January 25, 2008
TO THE ADMINISTRATOR ADDRESSED:
Re: Political Activities in Schools
This letter is to bring to your attention several laws that could affect your schools during the upcoming election cycle. The opportunity to experience and participate in our political system presents a wealth of academic opportunities for our teachers and students. However, several state laws limit the ability of school districts to directly participate in elections. This letter will review those provisions, as well as potential issues that can arise under the United States Constitution. Because of the complexity of these issues and the impact of local policies, you are strongly advised to consult with your local counsel when questions about political activities arise.
Several state statutes restrict the use of school district resources in elections. Section 255.003 of the Texas Election Code prohibits spending public funds for political advertising[1]. Section 11.169 of the Texas Education Code also prohibits the use of any district resources “to electioneer for or against any candidate, measure, or political party.” The Education Code provision in particular is couched in broad terms and has not been interpreted by a court or agency. Additionally, Section 255.031 of the Election Code prohibits the use of a district’s internal mail system for political advertising. I would urge you to be cautious in avoiding any district activities that might be construed as violating these statutes.
However, there are several well-established activities that we believe are not reached by those statutes. School buildings are often required to be used as polling places as required under our Election Code. The normal activities of voting at a school building being used as a polling place are not prohibited. Likewise, the use of district property for political signs more than 100 feet from the door of a polling place should not be considered as a violation of either statute during voting. Also, making district facilities available for voter registration in a nonpartisan manner should not be construed as in any way prohibited.
Political campaigns may also implicate First Amendment rights of students, employees and members of the public. Because local district policies may influence this analysis, consultation with local counsel is particularly important. Students have certain speech rights that must be honored. The state statutes that restrict district activities and the use of district resources do not require any restriction of the rights of students to express their political beliefs in a nondisruptive manner. An election cycle presents unique teaching opportunities that do not have to be avoided. Student debates or mock elections as part of social studies classes are not prohibited in any way. School district employees also have statutory and constitutional rights of expression. Section 21.407 of the Education Code in particular prohibits coercing employees to either join an organization or refrain from participating in political affairs in the community, state or nation.
District activities must also be considered in light of constitutional issues involving public forums. A governmental body that has by policy or practice created a “limited public forum” must consider whether restrictions on the nature or subject of private activity in district facilities may violate the speech rights of members of the public. Existing local policies allowing facility rental or literature distribution may not be restricted because of the content of the speech allowed. Districts will have to carefully examine local policies and consult local counsel to ensure that policies governing the use of district resources comply with state law but are not so broad as to restrict the content of allowable speech in an established forum.
These are admittedly very complex issues for administrators to address. But our election cycle is an opportunity for adults to model the type of commitment and mutual respect we hope to teach the next generation of voters. We can follow the restrictions on public funds for electioneering and political advertising while still engaging in the educational process and serving the needs of our communities.
Robert Scott
Commissioner of Education
[1] The Texas Secretary of state’s Office has additional materials available on this section at