April 03, 2023 | Blog, Board Governance, Board Policy, First Amendment
Board Operating Procedures Did Not Restrict Speech
by Katie Pestcoe
A judge recently issued an important ruling in a citizen’s 2021 lawsuit against a Texas school district regarding board policies and operating procedures addressing the parameters of public comment during school board meetings.
In August 2021, a citizen addressed a district’s board of trustees during the public comment portion of the open meeting. While offering his comments, he criticized a principal and sarcastically discussed photos on Facebook of the principal and his wife. The board president used the gavel to interrupt the citizen and informed him that he could not use public comment to mention employees by name or raise complaints.
At the time of the August 2021 board meeting, board-adopted operating procedures stated:
We request that persons speaking in open forum . . . refrain from raising complaints against such individuals [employees] or personally identifying them in any way in their remarks unless pursuant to the District’s grievance policies . . . Public comment on such matters will not be allowed unless pursuant to those policies.
As a result of the meeting, this citizen sued the district and board president. In October 2021, the district adopted a new board operating procedure, which stated.
The Public Comment period is not intended for the presentation of allegations of employee misconduct, requests for employee discipline; lodging personal attacks; shaming; or demeaning specific named ISD employees, or unnecessarily disclosing private information about ISD employees or students.
The legal issue presented in the case was not whether the citizen’s speech was protected by the First Amendment; both parties agreed that it was protected. Rather, the issue was whether the district’s policy regarding naming district employees during public comment was appropriate for the type of forum.
Courts recognize three categories of forums: (1) traditional and designated public forums; (2) limited public forums; and (3) nonpublic forums. Both parties agreed that the meetings were at least a limited public forum; therefore, the court proceeded to treat the meetings as limited public forums.
The court found that the citizen’s claim against the board operating procedure in effect at the time of the August 2021 meeting was moot because the procedure was no longer in effect. Even so, the court determined it would have upheld the constitutionality of the procedure, and that the district policy was not viewpoint discrimination, but was instead a reasonable, content-neutral regulation.
The court next considered the district’s amended board operating procedure. The court’s interpretation of the new language hinged on the word “intend.” According to the court: “[W]hile the Policy states that [the District] did not intend or design the public comment session to discuss employee concerns, the Policy does not prohibit or restrict a speaker from doing so.” Therefore, the citizen’s challenge to the procedure failed because it did not explicitly restrict speech.
With regard to the citizen’s remaining claim that the district’s prior board operating procedure was unconstitutional, the court denied both parties’ motions for summary judgment.
Reminders Concerning Public Comment During Open Meetings
Each member of the public who desires to address the board regarding an item on an open meeting agenda must be allowed to do so before or during the body’s consideration of the item at the meeting. However, a board is not required to provide a public forum for every person wishing to express an opinion on any matter whatsoever. Boards may choose to allow members of the public to provide information and feedback to the board about matters not listed on the board’s agenda as a matter of local policy.
In addition, a board may adopt reasonable rules governing public comments, including rules that limit the total amount of time that a member of the public may address the board on a given item. In some districts, individuals who sign up for public comment are asked to provide contact information and/or to indicate whether they are parents of students enrolled in the district. Asking individuals to provide this information voluntarily is allowed, but only if the information is not used to prevent speakers from addressing the board.
Furthermore, a board may limit public comment to certain topics or subject matters in compliance with the law. As long as limitations do not discriminate against particular viewpoints or deny speakers the opportunity to address the board about an agenda item to be considered at an open meeting, school boards may limit public comment to subjects listed on a meeting’s agenda or to matters that are within the board’s control or jurisdiction.
What About Criticism?
Texas Government Code Section 551.007 prohibits a board from prohibiting public criticism of the board or district, including criticism of any act, omission, policy, procedures, program, or service.
May a board prohibit a speaker from engaging in criticism of an individual or referring to employees by name?
Section 551.007 does not require a board to allow public criticism that is otherwise prohibited by law. However, in order to be prohibited by law, a speaker’s comments would have to be more than critical—they would need to constitute an illegal act, such as slander or invasion of privacy. A district should consult its school attorney when developing procedures that will prohibit certain types of speech during public comment. Considerations should include whether prohibitions are reasonable, viewpoint-neutral, and avoid interfering with a person’s rights under any law.
Please do not hesitate to contact the education lawyers at Leasor Crass, P.C. if you have additional questions about the Open Meetings Act, Public Comments, and Board Operating Procedures.
