Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
The staff and students at the elementary school where I am principal enjoy every holiday, and Valentine’s Day is no exception. We all try to wear red on Valentine’s Day, and many students bring valentines to school on this special day to give to their teachers and classmates. The only rule we have is that students who bring in valentines must give valentines to all their classmates. We certainly don’t want hurt feelings on a day devoted to love.
As we look forward to Valentine’s Day this year, a student shared something with her teacher, which she shared with me, and I write for Legal Mailbag’s guidance on what to do. The student is in fourth grade, and she has been vocal about the role religion plays in her life and that of her family. Yesterday, she told her teacher that she and her mother have a special plan for Valentine’s Day. The plan is to bring in valentines for all the classmates, no problem there. My concern is that the student reports that each valentine will contain a Bible verse and have a big red heart on the back with “Jesus Loves You” in the middle.
I have nothing against Jesus, but it seems that parents should not be proselytizing in school at any time, including holidays. Legal Mailbag, what do you think?
Praying for Guidance
Dear Praying:
Legal Mailbag appreciates your desire to avoid a constitutional claim from parents who do not want their children to be exposed to other religions in the public schools. But issues of religion in the schools are especially challenging because school officials confronting such issues may be sued no matter what they do. Allowing the “Jesus Loves You” valentines to be distributed could invite a claim that your school is promoting religion in violation of the Establishment Clause. Conversely, prohibiting the distribution of these valentines because of their message could result in a claim that you are violating the Free Exercise and Free Speech rights of the student. In such cases, all we can do is our best.
Recent court decisions have reflected great respect for free speech and free exercise rights under the First Amendment. We all remember Coach Kennedy’s victory at the United States Supreme Court (“A Coach’s Prayers Are Answered” Shipman & Goodwin ctschool.com June 22, 2022). After he was directed not to pray on the football field directly after games in front of students, Coach Kennedy was fired when he did so anyway. In subsequently finding that the termination violated his rights, the United States Supreme Court ruled that his actions were doubly protected by both the Free Exercise and Free Expression clauses of the First Amendment.
Legal Mailbag is concerned that prohibiting distribution of the valentines would violate the Free Expression rights of the student. Legal Mailbag presumes that you would not be writing Legal Mailbag for guidance if the valentines included a message of support for the Connecticut Humane Society or the New England Patriots (Go Pats!). Rather, you are clearly concerned about the religious message contained on the valentines. A basic tenet of Free Expression, however, is that once the government creates a forum (here, allowing the distribution of valentines), content-based prohibitions can only be justified by a compelling interest.
Here, there is no legitimate concern that the message of valentines distributed by a student in fourth grade would be ascribed to your school so as to justify the teacher’s singling out this message for suppression. Moreover, applying the Tinker test regarding student free speech rights, one cannot reasonably forecast that these valentines would cause material disruption or substantial interference with the educational process. Accordingly, prohibiting this student from distributing such valentines under these circumstances could well invite a winning claim that the school has violated the student’s free speech rights.