creative revenue streaming in public … and creative revenue streaming trends in public schools...

Erin D. Gilsbach, Esq.Director of Professional Education and Policy DevelopmentThe Greyfriars [email protected]

© 2016 Erin D. Gilsbach, Esq.DO NOT REPRODUCE WITHOUT PERMISSION 1

CREATIVE REVENUE STREAMING

IN PUBLIC SCHOOLS: A Legal Discussion Regarding Non-Traditional,

New and Creative Revenue Streaming Trends in Public Schools Nationwide

Erin D. Gilsbach, Esq.Director of Professional Education and

Policy DevelopmentTHE GREYFRIARS INSTITUTE

KING SPRY HERMAN FREUND & FAUL

[email protected]

The Big Picture:

• What are schools doing to raise money / enhance revenue?

– Within each school, do the administrators know what is happening with all staff in all buildings?

– Are staff members trained in what they can and cannot do without permission?

• What policies already exist that govern those activities?

– Should they be updated?

• What procedures/protocols should be put into place to protect the schools from liability?



Topics to be Covered:

• In-school advertising– Limited open forum, closed forum, commercial

speech, government speech– Bus / website advertising– New food marketing proposed rules– Product Placement

• Licensing of the school brand• Naming Rights• Crowdfunding• Child Care Options• Pay-to-Play Programs• Small Games of Chance• and more!!

PUBLIC SCHOOLS

AND ADVERTISING

Does the

administration

know this is

happening?

Shouldn’t there be a policy

on this or something?

Is that

even

legal???

Freedom

of speech,

babe!

At least they decided

not to name the gym

after some dead guy.



TYPES OF ADVERTISING

COMMONLY FOUND IN SCHOOLS

All schools should have a policy governing advertising on school grounds

• Establishes clear rules and authority

• Ensures consistent practices across buildings

• Limits exposure to discrimination claims based upon inconsistent practices



LIMITED

PUBLIC

FORUM

FIRST AMENDMENT PROTECTIONS:DIFFERENT TYPES OF SPEECH =

DIFFERENT PROTECTIONS

Student

Speech

Government

Speech

Unprotected

Speech

Commercial

Speech

Political

Speech



OPENING THE DOOR TO 3RD-

PARTY SPEECH

To determine

whether a limited

open forum exists,

courts will look at

the school’s

PRACTICESas well as its

POLICIES…



More than One Type of Forum May Exist in a School…• School determines where 3rd-party speech

(advertising) will be permitted…

• Where it is not permitted, a closed forum exists.

• Ex. – Limited Open Forum may extend only to

the football field, due to fence advertising

permitted. Would NOT extend to the school

building if no advertising is permitted inside.

Policy AND Practice Matter!

• Clear policy language establishes the rules and ensures consistency across school buildings.

• ENFORCEMENT of that policy, though, is what will ensure that the forum for speech is limited only to those areas permitted by policy.

• Should be a clear delineation of authority/responsibility within the policy as to who will be in charge of enforcing the policy.

– Often in the form of authorization to create ARs.



Private Speech in a Limited Public Forum

• School May Make TIME, PLACE, and

MANNER restrictions.

• May Make Restrictions based on:

–Subject Matter

–Class of Speaker

• All Restrictions must be

VIEWPOINT NEUTRAL

Commercial Speech:

• “MIXED-MESSAGE” SPEECH– Where the private speech and the commercial

speech in a given advertisement are “inextricably intertwined”• Afforded “private speech” protections

Fewer protections for purely commercial speech (see commercial speech analysis chart in materials)The Problem: Just because speech is for a commercial purpose doesn’t mean it doesn’t contain elements of non-commercial speech!

Eat at

Jimmy’s Pizza!



Legally-Defensible Option for Schools that Need Advertising Revenue:

• But remember… what a school restricts is just as important as what it says it restricts!

• Past Practice Matters!

• Subject matter restrictions• Can prohibit all religious, political, and/or

controversial subject matter• See DiLoreto v. Downey Unified School Dist. Bd. Of Educ., 196 F.3d

958 (9th Cir. 1999).

