Parent's Claim Over School Board Meeting Attendance Ban Can Go Forward

The matter stems from a controversy over books with sexual content in the school library, and the parent's shouting that school board members "should be arrested."

From a decision by Judge Eleanor Ross (N.D. Ga.) in Reprieto v. Cherokee County School Dist., decided May 30 but just recently posted on Westlaw; the case is still pending:

Reprieto is an involved parent [of a CCSD student] who has attended numerous School Board meetings and participated in the public comment period multiple times. In 2022, Reprieto, as well as various other parents, grew increasingly concerned that children in CCSD schools were being exposed to books containing "adult subjects such as pornography" in CCSD libraries. Numerous parents raised the issue of "pornographic materials" during School Board meetings without satisfactory resolution.

On March 17, 2022, the School Board convened a public meeting, and "a number of concerned parents" signed up to speak about the CCSD library books. Plaintiff attended the meeting "in support" of those who had signed up to speak and "to let the Board know that she opposed obscene and pornographic materials being made available to minor children." However, the Complaint contains no allegation that Plaintiff herself signed up to speak.

As planned, during the meeting "numerous" parents made comments criticizing the School Board's inaction regarding certain books. One parent raised concerns about the book "Homegoing," and read the following section from it: "Excited now, he pushed into her. As she squeezed her eyes as tightly as she could, her tongue circled her lips. He pushed harder, his breath heavy and labored. She scratched his back and he cried out. She bit his ear and pulled his hair." Before the parent could finish speaking, School Board Member Jordan said, "Excuse me. We have children at home. And it's really not appropriate." The parent replied, "Don't you find the irony in that? You're saying exactly what I'm telling you! You're giving this to our children! I would never give this to children." School Board Chair Cromer said, "Out of order. Thank you." Reprieto replied, "That's the point!"

Later in the meeting, Cromer spoke to the seated audience about the CCSD library books. Video footage of the meeting portrays the following exchange as Cromer spoke and audience members, including Reprieto, who was seated in the fifth row, shouted from their seats.

Cromer: Any other School Board members with some thoughts? I'm going to follow up with a couple of the speakers that were just speaking. Three of them were talking about the school library and the challenges that we have to our assignments and to books. And as a parent, I can appreciate that you have that in your heart and that is something that you want to control what you child is exposed to. That is your job as a parent, I get it.

… I also wanted to say that while you have that ability for your child, I don't know if you have that ability to prevent other children from accessing books or materials or assignments. And what you're asking to do is for us to take some of this stuff out of the hands of every child …"

Various audience members (speaking over Cromer): "Yes!" "Yes!" "Yes!" "Yes, we are!"

Cromer: "… in our district …"

Various audience members (speaking over Cromer): "Yes!"

Cromer: "… and that, that is …"

Reprieto (shouting): "You should be arrested!"

Cromer: "No! Excuse me, you could be removed. Now …"

Reprieto (while pointing at the Board Members): "You should be arrested. Every one of you."

Cromer (speaking over Reprieto): "No, so … Point of order."

Cromer: "Thank you. I'm just saying that you don't get to tell what other parents get to have their kids have access to. So, thank you. That's it. We're working through the process. We are working through the process. Thank you. Moving on." …

Several days later, on March 23, 2022, she received a certified letter containing a Criminal Trespass Warning … that excludes her from all CCSD properties with no exceptions or expiration date. The Criminal Trespass Warning is dated March 17, 2022.

Subsequently, Reprieto retained an attorney who wrote to CCSD to challenge the scope of the Criminal Trespass Warning. A CCSD attorney responded with a letter permitting Reprieto to be present on CCSD grounds to vote when her voting precinct is in CCSD schools, and to attend her child's school events. However, the letter did not otherwise lift the Criminal Trespass Warning. Thus, Reprieto remains subject to the possibility of arrest if she enters any CCSD property for any other purpose without written permission. Consequently, she is effectively prohibited from attending and speaking at all CCSD Board meetings….

The court rejected most of plaintiff's claims, largely on procedural grounds (including her claim that she was wrongfully fired as a substitute teacher based on her speech); it also rejected plaintiff's claim over having been ejected from the particular meeting where she had been shouting over Cromer. But the court allowed the case over the trespass warning to move forward:

"[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech." …

Here, taking the allegations in the Complaint as true and construing them in the light most favorable to Plaintiff, Plaintiff repeatedly remarked that Defendant Cromer should be arrested for permitting certain books in CCSD schools during the School Board meeting during the School Board meeting. Defendant Rich heard those remarks, and that same day, he issued the Criminal Trespass Warning, which warns Plaintiff that she may not enter any CCSD property without written permission or else she may be arrested.

The Criminal Trespass Warning contains no expiration date. Consequently, although Plaintiff would like to attend and speak at future School Board meetings, she fears that she will be arrested and charged with criminal trespass if she enters any CCSD property. Plaintiff claims that Defendant Rich issued the Criminal Trespass Warning in retaliation for her viewpoint and that the Criminal Trespass Warning is an adverse action because it "would likely deter a person of ordinary firmness from the exercise of First Amendment rights." …

Defendant Rich contends that Plaintiff's speech was not protected by the First Amendment because her conduct was disruptive. However, while Plaintiff's conduct may have been disruptive, the substance of her speech was nevertheless protected. {Notably, unlike Defendants' arguments about Plaintiff's removal from the School Board meeting, Defendant Rich does not argue that the Criminal Trespass Warning functions as a reasonable and viewpoint-neutral restriction on Plaintiff's speech. Further, Defendant Rich does not argue that he had probable cause or any other reason to issue the warning. Thus, the Court will not speculate or draw inferences about alternative reasons that Defendant Rich issued the Criminal Trespass Warning. Absent viewpoint-neutral justifications for the reasonableness of the Criminal Trespass Warning, it would be a heavy-handed determination at this stage to conclude that Plaintiff's speech was per se unprotected.} …

Thus, based on the temporal proximity between Plaintiff's speech and the issuance of the Criminal Trespass Warning, the Court finds that the Complaint states a plausible claim that Defendant Rich issued the Criminal Trespass Warning with a retaliatory motive. Additionally, the Court finds that the Criminal Trespass Warning "would likely deter a person of ordinary firmness from the exercise of First Amendment right." Finally, in the absence of Defendant Rich offering any justifications to the contrary, the Court finds that the Complaint permits a plausible inference that Plaintiff's speech caused the Criminal Trespass Warning….

[A]ssuming at this stage that Defendant Rich had no other rationale for issuing the Criminal Trespass Warning than dislike of or disagreement with Plaintiff's critical remarks, Eleventh Circuit precedent squarely provides that such a restriction is invalid…. In sum, absent further factual development, "it is not evident from the allegations of the [C]omplaint alone" that Defendant Rich is "entitled to qualified immunity." Therefore, "the case will proceed to the summary judgment stage, which is the most typical juncture at which defendants entitled to qualified immunity are released from the threat of liability and the burden of further litigation." Accordingly, the Court denies Defendants' motion to dismiss Plaintiff's individual capacity claim against Defendant Rich regarding the Criminal Trespass Warning.