Legal Forum: Community Comments in School Board Meetings

Dr. Dave Dagley, Professor Emeritus, University of Alabama

Dr. Amy Dagley, Assistant Professor, University of Alabama Birmingham

Alabama law directs county boards of education to hold a meeting, at least once each year, to allow the public an opportunity to present its views. Section §16-8-3 Code of Alabama (1975). A comparable statute does not seem to exist for city boards of education. However, both county and city boards regularly hear from their constituents by the long-standing practice of having time reserved on the board agenda for an opportunity for community comment. Many school boards have adopted a policy guiding the use of a community comment section during a school board meeting. A policy challenge against an Ohio school district, in a case recently decided by the Sixth Circuit Court of Appeal, Ison v. Madison Local Sch. Dist., 3 F.4th 887, 392 Educ. L. Rep. [527] (6th Cir. 2021), is the subject of this commentary.

In 2016, a student in Madison schools wounded four students with a firearm, fostering arguments in the community about school safety. In 2018, the school board decided to allow school staff to carry concealed weapons. Previously, the school board had enacted what it called a Public Participation Policy, to set procedures for community members to address the school board. The policy limited participation to city residents and required completion of a form, in person, at least two days prior to the meeting. Participants could only speak for three minutes, could only address the board president, and could not address individual board members. Under the policy, the board president was authorized to:

1. Prohibit public comments that are frivolous, repetitive, and/or harassing; 2.

2. Interrupt, warn or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, offtopic, antagonistic, obscene, or irrelevant;

3. Request any individual to leave the meeting when that person does not observe reasonable decorum;

4. Request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.

A parent objected to discussions by the school board to arm school personnel and came to a school board meeting to comment. He was not allowed to address the board, because he had not preregistered to do so. After preregistering, the parent returned to the next meeting, to speak against the board proposal to permit school employees to carry concealed weapons to school, and to speak against the actions of the administration in punishing students who had protested against the proposal.

The parent spoke at the meeting, accusing the board of being pro-gun and of threatening the school to punish students who had protested against the proposal. According to video evidence, he read calmly from his notes, but turned to address the crowd and other board members. He was interrupted twice, first by the board president, who asked him not to use the word “threatening,” and then by another board member who disputed the parent’s conjectures about the board’s president asked the parent to stop speaking and warned that if he continued, he would be escorted out by security. The parent continued his speech as a security officer escorted him calmly from the room, finishing the speech in just under three minutes. The board president later testified that the parent had been unruly, not following rules, and was hostile in his demeanor. The board president also said that he had let the parent speak until other people started to object and got offended.

The appellate court decision began by acknowledging that the constitutionality of speech restrictions depends upon the nature of the forum in which it occurs. Then, the decision recorded that the parties agreed that school board meetings are limited public forums. (Note: The court cited Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009), which is about monuments on display in a public park, for this assertion. As a tactical matter, we suggest that the community comments part of a school board meeting is a limited public forum, without conceding that the whole school board meeting is a limited public forum.) In a limited public forum, a school board may make manner, place, or time restrictions, if they are narrowly-tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. Thus, the school board may make content-based restrictions, such as limiting participation to certain groups or discussion of certain topics. However, the school board cannot practice viewpoint discrimination, which is discriminating between speech that it likes and speech it does not like. As the appellate court described it, impermissible viewpoint discrimination does not neutrally treat an entire subject as off limits. Rather, it permits some private speech on the subject and only disfavors certain points of view. In other words, a school board can choose to not talk about football at a school board meeting. But once it opens discussion to styles of football uniforms to private individuals in the room, it cannot pick and choose between opinions on the styles.

The parent argued successfully that two recent Supreme Court cases interpreting restrictions on federal registration of trademarks under the Lanham Act are instructive in deciding what is viewpoint discrimination. (The two cases are Matal v. Tam, 137 S.Ct. 1744 (2017) and Iancu v. Brunetti, 139 S.Ct. 2294 (2019). Matal struck down a regulation that prohibited trademarks that “disparage” . . . “persons, living or dead.” Iancu struck down a regulation that restricted trademarks that are “immoral or scandalous.”) Following those decisions, the appellate court held that restricting “antagonistic,” “abusive,” and “personally directed” speech because it opposes or offends school board members or members of the public violates the First Amendment. Although the court held in favor of the parent on this point, the court remanded a decision on damages or other remedy back to the district court, because the parties had not yet produced briefs about remedies.

On the preregistration requirement, the parties and appellate court agreed that it was a content-neutral restriction and therefore qualifies as a manner, place, or time restriction. As such, it only needs to narrowly serve a significant government interest and provide ample alternative channels for communication. The court noted that the preregistration process signals a commitment by citizens to show up to speak and provides an orderly and efficient means of creating and following an agenda. Emails to school personnel and school board members, and other school functions provide significant opportunities for parents to communicate personal viewpoints. The appeals court affirmed the summary judgment for the school board on this matter.

The parent’s third complaint was that language in the policy was unconstitutionally vague. In essence, the parent challenged the board president’s discretion, arguing that “reasonable decorum,” “abusive,” and “antagonistic” can change depending upon the school board’s approach. Here, the appellate court acknowledged that it had already struck the prohibition against “abusive” and “antagonistic” speech. However, the court declined to strike language in the policy regarding what was “reasonable decorum.” The court was supportive of allowing the president to make on the spot decisions about what was “reasonable decorum,” but signaled that it would not support decisions that picked between viewpoints, or limited speech simply because others in the room were offended by it.

We thought this was an important case to spotlight right now. We have seen school board meetings around the country erupt during community comments, recently about mask and vaccination requirements. We suggest that school leaders review their community comment policies with legal counsel. Although it is unlikely that the policy would be struck as being constitutionally vague, it is possible that the words chosen to convey what is prohibited can be interpreted as picking and choosing between opposing viewpoints. What is certain, however, is that threats are not constitutionally protected by the First Amendment. Threats, whether spoken threats or threatening behavior, may be controlled by the board president, with the assistance of law enforcement if necessary.

The school board in this case called their policy a “public participation” policy. The court in turn used the school board’s language to describe it. We believe school boards are better served by calling it a “community comment” policy. We have the viewpoint that a school board meeting is not a town hall meeting, where everyone in the room may speak to each item on the agenda. A school board meeting is not a public meeting, it is a meeting of the board in public. Although it is always good to listen to the public in forming policy, it is still the school board’s meeting.