Park City School Board is likely violating First Amendment rights with its public comment policy

Tuesday, Park City parent Kris Choi spoke to the Park City School Board during the open comment portion of the board meeting. Her concern was regarding the superintendent’s new contract. When Ms. Choi stated the responsibilities of the superintendent and then asked why her contract was renewed given the sexual abuse scandal, school board member Andrew Caplan stated, “First, this is exactly what we stated is not allowed. Talking about a specific person is not welcome in public comment.” They shut her down.

About 30 minutes later I received a text from another parent who had apparently been watching the school board meeting. Their question was, “Josh. Quick question for you. If the PCSD Board meeting is ‘not the forum’ to ask specific questions regarding personnel, where is? Thanks!”

That’s a darn good question.

The problem is that when people have a problem with how our schools are run, where are they supposed to go? If the issue is with the Superintendent and/or the board who do they address that with? Likewise, to the person who reached out to me, I would say that all positions should be on the table for discussion. If a person has a problem with a principal, teacher, or the firing of a baseball coach they should be able to address that in front of the governing body.

The school board doesn’t have to respond. The board can listen and then thank the person for their comments. However, in the case of Ms. Choi, she was shut down because she wanted to discuss the superintendent’s contract. Previously I witnessed a substitute teacher, Sarah Altschuler, shut down because she wanted to ask questions about why she wasn’t allowed to teach at certain schools. She couldn’t even speak about herself.

It’s not right, and it’s apparently not legal.

Yes, cue up the next in line of legal wrongdoings by the Park City School District. The Student Press Law Center (SPLC) has done a thorough analysis of this exact question. According to the SPLC, “It’s increasingly commonplace for districts to impose restrictions on what members of the public may say during the open-microphone portion of board meetings. But such restrictions are doubtfully legal, and in a pair of recent interpretations – one in Illinois and one in Virginia – have been found unconstitutional.”

Their legal interpretation is that the “Constitution is not understood to guarantee citizens a right to be heard before their elected officials make a decision.” However, “once an agency does agree to accept public comment, the commenting system cannot be operated in a discriminatory or viewpoint-restrictive way.”

What they mean by that is that the school board doesn’t have to give people the right to speak but once they do, they have to allow people free speech.

They cite the “forum doctrine” from the Supreme Court which says that once an area is designated for public comment, all public comments must be taken. According to Police Dept. of Chicago v. Mosley (1972), once an area is declared a “forum,” then any regulation of free speech is unconstitutional. SLPLC states, “Only if a judge finds that the restriction is absolutely necessary to achieve a compelling governmental purpose will the restrictions be constitutional.”

I think most of us would agree that preventing questions about the superintendent’s contract isn’t a compelling government purpose. Likewise, a substitute teacher should be able to ask questions of the board, too.

This doesn’t mean it’s a free for all, though. A school district can impose limits like 3 minutes of public comment to everyone because the rule is applied equally to all speakers. They can also remove speakers that cause a disturbance, without violating the speaker’s first amendment rights. However, they cannot impose limits based on the words used by a speaker.

So, if Ms. Choi or Ms. Altschuler brought a legal case against the district, would they win? According to SPLC, “When speakers who’ve been restrained from commenting at public meetings bring constitutional challenges, they’ve generally been successful. Judges have no difficulty recognizing that a government meeting is meant for the airing of complaints, even if that requires naming or criticizing a particular employee.” The article provides several examples.

One might also ask the question, “What if someone speaks during public comment and commits slander? Shouldn’t that be reason enough from stopping them from speaking at all, just in case?” SPLC answers that too, “The argument that criticism of employees must be forbidden to prevent defamation fails on two legal grounds. First, not all critical speech is defamatory. Defamation requires proof of a false statement of fact. Accurately describing wrongdoing by a school employee is a non-defamatory act of constitutionally protected speech.”

They continue, “Even if it’s reasonably anticipated that some speakers will abuse the comment period to make defamatory statements, the Supreme Court has made clear that speech cannot be restrained in anticipation that it will harm someone’s reputation. Rather, the proper remedy is to let the speech be heard and – if it causes harm – compensate any injured parties by way of a civil suit for money damages.” United States v. Stevens (2010) and Near v. Minnesota (1931) uphold these arguments.

The Park City School Board is hiding behind a policy that appears to be unconstitutional. I feel strongly enough about this that I have filed a complaint against the Park City School District with the American Civil Liberties Union (ACLU). Yes, I am running for School Board, and having to deal with another lawsuit isn’t what the district wants. However, maybe it’s what it needs.

We need to start following the law. We had a failure to follow the law with mask mandates. We had/have alleged unreported child abuse cases. Now we have violations of first amendment rights.

When and where does it end? Repeatedly charged with crimes. Don’t hear the truth. Hide behind policy. Are these the lessons our school district wants to teach our children?

We need a change of culture at the top of our school district. This is another case where the district’s actions don’t look legal and for sure aren’t right.

Hi, I’m Josh Mann. I created the Park Rag in 2012 to tell stories like these. This year, I am running for Park City School Board. I believe that through open communication, we can build a stronger community. Thanks for stopping by.