****Jan. 10 update: There will be another flag policy “listening session” for Marblehead High School students on Friday, Jan. 12. According to a social post by the MHS Democrats, 20 student spots are available and “School Committee members will be there.” No press is allowed.
Asked by the Current for an assessment, a staff attorney for the ACLU of Massachusetts said the organization is “troubled by the censorious nature” of the Marblehead School Committee’s proposed flag-and-banner policy.
“Courts have ruled that it is not for local officials to mandate any particular orthodoxy in public schools,” said Rachel Davidson. “And because schools are places where students prepare to participate in our pluralistic society, it may not be wise as an educational matter for the School Committee to attempt to micromanage expression and access to information in schools in this way.”
Whether or not the proposed policy violates the First Amendment as applied to teacher or school employee speech may depend on whether a court would find that the approval process adopted — whether administered by adults or students — creates a limited public forum for private speech, Davidson said.
But she noted that Massachusetts’ law, including the state constitution and the student speech statute, G.L.c. 71, §82, provides greater protections for student speech than does the First Amendment.
“State law allows restrictions only where the speech causes disorder or disruption and forbids viewpoint discrimination in any kind of forum,” Davidson said. “And to the extent these restrictions are being considered to suppress particular viewpoints, questions under state law are certainly raised.”
