download
this position paper
| Advertising
on School Buses Background: Over the past few years, a number of states and local school districts have considered allowing the placement of advertisements on the exterior of school buses. While several states or school districts have proceeded with such programs, most states continue to prohibit advertising on school buses. There are a number of issues that are relevant to advertising on school buses, including the content of the advertising, potential legal challenges to any content restrictions, and potential safety consequences. Why Advertising? First, and foremost, it appears economics is the primary reason that school districts consider the use of advertising on school buses. Education and school transportation budgets have been decreasing, and school transportation officials are forced to do more with less funding. Thus, finding alternative sources of revenue is a significant issue in many states and local school districts. There are varieties of programs that have been initiated across the United States to reduce the cost of school transportation, such as extending student walking distances and eliminating school bus service in favor of public transit service. Other programs have been initiated in efforts to obtain additional revenue, such as imposing a passenger fee and selling advertising space on school buses. If school transportation budgets were fully funded, it is unlikely that any of these initiatives would be undertaken. Discussion: Advertising Content and Potential Legal Issues The First Amendment to the U.S. Constitution states, "Congress shall make no law ... abridging the freedom of speech ...". Over the past few decades, there have been countless lawsuits and legal decisions concerning freedom of speech. While no lawsuits have been filed on the issue of advertising on school buses, there have been cases that appear to have applicability to the issue of controlling the content of advertising on school buses. Page 2 In 1986, a California court ruled that a school board violated the First Amendment rights of the plaintiffs when it excluded from the high school's newspaper advertisements from the plaintiff. 1 The plaintiff was an anti-draft organization involved in promoting alternatives to compulsory military service. The school board had accepted advertisements from a military recruiter. In
its decision, the court noted that the school board did not have to accept advertisements
from any source, but once it did, it created a "limited public forum."
Once a limited public forum is created, it is then generally open to the public
even though the school board was not required to create the forum in the first
place. A limited public forum, depending on its nature and the nature of the state's
actions, may be open to the general public for the discussion of all topics, or
there may be limitations on the group(s) allowed to use the forums or the topics
that can be discussed. Thus a limited public forum may be open to certain groups
for the discussion of any topic, or to the entire public for the discussion of
certain The court noted that "speech" for First Amendment purposes can be commercial, political, artistic, or other types. Here, "[t]he Board's admitted policy and practice is to allow members of the general public to avail themselves of the forum [the high school newspapers] as long as their speech consists of advertisements offering goods, services, or vocational opportunities to students. Because the newspapers are open to the entire public for discussion of these limited topics, the Board has also created a limited public forum...". The court also noted that although the limited forum for non-students was restricted to commercial speech, commercial speech can also combine elements of political speech as well (in this case, advertisements by military recruiters is not only commercial but political as well because military service is a controversial topic). The court, following US Supreme Court precedent, determined that the school board could not, without a compelling governmental interest, engage in content-based or viewpoint-based discrimination, nor could the school board present only one side of a highly controversial issue. "Viewpoint-based discrimination is not permitted even in a nonpublic forum." The court also noted that it was difficult to provide an example of pure commercial speech that would not be offensive - and thus political - to someone. A court ruling in Boston also provides insight into potential legal problems associated with advertising on school buses. In December 1993, a US District Judge in Boston ruled that the Massachusetts Bay Transportation Authority's "G-rated" advertising policy violated the ___________ 1
San Diego Committee Against Registration and the Draft v. The Governing Board
of
US Constitution. The advertisements in question dealt with the use of condoms to prevent the spread of AIDS. The federal judge stated that a transit service "cannot open its transit car doors to public service advertising and hang only its favorite posters." The judge noted that the Massachusetts Bay Transportation Authority had concurrently accepted advertising for the R-rated movie, Basic Instincts. With respect to "protecting" children from inappropriate advertisements, the judge wrote, "that concern evaporates on examination because shielding children from [the] advertisements is insufficiently compelling to justify the resulting limitation of speech." Based on decisions by the United States Supreme Court, there are three types of fora: (1) traditional public forum; (2) public forum created by government designation; and (3) nonpublic forum. In 1974, the United States Supreme Court held that advertising space on a city transit bus was not considered to be a public forum for purposes of the First Amendment. This decision allows a transit system to control, to an extent, the type and content of advertisements it will accept because the transit system is considered to be a "nonpublic forum." However, lawyers and legal experts have expressed concern that a nonpublic forum could become a public forum based on the acceptance of certain types of advertisements. This would eliminate the ability to establish advertising content criteria and make it difficult to establish and have individuals consistently apply reasonable advertising content criteria. Supporters
of advertising on school buses believe that committees should be formed to establish
criteria for the appropriateness of advertising, and believe the criteria will
protect them from legal action. The fact is that such criteria may be challenged
in court, and it is impossible for anyone to predict the likelihood of success
of any legal challenge to restricting the type of advertising on school buses.
