In a recent decision in the Northern District of Illinois, a trial court granted summary judgment in favor of a school district in a lawsuit stemming from the arrest of a local resident who was leafleting and proselytizing about Christianity on the sidewalk in front of a high school. The case reminds school districts of their rights to prohibit expressive activity by community members near school grounds, but also contains important warnings that such prohibitions not go too far.
Duehning v. Aurora East Unified School involved a lawsuit by Josiah Duehning, a local resident of Aurora, Illinois, who often travels to high schools and colleges in the area to hand out pamphlets and engage students in conversations about Christianity. Duehning was a frequent presence on the sidewalk in front of East Aurora High School, and though he had been told in the past to cross the street, he regularly ignored those warnings to no consequence. On August 28, 2014, however, when Duehning ignored the direction of an East Aurora High School Dean of Students to leave the sidewalk in front of the school, and instead moved off the sidewalk onto school property to talk to a group of students, the Dean called the school’s police liaison officer. The officer required Duehning to identify himself, directed him again to leave the sidewalk in front of the school, and when Deuhning refused, physically restrained him, warning “I WILL take you down.” Duehning was subsequently arrested and searched, and a knife was found on his person.
Duehning sued, raising a plethora of legal challenges against the school district, the liaison officer, and the City of Aurora. Most of the claims centered on Duehning’s argument that he had a First Amendment right to free speech that allowed him to leaflet and prosthletize on the sidewalk in front of the school. In granting summary judgment in favor of the defendants, the court focused on a somewhat confusing technicality to dismiss the First Amendment and other claims. Specifically, because Duehning had continued to pass out literature and converse with students despite the Dean’s admonition, the Court found that Duehning had not actually had any constitutional deprivation of his First Amendment or other rights and so could not support such claims.
The court did address a few substantive issues of note for school leaders. Notably, the court rejected an argument by Duehning that because picketing employees were allowed to picket on the sidewalk in front of the school under the Illinois Labor Dispute Act, 820 Ill. Comp. Stat. 5/1.5, an evangelist like himself should also be allowed to exercise his First Amendment rights in the same space. The court noted that an evangelical was not similarly situated to a labor picketer, and so such claim must fail.
Moreover, although the court decided in the school district’s favor, a comment about the use of sidewalks in front of schools warrants notice. The court noted that there is a “tension between maintaining traditional public fora, such as sidewalks, for First Amendment activity, and permitting school districts to effectively manage school property and property immediately adjacent on behalf of students.” The court cited a U.S. Supreme Court case, Grayned v. City of Rockford, which held:
Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’
Although the Court did not find a violation here in light of the technicality noted earlier, the reference to Grayned is an important warning that sweeping prohibitions on expressive speech on sidewalks adjacent to school grounds may be vulnerable to First Amendment challenges. Such prohibitions should be carefully reviewed with legal counsel in light of this case.