Following the filing of a lawsuit by four residents accusing the Pennsbury School Board of curtailing public comments and enforcing unconstitutional free speech policies at Board meetings, the Pennsbury School District agrees to pay a $300,000 lawsuit settlement.
The First Amendment of the U.S. Constitution guarantees the right to freedom of speech and allows individuals to express themselves without regulation.
On October 2, 2021, when four Lower Makefield Township residents – Tim Daly, Simon Campbell, Douglas Marshall, and Robert Abrams – believed the District violated their First Amendment Rights and illegally censored their public comments at the Board’s meetings by cutting them off, prohibiting their comments, and editing statements from video recordings, they sued the District.
Some of the plaintiff residents’ comments questioned the District’s equity initiatives, a heated topic in many communities that prompted many parents to attend the Board’s meetings last year. Specifically, in March 2021, plaintiff resident Marshall discussed his view of the history of racial issues in the U.S. and objected to the District’s diversity, equity, and inclusion efforts.
The Board subsequently removed Marshall’s comments from a video recording of the meetings, and the Diversity, Equity, and Education Director, Cherrissa Gibson, claimed that “the comments escalated from conveying a viewpoint to expressing beliefs and ideas that were “abusive” and “coded” in racist terms, also known as ‘dog whistles.’
Two months later, in May 2021, Marshall and two other residents (Daly and Abrams) were cut off while making comments after the District presented their equity efforts. The District’s Assistant Solicitor, Peter Amuso, dismissed the men’s comments as misrepresentative of the District’s equity program and irrelevant, even shouting “[y]ou’re done!” at them.
In June 2021, Campbell, a former Board member, chastised the Board as “snowflakes” and equated the Board’s then-President as “Benito Mussolini.” The District’s Solicitor, Rudolph Clarke, interjected, warning Campbell that he would be “asked to step away” if he made further personally directed comments. This episode went viral online, and the Board’s then-President, Christine Toy-Dragoni, claimed she and other Board members received death and rape threats because of the national attention the video received.
Pennsbury invoked its Public Comment Policy to stop these comments, a policy written by the Pennsylvania School Boards Association and one many local school boards have adopted.
Specifically, Policy 903 mandates speakers to announce their name and address before making their comments and forbids speakers from bringing banners or placards that are “[o]ffensive,” “otherwise inappropriate,” or “that contain personal attacks.”
Additionally, Policy 922 limits speakers in the first hour of the public comment period to address meeting agenda items and then allows those who have not already talked to speak after a voting segment during a thirty-minute period.
Ultimately, the District’s Policy allowed officials to stop comments they perceived as “personally directed,” “abusive,” “irrelevant,” “offensive,” “intolerant,” “otherwise inappropriate,” or “personal attacks.”
On October 1, 2021, the plaintiff residents filed their complaint in the Eastern District of Pennsylvania after the District was caught editing public comments in its March 2021 and May 2021 meetings. The complaint claimed that the Board’s “members and officials set out to censor citizens whose political views they despise” and notes several incidents where the Board shut down public comments.
In November 2021, U.S. District Court Judge Gene Pratter’s order granted a preliminary injunction to prevent the District from enforcing parts of the Policy that restricted free speech. In the order, she stated that she would not address whether the men’s speech was offensive but did note “that the First Amendment protects offensive speakers.” However, the order explained that the District’s conduct amounted to “impermissible viewpoint discrimination.”
Following the federal judge’s order, the District rewrote its Policy per the First Amendment and the federal court’s ruling. Specifically, the District discarded Policy 903, which allowed officials to stop comments they perceived as “personally directed,” abusive,” irrelevant,” offensive,” “otherwise inappropriate,” or “personal attacks” from being enforced. The Board also changed Policy 922, which permitted officials to stop comments they believed were “offensive,” “inappropriate,” “intolerant,” “disruptive,” and “verbally abusive.” Notwithstanding these corrective measures, the Court, following oral argument, allowed the case to continue.
All parties agreed that a Settlement Agreement would best resolve this matter. By approving the Agreement and acknowledging that the Policy violated the First Amendment, the District’s insurance carrier will pay $300,000 in attorneys’ fees and nominal damages of $17.91 to each of the resident plaintiffs as a “symbolic payment,” representing 1791, the year the First Amendment was ratified. The Institute of Free Speech, which represented the plaintiff residents pro bono, will receive $237,590 from the Agreement, and Vangrossi & Rechuitti, a Norristown-based law firm also representing the men, will receive $62,410. Additionally, the Board removed the law firm of Clarke, which has represented the District since 2013, and has hired another firm.
Bottom Line for Schools
A senior attorney at the Institute for Free Speech, Del Kolde, stated, “[c]itizens in Pennsbury and all across Pennsylvania can now speak freely without fear of arbitrary censorship.”
However, this settlement does not mean that school boards in Pennsylvania cannot restrict comments. According to the Institute for Free Speech, “[s]chool boards may restrict comments that are obscene, exceed the allotted time limit, or make true threats, but they may not censor speech based on its viewpoint.” Looking ahead, this decision will be a source of reference for other citizens and school boards.
Schools should immediately revisit their meeting policies, particularly PSBA policies 903 and 922 to revise language that could open the board up to charges of viewpoint discrimination.
Schools with questions regarding public comments at board meetings should contact their legal counsel or an education attorney at KingSpry.