Members of the Durango School District 9-R Board of Education on Tuesday indicated support for the drafting of a resolution that would back the display of the progress pride flag and the Black Lives Matter flag.
Such a resolution, if adopted, could allow Durango schools to display those symbols without opening the door to all political speech in schools or running afoul of constitutional protections of the right to free speech, was the general consensus of some board members.
District officials informed educators in October that the BLM flag and the specific iteration of the LGBTQ+ pride flag had to be removed from schools after a parent had filed a formal complaint. While the district may not, for the most part, curtail students’ speech, it may limit the speech of employees.
However, the board opted to suspend the decision banning certain flags pending further research after significant outcry, including a lengthy public meeting, a protest and a student walkout.
The district’s counsel advised that the two symbols could be considered political. And as a limited public forum for free speech, the district may restrict speech by class – such as to say that all political speech is banned – but not by content within a class.
This meant that by allowing teachers to espouse support for one political view, the district could be forced to allow the expression of nearly all political views in its limited public forum.
However, the U.S. Supreme Court has drawn a line between a government entity limiting expression of certain perspectives and the government expressing its own perspectives.
This means that although 9-R’s leaders may not decree that some political speech is acceptable while some is not without risking a likely formidable lawsuit, they may adopt a stance of their own without offering equal airtime to all perspectives.
And that is precisely what the three board members in attendance – Kristin Smith, Rick Petersen and Katie Stewart – said they would consider doing at a work session attended by about 40 people at the Florida Mesa Elementary School on Tuesday night.
“I don’t really believe in the slippery slope theory but that’s about as close to a slippery slope as I could imagine,” Petersen said. “But by designating it government speech and adopting (them) as symbols of our school district, it avoids a First Amendment problem.”
The board would have to adopt a formal resolution that endorses the progress pride and BLM flags as consistent with its educational goals, or something to a similar effect, to declare the flags a form of the district’s speech.
That could take months.
Smith, Petersen and Stewart all said they would support drafting such a resolution, and said it could be six months or longer before a draft was up for consideration. The flags will be allowed to remain in schools in the interim, Smith said.
The district’s attorney evidently advised the board to retain its original ban on the flags.
“What this board is trying to do is find a way where we can do two things to the best of our ability,” Peterson said. “One is abide by our Diversity, Equity, Inclusion and Belonging policy resolution … the other side of it is making sure we don’t put the school district out of business. That’s what we’re balancing.”
The district’s proposed path forward is one previously trodden by Denver Public Schools.
The Front Range district was taken to court last year by a parent who insisted that the display of a pride flag in his child’s school was discriminatory if the school did not also display a “straight pride” flag. A federal court judge in September sided with the district and dismissed the case on the basis that the flags were a form of the district’s own speech.
Toward the end of the meeting, Stewart noted that any unhappiness among parents that could result from the board’s adoption of the discussed, but yet-to-be-written resolution would be resolved not through a complaint, but through the ballot box.
Nothing on the board’s agenda for the upcoming Nov. 19 meeting indicates the matter will be discussed, however the board may add items to the agenda at the start of the meeting.
rschafir@durangoherald.com
