You, your board colleagues, school administration, staff members, and even most (let’s hope) of your district’s students are excited to get back to school. The school district has got all of its ducks in a row. Everyone else can feel it. This is going to be a great year.

In your first meeting as the chair of your school board, you are relaxed following a nice long break and ready to convene your first board meeting of the 2019-20 school year. “Welcome back, everyone,” you say with a big smile, “I call this meeting of the school board for The Best School District in All the Land to order. I hope everyone had a great summer and is ready for a great school year. First order of business: Is there any comment from the public?”

And then it happens. A citizen steps forward and says, “Yes, I’d like to make a formal complaint.” The citizen then proceeds to talk about how a teacher harassed his child last year, the administrator who investigated did a lousy job, and the superintendent failed to do anything about it. Welcome back, indeed.

Flustered and not sure of what to do, but wanting to defend those involved, you tell the citizen you will not allow him to abuse and defame teachers and administrators in an open meeting. He should have brought his complaint to you as required by school board policy. Frustrated by being cut off, the citizen then continues on to grumble that the school board and administration has done nothing to replace the “state-of-the-art” Apple II Plus with external floppy drive that finally stopped working six months ago or the social studies textbooks that make it sound like the wall everyone is talking about is in Germany.

That’s it! You’re done and so is the citizen — at least as far as you’re concerned. In your best calm but firm voice, you say, “Sir, you are out of line. I don’t believe in being a stickler about these things, but our policy only allows one minute per speaker. You are out of time.” For good measure, you add, “Thank you for coming. We always love to hear from the public. And we’ll be sure to get right on that complaint. Bye.”

You take a 10-minute break to lower your blood pressure, and then move on to the next order of business feeling confident that you did your job by defending staff and will never hear from the citizen again. Sure enough, you don’t. You hear from his lawyer, who claims the school board violated the citizen’s First Amendment free speech rights. And guess what: The lawyer is right.

Gray Areas

First Amendment issues are complicated. There are a lot of gray areas in which attorneys and judges struggle to determine what speech is protected and what is not, which makes it unfair to expect board members or administrators to know how to handle these issues when they arise. I hope this article will help.

When a school board allows for the public to comment, it creates a “designated public forum.” This means the public generally has the right to speak regarding matters within the jurisdiction of the school board. The board, however, may place reasonable restrictions as to the time, place, and manner of the speech. For example, it can set time limits on speakers and when, where, and how speech is allowed. Any content-based restrictions, however, must be necessary to achieve a compelling state, i.e., school board interest.

Issues of Authority

What does this mean for the School Board for The Best School District in All the Land? Well, one of the first things we must consider is what issues are within the authority of the school board. In Massachusetts, where I practice, school committees (our name for school boards) have the authority to hire, fire, and evaluate the superintendent and a limited number of other high-level administrators.

All other employees are hired by the superintendent or building principal. School committees also have the authority to set the school district’s goals/direction, curriculum, budget, and policy.

If the School Board for The Best School District in All the Land has the same authority as a school committee in Massachusetts, the school board would have no authority over complaints against anyone in this scenario other than the superintendent. As such, refusing to allow the citizen to complain publicly at the school board meeting about the superintendent interfered with the citizen’s First Amendment right to speak about a matter over which the school board had jurisdiction.

Concerns about defamation are legitimate. Over the years, I’ve received a number of calls from school committee members, superintendents, and other school administrators concerned that they or someone in their district has been defamed by a member of the community. For a public figure to prove defamation, he or she must show the speaker knew the statement was maliciously false or made with reckless disregard for the truth. The statement also must be a statement of fact and not a statement of opinion.

For our purposes, it is important to know that although an individual who has been defamed can bring a civil action, the courts rarely will uphold a prohibition on allegedly defamatory statements unless there has been a final legal determination that a statement was defamatory. This ultimately leaves school boards with limited ability to curtail false statements. The only real, immediately available response is to correct the false statements.

What about the citizen’s complaint about the teacher and the other administrator’s failure to investigate and the school’s curriculum? If the school board has no authority to hire or fire the teacher or administrator, prohibiting the resident from complaining publicly about them does not violate the First Amendment. The citizen’s statements about the school’s curriculum, however, are, like the complaint about the superintendent, squarely within the authority of the school board, and protected by the First Amendment.

Public Can Speak

I hope the take-away from this article is clear. School boards must be extremely cautious about restricting what citizens say during the period set aside for public comments at school board meetings. Generally, if a school board is going to allow for public comment (which is not constitutionally required), it must allow the public to speak about any matter within the school board’s authority.

To curtail this, school boards can adopt policies that restrict the length of a person’s statements, prohibit someone from repeating the same comments at multiple meetings, or limit the amount of time for public comment at the meeting as a whole. Any such policies, however, must be consistently enforced on a content-neutral basis.

This article is based on court cases interpreting the First Amendment to the U.S. Constitution. State constitutions and state laws may provide for greater protections. I strongly advise school boards to confer with their local school board attorney or state association counsel regarding their own policies and practices related to public comments at their board meetings.

Marc L. Terry (mterry@mirickoconnell.com) is a partner of Mirick, O’Connell, DeMallie & Lougee, LLP, in Westborough, Massachusetts.

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