School Board’s Policy Barring ‘Negative’ Comments is Unconstitutional
Parents and community members who attend a Mesa, Ariz., school board meeting can lavish board members, teachers, and staff with praise. They can thank an administrator by name, celebrate their child’s teacher, or call a staff member an inspiration. What they can’t do, under board policy, is criticize those same people. But that’s unconstitutional, and that’s why this week the Goldwater Institute sent a letter to the Mesa Public Schools Governing Board urging board members to amend the illegal policy.
The Mesa school board’s policy bans “personal attacks on Board members, staff, students, or members of the public” during the public comment period of a board meeting. Any “negative” comment directed at a board or staff member can by shut down, no matter how factual, measured, or accurate the critique.
But as Goldwater notes in its letter to the board, that’s viewpoint discrimination. And it violates the First Amendment to the U.S. Constitution.
A Bedrock Principle: Government Cannot Pick Sides in Public Debate
School board comment periods are a type of public forum—a limited one to be sure, but a public forum nonetheless. And in these types of limited public forums, a governmental entity like a school board can only regulate the time, place, and manner of speech. It cannot restrict speech based on the speaker’s viewpoint.
This isn’t a novel idea. The Supreme Court has time and again held that viewpoint discrimination is so egregious that the government must nearly always abstain from such regulations. As the Court has explained, “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”
A policy that restricts speech based on viewpoint is an assault on both the idea that the First Amendment stands as a shield to protect Americans and our collective decision as a country that individuals possess an inalienable right to speak and think freely. These principles are especially important in the context of a school governing board banning “personal” attacks against board members and staff. Such a policy thwarts the core purpose of public comment periods at school board meetings: educating the board and the community about community members’ concerns.
If, for example, a parent has a grievance about their child’s math teacher’s teaching style, it would be hard to adequately explain the problem without referring to the teacher. It is relevant to the school board, the governing body of a school that is responsible to parents, if a parent has a complaint about a specific math teacher. And the public nature of the complaint might prompt other parents with similar concerns to speak up as well. Mesa’s policy bans just those types of comments—comments that are at the heart of the school board’s business.
What the Courts Have Said
That’s exactly why two federal courts of appeals in recent years have struck down policies similar to the Mesa school board’s prohibition.
In Ison v. Madison Local School District Board of Education, the Sixth Circuit struck down a school board policy prohibiting speech “personally directed” at school board members that was “antagonistic” or “abusive” because the policy amounted to viewpoint discrimination.
Similarly, the Eleventh Circuit in Moms for Liberty – Brevard County, FL v. Brevard Public Schools, held unconstitutional a school board’s prohibition on “abusive” comments where abusive included practices such as name calling or saying “offensive things.” The board’s policy was problematic because it “effectively requires ‘happy-talk,’ permitting a speaker to give positive or benign comments, but not negative or even challenging ones.”
The Fix Is Simple
The public comment period of school board meetings can be orderly and productive without trampling on constitutional rights. School boards can set rules about the length of comments and the general topics to be addressed.