Can a Virginia school board ban speakers at public meetings from criticizing teachers or principals by name?

Plain-English summary

The Franklin City School Board had a set of rules for its public comment period. Among them: speakers couldn't discuss "specific personnel or student concerns" or use "names, titles, or positions which can identify specific individuals" during open session. Those topics had to be raised, if at all, during a closed session at the Board's discretion. Speakers also weren't allowed to make "personal attacks."

Delegate Richard Morris asked the Attorney General whether these rules violated the First Amendment. Attorney General Herring's answer was yes, on most of the rules.

The Attorney General walked through the analysis. A school board's public comment period is a "limited public forum" under U.S. Supreme Court precedent. In such a forum, restrictions must be reasonable in light of the forum's purpose, viewpoint-neutral, narrowly tailored to a significant government interest, and leave open ample alternative channels of communication.

On naming and criticizing school employees, Herring relied on Baca v. Moreno Valley Unified School District (C.D. Cal. 1996) and Leventhal v. Vista Unified School District (S.D. Cal. 1997). Both cases held that a school district's interest in employee privacy isn't a compelling government interest sufficient to justify barring public comment about employees by name during open session. The Baca court explicitly noted that the open session of a school board meeting is "a legally proper place for citizens to voice their complaints about a school district's employees," and that requiring those complaints to happen only in closed session (especially when closed session is discretionary and access to it is gatekept) doesn't satisfy the "ample channels of communication" requirement. So the Franklin rule banning personnel discussion and identification by name is unconstitutional as applied.

On the prohibition against "personal attacks," Herring relied on Bach v. School Board of the City of Virginia Beach (E.D. Va. 2001). The federal court there pointed out the impossibility of drawing a content-neutral line between criticism and "personal attack": "[C]itizens may see no distinction between stating, 'the principal is a liar' and 'the principal lied to us about spending the money.'" A rule that lets the school board pick which criticisms cross the line is not content-neutral and is unconstitutional.

On naming individual students, Herring drew a different conclusion. There IS a significant government interest in student privacy (FERPA, Va. Code § 22.1-287). But because the constitutionality depends on the specific context (a parent praising a student is not the same as a parent attacking a student), the AG declined to issue an overall ruling on student naming. That one is case-by-case.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The First Amendment framework for public comment periods continues to evolve in the federal courts. Verify current precedent before relying on any specific First Amendment analysis here.

Common questions

Can a Virginia school board ban speakers from naming the principal by name?

Under this opinion, no, not at an open meeting. The First Amendment lets citizens criticize school employees and officials by name during the public comment period.

What if a parent uses profanity or threatens an employee?

The opinion addresses categorical bans on personal criticism. Time, place, and manner restrictions that are content-neutral and reasonable (like a 3-minute time limit, no shouting, no threats) remain enforceable. The trouble starts when the rule restricts the content of speech based on whom or what is being criticized.

Can the school board force complaints about employees into a closed session?

No. The opinion is clear that the open session of a school board meeting is a proper place for citizens to voice complaints about employees. Requiring complaints to be made only in closed session, especially when the closed session is discretionary, is not constitutional.

What about naming a student by name during public comment?

This is more complicated. There's a real privacy interest in student records (FERPA and Va. Code § 22.1-287), and the constitutional analysis depends on context. Praising a student differs from attacking one. The AG declined to issue a categorical opinion on this.

Does the school board have to allow anything anyone wants to say?

No. Reasonable, viewpoint-neutral time, place, and manner restrictions are permissible. What's not permissible is censoring criticism of officials based on whom it concerns or its tone.

Background and statutory framework

The First Amendment, applied to state and local government via the Fourteenth Amendment, governs public meetings. The U.S. Supreme Court has developed a three-category forum analysis:

• Traditional public forum (streets, parks): minimal restrictions allowed
• Designated/limited public forum (government property opened for specific speech): restrictions must be reasonable in light of purpose and viewpoint-neutral
• Nonpublic forum (closed government property): substantial restrictions allowed

A school board's public comment period is a limited public forum (Christian Legal Society v. Martinez, 561 U.S. 661, 679 n.11; Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747).

The constitutional requirements for restrictions in a limited public forum are: (1) reasonable in light of the forum's purpose, (2) viewpoint-neutral, (3) narrowly tailored to a significant government interest, and (4) leaving open ample alternative channels of communication.

The "personal attacks" prohibition fails the content-neutrality requirement because it inevitably involves judgment calls based on the content of speech. The Bach decision identified the practical impossibility of drawing the line.

The personnel restrictions fail because privacy interests of employees are not "compelling" enough to outweigh the right of citizens to criticize their government's hiring and supervision practices. The closed-session alternative doesn't satisfy "ample alternative channels" when access to closed sessions is discretionary.

Student privacy is a different matter. FERPA (20 U.S.C. § 1232g) and Va. Code § 22.1-287 establish real privacy interests in education records that can support narrowly tailored speech limitations in some circumstances. But the constitutionality varies by context.

