26 July 2021

Sixth Circuit: School Board Policies on Public Participation Violated First Amendment

Earlier this month, the United States Court of Appeals for the Sixth Circuit published its decision in Ison v. Madison Local School District Board of Education, addressing the censorship of offensive or critical speech at a public meeting involving a public body or its members.  The court opined that prohibiting speech simply because it may offend or disparage someone is a violation of the First Amendment.

In 2018, two years after a gun-related incident at a school in Ohio, Madison Local School District Board of Education allowed staff to carry concealed weapons.  At two board meetings discussing the Board’s handling of gun-related issues, plaintiffs Carolyn Patrick and the Ison family were prevented from speaking.  The Board alleged the plaintiffs violated the Public Participation Policy, which prohibited antagonistic speech, among other things.  Plaintiffs sued, asserting their First Amendment rights were infringed and that the Policy was also violative of the First Amendment.

At the first board meeting including discussion of the arming of teachers and the discipline of student protesters, plaintiff Billy of the Ison family was prevented from speaking for a failure to preregister.  At the next meeting, where the Board passed the resolution allowing teachers to carry concealed weapons, plaintiffs preregistered and expressed their opinions on this resolution and their criticisms concerning the punishment of student protesters.  At a third meeting, Billy called out the Board for its pro-gun agenda and strong stance on gun use when he criticized it for threatening to punish student protesters. In response, the Board president interrupted Billy, first asking him to refrain from using the word “threatening,” and second to stop “putting words in [the Board’s] mouth” and making statements that were not “facts” when Billy accused the Board of hiding their ulterior motives for punishing students.  The Board president then asked Billy to stop talking and warned him that he would be escorted out for failure to cooperate.  Billy finished his speech as a security officer escorted him out of the room.  The president felt Billy was being unruly and hostile and only interrupted and asked him to stop when he saw others were beginning to object and appear offended.

At a board meeting in 2019, Billy filled out a participation authorization form and expected it to allow all the plaintiffs to participate, only to find that each individual had to submit their own forms.  Billy was the only one allowed to speak at this meeting.  The plaintiffs sued the Board for its use of “vague and undefined terms” and the “imposition of content-based restrictions on speech.”  The district court found no First Amendment violation and granted the Board summary judgement.  This appeal followed.

On appeal, the Plaintiffs challenged the restrictions on “personally directed,” “abusive,” and “antagonistic” statements which prevented Billy from speaking, as well as registration requirements relative to public comment.  The court agreed with plaintiffs that the words “abusive,” “antagonistic,” and “personally directed” constituted viewpoint discrimination.  The Board president testified Billy’s speech was hostile, personally directed, and abusive, but the Sixth Circuit found the meeting video footage of Billy’s speech ran contrary to this account and, in fact, Billy spoke calmly and refrained from personal attacks during his critique.

It is important for boards to consider not only whether currently adopted language is legally compliant and limited to reasonable time, place, and manner restrictions, but also whether implementation of such restrictions is done consistently and in accordance with board policy.  Board should review their existing policy language, practice, and procedure and seek legal counsel, as needed.

The decision may be read here.