See You In Court - October 2024

The Nutmeg Board of Education includes “Audience to Visitors” on its agenda, a long-established opportunity for people to speak directly to the Board members at the beginning of their meetings.  The rules for public comment in Nutmeg provide that speakers must sign up to speak before the meeting starts, that they may speak for up to three minutes, and that they may not criticize district employees.

For many years, speakers at Board meetings have followed these rules, and the Board members have dutifully taken their lumps as members of the public have criticized various Board decisions.  Recently, however, speakers have become increasingly disrespectful of the Board and its rules.  The last meeting was a good example.

Public comment at that meeting started with a parent who was upset that the football coach was not giving his son enough playing time.  “Coach Rock has his head up his ass.  No wonder the Nutmeg Knights lose so many games.  He should give my son a chance!”

Ms. Chairperson cautioned the speaker against being vulgar, and she then recognized the next speaker.  It did not go better.

“You people!” the next speaker started.  “What are you doing?  Do you ever visit the schools you supposedly oversee?  My son brought home a book from the library, and it was full of sex talk.  Let me read you a few choice examples . . . .”

“Point of order!” veteran Board member Bob Bombast shouted.  “The speaker will be out of order if he reads vulgar passages from books that we may have in the school library!”

The speaker started to respond, but Ms. Chairperson promptly ruled him out of order, and recognized the next speaker.  Surprisingly, this speaker did not criticize the Board at all.  Rather, the speaker went on a rant about the federal deficit, citing statistic after statistic about the cost of debt service.  As the speaker droned on, Ms. Chairperson warned him that he should wrap up because his three minutes was almost over, but the speaker did not acknowledge the warning and kept speaking.  At the four-minute mark, Bob Bombast raised a new point of order, objecting to the speaker’s violation of the rules.  Ms. Chairperson ruled the speaker out of order, but the speaker kept going despite Ms. Chairperson’s repeatedly ruling him out of order in an increasingly loud tone.  Finally, in desperation Ms. Chairperson called for a recess, and asked all the Board members to get up and leave the Board table.

When the Board members did just that, the speaker finally stopped talking, and after a five-minute break, Ms. Chairperson called the meeting back to order.  “That’s it for Audience to Visitors for today,” she said.  “Let’s move on with our agenda!”

Before the Board could resume its business, however, Bob Bombast interrupted for the third time.  “Point of order!  I move that the last speaker be prohibited from ever speaking during public comment.  I have never seen such contempt for the Board’s rules!”

Board member Mal Content chimed in.  “I rarely agree with anything Bob says, but he’s right!  We cannot tolerate such disrespect!  I second Bob’s motion.”

Ms. Chairperson responded, “I am just as annoyed as the rest of you.  But the prohibition you two are proposing is not on the agenda.  Besides, maybe we are just better off if we just end the Audience to Visitors altogether.  People can just email us instead.

Is the Nutmeg Board of Education permitted to end opportunity for public comment?

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Boards of education have no legal obligation to provide for public comment at their meetings.  However, rather than ending this practice, the Nutmeg Board of Education can take less drastic action as long as it respects the constitutional rights of the speakers.

When boards of education provide for public comment at their meetings, they are creating a forum for speech that is subject to the protections of the First Amendment.  The key to those protections is that the government cannot discriminate against a speaker on the basis of the viewpoint he or she is expressing.  However, reasonable time, place and manner restrictions on speech by governmental entities are permissible.

The limitation of three minutes for each speaker is an example of a reasonable restriction as to time of speech. However, even this common restriction can give rise to constitutional concerns.  Given the prohibition against viewpoint discrimination in a public forum, boards of education must be careful to be evenhanded in enforcing this restriction, and they must enforce the rule against the “friendly” speaker as it would against the critic.

Reasonable restrictions as to the manner of speech are also permitted, and under Robert’s Rules of Order a speaker who is being vulgar, engaging in personal attacks, or is shouting is out of order.  The parent who was concerned about his son’s playing time was vulgar in his description of Coach Rock, and Ms. Chairperson was correct in warning him.  The problem was not the speaker’s viewpoint, but how he was expressing it.  She could have ruled him out of order, and in such situations, other Board members may also assist the chair by raising a Point of Order to object to vulgarity or speech that is otherwise objectionable.

Even though the Nutmeg Board of Education had every right to enforce these rules, the last speaker refused to stop talking despite Ms. Chairperson’s efforts.  In such an extreme situation, Ms. Chairperson acted appropriately by calling a recess.  Bob and Mal, however, want to prohibit the speaker from ever speaking again.  That may be an overreaction.  As stated, boards of education can impose reasonable restrictions as to time, place and manner of speech.  However, it may not be reasonable to permanently deprive a speaker of access to the forum after a single violation, however, egregious.  The appropriate response to such situations will depend, of course, on the specific facts.  Here, it would likely be more reasonable to prohibit this speaker from speaking at the next meeting in response to his misconduct.  If the speaker again violates the rules at a future meeting, the Board can escalate with a longer exclusion, and only if the speaker persistently violates the rules when his ability to speak is restored would it be reasonable to impose a permanent ban against that speaker.

When boards of education provide for public comment, they are typically creating a “limited public forum,” i.e., an opportunity to speak for a specific purpose. In Nutmeg, that would be to hear from the public on issues involving the school district.  When a forum is limited to a specific purpose, whether it be general district operations or the board budget (as would be the case at a public hearing on the budget), the board may restrict speech that is unrelated to the forum that the board creates.  The speaker who was railing against the federal deficit could therefore be ruled out of order.  As long as the Board is clear that public comment should relate to district operation, speech on other topics is not protected speech. 

A final caution in Nutmeg is in order.  If the Board permits the public to say nice things about district employees during public comment, a prohibition against critical comments about district employees would be viewpoint discrimination in violation of the First Amendment.  Accordingly, critical remarks appropriately delivered would be protected speech.