A federal appeals court has struck down a Georgia school district’s policy limiting public input at its board meetings, ruling that the policy gave “unbridled discretion” to the superintendent in a way that could lead to censorship of potential critics.
The decision involves an issue that sometimes vexes school boards across the nation—how to regulate speakers to keep matters civil, but also respect free-speech rights.
A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, unanimously ruled that a key aspect of the Walker County school district’s policy violated the First Amendment on its face.
The policy requires prospective speakers at the school board’s regular meetings or planning sessions to get together with the superintendent to “discuss their concerns.” The superintendent is then supposed to report back within 10 days. Speakers must then file a written request to speak at least one week before a particular meeting.
Because the superintendent controls the timing of that initial meeting with a prospective speaker, he may also “control the clock and control the game,” the appeals court said in using a basketball analogy.
“In this close-knit school-board community, it is quite possible—indeed, likely, in many situations—that the superintendent will have an idea of what a prospective speaker’s proposed subject matter will be before the superintendent schedules an initial meeting with the speaker,” the appeals court said. “The superintendent can avoid scheduling an initial meeting with that critic, preventing him from complying with the policy, which in turn bars the critic from speaking at the next meeting, thus censoring that critic’s point of view.”
The Oct. 2 decision in Barrett v. Walker County School District stems from efforts to get a speaking slot before the school board by Jim Barrett, a teacher in the district who is president of the teachers’ union local, the Wake County Association of Educators.
Barrett says in court papers that he often spoke at board meetings in the past when his comments were generally positive, and he wasn’t even required to go through the procedural requirements of the speaker’s policy. But that changed in 2014 when he took issue with new grading procedures implemented by Superintendent Damon Raines. (Barrett thought the change hurt student performance and teacher performance-evaluations.)
After a back-and-forth with the superintendent over the grading procedures, Barrett organized a group of union members to speak out about the policy at the February 2015 meeting of the board. Barrett met with the superintendent as required by the speaker policy, but Raines allegedly delayed his response to the teacher and told him by letter that there was not enough time to approve his request to speak at the February meeting. Also, the public-comment period for that meeting was dropped altogether.
Barrett sued under the free speech clause of the First Amendment, challenging the district’s speaker policy on its face and as applied to his efforts. A federal district court ruled for Barrett on the facial and as-applied claims.
The 11th Circuit appellate court struck down the policy only on its face.
“If defendants wish to continue requiring potential speakers to meet with the superintendent before submitting a request to speak, defendants must impose a reasonable time limit within which the superintendent must respond to the speaker’s request, schedule the initial meeting, and hold the initial meeting,” the appeals court said.
The outcome of the case brought an arguably ironic outcome, and perhaps an even more ironic argument from the school district. Lawyers for the district and other defendants argued that the injunction against the policy disserved the public interest because it led the district to drop public comments from its meetings altogether.
The appeals court said the defendants were confusing the issue.
“The issue is not whether speech should be allowed at all,” the court said. “As the parties agree, the comment sessions at board meetings are limited public fora, meaning that the board chose, but was not required, to open those portions of its meetings for public participation.”
“Consequently, the board has the power to close its meetings to public comment if it so wishes,” the court continued. “The problem here, rather, is the fact that the board allows public comment at its meetings but then maintains policies that have a significant potential to chill speech on the basis of content and viewpoint.”
One member of the panel joined in the result but wrote a concurrence offering a slightly different legal analysis.
A version of this news article first appeared in The School Law Blog.