Bless You (and Your E-mails, Too!)

Legal Brief

A SUPERINTENDENT WAS contacted by a parent who expressed displeasure regarding an e-mail he had received from a school district employee. Below the employee’s signature on the e-mail was a quote from the Bible, making a direct reference to a specific Christian doctrine.

The parent demanded the superintendent immediately prohibit the district employee from including the religious reference or similar references in her future e-mails.

Whose E-mail?

Plenty of solid case law holds that e-mails sent as part of one’s work responsibilities, on employer-provided equipment, belong to the employer. As such, employers — including public employers — are free to adopt reasonable policies restricting style and content.

In the school district’s case, an appropriate policy could read something like this: “Users will not add slogans, quotes, special backgrounds, special stationeries, digital images, unusual fonts, etc., to the body or signature of their electronic messages.”

The policy is content-neutral and applies to all extraneous e-mail content, regardless of its nature. A school district certainly could adopt and enforce this policy for its employees’ use of e-mail. But some districts simply don’t have a policy, and others may view this kind of oversight of employee e-mail as just one more thing to draw attention away from much more critical work.

Differing Opinions

Absent a complete ban on extraneous e-mail content, school districts are faced with the dilemma often present in their efforts to comply with the First Amendment. Is the e-mail quotation a matter of free exercise of religion on the part of the employee or does it represent an impermissible endorsement of religious belief by the school district?

A paucity of case law provides guidance on the topic, and reasonable individuals and attorneys might have differing opinions. (A case pending before the U.S. Supreme Court deals with religious expression by public employees, but unless and until the court rules, no “law of the land” exists.)

That leaves school districts facing a dilemma: Should they impose and enforce a total ban on e-mail quotes and phrases or allow them and risk objections and perhaps even formal complaints from e-mail recipients?

Some organization leaders might be tempted to solve the problem by crafting a policy that only prohibits religious-themed messages in employee emails, while allowing more secular statements. But that approach carries legal risks as well.

First, it would be problematic in practical application. Would it apply to a Biblical quote that had no overt religious context? What about a secular quote with a reference to spirituality? Would it prohibit use of a quotation from a U.S. president that contained religious references? A partial ban is rife with legal risk depending on the ultimate distinctions made.

It also might run afoul of what courts refer to as “viewpoint discrimination.” Allowing secular extraneous content in e-mails while prohibiting religious content creates a potential First Amendment violation in that it discriminates based on the viewpoint of the message, which is impermissible. It also can be difficult to distinguish between religious and non-religious content. Some religious quotes simply offer wisdom or inspiration rather than doctrine.

Disclaimer Solution

Absent a total ban on the inclusion of quotes in employee e-mail, one option might be to require all employees to include a disclaimer with their statements, indicating the con-tent represents the views of the individual rather than the school district.

This process has sometimes been used by school districts on printed graduation programs to establish that comments made by students at graduation ceremonies are their own and are not endorsed by the school district.

Again, an absence of prevailing case law leaves some doubt as to whether this option would satisfactorily resolve the constitutional concerns. As always, superintendents and school boards should seek sound legal advice before choosing any particular approach.

WAYNE YOUNG is executive director and legal counsel of the Kentucky Association of School Administrators in Frankfort, Ky.