By Camelia Juarez
Two hours of closed session ended on Wednesday night with Wimberley ISD trustees saying they would not take further action against parents who posted a Wimberley Texas log with a pride flag in the backdrop.
The argument came to the board after aa split community fell into two camps — those saying it was a First Amendment speech issue while others backed the trademark argument, saying parents had no right to use the logo in that manner.
After the unanimous vote, trustee Lori Olson, who community members asked be removed from the board after posting a photo wearing a shirt with the rainbow Wimberley Texan logo, read a statement on behalf of the board of trustees.
“We believe the logo for WISD is a protected trademark of WISD. If our logo is used or altered in any unauthorized way, we strongly believe we have a right to defend our trademark. Our policy which is common to districts around our state, provides that our logo be used for its strict intended purpose of representing our great District,” Olson said.
Olson continued to say that the district may not agree with unapproved uses of the logo, but the district will no longer continue to waste resources and instead used their time on the current health pandemic.
During the virtual board meeting, at least 30 people asked the district not to pursue any consequences against parents who posted the altered logo and the district has abided.
“The WISD Board of Trustees directs that no further action be taken against any individuals related to the WISD Texan rainbow flag logo being considered today. We support our LGBTQ+ community within our district — as we do all our students — and we will continue to make additional efforts to ensure that all feel welcome, safe and supported. We have already made great strides in this area over the past six months, and we will proceed enthusiastically with these efforts and programs,” said Olson.
The grievance refers to a Facebook post from parent Brian Burke which states, “I proudly stand beside those who often feel marginalized and bullied for who they are. We are Wimberley and this is no place for hate. The greatest is love.” The rainbow Wimberley Texan logo was placed with the caption.
Months after the post, Wimberley ISD sent several emails asking Burke and other parents to remove any post of an altered Wimberley Texan logo, which featured a rainbow pride flag in the backdrop. A second wave of emails was sent to parents stating they were violating copyright laws and if they did not remove the altered logo, a cease and desist letter would be sent.
As the community was divided over the district’s response to the rainbow Wimberley Texan logo, the district spent at least $7,000 on quickly obtaining trademark rights to the logo.
In response, the ACLU of Texas claimed that under the First amendment, parents have the right to alter logos, even trademarked logos, for political purposes.
To address the grievance, legal representation for parent Brian Burke and legal representation for the district each had 15 minutes to make their argument and then five minutes to provide a rebuttal or closing arguments.
Burke’s attorney Brian Kloesterboer’s argument claimed that Burke’s use of the logo was an example of criticizing and commenting on a government entity, which should be protected rather than punished under the First Amendment.
“The government responded forcefully to Mr. Burke’s speech and threatened legal action. There is no evidence of the district using equally forceful powers on other uses and alterations of the district logo. The district has impermissibly retaliated against Mr. Burke and other parents for constitutionally engaging in free speech. When someone voices criticism or comments against the government or engages in speech that the government doesn’t like, the government cannot take any action and that’s what they have done here,” Kloesterboer said.
WISD legal representative Mike Smith argued that the issue is not about the First Amendment, but rather a trademark issue because it violated guidelines provided by the district and under trademark laws.
“This all could have been avoided if someone had come to the school district and asked us ‘Can we use the logo in this way?’ and if we had said no then we would work together to come up with a reasonable alternative, some way for you to express your view,” Smith said.
Kloesterboer rebutted by saying that if community members want to criticize, comment or praise a government entity they don’t have to ask permission.
Then Smith continued to argue that using a logo for expression is protected, but altering a logo is not protected by the first amendment, rather it’s protected by trademark and common law.