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School Board Limits On Public Comment May Face Legal Challenge In Kansas

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The American Civil Liberties Union of Kansas wrote to the Shawnee Mission school board in May and again in December asking that it drop restrictions against people voicing their complaints at meetings.

The former legal director for the American Civil Liberties Union of Kansas thinks a practice among some school boards of restricting patron complaints at public meetings eventually will end up in court.

Doug Bonney, legal director emeritus for ACLU Kansas, said if barring complaints about school board members, the superintendent or employees is common, that doesn’t make it right.

“What I think that means,” he said, “is that eventually we will get a complainant and we will take this on in litigation. It’s so widespread that it’s almost certain to be litigated at some point.”

There are no tallies of how many of Kansas’ 286 school boards specifically bar parents and others from airing grievances about employees or board members in public. But Angie Stallbaumer, policy specialist and staff attorney at the Kansas Association of School Boards, said it isn’t unusual for boards to set some parameters for comments. Protecting privacy is a key motivation for doing so, she said.

“We don’t want to get to a situation where people don’t want to get into the profession because they don’t want their private work stuff discussed out in the open,” Stallbaumer said.

The Topeka school board, for example, has a policy barring the public from complaining about the superintendent or other employees at its meetings. Such complaints must be submitted in writing to the superintendent or, if they concern the superintendent’s actions, to the school board president or clerk.

View the Topeka school board policy

Wichita Public Schools, meanwhile, has a policy that doesn’t permit “attacks by public speakers on the personal integrity, character, or competency of any employee and/or student of USD 259” at its public meetings. But the board allows people with such comments to ask to make them in closed-door sessions.

Bonney said these types of public comment restrictions caught his organization’s eye when the Shawnee Mission school board earlier this year interrupted a patron who was complaining about a perceived conflict of interest on the board.

Allowing patrons to praise district leaders and staff but not criticize them violates the First Amendment, he said.

“I’m quite confident on our position,” he said.

The ACLU wrote to the Shawnee Mission school board in May and again in December asking that it drop restrictions against people voicing their complaints at meetings.

Read the ACLU’s letter to the Shawnee Mission school board

Shawna Samuel, spokeswoman for the Shawnee Mission district, said the board replied Dec. 7 in a statement by Vice President Brad Stratton.

In the statement, Stratton indicates the board will revisit the matter after newly elected members join next month.

“Once the Board of Education has had an opportunity to review the items outlined in the letter, and has consulted with legal counsel, a thorough response will be provided,” Stratton said.

Stratton indicated the board would consider the ACLU comments as it balances free speech rights with privacy rights.

View the Shawnee Mission school board policy

Stallbaumer said case law talks about employers’ responsibility to protect the privacy of their employees. School boards aren’t required by law to allow public comment periods, she said. And if they do, they can limit the topic of conversation — for example, a comment period specifically for input about a potential school closure — or place other “reasonable time, place and manner restrictions.”

“That’s what we’re trying to make clear,” she said. “The time for public comments is something that the boards are undertaking voluntarily.”

Bonney said boards can indeed choose not to hear any public comments whatsoever or even set some basic rules, such as allowing three minutes per commenter. But he added: “Once you open it up, then you have to abide by the First Amendment.”

Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach her on Twitter @Celia_LJ. Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to kcur.org.

I write about how the world is transforming around us, from topsoil loss and invasive species to climate change. My goal is to explain why these stories matter to Kansas, and to report on the farmers, ranchers, scientists and other engaged people working to make Kansas more resilient. Email me at celia@kcur.org.
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