This question is from my Fall, 2001 First Amendment Rights exam.

Question III

(Suggested time: 45 minutes) (30 points out of 120 total exam points)

 Five years ago, the Board of Education of the City of Springdale passed a resolution entitled “Educating for Diversity.” The resolution specified that the Springdale school district’s multicultural and human relations education policy guarantees that “each student has equal access to a quality education and opportunity to participate fully in the academic and social activities of his or her public school and school policies and practices shall foster a climate that reduces fears related to difference and deters name calling and acts of violence or threats motivated by hate and bigotry.” In keeping with its policy, the Board designated October of each year as Gay and Lesbian Awareness Month.

 As part of the recognition of Gay and Lesbian Awareness Month, the principal of Springdale High School, a public high school that is part of the Springdale school district, created a Gay and Lesbian Awareness bulletin board. The board was for the use of teachers at Springdale High, who were encouraged to post materials on the board that promoted the themes of Educating for Diversity and Gay and Lesbian Awareness Month. Teachers were permitted to post items on the board without the prior approval of the school principal. However, the principal, Mary Crosby, had the ultimate authority over the content of the Gay and Lesbian Awareness bulletin board, as well as other bulletin boards throughout the school.

 Throughout the month of October, teachers at Springdale High posted a variety of items on the Gay and Lesbian Awareness bulletin board. These items included a poster titled “Diversity is Beautiful,” a flyer explaining gay and lesbian symbols including the pink triangle and the Greek letter Lambda, a bar chart reflecting statistics on hate crimes, a laminated felt rainbow flag with the Greek letter Lambda, a newspaper article describing the approval of domestic partner benefits by the City of Springdale, a sheet of paper identifying famous gays and lesbians in history and the text of the “Educating for Diversity” resolution.

 Robert Downs is a teacher at Springdale High School. Mr. Downs objected to the recognition of Gay and Lesbian Awareness Month. To reflect his views, he posted three items on the Gay and Lesbian Awareness bulletin board. They included an article stating that 60 percent of Americans believe that homosexuality is immoral, a sheet of paper describing anti-sodomy laws throughout the United States and a newspaper editorial condemning same-sex marriage.

 Shortly after Mr. Downs posted the three items on the bulletin board, the school principal received several complaints from students and teachers about his postings. After examining the three items, the principal removed the three items on the ground that they were inconsistent with the purpose of the Gay and Lesbian Awareness bulletin board. No other items posted on the board were removed by the principal.

Mr. Downs has filed a lawsuit against the Board of Education of the City of Springdale, Springdale High School and Mary Crosby, the high school principal. His suit alleges that the removal of the three items he posted on the Gay and Lesbian Awareness bulletin board violates his rights under the First Amendment to the United States Constitution.

 You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law describing the First Amendment arguments that can be made by Mr. Downs in challenging the removal of the three items from the bulletin board, as well as the First Amendment arguments that can be made by the Board of Education, Springdale High School and Mary Crosby in defense of her actions in removing the three items.