Citations

• U.S. Const. amend. I (free speech)
• U.S. Const. amend. XIV (applying First Amendment to states)
• 20 U.S.C. § 1232g (FERPA student record privacy)
• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 22.1-287 (school employee/board member access to student records)
• 2005 Op. Va. Att'y Gen. 27, 28 (First Amendment applies to public school systems via Fourteenth Amendment)
• 2009 Op. Va. Att'y Gen. 80, 81 (AG declines to opine on specific factual matters)
• Christian Legal Society Chapter of the Univ. of California v. Martinez, 561 U.S. 661 (2010)
• Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747 (5th Cir. 2010)
• Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985)
• Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37 (1983)
• City of Madison v. Wis. Emp'y Relations Comm'n, 429 U.S. 167 (1976)
• Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719 (C.D. Cal. 1996)
• Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (S.D. Cal. 1997)
• Bach v. Sch. Bd. of the City of Va. Beach, 139 F. Supp. 2d 738 (E.D. Va. 2001)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-020_Morris.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

April 15, 2016

The Honorable Richard L. (Rick) Morris
Member, House of Delegates
Post Office Box 128
Carrollton, Virginia 23314

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Dear Delegate Morris:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether certain rules of the Franklin City School Board restricting the speech of speakers at public meetings violate the free speech rights of speakers.

Background

The facts you present are as follows. The Franklin City School Board (the "Board") has adopted a regulation governing the conduct of public meetings entitled, "Public Participation at School Board Meetings." It provides a period at public meetings when citizen comment is permitted and includes a section entitled, "Rules for Citizens' Time at School Board Meetings" (the "Rules").[1] In relevant part, the Rules state,

The School Board will not permit speakers to discuss specific personnel or student concerns during the public session, but may be invited to do so during "Closed Meeting." Names, titles, or positions which can identify specific individuals will not be allowed during the public session. Speakers having specific personnel[2] or student concerns may sign up to speak on these topics during "Closed Meeting." Only the speaker or representative of a group may be present during "Closed Meeting." Permission to speak before the School Board in "Closed Meeting" is at the discretion of the Franklin City School Board. . . . [Speakers] . . . may not engage in personal attacks against employees of the school system or other persons.

The School Board applies the Rules so as to prohibit speakers from either praising the performance of a student or a specific employee or expressing concerns or criticism about such persons during open meetings.

Applicable Law and Discussion

The First Amendment to the Constitution of the United States provides that "Congress shall make no law . . . abridging the freedom of speech . . . ."[3] The Fourteenth Amendment makes these restraints applicable to state and local government, which would include public school systems.[4] Thus, when public comment is allowed, it must be allowed in a manner consistent with the First Amendment. There are three different types of public forums, subject to different constitutional requirements. At the two ends of the spectrum are a traditional public forum, with only minimal restrictions on speech allowed, and a nonpublic forum, with substantial restrictions on speech allowed.

Between a traditional public forum and a nonpublic forum is a middle ground commonly referred to as a limited public forum. As explained by the U.S. Supreme Court in Christian Legal Society Chapter of the University of California v. Martinez,[5] a limited public forum exists when the government limits the public expressive activity on what is otherwise nonpublic government property to certain kinds of speakers or the discussion of certain subjects.[6] The public comment period in a school board meeting has been repeatedly held to be a limited public forum.[7]

Accordingly, I conclude that the situation you have presented, a public meeting of a local school board with a period set aside for public comments, meets the Supreme Court's definition of a "limited public forum."

The fundamental constitutional requirements for a limited public forum are that any restrictions on speech must be reasonable in light of the purpose of the forum and must be viewpoint neutral.[8] A speech restriction must be narrowly tailored to serve a significant government interest and leave open ample channels of communication.[9] In addition, a permissible rule affecting speech must be applied consistently, regardless of the viewpoints of different speakers.[10]

Because the Rules do not differentiate between laudatory speech and criticism, they are content-neutral.[11] Thus, the remaining questions are whether the rules against discussing "specific personnel or student concerns" and identifying specific individuals by "names, titles, or positions," and the rule against "personal attacks," are reasonable.

1. Identifying specific personnel

The interest of a school division in the privacy of school employees has been held to be an insufficient basis for barring public comment on individual employees. In Baca v. Moreno Valley Unified School District,[12] a federal district court held that the school district's "interest as an employer in protecting its employees' right of privacy cannot be characterized as a compelling government interest," and,

When a school board holds open sessions of its meetings and is addressed by members of the public . . . it is not functioning as an employer, but as a legislative body. . . . [O]ne aspect of the legislative body's function is to listen to public testimony, including public criticism of those persons implementing the policies. . . . The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. . . . [The school district's interest in employee privacy] must give way to the more fundamental constitutional right of freedom of expression.[13]

There was a similar holding in Leventhal v. Vista Unified School District,[14] where another federal district court held that "[d]ebate over public issues, including the qualifications and performance of public officials . . . lies at the heart of the First Amendment."[15]