A New Option: Government Speech“The Happy/Fun Math Tutor” Case• Mech v. Sch. Bd. of Palm Beach County

• One-Stop Shopping: Tutoring Business and Pornography Company shared address and mailing list

• School had banners on the fence of the football field to serve as “recognition of business partners on school campuses”

• School did not intend to open up any type of a forum… It was simply conveying its own message of thanks…



“Government Speech” Test

3-Prong Analysis:

1. The historical context of the speech

2. Whether a reasonable observer would believe that the school endorsed the message

3. Whether the school had direct control over the message

LEGAL ISSUES RELATED TO

SPECIFIC TYPES OF ADVERTISING



Bus Advertising Basics:

• See State Law

– Some allow advertising inside but not outside

– Many prohibit altogether

• Highly-charged issue – assess local “politics”

– Safety concerns

– “Captive Audience” factor

Gotta love good ol’ Leroy!

Food Marketing

• Proposed Federal Regulations

– Propose allowing schools to market only those foods/beverages that meet the “Smart Snacks” interim rule

• NSBA provided formal comment stating that the requirement is an overreach of the USDA’s authority

• Extremely large impact if finalized



Website Advertising

• Different Types– Lease-of-Space

– Pay-Per-Click

– “Special Savings” Offers

• Thoroughly investigate– Does the site link to less-than-

reputable or unsavory sites?

– What is being sold?

• Legal Compliance– CIPA

– COPPA

HIGH SCHOOL THEATER AND

PRODUCT PLACEMENT??SCHOOLS GET CREATIVE TO SAVE THE ARTS, BUT IS ANYONE REALLY REGULATING THIS…?

This Production Brought to You By:

Pizza Palace



Cuyahoga Falls High School,

Ohio (Spring 2014)

• College Prep. Marketing class challenge:

boost ticket sales at HS musical

• Success!! Increased ticket sales from

$500 in the prior year to $1,500

• Idea: “sell” an opportunity for a product-

placement, right to make profit during

intermission, and walk-on spot

Am I

on

yet??

Spring 2014… Cuyahoga Falls High

School, Ohio (Contd.)

• The pizza owner’s father made a cameo

appearance.

• Instead of carrying a bagged lunch, as

the script called for, Knicke, in one

scene, carried a branded pizza box.

• Pizza place owner was permitted to sell

pizza in lobby during intermission.

• Pizza place owner paid $500 and was

permitted to keep the proceeds of the

intermission pizza sales.



Oh Romeo,

you’re so…

caffeinated!

Melbourne High School, FL

• Performed a “reimagined” version of

Romeo and Juliet where Romeo is a

computer geek, and Juliet is an “all-

natural” type…

• Starbucks sponsored the play

• Characters drank from Starbucks cups

• Starbucks also got a nod in the program

• In return, Starbucks donated personnel to sell

Starbucks pastries and coffee at intermission and

donated all proceeds to the school.

Is anyone else confused as to why

that water cooler is so prominently placed?

Torrington, CT• In a production of “12 Angry Jurors” (12 Angry Men with women and men),

the Crystal Rock water company donated concessions in exchange for

prominent placement of a giant water cooler from which the characters

drank.



The Bottom Line:• These stories share some universal truths:

– Public schools are willing to fight for the arts…

– Theater people can be very creative…

– Projects like these could be invaluable learning experiences for students interested in marketing and finance…

• A Word of Caution…

– Need to make sure that these “grass roots” efforts by individual departments within a school are compliant with district-wide policies

– Schools with advertising policies need to ensure that the requirements are being followed across the board…

NAMING RIGHTS



Regulation Required!

• Schools should have policies regarding naming, including naming of:– Facilities– Non-Permanent Structures

• (benches, etc.)

– Memorial Markers– Statues– Fields– School-Owned Roads

• Don’t forget to requiredesign plans!!

Corporate Naming

• Naming rights are a type of advertising – should be addressed via Policy

– Cross-reference advertising policy, where necessary

• Check state law – is there a limitation on the length of a contract?

