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Additional Nelson Mullins Alerts

October 12, 2017

Court Rules Georgia School Board Public Comment Policy Unconstitutional

By Neeru "Nina" Gupta

The Eleventh Circuit Court of Appeals issued a decision, Barrett v. Walker County School District et al., holding that one school district’s public comment policy was unconstitutional and violated the First Amendment. This decision is binding on every school district in Georgia, Florida, and Alabama.  This alert summarizes the background of the case and the Court’s decision, ending with practical tips for school districts.


Walker County School District (“District”) had a policy governing public comment at its board meetings.  Prior to speaking at a meeting, the policy required an individual or organization to meet with the Superintendent to discuss their concerns.  The policy included no timeline in which the meeting was to be held. The Superintendent was allowed 10 working days after the meeting to investigate those concerns and report back to the individual or organization.  If they still wanted to speak, they had to make a written request at least one week prior to the meeting, stating the purpose of the request and the topic of speech.  In addition, the policy and administrative procedure prohibited speakers from making complaints against employees or making abusive, disruptive, or irrelevant comments.

Jim Barrett was employed by the Walker County School District as a middle school teacher and also served as the president of the Walker County Association of Educators (“WCAE”). As president of WCAE, Barrett often spoke during the public comment portion of the Walker County School Board meetings. Barrett alleged, however, that when his comments toward the Board became negative after a new grading policy was implemented, he was subjected to the Board’s policy which required prospective speakers to follow certain procedural requirements.  Barrett filed suit, claiming that the policy violated his rights under the First Amendment.  The Court agreed with Barrett, holding that the policy impermissibly gave the Superintendent “unbridled discretion” over who could speak and what topics they could address.

The Court’s Decision

The Free Speech Clause of the First Amendment ensures that governments and their officials do not pass laws or enact policies impermissibly abridging the right of freedom of speech. Depending on the forum in which speech will take place, certain restrictions on speech may be permissible. The Eleventh Circuit analyzed the policy and made several prerequisite findings before ultimately finding the policy unconstitutional.

Like most school board public comment meetings, Walker County’s public comment meeting was a “limited public forum,” with some content-based restrictions on topics that could be addressed.  Additionally, the Court noted that the policy in question was a “prior restraint,” as it denied individuals the ability to speak before they had actually spoken by requiring them to follow the perquisites of the policy and procedure.

A prior restraint and some content-based restrictions in this context can be permissible.  Walker County’s policy ran afoul of the First Amendment, however, because of the “unbridled distraction” it gave its Superintendent, and the Superintendent alone, to decide whether individuals would be allowed to speak during public comment. If the Superintendent did not want a prospective speaker to make public comment because of that speaker’s viewpoint, the Superintendent could simply avoid scheduling an initial meeting altogether, since the policy included no timeline to hold this meeting, and the meeting was a prerequisite to making a public comment.  The Court held that, if Walker County wanted to continue to require a meeting with the Superintendent prior to making a public comment, it needed to impose a reasonable time limit for the Superintendent to schedule and hold that meeting.

Practical Implications for Georgia School Districts

This opinion offers significant guidance to school districts who offer a public comment session and how to stay on the right side of the First Amendment.  Key takeaways are:

  • Do not give any official unbridled discretion to decide who will be permitted to speak during public comment session - No one person should be given unbridled discretion to decide who will be permitted to speak. To avoid granting a person unbridled discretion, ensure that your District and/or Board have clear guidelines for determining whether a person will be permitted to speak. If your current policy is ambiguous, it should be formally clarified.
  • Ensure the procedure a prospective speaker must undergo to speak at a Board meeting does not have any open-ended time lines - If your current policy relies on a Board Member or District employee to respond to a prospective speaker before the prospective speaker can be granted permission to speak during a public comment session, ensure your policy states that the Board Member or District employee will respond to the prospective speaker within a specified number of days. The official should not have an unlimited amount of time to decide whether to permit an individual to speak.
  • Avoid viewpoint discrimination – While a school district may generally impose some reasonable content-based restrictions for its public comment meetings (such as prohibiting “abusive language”), any decision by the District or Board to allow or deny a prospective speaker the opportunity to speak during public comment session should not be based on the speaker’s anticipated viewpoint or opinion. Such speech is generally protected by the First Amendment.  As a general rule, board members and district officials should not decide whether to allow a prospective speaker to speak based on their personal feelings about the speaker or the topic about which he will speak, and all prospective speakers should be treated consistently.