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Legal Implications of School Bus Advertising in Pennsylvania

Education Alert

November 2012

Many school districts are exploring the possibility of fundraising by allowing advertising on school buses. This Alert will address whether Pennsylvania regulations will allow advertising on school buses and the requirements for doing so.

A Pennsylvania school district may sell advertising to be displayed on the inside of their school buses.

The Pennsylvania Department of Transportation (PennDOT) has promulgated very restrictive regulations regarding school bus standards, including standards regulating the color, paint, reflective tape, and size of lettering on the outside of the school bus.1 Although currently there is no express prohibition against advertising, the level of detail in the regulations indicates that signs fastened to the outside of the school bus would be prohibited. While other states have enacted legislation allowing advertising on school buses, Pennsylvania has passed no such laws.

House Bill No. 1366, which was referred to the Committee on Transportation on April 25, 2011, sought to amend the language of 75 Pa.C.S. § 4552 (a) to read: 

§ 4552. General requirements for school buses.
(a) Color and identification.—
(1) Every school bus shall be a uniform color scheme and labeled “School Bus” on both front and rear as provided by regulation.
(2) Exterior labels and markings other than those specifically required or permitted under paragraph (3) or by law or regulation shall be prohibited.
(3) The rear of every school bus shall have affixed to it an exterior, reflective label, sticker or sign stating: “At all times stay back a minimum of 10 feet. It is the law.”
(4) This subsection shall not be construed to prohibit the affixation of exterior labels or stickers of a temporary nature which have been approved by the school district as having educational value and which do not obscure the “School Bus” labels.
Section 3. The amendment of 75 Pa.C.S. § 4552(a) shall apply to school buses manufactured and registered after the effective date of this section.
Section 4. This act shall take effect in 60 days.

To the best of our understanding, the amendments have not passed the House and the Senate.

The possibility of House Bill 1366 being enacted did not have any impact on PennDOT’s stance on exterior advertising when Stroudsburg School District was considering advertising on school buses in May 2012. Jan McKnight, spokesperson for PennDOT, stated to the Pocono Record that advertising is not allowed on the outside of school buses, but is allowed on the inside, subject to safety regulations.2 She explained that PennDOT prohibits advertising on the outside of buses because school bus markings are “clearly defined” and school buses must be easily recognizable.

The requirements for the interior of school buses are focused upon the safety of the passengers and regulate aesthetics and appearance much less that regulations dealing with the exterior of buses.3 The section most relevant to the posting of signage is 67 Pa.C.S. §171.58 (1), which says:

“The interior of every school bus shall be free of unnecessary projections likely to cause injury. This standard requires inner lining of ceilings and walls. If the ceiling is constructed so as to contain lapped joints, the forward panel shall be lapped by the rear panel, and exposed edges shall be beaded, hemmed, flanged or interior materials.”

School districts should create a policy for school bus advertising that does not violate the First Amendment.

The next step in analyzing the obstacles of business advertisements on the district’s school buses is to discuss what considerations the district must make when deciding what types of for profit acknowledgments and advertising the district may use in the advertising. The principal legal issue on commercial advertising relates to the First Amendment. Even though advertising is considered commercial speech, and the First Amendment offers lesser protection to commercial speech, it will be important to establish how the First Amendment affects the district’s ability to reject certain types of announcements or advertisements.

The Supreme Court, beginning with Bigelow v. Virginia, 421 U.S. 809(1975), extended the protection of the First Amendment to commercial speech. Additionally, the Supreme Court has held that the Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression.4 Therefore, the main legal issue for the district regarding commercial advertising on the cable channel, website or bus involves an in depth analysis of the First Amendment. 

As a result of the First Amendment affording lesser protection to commercial speech than to other constitutionally guaranteed expression, commercial speech can be heavily regulated.5 However, commercial speech may be heavily regulated so long as the restrictions are “reasonable.”6In DiLoreto v. Downey Unified School District Board of Education, 196 F.3d 958 (9th Cir. 1999), the Court agreed that the regulation of the commercial speech was permissible because it was reasonable for the school to reject advertisements that were at odds with the school’s educational mission or would otherwise interfere with the school. 

Additionally, it is reasonable, and therefore acceptable, for a government actor, like a school district, to limit the availability of advertising space to exclude all religious and partisan political advertisements.7 Thus, the district may and should examine potential advertisements in light of the district’s purpose as well as the acknowledgement or advertisement’s effect. In other words, the district has the prerogative to choose or reject acknowledgments or advertisements, providing these restrictions are reasonable.

The difficulty in promulgating such policies is that once a school district allows a certain form of advertising in a bus, it will be difficult to restrict other advertisements that may not be deemed to be politically appropriate or arguably morally appropriate on a school bus. Limiting commercial speech will prove to be a challenge in these types of cases.

A school district bus would very likely be considered a non-public forum because the district typically does not open up a school bus for public discourse. This is because the district typically controls its access to students and authorized personnel while others may not go on the school bus. Carefully framing the policy will be critical in terms of giving the district the right to restrict commercial speech on the bus. 

In analyzing these types of cases, the courts look to the reasonableness of the policy, the nature of the forum where the speech is taking place (public forum, limited public forum, or non-public forum), whether the district’s regulation of the commercial speech is neutral, whether the district would not attempt to suppress speech due to a disagreement with the underlying message contained in the speech, and the extent of discretion given to the district in the policy. When discretion is granted, it should be accompanied by guidance that will provide “sufficient criteria to prevent viewpoint discrimination.”

Legal counsel should carefully draft a policy regarding advertising on school buses that is consistent with the current status of the law.

If you have questions about this Alert, please contact Jeffrey T. Sultanik, Marni Jo Snyder or any member of Fox Rothschild’s Education Law Practice. 

  1. See 67 Pa.C.S. § 171 Transportation. See 171.18 Color, 171.47, 171.48 Construction, 171.55 Identification, 171.58 Interior, 171.48 Additional Equipment Items.
  2. Stroudsburg considers advertising inside school buses. http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20120508/NEWS/205080314
  3. See 67 Pa.C.S. § 171.56- 171.59.
  4. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980).
  5. Bella Vista United v. City of Philadelphia, 2004 WL 825311 (E.D.Pa., 2004) (discussing political posters) and also Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (billboard ordinance struck down where it gave preferential treatment to commercial establishments over non-commercial ventures without a rationally supported reason).
  6. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983).
  7. Lebron v. AMTRAK, 69 F.3d 650 (2d Cir. 1995) (government may exclude political speech even when it allows other types of speech), cert denied, 517 U.S. 1188 (1996); Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1998) (a bar on non-commercial speech will be upheld if created for rationally valid viewpoint neutral reasons), cert denied, 526 U.S. 1131 (1999).
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