• Consider non-permanent options…



Naming After Individuals

• Use great caution when naming after living individuals or those recently deceased

– Policy recommendation to prevent sticky political issues… require, as a prerequisite to consideration for naming, that the individual must have been deceased for at least 5 years.

– Consider post-suicide naming issues BEFORE they happen… address via policy/procedures prior to things getting personal…

Remember Penn State??

LICENSING AND PROFITING FROM

THE SCHOOL BRAND



Teacher Online Posting/Sale of Lesson Plans / Curriculum

– Intellectual property rights

– Public posting of and/or profiting from curriculum, lesson plans, and other resources utilized in school

• Teachers need education regarding intellectual property rights

• It’s happening…• Teachers making $$$ from their lessons online… and

they may be assigning rights• Some online companies require assignation of rights that may not

have belonged to teacher in the first place…

• Who REALLY owns the IP rights?• Probably the school…

• Schools should have policies addressing:

New Legal Emphasis on “Open Resources”• Creating “open resources”

potentially lucrative!– ESSA: States and LEAs can get

federal $$$ to create “open resources,” i.e., resources free from IP-rights restrictions

• In November, the U.S. Dept. of Ed. issued proposed rules requiring all intellectual property developed with federal grant funds to be openly licensed– Highly controversial– See 80 Fed. Reg. 67672, proposing changes to

2 CFR Part 3474

FREE STUFF!!



Protect the Mascot!!

• Mascot, Logo, school name and other Identifiable IP are important commodities!– Schools need to enforce rights…

– Use of mascot, logo, school name, and other IP should be carefully regulated

• Check the school’s rights to the IP!– “borrowed,” copied and similar items

may pose a copyright infringement issue for the school – especially if they are making $$$ from the IP rights…

Broadcasting Rights

• Savvy schools with high-interest sports teams are making $$$ from contracts for broadcasting rights…

• Check state law –– Are there restrictions on exclusivity

agreements?

– Are there broader restrictions on broadcasting agreements, in general?

• Look out for the drones!! – (See March 2016 issue of COSA’s

I&A.)



DONATIONS AND 3RD-PARTY

REVENUE-BUILDING ORGANIZATIONS

School Board PresidentCirca 1950

School Board PresidentPresent Day

Common Examples of 3rd-Party Donors/Fundraising Entities:• Booster Clubs

• Foundations

• Private Donors

• “Recognize,” don’t “Approve”– Establish clear boundaries between the school

and these private organizations

– Clarify that “Recognition” does not constitute approval or direct affiliation

– “Recognition” exclusively an Intellectual Property issue…



Using IP Rights to Control/Restrict Booster Clubs, Foundations, Crowdfunding, etc.

• “Recognized” groups may use IP (name, logo, mascot, etc.)

– Specify the particular types of activities for which the entity can use the IP

• Must meet specific “recognition” requirements

• “Recognition” status may be revoked at any time

Establish Ground Rules for Private Donations and/or Awards• Will your school consider a generous award

from Playboy? If not, on what basis?

• Set acceptance requirements before an issue arrives.– Set clear expectations that both the purpose of the

gift and the acceptability of the donor are factors in the school’s acceptance.

– Establish a heightened approval process for large donations, eg. a “gift cap” establishing when the Superintendent may accept a gift and when it must be approved by the Board

– Title IX protection: Set limitations on a donor’s ability to dictate with finality where the money must go.



School-Developed Software:

• The concept of “work for hire” exists only in copyright law.

• For software and other items that require a patent, the property likely belongs to the creator, regardless of whether it was created on or off campus.

• The Solution: Great contract language for your tech. people assigning back to the school all rights to products/software created for the school.

CROWDFUNDING: INNOVATIVE NEW REVENUE STREAM OR TRENDY

SOURCE OF LIABILITY?

Answer: Probably both, but

don’t throw the baby out with the bathwater…

A little regulation and policy action is all

you need!!



