CAS Legal Mailbag ' 3/23/23

• Jurisdiction: United States,Federal
• Law Firm: Shipman & Goodwin LLP
• Subject Matter: Employment and HR, Consumer Protection, Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Discrimination, Disability & Sexual Harassment, Constitutional & Administrative Law, Education, Trials & Appeals & Compensation, Divorce
• Author: Mr Thomas B. Mooney
• Published date: 04 April 2023

Listen to this post

Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

I am a high school administrator, and like many of my colleagues I'm concerned about vaping, fighting, vandalism, and other inappropriate activities happening in our restrooms. The worst time for us is at the start of our lunch waves. When students are dismissed for lunch, many of them head to the restrooms to hang out instead of going to the cafeteria. To get ahead of this, we started locking most of the restrooms for the first five to ten minutes of each lunch wave. There is always at least one set of male and female restrooms open, usually the ones nearest to the cafeteria. Students have not been thrilled about the policy, but the negative behaviors are way down since it has been implemented.

Now, however, a couple reporters from our school newspaper want to do a story on the new policy and how students feel about it. I'm concerned that if the story is published and parents and district officials get wind of it, the backlash will force us to reopen the bathrooms for the entire lunch block and we will be right back to where we started. I tried explaining this to our newspaper adviser, but he thinks he's Ben Bradlee and wants the kids to write the article.

Are we breaking any laws by closing the bathrooms? Can I veto the news story on the grounds that it will disrupt our educational environment and possibly harm our students?

Signed,
Stop the Presses!

Dear Stop:

Legal Mailbag applauds your industry in asking two separate questions in one email.

Taking the first question first, Legal Mailbag does not see any immediate legal problem in your temporarily locking some of the bathrooms during the lunch period as you describe, especially given that other bathrooms near the cafeteria remain available. Presumably, there are public health or building code standards for the number of bathrooms to serve a specified population, and someone could at some point cite such standards and complain that you have made some of the required bathrooms unavailable. However, if and when the closing of some of the bathrooms is challenged, you can reassess this practice.

While the first question raises practical issues, the issues raised by your second question are constitutional in nature. Specifically, student editors have free speech rights under the First Amendment, albeit limited as described below, and we must ask whether a prohibition against such a story would be justified by...