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School board bylaws on public comments stifles speech

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    NMU         VIRGINIA         Newsgathering         May 17, 2001    

School board bylaws on public comments stifles speech

  • Two parents successfully challenged a rule that prohibited public criticism of the school board.

A section of a Virginia school board’s bylaws violates the First Amendment and results in stifled speech, according to a ruling by a federal district judge on April 27.

U.S. District Court Judge Henry C. Morgan Jr. held that the Virginia Beach School Board’s rule banning personal “attacks or accusations” during public comment periods at board meetings was a form of prior restraint.

The ruling stemmed from a lawsuit filed last July by David and Nicole Bach, who are parents in the school district. The Bachs claimed that school district officials enacted the provision in retaliation for the Bachs’ criticism of the district’s gifted education program. After the school board imposed the restriction, the Bachs argued that the bylaw stifled their free speech rights.

The judge ordered the school board to strike the contested provision from the bylaw, but also allowed the other rules for the public comment portion of meetings to remain.

The school board created a limited public forum when it opened its meetings for public comment, the judge held. As a designated public forum, the school board can only impose time, place and manner restrictions, but could not prohibit the speech based on its content.

Last year when the Bachs sued the school district, the couple had sought a preliminary injunction to suspend the provision. The district court denied the motion and the Bachs appealed to the U.S. Court of Appeals in Richmond (4th Cir.). While the decision awaited review by the appellate court, the school board revised the provision and moved the district court to dismiss the case as moot. Although the court on Jan. 8 dismissed three of the challenges to the provision, the court heard the case based on the merits.

School board officials had argued that the provision was enacted to avoid disruption during board meetings. They also tried to note the distinction between criticism of school administrators in their official capacity, and personal attacks which the provision was meant to prevent.

However, the judge flatly denied the school board’s argument and noted that not everyone would interpret the difference “between attacking the conduct but not the individual.”

“Fortunately, the Court need not engage in such a comprehensive analysis, for a policy that deters individuals from speaking out on an issue of public importance violates the First Amendment,” the judge said.

The school board does not plan to appeal the decision.

(Bach v. School Board of the City of Virginia Beach) ML

© 2001 The Reporters Committee for Freedom of the Press

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