Naming schools after individuals dates back to colonial days when Harvard College was named after its first benefactor, John Harvard, in 1635. As we approach nearly 400 years of this tradition, public and private K-12 schools and universities have a wealth of experience upon which to weigh the legal, political and community goals which are intertwined in such decisions.
In the wake of the events following the death of George Floyd, the call for renaming many educational institutions, from K-12 schools to university programs, has grown louder, and many institutions are recognizing that call. Some naming choices are made to honor those who are revered by the community and others in exchange for the largesse of the individual. What follows is an attempt to address some legal questions around both decisions.
The re-branding of consumer products like Aunt Jemima, Uncle Ben’s and Land O’Lakes has captured much of the national attention, but locally many K-12 schools and universities are grappling with similar issues. In these instances, the financial and personal consequences may be far greater than any changes in consumer purchasing patterns. As a result, these changes cannot be taken lightly.
While issues of right of publicity, trademarks and the 11th Amendment should be considered in such instances, often the choices that are made will come down to courtesy and respect.
Contractual Implications of Removing Names
In the current social climate, educational institutions are among many public and private entities reconsidering names that may not reflect current views on slaveholders, KKK members, Confederate military leaders and others to whom such honors are considered inconsistent with goals of diversity, inclusion and other questions of morality. In instances where these naming decisions were originally made independently of financial considerations, there should be no legal impediment to such changes. In other instances, particularly for private educational institutions where such naming rights have been in exchange for sizeable donations, the issue may not be so clear.
Where naming rights are in exchange for donations, schools can learn from the mistakes of others in recent past—the donation may be tying the hands of the community in perpetuity or for such a long time that successor administrations will be constrained in making decisions in the best interest of the community.
The first step before even considering a name change is to review contracts governing the donations to ensure there are no requirements necessitating naming in exchange for the donations. No school wants to be embroiled in litigation if there are other options.
For example, in 2019, a number of universities and publicly funded institutions were faced with the decision of whether to remove the Sackler family name, the source of billions of dollars in donations across many US schools and arts organizations. The Sacklers are the owners of Purdue Pharma, the maker of OxyContin, which was blamed for fueling the US opioid epidemic. Tufts University removed the names from several buildings, ensuring they will never receive funding from the Sackler family again. In a statement, Tufts said, “Our students, faculty, staff, alumni and others have shared with us the negative impact the Sackler name has on them each day…” The Sackler family threatened a lawsuit over the change but has not taken further public action thus far.
Yale University reached a different conclusion and has not removed the Sackler name, whether by choice or contractual constraints. While schools are more circumspect in disclosing the terms of their donor agreements, the Smithsonian Institution had made clear that they are legally bound to keep the Sackler name in perpetuity.
While contractual obligations may pose significant obstacles to removing undesirable names, there may be further personal and business issues to be considered.
Administrative Steps and Other Practical Considerations
In the case of public schools, certain approvals must be obtained before a name change. And in states such as New York, the family of the person whose name is being removed must be notified of the change. Whether there is a legal obligation or not, the family should be notified as a courtesy.
In many instances, it may be expedient to separate the removal of a name from the decision to adopt a new one. The first step can usually be done quickly with historic figures where there is political will. The later selection process may take some time to get right. For example, the Fairfax County (Va.) school board decided to rename Robert E. Lee High School in February 2020 but only recently settled on John Lewis’s name as an appropriate replacement.
Once a decision is made to drop a name, then comes the decision-making process on the new name. Naming a school after a person comes with certain inherent risks. This is particularly true of living persons, who may have stellar reputations at a certain point in time, only to have their reputation tarnished later in their careers. We need look no further than Penn State for an example of this tragedy. Penn State was certainly committed to honoring their beloved football coach, Joe Paterno. However, after decades of success and bringing in millions in revenue for the university, he was fired for his alleged role in the wake of the Jerry Sandusky child abuse scandal. He died shortly thereafter in 2012. The administration determined the statute of Coach Paterno would be removed from Beaver Stadium but the school's library, which was built in part by his donations, is still named after Paterno. Many Penn State fans and supporters have stood staunchly behind Paterno, dividing the community and putting in jeopardy alumni donations large and small. It was only in February 2020 that all the legal issues with the Paterno family were resolved, theoretically ending more than eight years of controversy.
While there are at least 1,000 schools (not to mention streets, parks, etc.) named after Dr. Martin Luther King, Jr., the name still causes controversy. Parents raise concerns that despite the actual quality of the education at such schools, college admissions officers might read the name as an indicator of an inferior, poorly-funded curriculum. That is certainly not the intent of such renaming.
Returning to the Sackler family example, partial owner Arthur M. Sackler (the Smithsonian donor) died in 1987, nine years before OxyContin was introduced to the market. Following his death, his wing of the family cashed out and have no remaining financial interest in the drug company. Nevertheless, the family name has been tarnished.
