Legal Mailbag – 11-28-18

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.


Dear Legal Mailbag:

I am confused by your advice. As a faithful reader, I was interested in your response last week to the principal who wanted to put a Christmas tree up in the foyer of his elementary school. I couldn’t agree more that we have a responsibility to keep Christmas out of our schools, because we don’t want any of our students to feel unwelcome during the holiday season. My confusion comes from trying to reconcile this important responsibility with the criticism I got earlier this week. Actually, it was more than criticism – they are threatening to sue me!

What happened was that I saw some students at my high school passing out candy canes in the hall to other students as they walked by. When I asked them what they thought they were doing, they told me that they were spreading the Christmas joy. But when I looked more closely, I saw that they were doing far more than that. A Bible verse was attached to each of the candy canes, and there were direct references to God, Jesus and the Immaculate Conception.

I figured that I should put a stop to this activity, because the public schools are no place to be proselytizing. I did tell the students that they could pass out the candy canes with more secular messages like “Happy Holidays” and “Ho-Ho-Ho.” But I drew the line at overtly religious messages. Unfortunately, the students did not comply with my directive. Saying something about being a “test case,” one of the students gave the candy cane with the Immaculate Conception verse to a student passing by, and he then asked me politely what I was going to do about it. Given that insubordinate conduct, I didn’t have much choice, and I suspended the student on the spot, telling him to go home and think about our need in the public schools to stay neutral in matters of religion.

Today, I received a letter from the ACLU Connecticut demanding that I (1) rescind my policy against students passing out religious messages and (2) expunge the suspension of the insubordinate student. What gives? Didn’t I have the duty to tell the students not to pass out religious messages in school?

Thank you,
Bah Humbug

Dear Humbug:

I would quit while you are ahead and rescind the policy and expunge the record of suspension. In your zeal to keep religion out of your school, you violated the free speech rights of these students.

The problem is that you failed to distinguish between your duty and that of your teachers, on the one hand, and the free speech rights of the students, on the other. To be sure, you and your teachers and other staff members must remain neutral in matters of religion when serving in your public capacities. But students, who do not act for the public, have free speech rights in the school setting as long as their speech does not cause material disruption or substantial interference with the educational process or otherwise impinge on the rights of others. That right to free speech includes the right to speak about religious matters.

Here, there was no evidence of disruption. Nonetheless, you singled out student religious speech for special disfavor and, in so doing, you violated your duty to remain neutral in matters of religion. That was the conclusion reached in Westfield, Massachusetts, some fifteen years ago when school officials were sued for taking remarkably similar action (censoring the religious messages on candy canes being distributed in school). The educators in that case were indeed sued, and the complaint makes for some interesting reading: Westfield L.I.F.E. Club v. City of Westfield, (Case No. 03-30008 (KPN)) (D. Mass. 2003). After hearing, the Massachusetts federal district court granted the students’ request for a preliminary injunction, ruling in a comprehensive decision that the prohibition against the distribution of religious messages by students likely violated the free speech rights of the students under both Massachusetts law and the First Amendment and that the policy was unconstitutionally vague to boot. Westfield L.I.F.E. Club v. City of Westfield, 249 F.Supp.2d 98 (D. Mass. 2003). Soon thereafter, the parties reached a settlement, which included rescission of the policy prohibiting the distribution of religious messages by students.

No one ever said being a principal is easy. Legal Mailbag hopes that this response straightens you out. Cut your losses by rescinding your directive, and don’t wait to be sued. And, of course, merry Christmas!