As to requiring such discussions to take place only in closed meetings, the Baca court observed, "[t]he open session of a school board meeting is a legally proper place for citizens to voice their complaints about a school district's employees. The policy [of requiring those complaints to be made only during closed meetings] is an invalid restriction on speech at [open] meetings, and the fact that plaintiff and others critical of District employees may speak in closed sessions, in public, or even on the schoolhouse steps, does not validate the otherwise invalid policy."[16] I note that for the School Board, even holding a closed session is discretionary and not required, and if a closed session is held, a citizen may speak only in the discretion of the School Board. For those reasons, I conclude that allowing discussion of individual school employees only during closed session does not meet the constitutional standard of "leaving open ample channels of communication."[17]

For the reasons set forth in Baca and Leventhal, I conclude that the School Board may not constitutionally bar speakers from discussing personnel issues or identifying individual school employees or officials during public session.

The same principles apply to the Rules' prohibition on identifying individual students by name, albeit with a different conclusion: there is a significant government interest in protecting the privacy of individual students in certain circumstances, as evidenced by state and federal student privacy laws.[18] Further, depending on context, certain comments about particular individual students may not fall within the proper scope of a school board meeting. Because there is such a wide range of possible comments about individual students, I can express no overall opinion on the constitutionality of such a restriction.[19] The constitutionality of barring speakers from identifying individual students would be governed by the specific facts of the situation. Attorneys General consistently have declined to render official opinions on specific factual matters.[20]

2. "Personal attacks"

A prohibition on "personal attacks" was held not to be content-neutral, and therefore constitutionally impermissible. As the U.S. District Court for the Eastern District of Virginia observed in Bach v. School Board of the City of Virginia Beach,[21] "[C]itizens may see no distinction between stating, 'the principal is a liar' and 'the principal lied to us about spending the money.' According to the [School Board's] interpretation, the latter would be acceptable but the former forbidden . . . ."[22] In accordance with that federal judicial precedent, I conclude that barring "personal attacks" is not constitutionally permissible.

Conclusion

Freedom of speech is essential to the maintenance of a free society. For the reasons stated, it is my opinion that (1) the blanket prohibitions in the Rules against speech on "specific personnel or student concerns" and speech identifying school officials or employees may not constitutionally be applied so as to bar speakers from discussing specific school employees or officials during open meetings, and (2) the prohibition against all "personal attacks" is not constitutionally permissible. The constitutionality of restrictions against identifying individual students would be determined by the particular circumstances involved.[23]

With kindest regards, I am

Mark R. Herring
Attorney General

[1] Franklin City School Board Regulation BDDH ("Rules for Citizens' Time at School Board Meetings") (rev. 8/29/99), http://www.fcpsva.org/pdf/PolicyManual/PolicyManual_SectionB_BoardApproved.pdf.

[2] The term "personnel" is not defined. Thus, it could reasonably be interpreted to include officials such as members of the School Board as well as salaried employees of the school division.

[3] U.S. CONST. amend. I.

[4] 2005 Op. Va. Att'y Gen. 27, 28.

[5] 561 U.S. 661 (2010).

[6] Id. at 679 n.11.

[7] See Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 759 & n.42 (5th Cir. 2010).

[8] Christian Legal Society, 561 U.S. at 679 n.11.

[9] See, e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 818 (1985); Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 46 (1983); City of Madison v. Wis. Emp'y Relations Comm'n, 429 U.S. 167, 178-79 (1976).

[10] City of Madison, 429 U.S. at 178-79.

[11] Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719 (C.D. Cal. 1996), involved a policy regulating speech at school board meetings. In holding the policy to be in violation of the requirement of content neutrality, the court stated, at 730, "It is difficult to imagine a more content-based prohibition on speech than this policy, which allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter." See also City of Madison, 429 U.S. at 175-176 ("To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees.").

[12] 936 F. Supp 719 (C.D. Cal. 1996).

[13] Id. at 732 n.13, 732.

[14] 973 F. Supp. 951 (S.D. Cal. 1997).

[15] Id. at 958.

[16] Baca, 936 F. Supp. at 736 (emphasis added).

[17] See supra, note 9 and accompanying text.

[18] See The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, which protects the confidentiality of education records, only permitting the release of personally identifiable information with the consent of the students or in certain isolated instances. 20 U.S.C. § 1232g(b)(1) & (2). See also, e.g., VA. CODE ANN. § 22.1-287 (2011), which establishes, with some exceptions, that "[n]o teacher, principal or employee of any public school nor any school board member shall permit access to any records concerning any particular pupil enrolled in the school in any class to any person except under judicial process."

[19] There may be situations where it would not be improper to identify a student by name, such as a parent expressing gratitude to the school board for school programs or activities that were beneficial to the parent's son or daughter.

[20] 2009 Op. Va. Att'y Gen. 80, 81.

[21] 139 F. Supp. 2d. 738, 743 (E.D. Va. 2001).

[22] Id. at 743.

[23] I address only the constitutionality of the Rules and general principles governing their application, not whether they have been legally applied in any particular situation.