Long Island Native American mascot dispute is revived on appeal

You may not be aware of this, but a culture war has been brewing on Long Island in recent years over the use of mascots featuring Native American imagery. The State of New York is trying to phase out "The Chiefs" and "The Warriors" and has issued regulations defining when districts and their employees may utilize or promote such mascots at school events.

The case is Wantagh Union Free School District v. New York State Board of Regents, a summary order issued on October 1. A state regulation says that public schools cannot use such names, logos or mascots except for classroom instruction. That would eliminate school and team mascots with Native American headdresses. Another rule says school officers and employees cannot "utilize or promote" mascots on school property or at a school function. That rule is the subject of this court ruling.

One plaintiff serves on the Wantagh Board of Education. He challenges this rule to the extent it may bar him from wearing Warriors apparel at a district sporting event. The district court dismissed his case, but the Court of Appeals (Walker, Park and Lee) reinstates it for additional analysis. Wearing such clothing is expressive conduct under the First Amendment. The clothing rule also implicates the First Amendment because he sues as a district volunteer, not an employee, which means he may not have to prove his clothing addresses a matter of public concern, a legal term of art that says the government cannot regulate public employee speech if covers political or social matters of interest to the community, like a whistleblower or letter-to-the-editor gadfly. Since plaintiff is an elected member of the Board of Education, the district court must determine whether the "public concern" framework applies to him or if he instead enjoys the same broader rights as any other member of the public who attends a high school football game.

The case also returns to the district court to consider the context of the plaintiff's speech. The Court of Appeals holds that wearing Warriors apparel at a public event may be intended to send a message about the state's restrictions on Native American mascots and also to support the team. This kind of "message" speech may be protected under the First Amendment. The district court has to determine in the first instance whether wearing this clothing is expression on a matter of public concern. If so, the regulation may be struck down as overbroad in violation of the First Amendment