KingSpry | Federal Court Limits Board Control of Public Comments

Federal Court Decision Substantially Limits Board Control of Public Comments

Posted on December 7th, 2021
by Paige M. Gross

On October 1, 2021, four residents in Bucks County filed a lawsuit against Pennsbury School District claiming their public meetings were censored, limited, or disrupted by the board after they brought questions or comments regarding the school district’s equality initiatives. Pennsbury School District found the comments to be abusive and/or irrelevant, but U.S. District Judge Gene Pratter says free speech safeguards apply.

Recently, U.S. District Judge, Gene Pratter, explained free speech safeguards apply to individuals speaking at public board meetings and entered an order against Pennsbury School District stating the school board’s policies concerning public comments were vague and overbroad. 

Under the Order, the school board must allow parents and community members to publicly criticize school policies and officials during a public meeting, citing United States Supreme Court case law holding that First Amendment protections apply to speaking at public school board meetings. 

Regarding First Amendment protections, a school board meeting falls under a “limited public forum”, in which content-based restrictions are allowed as long as they are reasonable and viewpoint neutral. 

In other words, when the government or one of its agencies, such as a school board, targets not the subject matter, but the particular views taken by the speakers on a subject, there is a violation of the First Amendment. Any restriction that is based on the speaker’s viewpoint is impermissible, and the Supreme Court of the United States has repeatedly held that the government cannot regulate speech when the specific opinion or perspective of the speaker is the reason for the restriction. 

Disputes at school board meetings have been on the rise ever since the beginning of the COVID-19 pandemic over topics ranging from masking and COVID-19 safety plans to bus transportation and teacher shortages. 

As different positions and opinions within communities quickly solidified, board meetings across the Commonwealth have grown longer and rowdier, requiring in some instances to have police officers at school board meetings to ensure everyone’s physical safety. 

The question now becomes whether school boards with similar policies may enforce them, and limit comments made at public school board meetings if they are deemed to be inappropriate, rude, or personal attacks.

Bottom Line for Schools

Many Pennsylvania school boards have policies comparable to Pennsbury’s Policy 503 prohibiting public comments deemed offensive, abusive, irrelevant or personally-directed. 

Assuming Judge Pratter’s decision survives any appeal, it creates presumptive authority, making new and more restrictive guidelines for a board’s control of public comment.

Personal attacks on an individual’s character unrelated to school duties, or lewd, vulgar, profane comments remain subject to control under Judge Prattor’s First Amendment analysis, but criticism of district programs, policies, or even personnel as related to their duties is now fair game under the Pennsbury decision.

School districts should consult with their counsel about the effect this decision has on their Board policies and how they conduct the public participation portions of their meetings.

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.