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Education Law
Practice Group Leader
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Education Law
Practice Group
Members
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Jeremy S. Motz
Nancy
L. Mullett
Barbara A. Ruga
Kevin T. Sutton
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Education Law
Update
SIXTH CIRCUIT
EMPHASIZES DISTRICT'S RIGHT TO CONTROL PUBLIC PARTICIPATION IN
CONTENT-NEUTRAL MANNER
The Sixth
Circuit's recent decision in Lowery
v. Jefferson County Board of Education, ___ F3d ___, 2009
U.S. App. LEXIS 24769 (6th Cir. 2009) underscores the right of school
boards to implement and enforce content-neutral rules to facilitate
efficient and orderly board meetings. Board members and central
office administrators may wish to apply Lowery's lessons in the current economic climate,
as boards are more frequently required to consider unpopular,
cost-cutting measures.
The plaintiffs
in Lowery were
parents who were upset their son had been cut from the football
team. The parents hired an attorney, who spoke on their behalf
at a board meeting. The Court characterized the attorney's
presentation as follows, "Although [he] was polite in tone, he
criticized several school officials and threatened legal action if
his clients' concerns were not addressed." Subsequently,
at the next meeting, the board declined to permit the parents to make
another presentation on the grounds that, among other things, they
reasonably anticipated the presentation would be
"repetitive." The parents sued, alleging the board
had violated their First Amendment rights.
The Sixth
Circuit began its review of the parents' claim by restating the
long-established rule that school board meetings constitute a
"limited public forum." Accordingly, public participation
at school board meeting may be regulated, provided the regulations:
are content-neutral; narrowly tailored to serve a significant public
interest; and, leave open alternative channels for
communication. The Court then applied this long-established
rule to the facts presented by the case.
The Court held
the school board's ban on repetitive presentations was
content-neutral because, among other things, it served the purposes
of allowing all citizens a fair and adequate opportunity to be heard,
assured that the board's regular agenda was completed and recognized
the voluntary nature of board members' commitments and, accordingly,
used their time efficiently. The Court noted none of these
justifications addressed the content of repetitive presentations.
The Court also
held the school board's ban on repetitive presentations served
significant governmental interests. For example, the Court
observed, previous court decisions had recognized that unstructured,
chaotic meetings were inefficient. Additionally, repetitive
presentations may deny other citizens the chance to make their voices
heard, thereby interfering with the exercise of their First Amendment
rights.
The Court
further held the school board's regulations narrowly and carefully
advanced the significant governmental interests it was designed to
serve. The school board's policies only prohibited
"repetitive, harassing or frivolous" presentations.
Thus, the policy allowed all speech that would not interfere with the
school board's business. Finally, the Court held the school
board's policy allowed ample means of communication through
alternative channels. For example, the policy did not prohibit
citizens from contacting school board members directly.
We encourage
our clients to note an important caveat in Michigan law. Michigan's
Open Meetings Act (OMA), has been interpreted to prohibit a public
board from excluding someone in attendance from addressing the
board. See, Gault
v. City of Battle Creek, 73 F Supp 2d 811 (WD Mich
1999). But, significantly, this prohibition does not mean a
person who addresses a public board can flaunt the board's procedures
and rules. In fact, Section 3(5) of the OMA explicitly provides
otherwise:
A person shall
be permitted to address a meeting of a public body under rules
established and recorded by the public body.
Thus, as Lowery reminds us, both the
First Amendment and the OMA permit school boards to establish
content-neutral rules that permit public comment but do not allow
public comment to disrupt to orderly and efficient completion of
board business. We encourage our clients, in light of the
coming challenges, to carefully review their policies to ensure they
have given themselves the latitude necessary to contemplate and make
difficult choices without unnecessary disruption or
interference. We also encourage our clients to take care to
implement these policies, in practice, in a content neutral fashion.
If you have any questions regarding
this article, please contact the author or your Clark Hill Education
Law attorney. All articles are also posted on the Clark Hill Website
for future reference and can be accessed by visiting www.clarkhill.com.
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For further
information about the content of this Education Law Update, please
contact Robert A. Lusk at 248-988-5847. To
find out more about Clark Hill and our Education Law team,
visit clarkhill.com
or call 800.949.3124
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