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Court Upholds Right to Picket on School Premises

April 23, 2018 by

In the seminal case, Tinker v. Des Moines Independent Community School District, the United States Supreme Court explained that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This principle was recently applied by the Ninth Circuit, which found that an Oregon school district violated the free speech rights of a teachers’ union, a union member, and a student by prohibiting the plaintiffs from picketing on the district’s premises. Eagle Point Education Association v. Jackson County School District No. 9, 880 F.3d 1097 (9th Cir. 2018).

In Eagle Point Education Association, the plaintiffs sued a school district after the district passed two sweeping resolutions in anticipation of a teachers’ strike. The first resolution prohibited any picketing on school district property. The second prohibited the use of signs and banners without the superintendent’s prior approval. The district sent letters to union members explaining they were not permitted on school property during the strike and members were ordered to sign an agreement to not enter school property.

The school district argued that its actions were protected by the government speech doctrine, which allows the government to advance its own positions and does not require the government to be viewpoint neutral. The Ninth Circuit determined that the prohibitions were not protected by the government speech doctrine. Instead, the court ruled that no reasonable observer would have believed that the picketers’ message was the message espoused by the school district. As the resolutions were unreasonable and not viewpoint neutral, the court concluded the district’s resolutions constituted an unconstitutional infringement on free speech.


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