While legal challenges to state or local policies may or may not occur, the potential
of a lawsuit is always present. The cost for a state or local school district
to defend its advertising policy in court could conceivably exceed the revenue
obtained from the advertising itself. There has been considerable debate between those that believe advertising on school buses is a legitimate and reasonable means for obtaining additional revenue to maintain school bus operations and those that believe advertising on school buses presents an inherent safety risk to students. A significant claim by the advocates for advertising is that there are no data to show that advertising on school buses, or any other type of bus, is or would be distracting to passing motorists. Thus, they believe, there are no safety risks associated with advertising on school buses, or the risks are acceptable. Opponents to advertising do not believe it is legitimate or appropriate to assume there are no safety risks associated with advertising on school buses because of an absence of data specific to that issue. Opponents point out that data have never been collected in sufficient quantity to statistically assess, on a national basis, the effect that advertising on any type of
vehicle (transit buses, taxi cabs, etc.) has on driver distraction, safety risks, and resulting crashes. However, there have been studies of the effects of various types of driver distraction and inattention on all types of motor vehicle crashes. In a 1996 technical paper entitled, "The Role of Driver Inattention in Crashes," the National Highway Traffic Safety Administration analyzed 1995 national crash data and estimated that 3.2 percent of all towaway crashes were caused by the driver being distracted by something outside the vehicle, such as another person, object, or activity. This result is consistent with the "1979 Indiana Tri-Level Study of the Causes of Traffic Accidents," which found that approximately 4 percent of crashes were caused by an external distraction to the driver, such as attention to a competing event, activity, or event outside the vehicle. The 1995 NHTSA data are also consistent with the results of a 1994 study of crashes in North Carolina which showed that about 3.7 percent of the 18,000 crashes studied were attributed to driver distraction from a source outside the vehicle. Opponents to advertising on school buses acknowledge that there are no statistics to show the potential safety consequences of advertising on the outside of school buses. They point to an accepted fact that there are definite and identifiable physical features associated with the school bus that make it highly visible and, therefore, predictably safer than other vehicle types. Included among these features are the distinctive school bus yellow color, unique flashing warning lamp systems, and stop signal arms; all of which contribute to the identification of the school bus. But more importantly, these unique features send a message to other motorists that children may be in the area and extreme caution should be exercised. Opponents to advertising argue that if you put advertising on the exterior of a school bus to catch the attention of passing motorists (since that is precisely what advertising is designed to do), then there is an inherent risk that passing motorists will focus their attention on the advertising and the safety of students boarding or disembarking the school bus will be compromised. These statistically-based analyses dealt with driver distraction from all types of sources outside the vehicle, including other persons, activities, and advertising on signs, buildings, and other motor vehicles. While it is not possible to estimate the risk of motor vehicle crashes attributed solely to drivers being distracted by advertising, it is evident that driver distraction is a definitive causal factor in a small but significant percentage of motor vehicle _________ While there have been anecdotal data from a few school districts over a relatively short period of time, those data are insufficient in quantity to make any statistically-based statements about the safety risks associated with advertising on school buses. Also, it is not clear whether reliable, analytical data collection techniques were used in determining if the driver of the other vehicle involved in the crash was distracted prior to the crash.
Since advertising on the exterior of a school bus is a potential source of driver distraction, it is reasonable to assume that such advertisements will increase the likelihood of driver distraction, and potentially result in crashes, injuries, and fatalities that would not have occurred otherwise. It is also noted that the issue of advertising on school buses is relatively new to the industry. The concept was first debated during the 1995 National Conference on School Transportation, where it received less than favorable support by state delegations in attendance. Since that time, only a few school districts nationwide have experimented with the advertising concept, which makes the collection of significant amounts of real-world data impracticable. Conclusions Based on the above information, the National Association of State Directors of Pupil Transportation Services does not endorse advertising on the exterior of school buses. The potential increase to driver distraction, a known cause of motor vehicle crashes, presents a safety problem around school buses that cannot be ignored. Additionally, it may be difficult or impossible, and legally expensive, to control the types of advertising that could appear on school buses. While the State Directors Association opposes advertising on school buses, it is recognized that some school districts currently use advertising on school buses as a means of generating revenue for school budgets. The State Directors Association assumes that these school districts have exercised all other means for obtaining additional revenue before selling advertising space on their school buses. For those school districts that allow advertising on school buses, the State Directors Association encourages them to develop size and location criteria that minimizes the amount of the school bus exterior that is covered. For safety reasons, the State Directors Association believes the image of a school bus must be maintained, and that exterior advertising, particularly as the advertising increases in size, detracts from the image of a school bus and makes it less recognizable in traffic. Additionally, any device(s) used for securing advertisements on school buses must be designed so that children's clothing or related items do not become snagged on them. COPY; 2000 National Association of State Directors of Pupil Transportation Services. All rights reserved. Revised January 2000 |