At the September WASDA Fall Conference, Kirk Strang spoke about hot topics in Wisconsin school districts. We’re recapping Kirk’s presentation here in a five-part series to help share this information with more superintendents, administrators and faculty.
Here’s a recap of the hot topics we’ve covered so far …
- Part 1: Search & Seizure
- Part 2: Student & Employee Use of Technology
- Part 3: Gender Identity
- Part 4: Public Comment
- Part 5: Public Access to School Grounds
In Part 5 of our series, we turn our attention to public access to school grounds, with a focus on:
- Government Property (in General)
- Public School Districts
- Best Practices & Tidbits
GOVERNMENT PROPERTY, IN GENERAL
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The United States Supreme Court has established, as a general rule, that an individual does not have an absolute right to access government property.
[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.
Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 799–800 (1985).
PUBLIC SCHOOL DISTRICTS
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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 members of the public (including former teachers) have no right of access to the school.
Public schools … become a public forum “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…” 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).
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In 2012, the Seventh Circuit Court of Appeals reaffirmed its decision in Vukadinovich in the context of a former student’s access to school grounds.
The Court held that an expelled student’s ban from all activities on school grounds did not violate any previously recognized Wisconsin state law. As a member of the public, the District had the authority to ban Hannemann (who had a history of disruptive, violent behavior) from school grounds.
The Court stated:
[The] 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)).
BEST PRACTICES & TIDBITS
- Recognize that you do have greater authority to control who is permitted onto school district premises than most believe or acknowledge.
- Understand that misinformation is rampant in this area. Many believe that individuals have the right to come onto school grounds because it is public property. This undeniable fact 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 Policy. This is exactly the kind of area where policy will inevitably be put to misuse and will fail to accomplish its objective, to wit, of making sure individuals are barred from school premises only when permitted by policy (and, by implication, will shift the burden to the District to prove its criteria for imposing the penalty have been satisfied). This power needs to remain one that is exercised at the discretion of the superintendent.
- 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 the end of our series on Kirk’s hot topics in Wisconsin school districts. We hope the information presented proves helpful.
Additional articles based on WASDA Conference presentations that may be of interest …