On March 7, 2023 the Supreme Judicial Court issued a decision in Barron v. Kolenda, No. SJC-13284. The decision held that a policy of the Southborough Select Board that imposed civility requirements on speakers at the Board’s public comment sessions during its open meetings violated two provisions of the Massachusetts Declaration of Rights – Article 19, which protects the right of assembly, and Article 16, which protects the right of speech. The court’s decision adds some – but not complete – clarity to what municipal boards and school committees can and cannot do in controlling speakers at their public comment sessions.

The policy invalidated by the court required that “all parties (including members of the presiding [b]oard) act in a professional and courteous manner when either addressing the [b]oard, or in responding to the public” and that “[a]ll remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated.”

During the public comment session in question, after the speaker accused the town of “spending like drunken sailors” and stated “you’ve still broken the law with open meeting law, and that is not the best you can do”, the Chair responded “if you want to slander town officials … then we’re gonna go ahead and stop the public comment session now”. The speaker then stated “you need to stop being a Hitler …You’re a Hitler. I can say what I want”, at which point the Chair ended the session.

Reviewing the text, history, and prior construction of Article 19, the court held “[t]he content sought to be prohibited [by the policy] -–discourteous, rude, disrespectful, or personal speech about government officials and governmental actions — is clearly protected by art. 19, and thus the prohibition is impermissible.” Regarding Article 16, the court refused to apply the “forum analysis” that is used by federal courts interpreting the First Amendment speech right. That analysis decides the applicable rules in the context of whether or not a “limited public forum” is involved. Instead, the Barron court applied a standard of “strict scrutiny”. Because the policy targeted “political speech” and was “content based”, the court examined what was said. It decided that “[s]peech that politely praises public officials or their actions is allowed by the policy, but speech that rudely or disrespectfully criticizes public officials or their actions is not”; that this is “viewpoint discrimination”; and that the policy violates Article 16.

The court indicated certain types of restrictions that would comport with the Declaration of Rights. It noted that “[r]easonable time, place, and manner restrictions could include designating when and where a public comment session may occur, how long it might last, the time limits for each person speaking during the public comment session, and rules preventing speakers from disrupting others and removing those who do.”

In addition, the court observed that “in order to function efficiently, towns must be able to hold public meetings limited to a particular subject without violating Art. 19, so long as the town provides other opportunities to exercise this right”. It made the same observation with respect to Article 16’s speech right (although declining to decide whether a public comment session limited to specific topics would be evaluated by “strict scrutiny”).

The court expressly reserved – without deciding – the question whether a constitutional policy can bar “slander” by speakers at a public comment session.

Finally, the court did not address the fact that these public comment sessions are not required by the Open Meeting Law and are generally sessions that are voluntarily added by boards and committees to their meetings.

As a result of this decision, certain things are clear:

• A speaker cannot be barred from engaging in “disrespectful”, “rude”, or “personal” speech directed at public officials;
• The board/committee cannot treat speakers differently from each other based on their views or on how those views are expressed;
• The board/committee can impose reasonable time limits for the entire session and for each speaker. The court did not prescribe amounts but an overall limit of 10-15 minutes and 3 minutes for each speaker is just one example of what appears to be reasonable;
• Speakers can be barred from engaging in dialogue with the board/committee; from interrupting or interfering with other speakers; from engaging in physical conduct; and from engaging in speech that threatens violence or incites imminent unlawful conduct by others.

In addition, it seems clear that the board/committee should be able to limit a public comment session to specified topics, such as matters that are within the body’s jurisdiction or matters that are on the posted agenda.

It also may be appropriate – with the caveat that this was not addressed in Barron – to limit participation in these sessions to residents/those attending the district’s schools.

As noted, whether a board/committee must hold these sessions at all was not addressed by the court. So long as other means are available for the public to communicate their views to the body, such as by sending emails to a specified mail address or by delivering written comments to the body at its meetings, a board/committee should be free to decide not to add these sessions (unless a local charter or by-law requires them). More clarity on this issue would be useful.

Also as noted, the court expressly chose not to decide whether a policy can bar speakers from engaging in “slander”. Care should be exercised in any policy that proscribes slander because of the legal doctrines that limit the reach of slander regarding public figures, including officials.

Barron does not specifically address whether a constitutional policy can bar the use of obscene or profane language. (The invalidated policy barred “inappropriate” language and, while the court did not focus on that aspect, the term would appear to be impermissibly vague). This is of special concern for school committee meetings, some of which have students and families in attendance or making presentations.

