Spring 2015

Advertising in Schools

This case is about who has a right of access to school district advertising, namely the scoreboard or “jumbotron” at the high school football stadium.  In Lubbock ISD, final acceptance of advertisement bookings is subject to the approval of the superintendent in accordance with board policy GKB(LOCAL).  An organization promoting Jesus Tattoo purchased space and provided an advertisement consisting of an image of a tattooed Jesus and the website address jesustattoo.org to be placed on the jumbotron at high school football games.

The superintendent denied the advertisement for two viewpoint-neutral reasons.  First, in light of the holding in Doe v. Santa Fe Independent School District, the advertisement contained proselytizing religious content in violation of the First Amendment’s Establishment Clause.  Second, the advertisement prominently displayed tattoos, which are inappropriate for a school setting.  In Texas, one must be at least 18 to receive a tattoo.  Display of tattoos is also prohibited by the district's Student Code of Conduct and Employee Handbook.  The advertisement would have been shown to students who are required to attend football games, including band members, cheerleaders, the football team, and the pep squad.  Also, many other students, parents, relatives, and community members, as well as opposing teams and their supporters, would be in attendance.

The organization filed suit against the district in federal court claiming that the district’s actions and policies violated the First and Fourteenth Amendments to the United States Constitution.  LAF filed an amicus curiae brief with the U.S. District Court for the Northern District of Texas—Lubbock Division, in support of Lubbock ISD.

The U.S. District Court granted Lubbock ISD’s motion for summary judgment and dismissed the case, holding that the district’s jumbotron was a limited public forum and that the district’s rejection of the advertisement was reasonable in light of the purpose of the forum and the venue in which the forum was located.  The court also upheld policy GKB(LOCAL) finding that it was not unconstitutionally vague.  The Court was satisfied that the policy sufficiently restrained the superintendent so as to prevent abuse by “unfettered discretion.”

Plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit.  LAF filed an amicus brief in the Fifth Circuit in support of Lubbock ISD and the Fifth Circuit issued an opinion affirming the decision of the district court.  Little Pencil, LLC v. Lubbock Indep. Sch. Dist., No. 14-10731 (5th Cir. Mar. 13, 2015).  LAF’s Attorney: S. Anthony Safi, Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C., El Paso.