Does this district bylaw prohibit staff talking with the press about the school buildings themselves?

Question

Does this district bylaw prohibit staff from discussing the building itself with the press, or prohibit staff from providing the press with photos or videos of the building itself? (that is, with no people or individually identifiable information in the picture at all)

This is a district that is having air quality issues, and some on the staff are under the impression that sharing anything with the press (photos of classrooms with dust and debris, for example) will be a violation of their contract or district policy in some way.

Of course, the district could still retaliate, but that’s outside the scope of this question.

Can staff speak with the press about, or share photos of the inside of the building, as long as no people are visible in the photos at all? Is this in any way a violation of the below policy?

I understand that the lawn as a whole maybe unconstitutional, because it may violate the First Amendment. So this is a two part question:

1. Is the bylaw now in void as a whole?
2. Assuming that it is Indeed constitutional, does the wording of this particular bylaw forbid the sharing of pictures of the building itself?

District Policy

9400- NEWS MEDIA RELATIONS

Section: Community

Date Created: October, 2008

Date Edited: October, 2008

Representatives of the local newspapers and radio and television stations are an important link in the communications chain between the school district and the community it serves. The maintenance of a good working relationship with members of the media is essential to meeting the objectives of the district's school and community relations program.

The Board of Education must give formal approval to all basic practices governing relations between news media and the district and reserves the right to negotiate, on terms most favorable to the district, for the radio broadcasting, televising, filming, or sound recording of any school event by an outside agency.

The Superintendent shall be the chief communications representative of the Board. He/she shall be readily available to media representatives, provide media representatives with all appropriate and necessary information, suggest or supply feature articles or stories, prepare "press kits," assist school and parent organizations with press relations, meet periodically with media representatives, and protect school personnel from any unnecessary demands on their time by news media representatives.

The Superintendent (chief communications representative) must approve in advance interviews between staff members or pupils and media representatives and authorize the release of photographs, video or digital images of district subjects, personnel, or pupils. Photographs, video or digital images of disabled children shall not be disseminated or used in print or media in any way if they are identified as disabled unless permission is granted by the parent(s) or legal guardian(s). Photographs, video or digital images of children placed in the district by DYFS shall not be published without the permission of the Division case worker. Where the release of a photograph may violate the privacy of a pupil or staff member, the Superintendent (chief communications representative) must first secure the written permission of the staff member or the pupil's parent(s) or legal guardian(s).

Cross reference: Policy

Guide Nos. 0146, 0162 Adopted: October 16, 2008

Answer 1

When Government is acting in a capacity of an Employer, it is allowed to limit the speech of it's employees as would a private employer. Designating a certain position to have the job duty of media relations and punishing unauthorized media contact by other employees of the school district is perfectly legal for government to do when acting as an employer.

That aside, Speech may be limited by Compelling Government interest and a government school system does have a compelling interest in protecting the privacy of those students entrusted in their care. They could argue that showing pictures of class rooms may also compromise security of facilities.

That all said, whistle blowing laws should protect against the specific situation as the school is neglecting safety and health of the students and the parents may not be aware. There are ways of alerting media without direct contact as well. The best case I could think of is to have a teacher who has a child in the the affected school and a spouse who is not employed by the school system. The teacher can either take the pictures of the classroom to show the spouse, or the spouse can take them while visiting the teacher at work or the child's teachers during a school event. As the spouse is not employed by the district, he is not bound by their policy and may release the pictures to the media in the capacity of a concerned parent (or just cut out the child and have the spouse release the pictures as a concerned spouse or citizen).

The rule also does not limit teachers abilities to talk with parents who are not in the media OR who are in the media but have a student in the school. They can explain their concerns and the fact they can't do anything about it and let the parents take those concerns to the media as concerned parents/citizens.

Also see what avenues can be taken through the local Teacher's unions, which do keep teachers interests first and may have employees not employed by the school board and thus not bound.

TL;DR:

1. This is constitutional as government is acting as an employer and has a compelling interest in protecting the children's privacy.
2. There may be legal problems if you choose to directly whistle blow, however it could be difficult legal process.
3. The rule applies to media only and you may discuss it with other concerned citizens who are not employed by the school system and thus not bound by this rule.
4. The further you can distance yourself from the media the better. Try not to directly ask the parents if it can be avoided, but defiantly drop as many hints as needed.
   5. Do not involve the students in any way. You should still protect them from the media to the best of your abilities. While concerned students are not bound by this rule as well, do not pressure them at all to contact the media.

Answer 2

So this is a two part question:

Is the bylaw now in void as a whole?

Assuming that it is Indeed constitutional, does the wording of this particular bylaw forbid the sharing of pictures of the building itself?

The second question is the easier one. As I read the following language:

The Superintendent (chief communications representative) must approve in advance interviews between staff members or pupils and media representatives and authorize the release of photographs, video or digital images of district subjects, personnel, or pupils.

Pictures of the building itself are "district subjects" which are within the scope of the rule requiring approval from the Superintendent.

As to the first question, this is harder. Certainly, the Superintendent can be designated as the only person authorized to speak on behalf of the District in any regard, and staff members may be required to make clear that if they are speaking without approval that they are not speaking on behalf of the district.

Also, it is clear that the media have no legal liability if they receive information from a staff member who lacks approval in violation of the policy.

The limitation on media contact with pupils can probably also be construed as legitimate so long as it involves an exercise of in loco parentis authority of the district and the context of on campus during school hours situations when the student is under the direct control of the district, especially in the context of protecting students who do not themselves initiate media contact on their own from interference. But, at some point, an older student (certainly a high school student) has a personal right, not subject to either in loco parentis or actual parental authority to speak on their own behalf to the media in communications that the pupils initiate, without approval from anyone. There are quite a few cases setting for the acceptable scope of school control of student speech under the First Amendment and usually there is a balancing test between a student free speech right and the interest of the district in preventing disruption to school activities.

The limitations on staff members speaking to the public on their own behalf and not as a representative of the district is much more fact and context specific. It would probably not be invalid in all circumstances, but probably would be invalid in some circumstances.

For example, employees have a right under labor relations laws to take collective action including communicating to the public about labor and working conditions, without employer approval, even in the absence of the actual formation of a labor union for those employees which would invalidate that policy on statutory rather than constitutional grounds.

In other circumstances, the validity of the policy would be highly fact and context specific.