School board meetings have become a source of heated and highly contentious debate in recent years with parents and community members raising concerns over any number of issues.
When speaking, some public commenters may veer into territory where they wish to reference the conduct of specific teachers or staff members. Depending on the district, however, doing so is not always permissible.
Policies prohibiting this are likely to become more widespread in light of guidance from the Maine School Management Association (MSMA) recommending that school boards adopt rules blocking comments calling out particular employees.
“Personnel performance is not something that should be a matter during a public comment period,” MSMA Executive Director Steve Bailey told WGME.
A sample policy sent by the MSMA to school districts over the summer that would disallow comments — either positive or negative — related to things like job performance or conduct of a school employee.
One school district in Maine that already has a policy along these lines in place is MSAD 17 of Oxford Hills.
According to documents on the school board’s website, public commenters are not allowed to raise “any complaints or accusations…against any personnel.”
“No complaints or allegations will be allowed at Board meetings concerning any person employed by the school system or against particular students,” the board’s policy states. “Personal matters or complaints concerning student or staff issues will not be considered in a public meeting but will be referred through established policies and procedures.”
Instead of speaking about such concerns publicly at school board meetings, parents and community members are directed “to seek a resolution at the lowest possible level.”
“If the complaint cannot be resolved at the lowest level, the person initiating the complaint may appeal the decision to the next level,” the policy says.
Complaints that “cannot be resolved at any lower level” may be appealed to the Superintendent. Should the complaint remain unresolved at this stage, “the person making the complaint may request that the matter be placed on the agenda of the next regular School Board meeting.”
Troy Ripley — Chair of the MSAD 17 school board — told the Maine Wire that although the school board’s policy “does not allow the ‘calling out’ of employees in that public setting, “it does give “a clear path for those concerns to be addressed, starting at the lowest level and culminating with the Board should it be necessary.”
“[These policies] allow for the timely and efficient conduct of our school board meetings while also giving our community members an avenue to be heard,” Ripley said.
Ripley also noted that the only employee who answers directly to the school board is the Superintendent, meaning that any other personnel complaints would be largely irrelevant and inappropriate for a school board setting.
“Calling out the ‘lunch lady’ in public is not time well spent in resolving an issue with the cafeteria or her as she is not employed by the Board,” Ripley said.
While some have raised First Amendment concerns in relation to policies such as these which restrict the content of public comments, supporters of these policies suggest that they do not directly violate free speech rights.
“Understanding that the 1st Amendment does not protect someone yelling ‘fire’ in a movie theater as free speech,” Ripley said, “I believe the court system is the appropriate venue to address any free speech concerns that may arise.”
The Massachusetts Supreme Judicial Court decided earlier this year that a particular district’s “civility restraints” were unconstitutional on account of the fact that “‘peaceable and orderly’ is not the same as ‘respectful and courteous.'”
It is not clear, however, that this type of judicial precedent is relevant for understanding the Constitutionality of the MSMA’s new guidance, as prohibiting “offensive” speech cannot necessarily be equated with barring statements calling out specific individuals.
That said, while it is generally common practice for speech in a government forum to be constrained by predetermined time limits, restricting the permissible content of a citizen’s comment is a far murkier area of law.
Brett R. Nolan, a senior attorney with the Institute for Free Speech — a nonprofit advocacy group based in Washington, D.C. — told Central Maine that allowing citizens to freely criticize government employees is an integral purpose of the First Amendment “because what they’re doing affects you, and you’re paying their salary.”
Steve Bailey, Executive Director of the MSMA told Central Maine that the organization’s decision to update their policy recommendations “is partly a response to conservative activist [Shawn] McBreairty’s efforts to ‘voraciously (damage) the reputation of individuals’ in Bangor-area school districts.”
Prior to 2019, school boards did not — by law — have to build time into their meetings for public comment. This changed, however, when the State Legislature approved LD 721 which required boards to provide “the opportunity for the public to comment on school and education matters at a school board meeting.”
“The law says members of the public can comment on ‘school and education matters,’ but it’s broad, and we needed a little more definition of what that means,” Bailey told Central Maine. “That’s where we felt the need to craft the guidance for the public on what they could and couldn’t say (about personnel).”
It is not yet known how many school districts throughout the state that do not currently have these policies on the books will choose to follow the MSMA’s guidance in the coming months.
Steve Bailey and other representatives from the Maine School Management Association did not respond to a request for comment from the Maine Wire.