What Do Girl Scout Cookies have to do with School Board Policy?

Who doesn’t love to eat Girl Scout cookies? Some of us may even shamelessly ask our colleagues to support our daughter’s or granddaughter’s sales.

But what do you do with outside group pamphlets being passed around describing the delicious cookies on school grounds? This serves as a good reminder that if you allow certain groups to distribute non-school sponsored materials (aka literature) on school grounds, you may also have to allow other non-school groups to do the same.

In most circumstances, school boards are not required to permit outside organizations to distribute non-school materials on school grounds. When a school board, however, chooses to open its doors to the public – either through policy or practice – a “limited public forum” can be created with strings attached.

What is a limited public forum?

A school can create a limited public forum by allowing the distribution of certain non-school literature on school grounds. In other words, the ability for a school board to regulate literature on school grounds depends in part on the type of forum created, whether through policy or practice. Once a public forum is created, the school board may only limit distribution based on a viewpoint neutral policy or practice, meaning the education leaders cannot pick and choose among certain views expressed in the literature unless the content is prohibited by policy (which is discussed below).

What limitations can be placed on a limited public forum?

A school board can impose time, place and manner restrictions on the distribution of non-school literature. For example, a school board policy may require that literature may only be distributed by outside organizations on a particular bulletin board or placed on a specific distribution table. Any restrictions should be clearly communicated and consistently enforced, regardless of the viewpoints expressed in the literature.

How can a school leader regulate what literature is distributed?

Realistically, school leaders will not be able to screen every piece of literature exchanged on school grounds. A well-drafted policy will restrict certain content that can be excluded from school grounds, such as literature that includes vulgarity, threats to health or safety, promotion of illegal drugs, defamation, or hate speech.

Wasn’t there a recent Indiana law passed related to this topic?

In 2020, the Indiana General Assembly passed a law giving “Patriotic Youth Membership Organizations” a legal right to access public schools. These organizations include the Girls Scouts, Boy Scouts, Future Farmers of America, Little League Baseball and, yes, the Society of American Florists and Ornamental Horticulturists. The law requires that public schools grant requests by these organizations to provide at least one time each school year for the representatives of the organization to provide information to students on school property. The information the public school must permit to be provided includes how the organization furthers the educational interests and civic involvement of students consistent with good citizenship and moral instruction consistent with the law.

Bottom line: a carefully drafted policy limiting the distribution of non-school literature on school grounds should set forth specific criteria and procedures to follow if permission is denied. Courts have ruled that policies lacking such limitations were unconstitutional. But it is not unconstitutional to support the cookie sales of your favorite girl scout.

This blog post was originally published in KGR’s monthly article for the Indiana Association of School Principals’ client newsletter. Navigating state and federal regulations can be challenging. For more information, contact the KGR Education Law and Public Policy team.