This memorandum responds to a question the Department of Elementary and Secondary Education has received about 603 C.M.R. 26.06(1), the section of the Equal Educational Opportunity Regulations that prohibits public schools in Massachusetts from sponsoring outside extra-curricular groups that discriminate on the basis of race, color, sex, national origin, religion or sexual orientation. Specifically, school officials have asked whether the regulation precludes a public school from allowing the distribution of Boy Scouts literature to students, given that the Boy Scouts restrict membership on the basis of sexual orientation. Such literature would presumably recruit new members or notify students of upcoming Boy Scouts meetings or events.
Our advisory opinion analyzes the question under the state regulation as well as First Amendment principles. In summary:
A school committee (or the board of trustees of a charter school) may adopt a policy that allows the Boy Scouts to post notices and distribute flyers in the school(s). As long as the public school does not "sponsor" the Boy Scouts or any other group that restricts membership, by endorsing the group or participating in the organization of its activities or recruitment of students, the school is not in violation of 603 C.M.R. 26.06(1). If the school committee permits certain types of outside groups (e.g., nonprofit charitable or civic groups that provide programs or services for young people) to distribute literature in the schools, it creates a "limited public forum." No school committee is required to create a limited public forum. Once it does so, however, the school committee may not deny access to a qualified group on grounds that the group restricts membership based on sexual orientation or another protected category.
603 C.M.R. 26.06(1) draws the distinction between school-sponsored activities and outside groups that may use the school as a "limited public forum." It states that:
No school shall sponsor or participate in the organization of outside extra-curricular activities conducted at such school that restrict student participation on the basis of race, color, sex, religion, national origin or sexual orientation. 603 C.M.R. 26.06(1) does not prohibit school committees from allowing use of school premises by independent groups with restrictive membership.
By providing that a school committee may "allow use of school premises by independent groups with restrictive membership," the regulation distinguishes between a public school's sponsorship of such a group and a public school's provision of a "imited public forum" to such a group.
The U.S. Supreme Court has determined that a limited public forum is created when public property becomes designated "for use by the public as a place of expressive activity." Perry Education Assoc. v. Perry Local Educators Assn., 460 U.S. 37, 45-48 and n. 7 (1983). In this context, a limited public forum exists when a school committee decides to allow use of school property or facilities by designated types of outside non-school-related groups. The public forum is "limited" because the school committee establishes reasonable rules regarding the type of outside groups that may use the school facilities and the extent to which such groups may use the facilities. For example, the limited public forum may be available only to nonprofit charitable or civic groups and only for the use of the school buildings after school hours. Alternatively, a school committee may decide to permit outside groups to post notices or distribute flyers at school as part of the limited public forum that the school committee wishes to provide.
Once a school committee decides to create a limited public forum, First Amendment principles dictate that it cannot refuse access to a qualified group based on the content of its message. This means that if a school committee decides to allow its schools to be used as literature distribution centers by nonprofit charitable or civic organizations that provide programs or services for young people, it must allow the Boy Scouts to use the schools for this purpose despite the restrictive membership policy of the Boy Scouts. Should the school committee decide, however, not to allow use of the school as a public forum at all, or to limit its public forum to a type of group that does not encompass the Boy Scouts, for example, athletic programs for youth, then it may decline to permit the Boy Scouts to post or distribute literature at the schools.
Literature distribution for independent outside organizations is distinct from sponsorship. Because of the Boy Scouts restrictive admission policy, 603 C.M.R. 26.06(1) precludes a public school from sponsoring the Boy Scouts as an extra-curricular activity for students. For purposes of its regulation, the Department interprets "sponsoring" to mean endorsing, supervising or participating in the organization of the activity.
Where literature distribution is part of the limited public forum that a school provides, the school committee should take steps to make clear that it is not sponsoring or endorsing the outside organizations whose literature the school is making available to students. Specifically, if a school committee decides to allow its school buildings to be used as limited public forums for purposes of literature distribution by certain types of outside groups (e.g., nonprofit charitable or civic groups that provide programs or services for young people), the following steps should be taken to ensure that the school does not "sponsor or endorse" the literature distributed:
School handbooks that are provided to students and their families each school year should indicate that the school is allowing its facilities to be used by outside groups in this manner and should explicitly state that any literature disseminated by an outside group in the school is not school-sponsored or endorsed.
Posters and flyers regarding outside groups should be posted in common areas and not in classrooms. School notices should not be intermingled with such posters and flyers.
An outside group's literature should not be distributed to students during instructional time and, if possible, should not be intermingled with official school notices.
Students should not be compelled to take home or read any such literature.
As part of the school committee's policy on literature distribution, outside groups may be requested to provide their own disclaimer on their literature and
School newsletters and notices to parents may not publicize outside groups or recruit new members for such groups.
In sum, no public school is required to open itself up as a literature distribution center for outside non-school-related groups. Once a school committee decides to allow such access for certain types of groups, however, a qualified group may not be denied access on grounds that the group's message is discriminatory or that the group has restrictions on who may be a member. Providing access to an outside group in this manner does not constitute "sponsorship" of the group or its literature, assuming that the school does not endorse, supervise or participate in the organization of the outside group. This means that although a public school may, depending on its school committee policy, allow the Boy Scouts to post notices or distribute flyers at school, it may not allow information about the Boy Scouts or any other group with restrictive membership to be placed in school newsletters or notices.
We hope this memorandum will be helpful to you and your school community. If you have further questions about these issues, please consult with your school district's legal counsel or contact the Department of Elementary and Secondary Education's Legal Office.
Last Updated: November 15, 2000
Massachusetts Department of Elementary and Secondary Education
75 Pleasant Street, Malden, MA 02148-4906
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