Federal Judge Orders Pennsylvania School Board to Allow Critics to Speak, Blocks Vague Speech Codes

By GQ Pan
GQ Pan
GQ Pan
Reporter
November 19, 2021 Updated: November 19, 2021

A federal judge has ordered a public school district in Pennsylvania to allow public commenters to criticize school policies and officials by name at school board meetings, saying it is within their constitutional right to do so.

The ongoing case was brought in October against the Pennsbury School Board by a group of four parents and community members, who argued that the board has been engaging in viewpoint discrimination when board members, in multiple occasions, interrupted or censored their speech that they deemed “abusive” or “irrelevant.”

In one of the incidents cited in their complaint (pdf), a board member at a May 20 meeting repeatedly shouted at a commenter who referred to the district’s equity policy as critical race theory, yelling “You’re done!” until the commenter left the microphone. In another incident in March, the same commenter’s speech was temporarily edited out of a video on the district’s website, with the board’s president explaining in a statement that his remarks had to be censored for containing “beliefs and ideas that were abusive and coded in racist terms.”

In a Nov. 17 order, U.S. District Judge Gene E. K. Pratter granted the request to block Pennsbury from enforcing its several restrictive policies, including bans on speech deemed “personally directed,” “personal attacks,” “abusive,” “verbally abusive,” “irrelevant,” “disruptive,” “offensive,” “inappropriate,” or “otherwise inappropriate.” The board was also ordered to stop requiring speakers to announce their home address before they can speak for five minutes.

“Public speech at school board meetings is in fact protected by the First Amendment,” Pratter, a George W. Bush appointee, wrote in her opinion.

The judge noted that while a school board meeting is considered a “limited public forum” where content-based restrictions may apply, such restrictions are only valid when they remain “reasonable and viewpoint neutral.” When it comes to Pennsbury’s speech policies, however, they are vague and subjective enough to raise First Amendment concerns.

“What may be considered ‘irrelevant,’ ‘abusive,’ ‘intolerant,’ ‘inappropriate’ or ‘otherwise inappropriate’ varies from speaker to speaker, and listener to listener,” she wrote.

The same problem exists in the policy banning “personally directed” criticism, Pratter added. For example, calling for a school board member’s resignation is “personally directed” and could be considered “irrelevant” to an underlying issue, but it could also be considered highly relevant to that board member’s role in creating or failing to address the issue.

The Institute for Free Speech, a non-profit legal group representing the suing community members in the case, applauded the court’s decision.

“Today’s ruling is a wake-up call for school boards across America. Parents and speakers have a First Amendment right to criticize school policies and officials at public meetings,” said Alan Gura, the Institute’s vice president for litigation. “We encourage Americans who have been silenced under policies like Pennsbury’s to contact us for help.”

GQ Pan
Reporter