STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5981

September 18, 1981

SCHOOL AND SCHOOL DISTRICTS:

Use of school building by citizens' organization

Participation of school employee in organization using building

The board of education of a school district may not prohibit a citizens' organization from holding a meeting in a school building of the district because the citizens' organization may discuss its opposition to a prior decision of the board of education at a meeting held in the school building.

A school employee may participate in a meeting of a citizens' organization held in a school building to consider opposition to a decision of the board of education without fear of loss of employment.

The Honorable Gilbert J. DiNello

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following questions:

The School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 1268 provides:

In the School Code of 1976, Sec. 1268, supra, the Legislature has authorized boards of education to grant the use of school facilities to citizen groups for meetings. Moreover, the boards of education are required to prescribe regulations for the fair and impartial use of school facilities. Denying a citizens' group permission to meet in a school building because such group opposes a prior school board decision is impermissible as inconsistent with the statutory command that fair and impartial use of school property be afforded citizens and organizations.

The First Amendment to the United States Constitution protects freedom of assembly and speech from governmental intrusion. The United States Supreme Court has ruled that once a forum is opened up to assembly and speaking by some groups, government may not prohibit other groups from assembling and speaking on the basis of what they indent to say. Selective exclusions from school facilities based upon views expressed undermine First Amendment values and deny those excluded the Equal Protection of the Laws guaranteed by the Fourteenth Amendment to the United States Constitution. Police Department of the City of Chicago v Mosley, 408 US 92, 96; 92 S Ct 2286, 2290; 33 L Ed 2d 212, 217 (1972).

It is my opinion, therefore, that a board of education may not prohibit a citizens' organization from holding a meeting in a school building because the citizens' organization desires to meet therein to discuss its opposition to a prior decision of the board of education.

Turning to your second question, public school employees may not be compelled as a condition of continued employment to relinquish First Amendment rights they enjoy as citizens, to comment on matters of public interest in connection with the operation of the public schools in which they work, provided any such activities not interfere with the proper performance of their duties or with the efficient operation of the schools of the district. Pickering v Board of Education of Township High School Dist 205, Will County, 391 US 563, 568, 572-573; 88 S Ct 1731, 1734, 1737; 20 L Ed 2d 811, 817, 819-820 (1968).

In answer to your second question, it is my opinion that a school administrator may neither threaten an employee nor discharge an employee solely because the employee becomes involved with a particular citizens's organization that opposes a prior decision of the board of education.

Frank J. Kelley