Obviously, the Barron decision has left certain questions for further development by the courts. It is essential that boards/committees act carefully and obtain legal advice in crafting rules for these sessions that comply with the Declaration of Rights but also serve the public body’s need to conduct its required business in an efficient, orderly, and productive manner.

If you have any questions about the content of this update, please contact us. We are pleased to assist public bodies in all matters related to the regulation of speech and related rights exercised by citizens.

This update is provided for informational purposes only and should not be considered legal advice.

Historically, courts have disapproved of decisions that broadly ban persons from entering on school property based on questionable public safety concerns. Keeping in line with this precedent, on January 24, 2023, a judge of the United States District Court for the District of Massachusetts granted the plaintiff’s motion for a preliminary injunction in Worthley v. School Committee of Gloucester et. al, No. 22-12060. The plaintiff sought an order barring enforcement of a no trespass order by the Gloucester Public Schools (“GPS”) which prohibited the plaintiff’s entry on Gloucester High School (“GHS”) grounds during school hours or at any school sponsored event or activity for the duration of the 2022 – 2023 school year.

The plaintiff, a member of the Gloucester City Council,  was alleged to have sent inappropriate text messages to a female minor student about volunteer opportunities as well his sleeping habits and other personal interests. After learning of this exchange, the Superintendent of GPS issued a no trespass order stating that the plaintiff was “not to appear on or enter the premises of GHS during school hours or at any school sponsored event or activity from November 14, 2022 until the end of the 2022 – 2023 school year.” In response, the plaintiff filed a lawsuit under 42 U.S.C. § 1983, alleging violations of the First Amendment and Fourteenth Amendment of the United States Constitution and also under the Massachusetts Civil Rights Law, G.L. c. 12, § 11I. He also filed a motion for a preliminary injunction.

As required when evaluating a request for injunctive relief, the judge addressed whether the plaintiff had a likelihood of success on the merits of his claims. The judge concluded that the plaintiff had satisfied this requirement regarding his First Amendment free speech claim, applying the theory that the grounds of the high school are otherwise open to the public and are therefore considered a “limited public forum”. Although content-neutral, time, place, and manner restrictions are permissible for this type of forum, they are valid only if they are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of information.

While acknowledging the school district’s significant interest in protecting student safety, the court ruled that “fear of serious injury cannot alone justify suppression of free speech and assembly[;]… to justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.” Based on the facts, the court concluded that the categorical ban from all school-sponsored events or activities at the high school was overbroad. The court also found that it was not clear that the order left open “ample alternative channels for communication”, particularly where school-sponsored events at the high school are open to the public and generally attended by other city councilors.

The Worthley decision illustrates the limits of permissible action by school districts and other public officials that implicate First Amendment rights and the extent to which any restrictions on those rights will be measured by the rules that apply to the different types of forum involved. This is a complicated legal area and the outcome will depend on case-specific facts. Officials are wise to consult with counsel before issuing a no trespass order so that it can be appropriately fashioned.

If you have any questions about the content of this update, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On December 14, 2022, a judge in the United States District Court for the District of Massachusetts issued a decision in Foote, et al. v. Town of Ludlow, et al., No. 22-30041 (2022) which has garnered significant attention in the media. The court dismissed a lawsuit filed by two parents who claimed that the Ludlow Public Schools violated the parents’ fundamental rights to make decisions about the upbringing of their children when school staff offered guidance about gender identity to two students, complied with the students’ requests to use alternative names and pronouns, and did not share information about the students’ preferences with their parents. Because the dismissal assessed whether the complaint stated a claim such that the case could proceed, the court was required to accept as true the allegations in the complaint.

The facts pertinent to the claim are complex but can be summarized as alleging that the school withheld information from the parents of two students regarding the students’ decisions about gender identity, the students’ use of preferred names and pronouns at school, and staff’s counseling of the students. The students at the time were ages eleven and twelve and were enrolled in middle school.

Assessing the parents’ claim as one involving their Fourteenth Amendment right to substantive due process, the court applied a standard which determines whether the school district’s actions were “so extreme and egregious as to shock the contemporary conscience” and exhibited a “‘stunning’ level of arbitrariness that goes beyond ‘[m]ere violations of state law.’” The court concluded that the facts alleged by the parents failed to meet this demanding requirement and dismissed the lawsuit. The parents have filed a notice of appeal requesting review of the decision by the Court of Appeals for the First Circuit.

