It all adds up to loss for First Amendment

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

Sometimes, unfortunately, the price we pay for free speech is speech itself.

This price is especially high when the speech is "sponsored" by the government. Such sponsorship takes a variety of forms, including public meetings, private use of public property and public funding of programs and activities. In these public forums, the First Amendment prohibits the government from discriminating against speech because of its content.

The First Amendment thus presents government with two choices: it can either allow speech with which it disagrees or avoid opening the public forum at all. The first option is messy and often difficult. The second is clean and easy. That the government usually chooses the second option is hardly surprising.

These dynamics took center stage in Plano, Texas, recently, when the 5th U.S. Circuit Court of Appeals was asked to decide whether parents could sue school administrators for allegedly stifling public debate over a math curriculum. The court allowed the case to proceed but, in doing so, tacitly encouraged schools to limit public discussion of curriculum issues.

The case, Chiu v. Plano Independent School District, emanated from the district's adoption of a new middle school math curriculum, the "Connected Math Program." Several parents objected to the program, relying in part on the Texas Education Agency's lukewarm endorsement of the curriculum.

Some of these parents decided to express their concerns about the program at "Parent's Math Nights" the district had scheduled at the middle schools. The evening meetings were announced in the local newspaper and in fliers sent home with students. At each Math Night, teachers were scheduled to explain the curriculum, answer parent questions and meet informally with parents to discuss the progress of individual students.

At the first Math Night, a parent asked school officials for (and apparently received) permission to distribute copies of two articles critical of Connected Math and to circulate a petition requesting the district to delay implementation of the program until it was more fully evaluated. Shortly thereafter, however, the officials asked the parent to remove his literature from a table containing various pro-program articles, which he did.

The parent then began handing his materials to parents as they entered the meeting. The officials then approached the parent, told him he could not circulate his petition on school property and said he would be forced to leave if he did not cease distributing his articles.

The parent agreed to stop handing out his materials after the officials told him he could express his concerns about Connected Math after the district finished its presentation. After the meeting, however, the school officials refused to give the parent this opportunity.

At a second Math Night a week later, the school officials were even stricter. From the beginning, they told the parent he would not be able to distribute any articles or circulate his petition. Moreover, they said, he would not be allowed to display a poster informing parents that the district was not permitting him to hand out materials and inviting them to contact him after the meeting.

At a third Math Night several weeks later, another parent was similarly prevented from voicing his objections to the program.

These parents then filed suit in federal court, alleging that the school administrators' actions violated the parents' First Amendment rights. The administrators moved for summary judgment, arguing in part that they had not violated any established constitutional right and that, even if they had, their actions were reasonable and therefore protected.

The trial court denied the motion, holding that the parents, if their allegations were true, could establish an unreasonable violation of clear constitutional rights. On appeal, the 5th Circuit agreed, holding that questions about the purpose of Math Night precluded a pre-trial ruling in the administrators' favor.

In its analysis of the First Amendment issues presented, the appellate court focused on the nature of the Math Night forum. The critical question, according to the court, was whether Math Night was a "limited" public forum or a "designated" one. If Math Night were a limited public forum, the court said, school officials could not silence speech solely because of its content. If Math Night were a designated public forum, however, the officials could control the agenda and the views expressed.

Faced with key evidentiary disputes the trial court had not resolved, the appellate court concluded it could not decide whether Math Night had been a limited or designated public forum. Key to this inquiry, the court said, was whether the officials had intended to allow an "open, yet structured" discussion of the math curriculum. If the district had intended to provide parents an opportunity to express their concerns, as the question and answer period suggested, it likely created a limited public forum.

If, on the other hand, Math Night was designed to educate parents about the new program rather than to discuss the overall math curriculum, the district likely created a designated public forum.

How the Math Night case ultimately will be decided is anyone's guess. How the Plano Independent School District and other school districts handle similar issues in the future, however, is almost certain. At their next Math Night or Science Night or Social Studies Night, schools won't leave any doubt about who is speaking and for what purpose. The agendas will be set in stone. The presentations will be lectures, not discussions. Neither questions nor dissent will be entertained.

The schools' intent to create designated public forums thus will be clear — as will be the cost of doing so.