In a victory for the freedom of speech, the Mesa Public School’s Governing Board on Thursday updated its public comment policy to allow speech “without regard to viewpoint,” eliminating its previous prohibition on “personal attacks.” Board members made the change after the Goldwater Institute notified them earlier this year that their previous policy amounted to unconstitutional viewpoint discrimination.
Goldwater sent a letter to Mesa Public Schools in April urging board members to amend their policy barring “personal attacks on Board members, staff, students, or members of the public” during the public comment period of a board meeting. Any “negative” comment directed at a board or staff member could be shut down, no matter how factual, measured, or accurate the critique.
At the same time, the board allowed parents and community members to heap praise on those same board or staff members. That’s unconstitutional viewpoint discrimination.
The board’s updated policy fixes the problem at the heart of Goldwater’s letter. The blanket prohibition on “personal attacks” is gone. Instead, the policy explicitly states that “the Governing Board permits public comments without regard to viewpoint, including criticism, praise, or neutral observations concerning matters within its jurisdiction.” That’s a direct and unambiguous commitment to viewpoint neutrality, which is exactly what the Constitution requires.
This new policy also defines “disruptive conduct” in concrete behavioral terms, like speaking out of turn, exceeding time limits, yelling, interrupting, or inciting actual disruption of the meeting. This should prevent it from being wielded to prohibit negative comments under the guise of being too “disruptive.”
School board comment periods are a type of public forum—a limited one to be sure, but a public forum nonetheless. And in these limited public forums, a governmental entity like a school board can only regulate the time, place, and manner of speech. It cannot restrict speech based on the speaker’s viewpoint.
The Supreme Court has time and again held that viewpoint discrimination is so egregious that the government must nearly always abstain from such regulations. As the Court has explained, “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”
A policy that restricts speech based on viewpoint is an assault on both the idea that the First Amendment stands as a shield to protect Americans and our collective decision as a country that individuals possess an inalienable right to speak and think freely.
These principles are especially important in the context of a school governing board banning “personal” attacks against board members and staff. Such a policy thwarts the core purpose of public comment periods at board meetings: educating the board and the community about community members’ concerns.
If, for example, a parent has a grievance about their child’s math teacher’s teaching style, it would be hard to adequately explain the problem without referring to the teacher.
Public comment periods at school board meetings exist to allow parents and community members to bring issues before the board and the public. It gives them a voice in the decisions that directly affect their children and their tax dollars.
The Mesa school board’s new policy will help serve that important purpose.
Adam Shelton is a Senior Staff Attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
