In case you weren’t aware, there is a presidential election going on. What’s more, Michigan also has elections for a seat in the U.S. Senate, all 13 seats in the U.S. House of Representatives, all 110 seats in the Michigan House of Representatives, many judges, local councils, townships, local ballot initiatives, local millages and more, including your very own school board.

If there is one thing all these candidates and issue supporters (and opposers) have in common, it’s that they want to talk to potential voters. One place where there often is  a large group of voters is your local high school football games. How should school districts respond if someone would like to campaign on school property?

#1 – Have an effective, districtwide policy ahead of time.

#2 – Apply the policy every time.

Why is a policy important?

A person speaking with others and asking for their support is most likely exercising their First Amendment free speech rights. School districts, as government entities, must be thoughtful, and tread carefully whenever they restrict those free speech rights.

Having an effective policy in place ahead of time helps to ensure that administrators have the tools to make difficult decisions when faced with a potentially contentious situation. It also helps shield the school district from significant legal liability and a potentially serious public relations problem.

Must a district allow campaigning at school events, like football games and orchestra concerts?

The answer is the most common -and most frustrating- words lawyer’s loves to say. It depends.

Just because an event is on school property, which is public property, does not mean that someone has the type of expansive free speech rights there that they would, say, on a sidewalk in front of city hall. Generally, a school district has the authority to maintain a nonpublic forum on its property and at its events, meaning that it could restrict political campaigning.

However, if a district, either by policy or practice, opens a forum up for expression, it must take care to apply that policy or practice in a way that is not unlawful. Specifically, a district could not allow or disallow a campaign access based on whether it agreed with or disagreed with its positions. However, even in the face of allowing political campaign access to school events, districts still may be able to restrict that access if they have a reasonable concern the first amendment activity would cause a significant disruption to the school's operations.

In all cases, it is important that districts ensure that they are not violating the Michigan Campaign Finance Act by allowing the use of district resources to support campaigns or ballot proposals.

Bottom Line:

There is too much complicated case law for a district to make a decision on the fly about who should be allowed campaign on school grounds and at school events and who should not. Districts should work with their policy providers and/or legal counsel to have effective policy set ahead of time, and then administrators should be prepared to follow that policy consistently.

If you have questions about this, please contact your district’s legal counsel or the MASB Legal Team at 517.327.5900.