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  • Robert Lusk

Ohio School Board Dinged for Public Participation Policies

Increasingly, school board meetings have become a forum for debating hot political issues. The Sixth Circuit’s decision in Ison v Madison Local Sch Dist Bd of Ed, ___ F3d ___ (CA6 2021) involved a school shooting, a school board policy permitting teachers to carry concealed weapons, and the school board’s decision to suspend students who walked out to protest the concealed weapons policy. But none of these hot issues were directly before the court. Rather, the legal issue was the text and application of school board policies that allegedly interfered with parents' ability to speak their minds about these issues at school board meetings.

A little general legal background may help set the stage. A school board meeting is considered a limited public forum. That means the school board may regulate features of speech unrelated to its content, such as time, place or manner restrictions. The school board has wide leeway to do so, provided the restrictions are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication. However, a school board may not restrict speech based on the viewpoint expressed.

Here, the court held that the school board’s policies prohibiting abusive, personally directed, or antagonist [sic] statements were unconstitutional where none of these terms were defined. The court noted these terms, based on dictionary definitions and clarified by the board president’s deposition testimony, could be applied to restrict speech that merely disagreed with board members policy choices. Thus, the manner in which these policies were applied to the parent in this case (resulting in the parent being escorted out of a board meeting for opposing the board’s choices) was clearly unconstitutional. At the same time, the court noted the policies, as written, were not unconstitutional to the extent they prohibited offensive ad hominem attacks.

On the other hand, the court held the school board’s registration policy, which required those who wished to speak at board meetings to sign up two days in advance during hours the board office was open, was not unconstitutional. The school board expressed a significant governmental interest in the policy (its desire to make time for citizens who were truly motivated to speak). Furthermore, those who could not register because the sign-up time was inconvenient had other means by which they could express their opinions, such as sending emails to board members and speaking at other school related functions.

The lesson is fairly clear for board members justifiably concerned about the degree to which national politics have crept into school board meeting. There are many things the board may do to focus board meetings on the school business identified in the meeting agenda. However, interfering with the viewpoints citizens wish to express is not one of them.