ACLU: School board decision unconstitutional
When the Newberg School Board directed Superintendent Joe Morelock to ban Black Lives Matter and LGBTQ Pride displays on Aug. 10, some community leaders questioned the legality of the decision as it applied to both students and staff. During the board's deliberation on the motion, which eventually passed 4-3, Morelock acknowledged that he'd have to consult the district's outside legal counsel about the potential implementation of this directive, a process which is currently underway.
The school board's directive drew national attention for wading into controversial political waters and now, it has caught the eye of legal minds at the Oregon chapter of the American Civil Liberties Union — a legal advocacy nonprofit with nearly two million members nationwide. Kelly Simon, legal director at the ACLU of Oregon, said the directive is unconstitutional.
"Something that we perceived in the school board meeting was that the superintendent was asking a lot of great questions about the legality of the directive he received," Simon said. "Our hope is that we can connect with the district and help them understand the legal implications of their decision, and hopefully guide them toward making a better decision. If that is something we can't do, we are certainly willing to challenge the policy in court should the policy be passed, which we believe is unconstitutional."
Simon added that she has reached out to officials in Morelock's administration to try and set up a meeting between the ACLU and district lawyers. She hadn't received a response as of 2 p.m. Aug. 18, but added she hopes those charged with examining the legality of the resolution are willing to consult the ACLU on the matter.
Otherwise, there may be a court case on the horizon.
"The directive the board gave the policy committee has very serious constitutional infirmities, both under the federal constitution under the First and Fourteenth Amendments, as well as the state constitution's Article I, Section 8 — the state protection of speech," Simon said. "It's not clear what the policy is going to look like yet because it hasn't been written, but the directive itself implicates teachers' speech rights as well as students' due to its lack of clarity.
"While part of the directive is to direct the policy committee to write the policy, another part is directing the superintendent to begin removing Black Lives Matter and Pride displays immediately. With no additional guidance there, this has the potential to impact student speech in addition to that of the staff members.
"Some of the comments we heard during the board meeting were that this directive would only apply to teachers and staff in the performance of their official duties. There is a Supreme Court decision that determined that a district attorney who wrote a memo pursuant to his duties could be subject to discipline, but that ruling does not broadly apply to anyone at their work, nor does it say that teachers forfeit their free speech rights at the door of their respective schools."
In Simon's view, there isn't a policy the district can craft which specifically bans Black Lives Matter and Pride displays that would not violate the constitution as a result. The ACLU is exploring all of its options as far as a potential legal challenge goes, she said.
Simon also encouraged those in the community who feel their rights may be violated by this decision — be they staff, students or otherwise — to contact the ACLU's office. More information on the organization is available at www.aclu-or.org.
"To the Newberg students and staff: You have rights," Simon said. "We are here to defend them and we look forward to connecting with the district and hopefully finding a resolution."
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