Similarly, Princeton and many high schools chose to name programs and schools after the two-term US president Woodrow Wilson. At the time these decisions were made, it was known that Wilson held racist views. Moreover, he had segregated the federal civil service after it had been racially integrated for decades, thus blocking a significant pathway to the middle class for African Americans. Though his views were extreme even by the standards of his day, that was not part of the calculus in the naming decisions. The current social climate has warranted a rethinking of those decisions.
The Lanham Act and Right of Publicity
As for more legal considerations, the Lanham Act (15 U.S.C. § 1051 et seq.) may protect individuals for whom institutions are named, permitting relief for false endorsement whether the individual is living or deceased. It constitutes the federal equivalent of the state right of publicity, and courts have expressly held that it recognizes a postmortem right.
Most importantly, the right of publicity, via statutory and common law, applies to any person’s right to prevent unauthorized use of their name or image for commercial use. This right specifically prohibits any implication that a person endorses a product without that person’s permission.
However, each state has its own interpretation of this publicity right. In some states the right of publicity extends only to living individuals, but at least 23 states now recognize that the right survives death. To make matters more complicated, the right of survivorship spans an extraordinarily wide range of 10 years in Washington State (if there was no commercial value in the name at the time of death) to 100 years in Indiana and Oklahoma. The approximate median is California at 70 years from the date of death. Interestingly, two seemingly unexpected states took an early lead in survivor rights – Georgia, which enacted such protection originally for the estate of Martin Luther King Jr., and Tennessee for its native son, Elvis Presley.
Moreover, some states are silent on the issue and do not explicitly recognize the right and/or survivorship. Given that there is a state-by-state question about where to obtain permission from the deceased person's estate, successors, or legal representatives in order to use their name for such a purpose, it is always best to check the laws in your own jurisdiction. Such permission would most likely be in the form of a license with or without an accompanying payment.
The 11th Amendment and Government, Political and Commercial Speech
It is well known that the 1st Amendment protects speech, but the 11th Amendment, which shields public institutions from being sued directly, also has relevance to naming opportunities. One important caveat is that the 11th Amendment may not protect administrators, who can be sued personally by aggrieved persons under certain circumstances. (See our earlier blog discussing the immunity of state officials.) Historically, that has meant that public K-12 schools did not have to worry about naming issues that might be a concern for private institutions or even public universities.
However, times have changed. The distinctions between government speech and commercial speech have blurred even in the lower grades. Public schools are now seeking to supplement their state-funded budgets by selling naming rights for buildings on campus. For instance, a public school with a football team around which the local community rallies can raise considerable funds selling t-shirts, caps etc. using the school name. The line is unclear where a school name is used for commercial purposes.
Once again, the Estate of Dr. King provides some interesting guidance. Dr. King was a member of the college fraternity Alpha Phi Alpha, whose members have continued to nurture strong bonds long after their college years have passed. The fraternity conceived the idea of the memorial to Dr. King in Washington, DC, shepherded it through the administrative challenges and raised more than $120 million of the project. Its foundation, however, was forced to pay the King children to use his likeness on the monument and to use his quotes, which adorn the massive structure. Furthermore, they had to pay for using his name in marketing materials for the fundraising. Upon completion of the project, the fraternity sought to continue to raise funds for the maintenance of the structure, even though the project was turned over to the US National Park Service. The King Estate refused to let the foundation continue to use the MLK name for this second phase of the project, arguing that it would cause confusion with its own fundraising efforts.
Accordingly, the determination of 11th Amendment immunity is subject to the grey areas of commercial and government speech, public and private designations and the individuals making decisions. It is very much a complex framework.
While it is not necessary to file trademarks for most K-12 naming situations, this step may be important on the collegiate level. The U.S. Patent and Trademark Office (“PTO”) requires that applicants who file for a trademark that includes the name of a person indicate whether the person is alive or deceased. Where the individual is still alive, the consent of the living individual must be made part of the trademark application.
A search of the PTO database suggests that a number of K-12 schools have been able to secure trademark registrations for individuals’ names, such as James Madison, for educational services for a private LLC, so it is worth consideration.
In summary, before embarking on a name change, we recommend first checking your local and state procedural rules regarding naming, if applicable.
Second, take a holistic approach to the naming process. It is much more than a name change, but rather an opportunity to bring your school community together to discuss its values and to be sure a range of voices are heard and appreciated. Consider decoupling the discussion of deleting a name from selecting the new name. And even in the best of circumstances, nostalgia should not overshadow or complicate the decisions surrounding the new name. While 100 percent consensus is unlikely, the intangible result of these discussions will far outweigh the name on the building.
More importantly, do your research and discuss whether it makes sense for your community to even name a school or building after an individual. In this moment, John Lewis is on the minds of many, but are there local heroes or events that will resonate more within your own community. Will the new name withstand the test of time?
Even though you may not need the permission of the individual or their heirs to delete a name, please extend the courtesy of discussing the change with them.
Consider if there are merchandising or other commercial uses beyond the obvious naming of a building or school. Once a name is chosen, consider whether a trademark would be obtainable or desirable given your intended uses. And finally, the opportunity to leave a naming legacy on your school community is priceless. Enjoy the process.