ko_header_3column4_underwood_art

School boards can enact rules about public comments at their meetings, but they cannot impede someone’s right to speak, whether they are employees or the public.

Access and input to decision making by public bodies, including school boards, is an important part of the American democratic system. How does the public, including school district employees, provide input to a school board’s decision-making process? The public comment portion of the school board meeting provides this opportunity for many school boards.

A recent federal district court case — Barrett v. Walker County School District (N.D. Ga. 2016) — raised this issue. The dispute appears to have started when the Walker County (Ga.) School District superintendent changed the district’s grading policy. Jim Barrett, a district employee and president of the local educators’ union, disagreed with the new policy. Between May 2014 and March 2015, Barrett attempted to get on the school board agenda during the public comment period to share his concerns over the new grading policy.

The board policy detailed the procedure to be followed by any member of the public who wanted to speak at a board meeting. An essential part of that procedure was securing approval from the district superintendent to be placed on the agenda. Barrett complied with that procedure but was never allowed to speak at a board meeting about the grading policy. During the period when Barrett was trying to get on the board agenda, local parents were allowed to speak about the same issue during the board’s public comment section. Barrett also had been allowed to speak at previous board meetings on other issues when his comments supported the superintendent’s actions.

Barrett sued the district, claiming the board policy was an unconstitutional restriction of his First Amendment free speech rights. The federal district court found that the policy on its face violated the First Amendment because it gave the superintendent unfettered discretion to approve, deny, or delay requests to speak before the board and limited the nature of issues that someone could take to the board.

This case did not turn on whether Barrett, as an employee, had a right to speak directly to the board. As a member of the public, Barrett did have the right to speak to the board. Even though he was an employee and the topic he wanted to bring to the board involved a school district matter, he still had the First Amendment right to speak to the board if the issue was a matter of public concern and not just a personal disagreement with an issue or a personal complaint about how he, as an employee, had been treated by the district. As decided by the U.S. Supreme Court, employees “may not be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” City of Madison, Joint School District v. Wisc. Employment Relations Commission, 429 U.S. 167, 175 (1976). Certainly, matters of grading and educational standards are matters of public concern.

Whatever its duties as an employer, when the board sits in public meetings it may not discriminate between speakers on the basis of their employment or the content of their speech. In this situation, however, the board appears to be doing both: not allowing Barrett, the employee, to speak and not allowing Barrett, the citizen, to speak on  issues he found important.

Limited public forums

Generally, meetings of elected boards are considered limited public forums. The Walker County board had created a limited public forum when it designated a specific public question-and-answer time on the agenda. In a limited public forum, the public can speak, but there can be reasonable restrictions to ensure that such access does not thwart the business of the body. In a limited public forum, the government can put reasonable time, place, and manner restrictions on speech. For example, a public body can limit how long someone can speak, limit the manner of speech (for example, prohibiting oversized signs), or prohibit disruptive or abusive speech. A public body also is able to create a reasonable process for recognizing speakers.

The Walker County School Board policy outlined a strenuous process to get on the board agenda to speak. Prospective speakers had to:

  • Meet with the superintendent to request to speak at the board meeting and identify the issue to be raised.
  • Allow the superintendent time to investigate the issue; within 10 working days the superintendent had to get back to the individual.
  • Have a second meeting with the superintendent to be informed of the investigation. If they still wanted to be heard at a board meeting, the individual then had to make a written request at least one week before the board meeting.
  • Wait for the superintendent to approve the request.

In the Walker County Board policy, after first meeting with the superintendent to request time to speak, the prospective speaker could wait up to 10 working days for a decision. The policy also required a second meeting with the superintendent after the superintendent had investigated the issue raised by the person seeking to speak at the meeting. But the policy did not identify a timeframe for setting that second meeting. Theoretically, the superintendent could have held off someone by delaying the second meeting until the issue became moot or the individual gave up on speaking to the board; in effect, the speaker would be censured by inaction.

The federal district court found the policy unconstitutional on its face because it gave the superintendent too much discretion to decide when and whether someone could come before the board. To be a reasonable restriction on speech, the policy must clearly identify the decision-making rubric and must set a clear timeframe for decision making. Policies can require prior permission to speak as a time, place, and manner restriction, but the process for getting that permission must be clear and not give the administrator unlimited discretion.

In addition, the court found the Walker County board policy unconstitutional because it placed unreasonable limits on topics that could be brought before the board. The board policy stated: “The Board will not hear complaints against employees of the Board.” In a limited forum, there can be restrictions, but they must be content neutral. The regulations cannot exclude certain ideas or viewpoints. The “guiding First Amendment principle [is] that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” McClullen v. Coakley, 134 S.Ct. 2518, 2529 (2014).

The court found the board policy was content-based since it “completely bars a speaker from raising complaints against employees of the Board.” “The policy . . .  does not simply prohibit disruptive or irrelevant speech or personal attacks — on its face, it prohibits speakers from airing complaints about employees of the Board. This is classic viewpoint discrimination.”

One could assume that the board was trying to keep employee disciplinary issues off the public record when it wrote its policy. Dealing fairly with complaints about employees is an important governmental interest. But this policy precludes all complaints about employees, not just ones that would be the subject of sensitive personnel concerns. Rather than prohibiting personal attacks on individuals, including employees, the policy banned complaints about any and all employees. One could imagine that Barrett may have complained about the superintendent during his comments to the board, had he had been allowed to speak.

Access to public bodies

Access to public bodies is important from both a constitutional and policy perspective. First, as public entities, school boards must be careful to adhere to constitutional principles, including free speech. From a policy perspective, as public bodies, school boards need to:

  • Be accountable to the public;
  • Have clear and transparent decision-making procedures; and
  • Be open to input from the public.

None of this was facilitated by the Walker County School District policy. A closed board meeting is not the image districts are trying to project when they say on their web sites, “We encourage and welcome your questions and comments.”

JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is a professor at the University of Wisconsin-Madison.

Originally published in February 2017 Phi Delta Kappan 98 (5), 76-77. © 2017 Phi Delta Kappa International. All rights reserved.