While the court ultimately decided that the parents had failed to state a claim, it made a number of observations regarding the district’s handling of an issue that is likely to arise with increasing frequency in Massachusetts schools. The court recognized the tension between the competing interests that may be involved in assessing students’ rights and parental rights. It acknowledged that “Massachusetts laws and regulations regarding gender identity … establish a significant government interest in providing students with a school environment in which they may safely express their gender identities, regardless of their ages or the preferences of their parents.” The court noted that this policy is reflected in the “non-binding guidance” of the Department of Elementary and Secondary Education (“DESE”), “Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment”. The court observed that this guidance “emphasizes the importance of creating a safe and supportive environment for students and encourages schools to work with students to develop plans for use of preferred names and pronouns” and that “‘in the case of a younger student,’ DESE advises schools to create a plan with input from parents”, but added that “DESE has not defined younger students, other than by describing them as ‘not yet able to advocate for themselves.’”

Ultimately the court stated that the school district’s actions were “based on a flawed interpretation of the DESE Guidance and ignored the plain language advising that parents be informed after the student is advised that such communication will occur.” The court suggested that “a policy that facilitates communication between students and parents would be consistent with the DESE Guidance and its recommendation to avoid surprising students when informing parents about the matter.”

This decision illustrates the difficulties that will be encountered by school districts in this area when balancing the rights of students in choosing gender identity and the rights of parents in being informed about and being involved in these sensitive matters. The court did not explicitly mention the fact that the non-binding DESE guidance does appear to give more weight to a student’s independent right to make these decisions if the student has attained age 14/enrollment in the ninth grade:

“A student who is 14 years of age or older, or who has entered the ninth grade, may consent to disclosure of information from his or her student record. If a student is under 14 and is not yet in the ninth grade, the student’s parent (alone) has the authority to decide on disclosures and other student record matters.”

This aspect of the DESE guidance is based on the definition of an “eligible student” in the student record regulations, 602 CMR 23.01(1) and (2), under which the age/grade threshold determines whether the parent alone retains the student’s rights regarding records or those rights are held by both the parent and the student.

While we await the eventual outcome of the parents’ appeal, the Foote decision is most useful as a graphic illustration of the highly complicated and evolving character of this area of the law. Although the court concluded that the facts did not meet the exacting standard of the claim that was filed, school districts can face legal exposure if they fail to carefully navigate and balance the competing interests that inevitably will require a case-by-case analysis. That care may warrant communication with district counsel.

If you have any questions about the content of this update, please contact us. We are pleased to assist public and private schools with policy development and implementation.

This update is provided for informational purposes only and should not be considered legal advice.

Starting November 8, 2022, Massachusetts schools must take additional steps to re-engage students before using suspension and expulsion as disciplinary measures. As part of An Act Addressing Barriers to Care for Mental Health, St. 2022, c. 177, § 29, the Massachusetts Legislature amended M.G.L. c. 71, §37H ¾(b) to include new language relevant to student discipline. Pursuant to those changes, before suspending or expelling students, schools must consider ways to re-engage the student and, in certain circumstances, implement alternative remedies.

Prior to the amendment, subsection (b) only required that the decision-maker “consider ways to re-engage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.” The amendment expands these requirements. As a result, before suspending or expelling a student, the decision-maker must employ alternative remedies in response to a specific incident and document their use and results. The alternative remedies required by the law include but are not limited to: (1) mediation; (2) conflict resolution; (3) restorative justice; and (4) collaborative problem solving.

The amendment provides for limited exceptions to these requirements where: (1) such remedies are unsuitable to the specific incident or are counter-productive; or (2) the student’s continued presence in school would pose a specific, documentable concern about the infliction of serious bodily injury or other serious harm upon another person while in school. School districts must document the facts which support either of these exceptions.

The school district must also implement school- or district-wide models to re-engage students in the learning process, such as positive behavioral interventions and support models or trauma sensitive learning models.  However, these models may not be considered as a direct response to specific incidents.

Since this amendment will take effect on November 8^th, school districts should develop processes of implementing alternative remedies to discipline, prepare ways to re-engage students in the learning process, and assess how to document the use and results of alternative remedies as well as circumstances where alternative remedies may not be employed. School districts should also notify all superintendents, principals, headmasters, and anyone likely to act as a decision-maker in a student discipline hearing of these changes in the law. It should be kept in mind that this amendment does not apply to discipline imposed under G.L. c. 71, §37H or under G.L. c. 71, §37H ½.

If you have any questions on the content of this update, please contact us. We are pleased to assist public and private schools in all matters related to student discipline, as well as provide strategies in documenting new requirements under this law.

This update is provided for informational purposes only and should not be considered legal advice.