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Legal Opinion MEMORANDUM TO:
State School Bus Committee A legal opinion has been requested regarding the advisability of expanding the permissible scope of lettering and identification for school buses. Presently, the State School Bus Committee (SSBC) has identical regulations for the four school bus types. See 575 IAC 1-2-43, 1-2.5-35, 1-3-43, and 1-4-43. In addition, 575 IAC 1-7-16 (optional equipment) permits two variations (the driver's name may be displayed; a roof number may be displayed). Exterior decals other than those permitted by the SSBC's rules require SSBC approval. The SSBC has approved the following variations: (1) "Temporary Transportation" in lieu of a school corporation name when the bus is on loan from a dealer; (2) Fleet contractor name in lieu of the school corporation name; (3) U.S. Department of Transportation, Federal Motor Carrier Safety Regulation identification requirements; (4) interchangeable bus identification placard placed adjacent to the service door; and (5) body and chassis manufacturer's logo. The SSBC has not approved the following variations: (1) "This Bus Makes Wide Turns" decal; (2) "Student Driver" decal; (3) "Animal" decal: (4) "No Right Turn On Red" decal; (5) "How Am I Driving? Call..." decal: (6) "Backing" sign; (7) "Operation Lifesaver" bumper sticker (railroad grade crossing safety program); (8) "Fleetwatch Program" bumper sticker (community policing program); (9) "No Trespassing" decal: (10) "Safe Bus" bumper sticker; (11) School bus distributor's logo and name; and (l2) bumper stickers of any kind. The instant question does not involve the authority of the SSBC to exercise this discretion but whether it would be legal or advisable for the SSBC to authorize the use of external decals, bumper stickers or other means for conveying commercial messages (advertising). While a review of applicable law in Indiana and other jurisdictions did not provide any legal guidance in this particular, analogous situations would seem to indicate that permitting commercial messages on school buses would pose a safety concern and would almost certainly embroil school districts in First Amendment squabbles by turning a school bus into a limited public forum or nonpublic forum for commercial speech which the school district may not be able to restrict. SAFETY CONCERNS School buses on the whole "have an extremely good safety record, considering the pupil miles traveled and the type of rider involved" (E. Connors, Educational Tort Liability and Malpractice (1981) at 67). This "good safety record" is due in no small part to comprehensive bus safety legislation and regulatory oversight which have imposed such requirements as single body construction, regular school inspections, maximum passenger capacities, seat back height, presence of mirrors, use of stop signal arms and lights, location of fire extinguishers and commercial or chauffeur's licenses for drivers (R. D. Mawdsley, Should Seat Belts Be Required On All School Buses? (1996) 105 Ed.Law.Rep. 841). However, variances among state laws have prompted federal government involvement in adopting guidelines and standards regarding the manufacture, equipping, and operation of school buses. The federal guidelines include the use of a rod in front of the bus to keep children exiting and crossing in front of the bus to remain in the direct view of the driver; the use of signal arms and lights by local transit buses when transporting school children; semi-annual bus inspections; twice-a-year emergency evacuation drills far students riding buses; seat belts for drivers; and passenger seat belts for buses with less than 10,000 Ibs. gross vehicle weight rating (GVWR). 23 CFR 1204.4 (Highway Program Guideline No. 17) (1991). In addition, highly detailed and technical performance requirements have been established for school bus design and manufacture to protect bus occupants in the event of a cash. 49 CFR 571.220 (Standard No. 220: School bus rollover protection), 571.221 (Standard No. 221: School bus body joint strength), and 571.222(Standard No. 222: School bus passenger seating and cash protection) (1990). This intense and comprehensive state and federal interest in school buses has resulted in a remarkable safety record. The fact that practices across states are becoming increasingly standardized will only enhance this safety record as people move from state to state. Within the state itself, the chief distinguishing characteristic of a school bus is its exterior lettering and identification. This standardization has made school buses and related special purpose vehicles readily identifiable to motorists, who respond with caution. This is not true of former buses which lack the standardized lettering and identification decals. The very standardization of the Indiana school bus has enhanced the safety record. Permitting lettering or identification which would interfere with this standardization will prove to be a distraction. In the 1996 General Assembly, a bill was introduced in the House to permit advertising on the exterior of school buses. The Indiana Department of Education opposed the bill (HB 1350), which did not receive a hearing. In our written opposition to the bill, the Department of Education stated in part:
The Indiana Department of Education also warned of constitutional problems as well, but this will be addressed below. CONSTITUTIONAL CONCERNS While safety concerns can be debated--although the safety record under current regulatory oversight cannot be--the permitting of commercial messages (advertising) on school buses will certainly implicate constitutional provisions, especially the First Amendment and attendant "equal access" claims. Although there are no reported cases in the United Stares involving a school bus and commercial speech, there is sufficient case law involving analogous situations where school districts created limited public forums for protected speech and nonpublic forums for certain speech which the school district's were unable to restrict or control despite the school district's opposition to the content and viewpoint being expressed. In San Diego Committee Against Registration and the Draft v. The Governing Board of Grossmont Union High School District, 790 F.2d 1471 (9th Cir. 1986), the school board was found to have violated the First Amendment when it excluded from its high school newspaper advertisements from the plaintiffs, an antidraft organization involved in promoting alternatives to compulsory military service. However, the school board did accept advertisements from military recruiters. The court noted that the school board did not have to accept advertisements from any source, but once it did, it created a "limited public forum" which is then generally open to the public even though the school board was not required to create the forum in the first place. "A limited public forum may, depending on its nature and the nature of the state's actions, be open to the general public for the discussion of all topics, or there may be limitation on the group allowed to use the forums or the topics that can be discussed. Thus a limited public forum may be open to certain groups for the discussion of any topic, or to the entire public for the discussion of certain topics, or some combination of the two. "Once the state has created a limited public forum. its ability to impose further constraints on the type of speech permitted in that forum is quite restricted[.] Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Id., at 1475, citing to Perry Education Assoc. v. Perry Local Education Assoc., 460 U.S. 37, 46, 103 S.Ct. 948, 955 (1983). The court noted that "speech" for First Amendment purposes can be commercial, political, artistic, or other types. Here, "[t]he Board's admitted policy and practice is to allow members of the general public to avail themselves of the forum [the high school newspapers] as long as their speech consists of advertisements offering goods, services, or vocational opportunities to students. Because the newspapers are open to the entire public for discussion of these limited topics, the Board has also created a limited public forum...." Id.. at 1476. The court also noted at 1478 that although the limited forum for non-students was restricted to commercial speech, commercial speech can also combine elements of political speech as well (in this case, advertisements by military recruiters is not only commercial but political as well because military service is a controversial topic). The court, following U.S. Supreme Court precedent, determined that the school board could not, without a compelling governmental interest, engage in content-based or viewpoint-based discrimination, nor could the school board present only one side of a highly controversial issue (at 1481). "Viewpoint-based discrimination is not permitted even in a nonpublic forum." The following are similar circumstances where school boards were found to have violated the First Amendment by creating limited public forums and then engaging in content-based or viewpoint-based discrimination with respect to unpopular ideas without a showing of a compelling governmental interest. 1. Clergy and Laity Concerned v. Chicago Board of Education. 586 F. Supp. 1408 (N.D. III. 1984). The school board permitted military recruiters to visit schools but denied the same access to antiwar activists. "Even though schools are not traditional open forums where viewpoint discrimination is per se unconstitutional, many cases have held that the states' obligation of viewpoint neutrality applies to discriminatory access restriction imposed in public schools (at 1413) without justification based upon a substantial state or governmental interest (at 1412). The school board, as a governmental entity, once a creates a forum, cannot pick and choose which views it feels should be expressed in the forum. "When a restriction has the effect of favoring the expression of a particular point of view, the First Amendment is plainly offended, and such a restriction is subject to strict scrutiny" (at 1411). 2. Searcey v. Harris 888 F.2d 1314 (11th Cir. 1989). The school board violated the First Amendment by prohibiting an organization of peace activists from participating in the school board's "career day," which included military recruiters and organizations. Citing to Cornelius v. NAACP Legal Defense Fund 473 U.S. 788, 105 S.Ct. 3439 (1985), the court noted that where government creates a public forum, "the government may enforce content based restrictions only if necessary to serve a compelling state interest and narrowly tailored to serve that interest.... In a nonpublic forum, however, the government enjoys considerably more power over the use of its property: it may impose content based restrictions which are 'reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view." Id., at 1318. "It is the total banning of a group from the forum-- rather than limiting what a group can say--that we find to be unreasonable." Id., at 1322. "In a nonpublic forum, the government may limit the subject matter discussed by all speakers in a forum but it may not distinguish between particular speakers based on their view of the approved subject matter. [T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includable subject.... [O]nce the School Board determines that certain speech is appropriate for its students, it may not discriminate between speakers who will speak on the topic merely because it disagrees with their views." Id., at 1324. 3. National Socialist White People's Party v. Ringer, 473 F.2d 1010 (4th Cir. 1973). School board had to rent its school auditorium to a racially discriminatory organization because the auditorium was available for use by other private organizations. Also see Knights of the KKK v. East Baton Rouge Parish School board 578 F.2d 1122 (5th Cir. 1978); Gay Student Organization v.Bonner, 509 F.2d 652 (1st Cir. 1974); Brooks v. Auburn University, 412 F.2d 1171 (5th Cir. 1969). Although schools are not traditional public forums courts have consistently struck down access restrictions when such restrictions are based, in part, on the viewpoints of the speaker's message. The SSBC has not permitted commercial messages on Indiana school buses. The SSBC's actions have prevented an Indiana school bus from becoming a "limited public forum" or "nonpublic forum," either of which would still prohibit school board's from engaging in content-based or viewpoint-based discrimination unless a compelling governmental interest can be shown. In addition, even though the topic under discussion is "commercial speech," as noted above, "commercial speech" can-and often does-involve "political speech." By way of example, if the U.S. Army were permitted to place a decal or bumper sticker with its "Be All You Can Be" on a school bus, the school board would be obligated to accept decals and bumper stickers from other organizations who may oppose the military. It is difficult at this writing to provide an example of pure commercial speech which would not be offensive--and thus political--to someone. While there does not appear to be any law prohibiting commercial messages on school buses, there are a considerable number of reasons not to do so. While the Indiana Department of Education believes the safety concerns alone are sufficient to put this novelty consideration aside, the very real constitutional imbroglio which would follow should the SSBC permit a school bus to become a limited public forum for commercial/political speech should end this discussion. Please advise should you require anything additional.
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Pete Baxter, Director |
