Attorney General’s opinion contradicts school board policy

Published 10:53 am Wednesday, April 20, 2016

Recently, the Attorney General has ruled that the policy regarding “Citizen’s Time” at Franklin City School Board meetings is in violation of a citizen’s first amendment right, freedom of speech. This ruling comes from The Tidewater News bringing it to Del. Rick Morris’ attention after several people were shut down from speaking or continuing to speak, during this allotted time, as their comments did not follow the rules set forth.

Last year, a few instances happened that raised questions concerning the rules for “Citizen’s Time” at Franklin City School Board meetings.

The policy states, “The School Board will not permit speakers to discuss specific personnel or student concerns during the public session, but may be invited to do so during ‘Closed Meeting.’ Names, titles or positions which can identify specific individuals will not be allowed during the public session. Speakers having specific personnel or student concerns may sign up to speak on these topics during ‘Closed Meeting.’ Permission to speak before the School Board in ‘Closed Meeting’ is at the discretion of the Franklin City School Board … [Speakers] …. may not engage in personal attacks against employees of the school system or other persons.”

After seeing parents and other residents being cut off during Citizen’s Time because they were stating someone’s title or having to talk in circles to avoid doing just that, The Tidewater News took upon itself to look into the policy.

After investigation, the paper felt that these rules were in violation of citizen’s first amendment rights. Publisher Tony Clark and managing editor at the time Cain Madden, sat down with Franklin City Attorney Taylor Williams to discuss the matter. Not receiving the outcome they wanted, they then took the issue to Del. Morris. He in turn brought it to Attorney General Mark Herring for an opinion.

Herring has now responded with a professional opinion that these rules are indeed in violation of the first amendment.

Herring explained in his ruling that “Citizen’s Time” is classified as a “limited public forum.” He explained that restrictions in this type of setting must be reasonable and viewpoint neutral. They also must be narrowly tailored to serve a significant government interest and leave open channels of communication.

In regards to identifying specific personnel in a speech, Herring referenced Baca v. Moreno Valley Unified School District.

In this case, a federal district court held that the school district’s “interest as an employer in protecting its employees’ right of privacy cannot be characterized as a compelling government interest.”

Herring also referenced a similar case, Leventhal v. Vista Unified School District. In this case, another federal district court held that, “debate over public issues, including the qualifications and performance of public officials … lies at the heart of the First Amendment.”

Herring added that because of the reasons set forth in these court cases, he has concluded that the School Board may not constitutionally bar speakers from discussing personnel issues or identifying individual school employees or officials during public session.

This ruling was forwarded to Williams, along with all the members of the Franklin City School Board.

Williams noted that the policy in place by the school board has existed for more than 15 years and can be found on the school division website. He said the policy has some limitations of what topics speakers can address, and the purpose of the limitations has good intentions.

“There are counter-balancing issues to be considered in a public meeting. There must be control and decorum in the meeting so that the business of the public body can be addressed in a timely and orderly manner,” Williams said. “If there is a citizen’s time provided on the agenda, the rules must allow for constitutional considerations. There are two cases I rely upon to demonstrate when the need for control and decorum clashes with the constitutional considerations.

“The case Steinburg v. Chesterfield County Planning Commission decided in 2008, involved a speaker addressing the planning commission who gets out of control. The chairman of that body has to have the speaker removed to regain control of the meeting so that business of the meeting can continue. The speaker was over zealous. The Court said in that case, in a limited forum, the chairman was right to stop the speaker.”

He said at the other end of the spectrum is his other go-to court case, Bach v. School Board of the City of Virginia Beach, which was decided in 2001. This case was regarding limited forum and the certain types of speech that the citizen’s time did not allow certain types of speech. Although the chairman of the school board applied the rules to prevent the speakers’ speech, the court ruled the speaker’s constitutional rights were being violated.

“My point is board and councils have dual responsibilities. If there is going to be a Citizen’s Time there must be observance of time and decorum so the public body can conduct its business in an orderly fashion,” Williams said. “At the same time there must be allowance of protected free speech. The problem is recognizing what is protected free speech at a board or council meeting and not allowing the speaker to become over zealous and out of control. It is a very difficult balance to maintain when the speaker steps up to the podium and is ready to unload on somebody because the speaker is upset or inflamed about the topic.”

School Board member Bob Holt also gave his opinion on the subject.

“I don’t think people should be rude and trash people in pubic. I think a better way to do it, is ask for a closed session with the board,” Holt said. “They should introduce the topic, give enough information so we [the board] understand the issue and request closed session to provide more information, names and dates. I think people are reluctant to come to the board because they don’t feel like they gain anything. Asking for a closed session to provide more information is the best way to do it.”

In conclusion of his ruling, Herring stated that freedom of speech is essential to the maintenance of a free society.

“It is my opinion that the blanket prohibitions in the Rules against speech on “specific personnel or student concerns” and speech identifying school officials or employees may not constitutionally be applied so as to bar speakers from discussing specific school employees or officials during open meetings, and the prohibition against all ‘personal attacks’ is not constitutionally permissible. The constitutionality of restrictions against identifying students would be determined by the particular circumstances involved,” Herring said.

In response to his opinion, Williams said, “So rules are made to protect the board or council from the worst-case scenarios in an effort to stop bad outcomes before they occur. The Attorney General’s opinion says School Board Policy BDDH for Citizen’s Time goes too far. Maybe the rule can simply require the speaker to not get upset and out of control. I just hope the speaker reads the rule in advance and then abides by the rule when speaking.”

At this time, Williams did not know what course of action would be taken, as the School Board has not had a chance to talk about the matter.

The Tidewater News will report when more information becomes available.