School Board members often must make difficult decisions, and the old adage that one cannot please all of the people all of the time certainly applies in these cases. The patience of Board members can sometimes be exhausted by individuals who disrupt meetings with vehement and inappropriate comments, perhaps even personally directed to Board members. Banging a gavel is often not enough to control the unruly interruption.
The Directors of the Board of the Panther Valley School District had their patience exhausted by a constituent, John Barna, who undisputedly engaged in “obstreperous and disruptive” conduct at successive Board meetings.
Barna persistently interrupted the agenda, cursed in front of students, got into, or nearly got into, physical altercations with Board members and a security guard, and made comments that many meeting attendees saw as threatening.
After suffering Barna’s behavior at four Board meetings, the Board permanently banned Barna from attending or speaking at any future Board meetings, and permanently banned him from entering any school district property. The Board instructed Barna that all future communications were to be in writing to the Superintendent.
Barna sued, alleging that the ban infringed his First Amendment rights. The U.S. District Court for the Middle District of Pennsylvania ultimately ruled that a permanent ban from Board meetings and from school district property violated Barna’s First Amendment right to freedom of speech. The court recounted several court decisions where School Board Directors ejected truculent and disorderly individuals from individual meetings or from a defined time span of meetings, and even a case where the Board banned a plaintiff from Board meetings for an “indefinite” time span, but ruled that the permanent ban imposed on Barna was not sufficiently narrowly tailored to serve an important government interest and failed to allow ample alternatives for Barna to communicate with the Board. However, the court granted qualified immunity to the Board Directors, stating that no controlling judicial authority existed in the Third Circuit at the time the Board members banned Barna.
The Berwick Area School District Board of School Directors also banned a district resident, Edward Warkevicz, from “all real estate, property, buildings, stadiums, fields, and any other location, owned, operated, or controlled by the District, effective immediately.”
Warkevicz sued, alleging that his exclusion from district property violated his First, Fifth, and Fourteenth Amendment rights of assembly, speech, and association, and denied him due process by making the ban immediate. In a memorandum opinion last July, the Middle District court criticized Warkevicz’s sparse pleadings, but went on to examine the merits of Warkevicz’s claim.
The Warkevicz court reviewed the Barna decision, noting that in Barna, the court found that the permanent ban on Barna was a violation of Barna’s freedom of speech and expression, characterizing the ban as “targeted First Amendment retaliation.”
However, in Warkevicz’s case, Warkevicz’s complaint focused on comments of certain Board members which, he alleged, described him as “a shadowy figure” and implied he was dishonest. The court noted that Warkevicz previously had been involved in a football recruiting scandal in the district. The court was sharply unsympathetic to Warkevicz’s claims, stating that the permanent ban on Barna was different from the Berwick Board’s generalized facilities ban that was designed to secure public welfare and ensure student safety. The court stated that a School Board has “broad discretion to regulate its day-to-day activities and to ensure the well-being of its constituents . . . .” The court granted qualified immunity to Berwick Area School District Board members on all Warkevicz’s claims.
Bottom Line for Schools
These two decisions make several points that Pennsylvania School Board members should note. First, permanent bans of any individual, however disruptive and inappropriate, from all future School Board meetings and district property may violate an individual’s First Amendment rights and should be avoided. Second, banning individuals from district facilities and property can be justified if the individual being banned poses a threat to student safety or the public welfare. Third, if a Board is considering a ban that would prohibit an individual from speaking at Board meetings because that individual’s behavior has been disruptive, inappropriate or threatening, the individual should be given notice of the possible ban and a finite time frame for the ban. Alternative methods of communication with the Board members should be offered and approved, e.g., online communication, telephone messages, and written communications.
Although the Warkevicz decision neglected to elevate Warkevicz’s lack of due process claim to a constitutional violation, School Boards should consider providing any disruptive individual an opportunity to converse with the Board informally, e.g., in a Board work session or committee meeting. Avoiding a lawsuit, and more importantly, taking the opportunity to mend a fractured constituency, is worth the time and effort.
If you should have any questions, please contact your legal counsel or an attorney at KingSpry.
This article refers to Barna v. Board of Sch. Directors of Panther Valley Sch. Dist., 143 F. Supp. 3d 205 (M.D. Pa. 2015) and Warkevicz v. Berwick Area Sch. Dist., 2016 WL 3753108 (M.D. Pa. July 14, 2016)
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.
