The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Court Refuses to Dismiss Lawsuit Stemming from Parent's Speech About COVID Policies
The parent's comments at a school board meeting led to a "no trespass notice" that blocked him from school district premises (apparently including his children's school).
From Hotchkiss v. Cedar Rapids Comm. School Dist., decided Thursday by Judge C.J. Williams (N.D. Iowa), the plaintiff's allegations (note that they are just allegations):
Plaintiff … had a child enrolled at a District elementary school during the 2021-2022 school year. On November 15, 2021, defendant District held a school board meeting. Plaintiff attended the meeting and followed the procedures to speak at the meeting by signing up to speak during the public comment period and then speaking for his allotted five minutes.
Plaintiff spoke about his belief that the District's policies relating to COVID-19 were harmful to his child and others. The complaint characterizes plaintiff's comments as "pointed" while refraining from "profanity, aggressive language, or any conduct that could be perceived as disruptive or threatening." During this time, he called defendant Borcherding "Miss Psychology," specifically stating "Miss Psychology down there doesn't want to seem to tell you people what's going on with our kids."
A week later, on November 22, 2021, plaintiff met Noreen Bush—the then-superintendent of the District—at her office to discuss his complaints in more detail, bringing his wife and their son, and discussing the District's policies with Bush. In their meeting, Bush did not express concern to plaintiff about his behavior during the board meeting the previous week.
On December 13, 2021, defendant District held another meeting. Plaintiff spoke at this meeting and recruited other individuals to yield additional speaking time to him, leading to plaintiff speaking for about 29 minutes. The school board members and district employees did not register objections to this practice.
Plaintiff again criticized the District's policies relating to the COVID-19 pandemic in his comments. The public comment time was not increased due to plaintiff's extended comments. Plaintiff's statements "did not violate any plausible rule of decorum for the meeting." Before and after plaintiff's comments, other attendees also criticized the district's masking and vaccination policy. Plaintiff ended his comments as follows: "Take that vote [on the mask requirement] tonight, Mr. President. If you don't, we're comin'." Several attendees later led a "take a vote" chant.
On January 10, 2022, the District had a no trespass notice served on plaintiff. The notice "immediately excludes [plaintiff] from appearing on any Cedar Rapids Community School District premises effective January 10, 2022." The notice contained an explanation for the District's action, stating it was "a result of [plaintiff's] actions during the November 15, 2021 and December 13, 2021 [meetings,] … which included disruptive and threatening behavior towards [District] school board members and staff." It further stated plaintiff's "actions interfere with our goal to maintain a safe, secure, and orderly District environment and violate District Policy 1007 'Conduct on School District Premises' and Regulation 1002.2 'Visitors to District' and Iowa Code Chapter 723 and 716.7(2)(a)[.]" The notice also referred to Policy 1007's provisions that "[a]busive, threatening, or inappropriate, verbal or physical conduct of individuals directed at … officials … will not be tolerated." The notice further stated plaintiff could communicate with District school board members in writing. As a parent, plaintiff could communicate directly with Mr. Stephen Probert of Hiawatha Elementary School.
Plaintiff sued, claiming this violated the First Amendment, and the court allowed the case to go forward, despite defendants' qualified immunity defense:
"Limited public forums (sometimes called nonpublic forums) include public properties that are not by tradition or designation public forums but have been opened by the government for limited purposes, communicative or otherwise." Government restrictions on speech in limited public forums must be "reasonable and viewpoint neutral." The parties here agree that the school board meetings at issue constitute limited public forums, and there is case law supporting that conclusion….
The Supreme Court has held that when a school board "sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on … the content of their speech." City of Madison, Joint Sch. Dist. No. 8 v. Wis. Emp. Rels. Comm'n (1976). The Court later characterized the First Amendment violation in City of Madison as occurring "when the meetings were suddenly closed to one segment of the public even though they otherwise remained open for participation by the public at large." …
The Eighth Circuit Court of Appeals has articulated a similar standard. In Green v. Nocciero (8th Cir. 2012), the court provided that the "School Board could reasonably restrict public access to this forum 'based on the subject matter of the speech, on the identity or status of the speaker, or on the practical need to restrict access for reasons of manageability or the lack of resources to meet total demand.'" Reasonable restrictions include removing a member of the public who is "unruly or disruptive" to prevent "badgering, constant interruptions, and disregard for the rules of decorum." However, once the board decided to "conduct its business in public and to hear citizen views, the Board could not deny access to the meeting and, while it could limit the subject matter of citizen comments, it could not discriminate against a speaker based on his viewpoint."
Here, plaintiff alleges that defendants retaliated against him by discriminating against his viewpoint. The alleged retaliation and discrimination occurred in a limited public forum. Plaintiff alleges that he was not disruptive, threatening, and did not extend the meetings past the time they would have otherwise taken. Thus, plaintiff has alleged facts which, assuming they are true, could result in defendants having violated clearly established law, as established by Green.
Defendants argue they did not violate any clearly established right of plaintiff by banning him from school board meetings after he was disruptive and threatening…. But accepting as true the facts pled by plaintiff and granting all reasonable inferences in plaintiff's favor, the premise that he was disruptive and threatening cannot be accepted at this stage….
Alan R. Ostergren represents plaintiff.
