Megan GreulichJuly 22, 2021 

On July 7, 2021, the Sixth Circuit Court of Appeals issued a decision in Ison, et al. v. Madison Local School Dist. Bd. of Edn., regarding a challenge to the public participation policy adopted by the Madison Local School District Board of Education (Board) and the Board’s implementation of that policy. After a 2006 school shooting in the Madison Local School District (District), several community members frequently appeared at Board meetings expressing criticism of the Board’s handling of gun-related issues.

The individuals were twice prevented by the Board from speaking for failure to comply with the Board’s public participation policy. Those individuals sued, asserting both that their First Amendment rights had been violated in the instances when they were prevented from speaking, and also that portions of the Board’s policy as written violated the First Amendment.

The District Court granted the Board summary judgment, finding no First Amendment violations. The individuals appealed, arguing that (1) the policy’s restrictions on “personally directed,” “abusive,” and “antagonistic” statements and applications of those restrictions were impermissible and viewpoint-specific; (2) the in-person preregistration requirement for public participation and the Board’s implementation of that requirement, which prevented certain individuals from speaking during public participation at meetings, was impermissible; and (3) the policy was unconstitutionally vague as was the Board’s discretion in implementing the policy.

In making its determination, the Sixth Circuit noted that board meetings constitute a limited public forum, and in a limited public forum, the government has the authority to place content-neutral, reasonable time, place, and manner restrictions on speech.  These restrictions must be  narrowly tailored to serve a significant governmental interests and leave open ample alternative channels for communication of information. In applying these standards, the Sixth Circuit held that in-person preregistration requirements constitute permissible restrictions and that the policy was not unconstitutionally vague.

However, with regard to the policy’s restrictions on “personally directed,” “abusive,” and “antagonistic” statements, the Sixth Circuit found that these restrictions violated the First Amendment because they limited speech based on whether the content of the speech offended  the Board or members of the public.  As a result, the Sixth Circuit affirmed the District Court’s decision in part and reversed and remanded the decision for proceedings consistent with its opinion on the impermissible restrictions.

While public participation at board meetings remains a privilege, not a right, nearly all boards of education in the state of Ohio offer some form of public participation at board meetings. It is vitally important that boards consider not only whether currently adopted language is legally compliant and limited to reasonable time, place, and manner restrictions, but also whether implementation of any such reasonable time, place, and manner restrictions is carried out consistently and accurately. Boards should consider reviewing existing language and practices to ensure legal compliance.

Please reach out if you have questions about allowable First Amendment restrictions or for assistance in the review of your existing policies and practices for legal compliance.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law and labor and employment law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.