Student Memorials: Sound Policy May Land You In the News

During graduation season there are always a few news stories that focus on a school grappling with the issue of student memorials and how to handle them.  As you have likely heard in the news, many Nebraska schools have a policy of not allowing student memorials.  If you subscribe to our policies, you likely know that this is the stance KSB takes, as well.  We understand that circumstances in which requests for student memorials arise are incredibly difficult.  That is exactly why we’d like to walk through these issues so your board and administration can discuss your current policy and feel prepared to handle questions from students, parents, patrons, and the media should tragedy strike in your school district.  

While we understand that most lawyer jokes are true and that school lawyers’ positions on this issue may seem “heartless,” good policy is made by clear and logical decisions, not emotional responses.  There are a few main reasons why a public school district allowing memorials is troublesome.  The most significant reason to disallow memorials is that multiple studies show that it is detrimental to students’ wellbeing.  Research shows that memorials can delay grieving and that things like memorials and media coverage of suicides can contribute to copy-cat deaths.  For example, The Society for Prevention of Teen Suicide notes,

“[T]he logic of dying by suicide so that the school will put up a plaque or hold an assembly to acknowledge the death is almost impossible for most of us to comprehend, [but] it is the way suicidal students can think.”

The school district does not want to foster an environment where suicide becomes a response to any of life’s difficulties for school-aged students.  However, it is impossible to disallow memorials for some deaths yet allow them for others.  For example, a student death due to a car accident or terminal illness could receive an outpouring of support, while a student suicide generates a muted response due to the school’s desire to minimize the impact of suicide among the student body.  In our experience, many boards have come to the logical conclusion that if you do not want to allow memorials for all deaths given the psychological research, the only option is to prohibit all of them.

From the purely legal side, another difficult issue is the fact that memorials almost always create a “forum” where First Amendment issues and questions of “equal treatment” arise.  For example, if a student memorial includes a Bible verse at the request of parents, another set of parents could ask for some type of quote, verse, or message which a majority of your community would disagree with.  Prohibiting a memorial or even the proposed text on a memorial based on the speaker’s viewpoint or content of the message would directly violate the First Amendment.  As with most questions of access and speech in public schools, if you allow one idea, you most likely have to allow them all.

Similarly, allowing memorials puts the school in the position of determining whether the scope of a memorial is appropriate or “fair.”  For example, requests for memorials have ranged from a moment of silence, to a small plaque on a bench, to a full statue.  In some cases, the financial status of the family has impacted the request to the point where the school district has been asked to pay for it.  Unless the school district is very specific about prohibitions or at least limitations on memorials, it will almost certainly invite requests which become more elaborate and unique with each family.  Weighing these requests can be politically, legally, and practically difficult.

With an eye toward student mental health and avoiding other difficult issues, we encourage our clients not to allow student memorials.  If your board elects to allow them, it should be only after board approval.  You should think very carefully about the intended and unintended consequences which are likely to result and craft very clear and limiting policies accordingly.  The school district can and should support students who wish to attend student memorials by allowing any student to attend a memorial service and receive an excused absence.  Grief counseling and other support should also be made available as appropriate.  Before you commit other resources of the school district toward any response to a tragedy, such as sending flowers to a funeral, or toward a memorial; you should first be sure it is authorized by state law (...and in many cases, it’s probably not).

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.