April 28, 2016
By Adam Dauksas
Earlier this month, a federal district court judge enjoined a suburban school board from enforcing a policy that prohibited criticism of school officials during the public comment portion of its meetings. The case, Mnyofu v. Board of Education of Rich Township High School District 227, is the latest reminder to boards of education and other public bodies of the harsh judicial treatment to which content-based speech restrictions will be subject to if enacted or enforced.
In Mnyofu, a local resident of the district alleged that his First Amendment rights had been violated by the board and its president when they, in accordance with a board policy, prevented him from criticizing school officials at a meeting. The policy was, in fact, verbally stated prior to the public comment portion of the meeting and printed on the agenda as well. It stated, in pertinent part, “[p]lease refrain from mentioning the name of students and employees.”
Along with his motion for a preliminary injunction, Mnyofu submitted a video showing him speaking and beginning to criticize certain individuals by name. At that time, the board president asked for the microphone to be turned off, for the security guard to stop Mnyofu from speaking and for the police to be called. Mnyofu alleged that “[t]here is no compelling reason or legitimate government interest of any kind in prohibiting criticism of public officials at public meetings while allowing favorable comments about public officials.”
In rejecting the school board’s arguments to dismiss Mnyofu’s claims, the court entered the preliminary injunction he sought and found that Mnyofu was likely to succeed on the merits of those claims because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” “Additionally, there can be no irreparable harm to a municipality when it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties.”
While Mnyofu is instructive concerning a board of education’s attempt to restrict a citizen’s speech based on that speech’s content, the case presents just one of the many issues the public comment portion of meetings may bring about. For instance, some boards of education require those wishing to make a public comment to state their concerns in writing before being given the chance to speak. Section 10-6 of the School Code, however, provides that when a board president or superintendent “receives a written correspondence from a resident within the school district’s territory, requesting the consideration of a matter before the board, the author of the correspondence shall receive a formal written statement from an appointed official of the board stating the board’s position on their request, no later than 60 days from the receipt of the correspondence . . . .” Thus, in such a scenario, a board may actually be required to respond in writing to what it assumed to be a routine public statement.
If your board of education has a public comment policy that needs to be revised in light of Mnyofu or simply needs a fresh review for identifying other possible legal issues, Scariano, Himes and Petrarca, Chtd. stands ready to assist.
Tags: Board Governance/OMA