October 12, 2017
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:
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