Please Tell Us What’s on Your Mind? – Fine-Tuning Public Comment at School Board Meetings

“Fine Tuning” Episode 6

By John M. Sedor, Sedor, Wendlandt, Evans & Filippi LLC

For most of my career, school board meetings were relatively non-controversial affairs. That changed a few years ago. School board meetings have become a focal point for political and cultural differences. Just last week, the Washington Post (reprinted in the Anchorage Daily News) featured an article on public comment at school board meetings gone awry. The article discusses a number of real life incidents from around the country and can be found here.

This month’s commentary provides practical considerations to limit the potential for public comment disruptions at your meeting. It also explores potential liability for “content based” restrictions. Public comment implicates the First Amendment and a citizen’s right to free speech so options and approaches should be reviewed with counsel as should “content based” restrictions in particular situations. Topics for a board to consider when developing or modifying guidelines for public comment at school board include:

1. The right to public comment and the rules that apply should be in your board bylaws. (For most districts, it is BB 9323). Not all board bylaws are the same. Make sure you check yours.

2. When a board provides for public comment at its meeting, it creates what the law refers to as a “limited public forum.” This means that the board (the government) is providing a space (in time and location) for expressive activities. Once created, the board (government) may place reasonable “time, place and manner restrictions” on the expressive activities. These restrictions are “content neutral” meaning they apply to all speech regardless of the content. Restrictions based on the content of the speech (with a few notable exceptions) receive a higher level of scrutiny if challenged in court.

3. Boards are generally allowed to adopt non-content-based restrictions on public comment at meetings. For instance, a board may choose to limit the total time allowed for public comment at each meeting. School boards do not need to allow public comment to go on indefinitely. Public school board meetings do not have to be town hall style meetings.

4. Similarly, boards are generally allowed to restrict each speaker to a pre-established time limit (a certain number of minutes). It is important to enforce total and individual time restrictions equally.

5. Boards are generally allowed to require that commenters sign up in advance including the speakers name, representative capacity if any, and topic to be addressed. The benefit of this option is lost, however, if it is not enforced and people who sign up late or not at all are allowed to provide public comment.  

6. In most situations, it is permissible for a board to have a policy of limiting comment to topics on the agenda. A board meeting is for the purpose of conducting school board business. It does not need to be a town hall style meeting. Board policy could be that communications from the public on non-agenda items can be submitted by alternative means, such as through email to the board secretary or superintendent.

7. All of the above options for limiting public comment would apply equally to a parent who wants to thank a teacher for work above and beyond the call of duty as well as to a speaker who wants to criticize the board, superintendent, or basketball coach. These options are “content neutral.”

8. As control of public comment moves from “content neutral” options to content reasons, the potential liability risks for the district increase.

9. For instance, most board bylaws prohibit “charges or complaints” against school employees during public comment. (Note: board bylaws do not include board members as free from criticism or complaints; as elected officials, they are subject to expressions of criticism.) Applying this rule can be difficult and can create legal risk. The underlying purpose of this rule makes sense – a school employee should not be attacked in public where the issue is not on the agenda, the school employee has not been given notice and an opportunity to respond or at least prepare to address the complaint, or the speaker has not first followed content neutral required complaint procedures. Application of the rule in this scenario may be valid. Prohibiting “charges or complaints” against school employees can be an appropriate “time, place, and manner” restriction which requires that complaints flow through a designated channel rather than being aired in the first instance in public comment at a board meeting in which that issue was not on the agenda.  But a board must be careful not to use this rule to prohibit allowable speech. One person’s criticism of program administration may be another person’s “personal attack or complaint.” This is where potential liability increases. In addition, the organizational chart may matter: the superintendent may be determined to be a “public figure” for purposes of the comment (and the comment/criticism would need to be allowed) where a third-grade teacher or paraprofessional might be able to be protected by the restriction.

10 Restricting speech at board meetings based on the content of the speech implicates First Amendment speech rights. Improperly imposing restrictions can create liability for the District and, in some cases, personal liability for board members.

So, what should a board do to fine-tune its public comment processes? First, the board should review its existing bylaws on public comment. Board members, and especially the board president, should know the exact contours of allowable and not-allowable public comment. Second, the board should make sure it is comfortable with the “content neutral” limitations on public comment. In determining its level of comfort with the restrictions, the board should imagine applying those rules to a controversial situation or topic. Third, and this is very important, the board should follow its public comment rules at all meetings – even the meetings where nothing controversial is being presented in public comment. Only applying “content neutral” restrictions at controversial meetings may, in and of itself, be found to be not “content neutral.” And finally, a board should be careful if and when public comment is cut off because of the content of the speech.

The era of quiet and easy-going board meetings may return but, until then, it is wise to be prepared for potential public comments running amok.

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