Constitution Check: Can Washington control local public schools’ messages about junk food?

Lyle Denniston looks at an interesting question: Do public schools have a First Amendment right to allow “unhealthy” food ads on school grounds?

Doss_High_School_Football_FieldTHE STATEMENT AT ISSUE:

“The Obama Administration is moving to phase out junk food advertising on football scoreboards and elsewhere on school grounds – part of a broad effort to combat child obesity and create what Michelle Obama calls a ‘new norm’ for today’s school children and future generations….Promotion of sugary drinks and junk foods around campuses during the school day would be phased out under the Agriculture Department rules, which are intended to ensure that marketing is brought in line with health standards that already apply to food served by public schools.”

 – Excerpt from an Associated Press story on February 26 describing a new White House and Agriculture Department program to regulate what schools say to their students, through schoolhouse and campus advertising and other materials, about consuming unhealthy drinks and foods.

WE CHECKED THE CONSTITUTION, AND…

It probably is far too late in the development of constitutional law for complaints that the federal government should leave decisions about public school education to the governments closest to the people, the local school boards.   Still, there is a quite natural skepticism when the national government decides what school authorities should be saying to the students about their daily habits – even when the message that Washington wants conveyed is a positive one about healthy eating.

When so much else about education has been nationalized, through the establishment of standards that apply from coast to coast, it very likely was inevitable that federal officials would assert authority to control what the scoreboard at a football stadium should say about soda drinks that are high in sugar content.   And it also was inevitable that this initiative would be phrased in the bureaucratic terms of regulating “marketing.”  But one person’s “marketing” is another person’s “free speech,” and so it is not inappropriate to explore some First Amendment and other constitutional issues about the new initiative.

It is not clear, in the first place, that local school officials have a First Amendment right to communicate with their students in any manner that they choose.  Generally, the First Amendment limits what government may do about regulating private speech, not about controlling the utterances of government officials.   In fact, people who work for the government, at any level, do not share the full free speech rights of private citizens, and generally can be disciplined if they go public with their grievances about how the government is performing its duties.  Such grievances are supposed to be worked out internally, within the system.

But the more important consideration is that, if the federal government is imposing limits on what school officials can say by making that a condition for receiving federal funds, then the local officials have the option of simply refusing the money if they don’t want to go along with the conditions.  That, in fact, is what is going on in the federal government’s new initiative to regulate the messages to students about unhealthy food and drink.

This is a program that is part of the federally subsidized school lunch program, and school officials are free to take part in that program, or not.   Government often can get what it wants by putting money behind its policy demands, and then giving the potential recipients the option, take it or leave it.

For most school boards, however, that is not really an option in the situation here: the funding of the school lunch program is too important to give it up, so officials will go along with the strings tied to the money.   And, with this healthy eating campaign, many local school boards very likely share the belief that it is a good idea, good for the students, and good for the educational process.

The federal initiative on healthy eating does show some sensitivity about local choice.  In announcing the details of the new “marketing” approach, federal officials made it clear that local officials would retain some discretion about just how they implemented the overall goals of a healthy food and drink message.

Beyond the question of who should control the educational message, there is an abiding issue about the division of powers between national and state and local governments.   Constitutionally speaking, when it comes to public education, local choice is supposed to be the norm, and national management the exception.  There is a hardy tradition of letting local school systems experiment with what they teach and how they teach it, and, to a degree, the Tenth Amendment – the Constitution’s most protective provision for states’ rights – supports that discretion.

When the federal government moves into this field, constitutional principles suggest that it should be, at most, a benign partnership rather than a centrally controlled policy preference.  When a national program shows respect for local initiative, then a national mandate will seem more acceptable to local officials.

The federal government has moved heavily into the school nutrition field, most importantly with a federal law passed four years ago, the Healthy, Hungry-Free Kids Act.  That mandated that the Agriculture Department – in the Department’s own words – “set guidelines for what needed to be included in local school wellness policies in area such as setting goals for nutrition education and physical activity, informing parents about content of the policy and implementation, and periodically assessing progress and sharing updates as appropriate.”

Few could argue with the civic virtues of that initiative: who doesn’t want children to be physically fit and properly fed?  Still, not all good ideas emerge from the top of government down to the local level, so officials in Washington are well advised – constitutionally as well as practically – to maintain the habit of listening along with mandating.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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