Superior Court Judge Orders Temporary Prohibition of School Committee Public Speak Policy

On June 5, 2018, a Middlesex Superior Court judge issued an order enjoining the Natick School Committee from enforcing its public speak policy during meetings. While this order is not a final decision in the case and is binding only on the parties to that lawsuit, it may carry significance for other districts which have in place similar public comment rules for School Committee meetings.

The lawsuit was brought by parents of two unrelated former Natick students. They alleged that the Committee, its chair, and the interim Superintendent unconstitutionally restricted their speech during the “public speak” portion of Committee meetings. The plaintiffs requested, among other things, a preliminary injunction to prevent the school committee from enforcing its public speak policy and an order declaring that the school committee’s policy is unconstitutional.

The Committee’s policy bans (1) “improper” conduct and “defamatory” or “abusive” remarks and (2) complaints about individual school personnel or any member of the school community during the public speak period. These provisions are identical to the MASC model policy BEDH. The Committee invoked the policy during a January 2018 meeting, when one parent made comments during public speak that her child had been bullied. The Committee suspended the meeting and had the parent removed, later issuing her a no trespass order prohibiting her from attending the area where Committee meetings are held. The Committee later invoked the policy against the second parent in February and March 2018, after she commented during public speak that Natick Public Schools had created a retaliatory and hostile climate. The Committee then amended its policy to bar “vulgar language and ideas” and to authorize the Chair to stop a speaker if he/she becomes “disruptive as defined by the chair.”

The court applied the standard test to evaluate the plaintiffs’ request for an injunction, focusing on the most important, i.e., a likelihood of success on the merits. Under applicable First Amendment precedent (which the court applied to the plaintiffs’ claim under the cognate Massachusetts Declaration of Rights provision, Article 16), public bodies may establish “limited public forums,” which may be dedicated solely to the discussion of certain subjects. The court stated that the body may always impose “reasonable” rules which are “viewpoint neutral” for limited public forums. If, however, the rules are based on the content of the speech, they can only be upheld if they further a “compelling interest” and are “narrowly tailored” to serve that interest.

The court recognized that school committees have a compelling interest in protecting student and staff privacy, as well as in conducting orderly and efficient meetings. However, the court found that the committee’s policy actually restricted speech based on the viewpoint of the speaker and was “aimed to prohibit certain speech that is critical of the Natick Public Schools.” The policy’s prohibitions on improper, vulgar, and disruptive remarks vested too much discretion in the chair to silence speakers based on the particular views they expressed. Thus, the policy was overbroad. The court also noted that well-established case law in Massachusetts would invalidate the portion of the policy prohibiting “defamation” during public speak.

The Committee had argued that the Open Meeting Law gives public body chairs the authority to prohibit meeting disruptions, and that such authority was properly exercised in the case. The court disagreed, calling into question the possibility that the exercise of such authority might conflict with speakers’ state and federal free speech rights. The court made an interesting distinction between the portion of a meeting devoted to agenda items and the portion devoted to public speak. During discussion on agenda items, the chair can exercise authority over the meeting to prohibit a speaker from straying off topic or otherwise disturbing the order and efficiency of the meeting. The chair’s authority during the public comment portion, on the other hand, is far more limited. In other words, speech that is “disruptive” during discussion of agenda items is not necessarily “disruptive” during public speak. In this case, because the plaintiffs’ speech was school-related and delivered “in a calm manner” during public speak, the court found that it was not “disruptive”. Therefore, the chair did not have authority under the Open Meeting Law to restrict the speech.

Having found a likelihood of success, the court briefly assessed the other required elements for a preliminary injunction and ruled that they were satisfied. In its injunction order, however, the court recognized the sensitive nature of subject matters which might be discussed at Committee meetings and the need to protect the privacy of students and staff. The court therefore included an exception which bars naming or “otherwise identifying” individual staff or students during the public speak portion of meetings. It also stated that this exception is “for the purposes of temporary injunctive relief only.” Unfortunately, the court failed to expound on the precise meaning or parameters of this exception.

Although the court’s order is not “final” a provision in the General Laws authorizes an appeal to the Appeals Court from an interlocutory order granting an injunction, which would have to be filed within 30 days. Since the order has just been entered, we have no information as to whether the Committee intends to appeal. Given that the court’s analysis may have collateral consequences regarding standard public speak policies used by school committees and other municipal boards across the Commonwealth, we intend to monitor this case closely.

If you have questions about this decision, or about school law generally, please contact any of our attorneys.

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