he was merely a member of the public.
The Court stated:- …Southern Door County School District allows the public to enter school property for specific purposes while retaining the authority to bar individual members of the public for reasons specific to them… Because the school district retains the discretion to bar members of the public from school property, Hannemann is unable to establish the loss of a previously recognized right.
Hannemann v. Southern Door County School Dist., 673 F.3d 746, 755, 278 Ed. Law Rep. 70 (7th Cir. 2012).
The Court also noted that Hannemann’s “assertions that school administrators must provide him with boundless access to school property are ‘obviously without merit.’”
School officials have the authority to control students and school personnel on school property, and also have the authority and responsibility for assuring that parents and third parties conduct themselves appropriately while on school property.
Hannemann v. Southern Door County School Dist., 673 F.3d 746, 755, 278 Ed. Law Rep. 70 (7th Cir. 2012) (citing Lovern v. Edwards, 190 F.3d 648, 655–56 (4th Cir. 1999)). - …Southern Door County School District allows the public to enter school property for specific purposes while retaining the authority to bar individual members of the public for reasons specific to them… Because the school district retains the discretion to bar members of the public from school property, Hannemann is unable to establish the loss of a previously recognized right.
Best Practices & Tidbits
- Recognize that you do have greater authority to control who is permitted onto school district premises than most believe or acknowledge. Reasonable citizens will understand that a school district can’t be expected to tolerate highly disruptive behavior by members of the public and, by extension, can’t be expected to permit the same person to disrupt the school environment forever, without reaching a point where the school district has no alternative but to bar the individual from school premises
- Understand that misinformation is rampant in this area. Many believe that individuals have the right to come onto school grounds merely because it is public property. This suggests several strategic measures:
- Be Reasonable. A school district should be able to demonstrate that it has shown some forbearance with its own citizens. Proving that warnings have been given and that other intermediate steps have been taken before barring a citizen from school grounds will play better with almost any group.
- Educate. People don’t know they can get kicked off school grounds. Use the opportunities that are presented to, diplomatically, make certain that people know what the law really is.
- Avoid Overly-Restrictive Policy. This is exactly the kind of area where a written policy will inevitably be put to misuse and will fail to accomplish its objective. An order that bars an individual from school premises, but only if permitted by policy will shift the burden to the District to prove that its criteria for imposing the penalty have been satisfied.
Perhaps even worse, policy language in this area almost inevitably implies that an individual is entitled to be there (on school premises) unless the criteria for kicking them out have been met. The Seventh Circuit made clear when it stated that “[t]he public is not invited in, period…” that there is no Constitutional right for non-students to be on school premises. Accordingly, any such right must be created by another authority, e.g., by statute, rule, or policy, and a well-intentioned policy that is implemented to ensure that decisions are made fairly will inevitably put school district decision makers rather than disruptive adults on trial.
Therefore, this power needs to be exercised at the discretion of the superintendent, although that discretion certainly has to be tempered by the school district’s interest in being perceived by constituents as inclusive and supportive of citizen involvement.
- Make sure that your determinations supersede any other contracts, practices, etc. If a school district has decided that an individual is barred from district premises, the district won’t want that same individual to be able to come onto school grounds through community use agreements, organization meetings, open gym, and other programs that are open to the public. This should be in writing in pertinent documents.
- Preserve Evidence. Have video records of any intrusions appropriately preserved. Also, make sure that your video surveillance capabilities are sufficient to capture at least building and parking lot/area intrusions.
- Preserve leverage. Generally, costs for property damage and repair should be meticulously documented and any judgments enforced or preserved. Do not treat physical damages as an afterthought, as they may provide a capable means of controlling or influencing an adversary down the road.
This brings us to the conclusion of Part 2 of this series. In our next installment, we’ll be focusing on gender identity.
Additional articles in the Challenges for the 2022-2023 School Year series: