The murder of George Floyd was neither the first time a black person was killed by police nor the worst example of the horrific police murder of a black person, but the stars aligned and so it became the catalyst for national recognition that black lives matter. The Lakeville, Minnesota, independent school district seized upon the moment to authorize the display of posters in classrooms that said “Black Lives Matter.”

Parents who objected to the infusion of what they perceived to be politics into the classroom sued and lost. in Cajune v. Indep. School Dist. 194, District Judge Jerry Blackwell held that the approved multicultural posters including the phrase constituted government speech.

Not everyone supported the decision. Believing the posters carried political messages, some parents and students objected to hanging “Black Lives Matter” posters without also displaying posters offering various other viewpoints. After the school board denied those requests, the objectors challenged the school board’s action by filing this lawsuit, claiming First Amendment violations…. Because display of the posters constitutes government speech not subject to First Amendment challenge, the school board’s motion is granted, and Plaintiffs’ lawsuit is dismissed with prejudice.

At the time, the phrase “Black Lives Matter” was being painted on public streets and justified as government speech to the preclusion of other political messages that did not receive government approval. As Eugene Volokh notes, it’s conceptually correct law that the government is entitled to choose its speech, even if it’s political, within certain limits.

I think that’s correct: A school is entitled to decide what messages it wants to spread—whether about science, history, morality, or anything else—without having to spread contrary messages. (There’s a narrow exception as to religious messages by a public school, because of the Establishment Clause, and some opinions have suggested that there might be an exception as to outright partisan election-related speech, e.g., “Vote Democrat,” but these are indeed narrow exceptions to the general rule.)

The government generally can’t discriminate based on viewpoint when it comes to  nongovernmental speech on its property; see, for instance, the D.C. Circuit’s recent Frederick Douglass Foundation v. D.C. opinion. But the government’s own speech inevitably requires choosing which viewpoints to convey. And there’s no First Amendment right of reply to government speech on the walls of a public school, or in other places that aren’t public fora.

While this may be the correct statement of the law with regard to government speech, there is little question that it is highly politically charged and it is not unreasonable to question whether such highly politically charged speech belongs in a classroom. The rationale of the school district isn’t entirely unreasonable, to make students feel welcome and included, but appears to be little more than wrapping a political message in the trendy bow of the moment. Did students feel unwelcome and excluded without these posters? If so, were posters the solution? If not, then the rationale is disingenuous.

But having breached the schoolhouse gate with racial politics, what of the school board that decides its government speech should be “Gender is decided by nature, not your feelings,” or perhaps even “Blue lives matter”? The universe of non-establishment political speech is vast, and if school boards are allowed to pick and choose “Black lives matter,” then they are also allowed to choose speech that offends another group.

Indeed, pretty much any phrase on the list of microaggressions, like “America is a melting pot” or “There is only one race, the human race,” were once considered benign, if not beneficial, but are now deemed offensive and hurtful. But that doesn’t mean a school district can’t put up posters with these phrases in schools.

The shallow view of activists is facile. Phrases they agree with or approve of are good and belong in the classroom because they do. Phrases of which they disapprove, not so much. Of course, legally, the school board is fully entitled to pick whatever government speech it prefers, even when it’s not on the list of approved woke phrases. No doubt they will challenge it as the parents did in Cajune.

Despite Plaintiffs’ awareness of the District’s stated intent to communicate support to its students through the posters, Plaintiffs nonetheless allege that hanging the posters was private political speech because “[t]o a reasonable member of the public, this means that [the District] supports the viewpoint that Black Lives Matter and its Marxist and Black separatist, supremacist, and racist ideology that is hostile to White people as well as demeaning to Black people.”

Change the heads on the corpse and the same argument will apply with the same result. And if they don’t achieve the desired outcome from litigation, there is a good chance that the offending school board members will have their addresses and children’s names published on social media so that swarms of gnats will persuade them to awaken.

What was not at issue in the suit, but is the real issue in the case, is why the Lakeville school board decided that the classroom was the locus for this message. Classrooms are where children are required to be educated, not battlegrounds. Once they become battlegrounds, should it be any surprise that competing political concerns find their way into the schoolhouse as government speech, just as immune from challenge as “Black Lives Matter”?