Expert: Michael Troy - 12/27/2004

Question
My question is very simple and concerns student rights at a public high school.

A student publishes an alternative newspaper that at times criticizes school policy.  The school administration forbids him from distributing the paper on school grounds.  The student chooses to distribute the paper on the public sidewalk in front of the school.  He distributes it to students on their way to and from school.

The administration attempts to forbid the student from distributing the paper on the sidewalk, saying that the sidewalk in front of the school is, in effect, part of the school grounds.  The student argues that the sidewalk is a public easement and first amendment activity is fully protected there.

It seems to me that this is protected first amendment activity on a public easement and that the school has no right to stop the student.  What does constitutional law say on this matter?

Thank you for your assistance in this matter.


Answer
Hi Jim,

First off, please keep in mind that I cannot provide specific legal advice for actual cases.  There may be local rulings or restrictions in your area that are relevant and may affect the outcome.  Since I am likely not licensed to practice in your state and have not fully researched the issues, anything I say here should not be construed as definitive legal advice.  For that, you would need to consult an attorney in your State.

That said, in a hypothetical situation like the one above, it would seem to be that the school is in violation of the student's First Amendment rights.  Courts tend to give schools more lattitude in letting schools restrict students for purposes of keeping good order and discipline.  However, it would be difficult for me to see how a newspaper being distrubuted before or after school, even on school grounds could have such an impact to justify a restriction.  Whether the sidewalk is a public easement is irrelevant.  The student would probably be justified in passing them out within the school as long as it did not interfere with the school's normal routines.

Of course, even if the student likely to win in court that does not mean the school may not still try to punish him and force him to get a lawyer and go to court to resolve it.  If this is an actual case, my advice is to contact your local ACLU and get them involved.  A threatening letter from them may be enough to get the school to back down.

Good Luck!
- Mike