The parent of a student receiving special education services in the Highland Community School District in Iowa had a long history of disagreements with the district regarding the program and services offered to her child pursuant to the child’s Individualized Education Program (“IEP”). See Cazwiell-Sojka v. Highland Community School District, No. 3:17-cv-00020 (S.D. Iowa February 21, 2018). After a breakdown in communication with the teachers and the administration in charge of implementing her child’s IEP, the parent sought to include her grievances as an agenda item during the “receive visitors” portion of the board’s meeting to make known her discontent with the child’s IEP and disapproval of the district’s personnel and their professional performance. The district had a policy which stated that “while constructive criticism was welcomed, the board [desired] to support its employees and their actions to free them from unnecessary, spiteful, or negative criticism and complaints that do not offer advice for improvement or change.” On the basis of this policy, the parent was able to speak about her concerns regarding her child’s education but was cut-off and informed she would not be allowed to “address personnel issues” during public comment. Was the district entitled to do that? The parent did not think so and sued. 

Is it a Public Forum?

Speech restrictions imposed by the government on property that it owns are analyzed under a “forum based approach.” See Hotel Employees & Rest. Employees Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 544 (2d Cir.2002) (internal quotations omitted). Some property is recognized as being traditionally a “public forum” such as a park or a sidewalk where speech can only be restricted if narrowly tailored to serve a compelling State interest, whereas mailboxes at a public school may not be considered such public forums. See Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37 (1983)( an employee union wanted to place recruitment flyers in teachers’ inboxes but noting that the boxes were built specifically for communicative purposes about official school business by authorized users, the Court found that the boxes were not a “forum” open to general expressive use).

Is it a Designated Public Forum?

Government entities are free to designate a location or time where citizens can express themselves. In a designated public forum—a place not traditionally open to assembly and debate which “the State has opened for use by the public as a place of expressive activity”—government regulation of speech is subject to the same limitations that govern a traditional public forum. See Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.2004). That is the case with public comments during board meetings. Once it is declared to be a “designated public forum,” any regulation on the content of a speaker’s message could be struck down if challenged and deemed unconstitutional. For example, a policy which forbade complaints against an individual employee without the employee’s consent was found unconstitutional because it allowed classic viewpoint discrimination (speakers could provide praise but not criticize employees). See Leventhal v. Vista Unified School District, 973 F.Supp. 951, 954 (S.D. Cal. 1997).

Are Regulations Reasonable and Content Neutral?

The use of the forum can be limited to speech consistent with its purpose and a board may enforce reasonable regulations that are “content neutral,” or applied even-handedly to all speakers. Content-neutral restrictions are those that are both viewpoint and subject matter neutral. See Boos v. Barry, 485 U.S. 312, 320 (1988) (content neutral restrictions do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter). While a school board cannot differentiate based on a speaker’s opinion, speakers can be limited to subjects relevant to that agency’s purview.  See Jones v. Heyman, 888 F.2d 1328, 1332 (11th Cir.1989)( speaker’s admonishing of the commission to act more prudently in its spending habits was not the topic of debate, and the mayor quickly directed the speaker to comment only on the relevant issue or be removed to which the speaker responded “I don’t think you’re big enough,” and was expelled). Similarly, a government body may also remove a speaker who causes a disturbance – shouting, refusing to leave after the expiration of a time limit – without violating the First Amendment. See Conn. Gen. Stat. §1-232 (allowing boards to remove persons who are willfully interrupting a public meeting, clear the room (except for members of the press) and continue in session); see also White v. City of Norwalk, 900 F. 2d 1421 (9th Cir. 1990) (upholding an ordinance that prohibited speech during council meetings that “disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting”).

What is the Main Take Away?

The parent who sued the Highland School District in Iowa survived a motion to dismiss because the Court in the Southern District of Iowa believed that the school district’s policies denied her the right to speak and petition the government and were unconstitutionally applied to her. Id. at 20.  The Court found that the policies supported “constructive criticism” but denied the opportunity to voice “negative criticism”. Id.at 22. The case remains active and proceeding in court. The main take away is that boards of education need to have a clear policy regarding public comments that take into account whether the language or implementation of the policy survives scrutiny under the First Amendment. For example, while board members may consider “asking” or “requesting” that speakers not discuss certain matters, e.g. personnel, it is important to remember that in doing so, they cannot restrict speech content once the meeting has been designated as a public forum. Unless, of course, the speaker is disruptive, e.g. uses profanity or engages in threatening behavior. Another suggestion is to consider limiting the discussion to agenda items and enforcing such practice in a content-neutral fashion.  In addition, when dealing with issues that are sensitive in nature such as personnel matters, boards routinely defer discussion to executive session under Conn. Gen. Stat. § 1-225(f). For these reasons, it is also important for board members to be clear on how to effectively use executive sessions to discuss these matters.