Crowdfunding: Innovative New Revenue

Stream or Trendy Source of Liability…

• What is Crowdfunding??– Essentially a form of online begging…

– Can be very lucrative

– Popularity soared after Stephen Colbert divided an $800,000 donation among every SC teacher with a posting on DonorsChoose.org in early 2015

• Reasons for Concern:– Most schools don’t know it’s happening, so there‘s little

to no regulation of the practice internally in schools

– Individuals are raising money in the name of the schools

– Some crowdfunding sites are more reputable than others

Legal Liability Issues Spotted after a Few Minutes of Browsing on DonorsChoose.org…

• A teacher in a SC public school describes her 7-student classroom in detail, explaining that 6 are boys, and 5 are nonverbal. Next to the post is a picture of her class.



Legal Liability Issues Spotted after a Few Minutes of Browsing on DonorsChoose.org…

The very same SC teacher, in the same post, says her students need iPads to facilitate communication. She states that the students’ failure to be able to communicate without the requested iPads “has led to some discipline issues.”

Request for Funds Necessary for IDEA Compliance…

• A Special Education teacher requests puzzles and other manipulatives that are “necessary for ensuring that their goals are being met and achieved.”



Unsanitary Conditions??

“Because of their inability to care for themselves, our classroom becomes filthy and germ-ridden by the end of the day.

We need cleaning supplies and health supplies like tissues and hand sanitizer to help keep our students healthy.”

More Teachers Raising IDEA Issues in a Public Forum…A California teacher, in her plea for $403 worth of puzzles, fine motor activities, and math manipulatives “to help the them achieve their IEP goals,” states the following:

The entry clearly indicates her name, the grade that she teaches, and the name of the elementary school at which she teaches. It even provides a link to the school’s website.

“Unfortunately the special education program at the school district in which I currently work for [sic] is not very supportive in making sure that the children have the materials that they need to ensure that they are successful students.”



The Solution:

• Regulate, regulate, regulate!!

• Decision: Allow or Prohibit?

• Which sites are permitted?

– Limit to only those pre-vetted and approved

– Stick to sites designed for schools

– Avoid sites where there’s a possibility for misuse/misappropriation of funds

• Should require pre-approval for:

– Project being submitted for funding

– Text of entry

– Any photos included

– Teacher may not receive any money/items directly – must go to administrator

OTHER POPULAR REVENUE-RAISING INITIATIVES…



Child Care and Extended Day

• According to the IES National Center for Education Statistics, in 2008, 46% of schools had fee-based after-school programs.

• Things to consider to prevent/limit liability:– Insurance Coverage

– Facilities Maintenance Issues

– Tort Claims Protection

– Use-of-Facilities Issues

– Child Abuse Clearances / Background Checks

– Accounting / Separation of Funds

Pay-to-Play

• According to a 2013 Study by the PA School Boards Association,– 11% of PA school districts have reported having to cut

an activity due to funding– 38% of PA school districts reported charging students

fees for participation in interscholastic athletics (up from 13% in 2010)

– 22% have reported charging fees for non-athletic activities, including band and chorus

• Pros – helps schools continue to offer a variety of programs

• Cons – many argue that pay-to-play programs are unfair for students from low socioeconomic backgrounds



Cyber Options

• Cyber options may be cost-effective way of keeping these students (and their funding).

• Legal Issues:– Attendance – how do you measure attendance in

an online program?

– Indemnification – make sure your schools have a good indemnification agreement in their contracts!

• In many states, students are opting for cyber-charter schools.

• Depending upon the funding calculation and process, as a result, schools may lose a lot of $$.

Still More…

• Facilities Use

• Cell Towers

• Pouring Rights



EVEN DAISY IS REGULATED

NOWADAYS…

Small Games of Chance

• Most states regulate lotteries, raffles, and other small games of chance.

• Check your local laws… you may be surprised!

• Educate school clients of their obligations under the law and encourage them to investigate current practices – especially among the extracurriculars – to make sure practices are in compliance with the law.



Questions?

Erin D. Gilsbach, Esq.

[email protected]

creative revenue streaming in public … and creative revenue streaming trends in public schools...

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