A federal appeals court ruled in favor of the teacher’s union president who challenged a school district’s policy on public comment at board meetings. The president challenged a superintendent’s alleged attempt to prevent a union group from speaking at a board meeting regarding new grading procedures.

A three-judge panel unanimously held that the policy regarding public comment at board meetings violated the First Amendment’s free speech principles.

The school district policy required those looking to speak at a board meeting to first meet with the superintendent to “discuss their concerns.” The superintendent would then report back to the prospective speaker within 10 days. Speakers were then required to file a written request to speak at least one week before a particular board meeting.

The court found the policy unconstitutional, in part, because the initial-meeting provision lacked any time limit with which the superintendent was required to comply. Furthermore, the court was concerned that the superintendent having such open-ended control would result in certain viewpoints being restricted from board meetings. For example, the court stated, “the Superintendent will have an idea of what a prospective speaker's proposed subject matter will be before the Superintendent schedules an initial meeting with the speaker . . . . The Superintendent can avoid scheduling an initial meeting with that critic, preventing him from complying with the Policy, which in turn bars the critic from speaking at the next meeting, thus censoring that critic's point of view.”

The court found that if the school wanted to keep the pre-board meeting conversation with the superintendent, the school would have to impose a reasonable time limit within which the superintendent must respond to the speaker's request, schedule the initial meeting, and hold the initial meeting.

Ironically, in response to the union’s challenge, the school district altogether canceled public comment at the board meetings. The court acknowledged that “the board has the power to close its meetings to public comment if it so wishes," but "[t]he problem here . . . is the fact that the board allows public comment at its meetings but then maintain[ed] policies that have a significant potential to chill speech on the basis of content and viewpoint.”

Where boards allow public comment at meetings, boards should review policies and practices to ensure they do not risk chilling otherwise-permissible speech on the basis of speech content.