1. Where does the right of free speech derive from?
The First Amendment to the U.S. Constitution states that “Congress shall make no law … abridging the freedom of speech….” The Iowa Constitution states that “No law shall be passed to restrain or abridge the liberty of speech, or of the press.”
2. Is an Iowa public school board required to have a public comment period?
3. Is there any down side to eliminating public comment?
Yes. A school board that limits or stops public comment may find itself short of votes in the next election. Practically everyone pays for public schools, and many Iowans are interested in schools and education and want to be involved.
4. Can public comment be limited to matters of public concern, and if so, what is an example of this?
Probably. But virtually everything related to public schools and people in their capacity as school employees or board members is a matter of public concern.
5. If a school board has a public comment period, can the board stop speakers from criticizing or complaining about administrators or board members?
No, not if the board permits praise or neutral comments. Censorship based upon content is impermissible viewpoint discrimination.
6. During Community Comment time, can the board legally ask questions of speakers?
Yes, although it can choose not to.
7. What about speech a board member views as disruptive?
Courts are restrictive about what would constitute disruptive speech. Offensive speech that does not actually disrupt a meeting is not disruptive speech.
8. Is it okay for a board member to require a speaker during public comment to be respectful or professional?
Not doing so would be wiser. First, many schools prohibit discrimination on the basis of age, race, color, creed, disability, socioeconomic status, etc. To the extent speaking styles derive from any protected category of persons, the board member could be discriminating. Second, reasonable people can disagree about what constitutes “respectful” or “professional” behavior. Third, the word “professional” can sometimes be imbued with subtle class snobbery by those who use it. A better practice would be for board members to model the behavior they wish to encourage of speakers.
9. If other school districts in Iowa have a Community Comment or Public Participation policy does that mean it is okay for ICCSD to follow it?
No, not if the other school districts’ policy violates the law. That’s like a child saying it’s okay to do something wrong because other kids do it.
10. Is a board permitted to close a meeting under Iowa’s Open Meetings law if a member of the public criticizes an administrator or board member during Community Comment?
No. Under Iowa’s Open meetings law, the board may infrequently go into closed session “[t]o evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session”; however, a public commentator is not the board commenting and there is no exception to Iowa’s Open Meetings Law that permits the board to close an open meeting when a member of the public criticizes an administrator or board member.
11. What is an example of legal liability?
A person whose federal right to free speech has been violated may be able to sue the school district under Section 1983 of the Civil Rights Act of 1871. A party that wins a free speech case against a school district may also be entitled to attorney fees.
In a free speech case involving students, the Easton Area School District in Pennsylvania agreed to pay the ACLU of Pennsylvania’s attorneys’ fees in the amount of $385,000 for the I (heart) Boobies! case. See http://www.lehighvalleylive.com/easton/index.ssf/2014/09/easton_area_school_district_to_12.html.
Prior to incurring legal liability a better course of action would be to rescind any unlawful policy or stop any government official’s behavior that chills free speech. See See http://www.acluct.org/updates/waterbury-aldermen-rescind-speech-restrictions/.
12. Can a board president interrupt and remind a public speaker that the content of his or her comment must relate to a matter of public concern?
Probably, however, there is broad latitude for what people may talk about. And, if speakers get only a short period of time to speak, frequent interruptions may violate the speaker’s right of free speech. Public participants and viewers are intelligent enough to discern for themselves whether speakers are on topic and credible.
13. Can a board ban a speaker it deems annoying?
No. Annoying speakers (or those perceived as annoying by some) have the same right to speak as anyone else. Even requiring such speakers to email the board in lieu of speaking publicly can interfere with speakers’ right of free speech because emailing does not allow the same level of communication that speaking at a public meeting that is viewed or televised does–the latter allows speakers to communicate with the board and the viewing public.
14. Can the board place a reasonable restriction on the time that members of the public are allowed to comment?
Yes. For example, the current Iowa City Community School District board limits public comment to 3 minutes. Iowa City Council, in contrast, allows the public to speak for five minutes.
15. Anything else?
Public comment at school board meetings can be a hot issue. For example, numerous people have written and spoken about free speech and public comment at Iowa City Community School District’s (ICCSD’s) board meetings—e.g., see http://ablogaboutschool.blogspot.com/2014/02/speech-is-free-regulating-it-costs-money.html. Most folks would agree that school boards need to be able to conduct meetings; however, schools also need public support and sometimes votes for additional taxes or bonds. Given that schools teach our children about living in a democratic society, permitting public comment without undue restrictions is reasonable.
Perhaps the most effective leaders are those who listen well and with respect for the speaker, if not the speaker’s opinions. Here are some behavior tips that board members can apply. http://beeryelsner.com/ten-tips-to-tame-unruly-behavior-at-council-meetings/.