Georgia School Board’s Pre-Meeting Screening Process Held Unconstitutional

Jim Barrett is a social-studies teacher at Saddle Ridge Middle School in rural northwest Georgia. He wanted to attend a school-board meeting and express views critical of the board and the superintendent–specifically about a new grading policy that Damon Raines, the superintendent, had implemented without any action by the board.

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Damon Raines, the Superintendent of Walker County Schools. (Times Free Press)

The school board has a policy for public comments during its meetings, and it was that policy that got them into legal trouble. The policy works like this: A few weeks before its meetings, the board publishes its agenda, noting which agenda items will have time allotted for public comments. A person who wants to speak during one of the public-comment sessions at the board’s meeting must first meet with the superintendent to discuss the person’s concerns. Afterward, if the person still wants to be heard by the Board, the person must make a written request to the superintendent at least one week before the meeting, stating his or her “name, address, purpose of request, and topic of speech.”

Notably, the policy says nothing about what happens with that written request, or what happens if the superintendent never meets with the person in the first place–thereby preventing the person from complying with the policy and thus not being able to speak at the meeting.

Barrett sued, alleging that the school board’s policy is facially unconstitutional because it amounts to a “prior restraint“–a requirement that a person obtain permission from a government official before speaking. On Monday, he won. The U.S. Court of Appeals for the Eleventh Circuit held that the superintendent’s ability to delay the initial meeting with the want-to-be speaker (thereby preventing him or her from complying with the policy) posed “enough of a risk that speech will be chilled or effectively censored on the basis of content or viewpoint,” such that the policy amounted to an unconstitutional prior restraint. Moreover, the lack of standards in the policy for what happens with the written request gives the superintendent “unbridled discretion” in deciding who gets to speak at the school-board meetings. The Court also noted the particular high risk of censorship in the “close-knit” community of Walker County, Georgia.

(For the legal nerds: the Court found that the school-board meetings were limited public fora and that prior-restraint/unbridled-discretion analysis applies in limited public fora.)

Case: Barrett v. Walker Cty. Sch. Dist., No. 16-11952 (11th Cir. Oct. 2, 2017) (opinion here)

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