Shawnee Mission school board’s new open forum restrictions draw rebuke from ACLU, which says guideline is unconstitutional

Board President Sara Goodburn.
Board President Sara Goodburn.

The Shawnee Mission school board’s new restrictions on patron comments during public meetings have drawn criticism from the The American Civil Liberties Union of Kansas, which says the new open forum guidelines run afoul of the First Amendment of the U.S. Constitution.

ACLU of Kansas Chief Counsel and Legal Director Doug Bonney sent a letter to members of the board of education this morning urging them to reconsider the restrictions, which were introduced in April, a month after several speakers used the board’s open forum to ask challenging questions about a variety of district initiatives. Board President Sara Goodburn cited the policy at last week’s meeting when she asked district parent Jeff Passan to refrain from mentioning board member Deb Zila and her daughter Mallory by name as he raised conflict of interest questions about Deb’s vote on a new contract for CBIZ, Mallory’s employer. Goodburn later acknowledged that Passan had not actually violated the guidelines since neither Deb nor Mallory are technically employed by the district.

“…I write to emphasize that people have a well-established First Amendment right to criticize both elected officials and other public servants,” Bonney wrote. “The Free Speech Clause of the First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.’ New York Times v. Sullivan, 376 U.S. 254, 271 (1964). ‘Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.’ Id. at 273.”

Bonney went on to suggest that the policy, as currently written, would prohibit both public criticism of the district’s superintendent, who is vested with great authority over decisions about the district’s position on matters of public policy, as well as praise of current teachers or building principals:

“By prohibiting commenters from discussing ‘matters related to a specific student or employee,’ the Board’s current guidelines are overbroad and inconsistent with the First Amendment. Specifically, the guidelines prohibit citizens from making public comments — whether good or bad — about the stewardship of school employees who have key responsibilities for carrying out the public functions of the school district. For example, the guidelines would prohibit a parent from criticizing Superintendent Hinson by name for his public statements about the on-going legislative and public debate over school funding in Kansas. Similarly, the guidelines would prohibit a parent from extolling the selfless dedication of a particular teacher or principal in the district who has made extraordinary efforts to help immigrant students. Because such comments fall squarely within the people’s First Amendment right to comment on stewardship of public officials, the Board’s current guidelines for the Open Forum agenda item are unconstitutional.”

Bonney then said he strongly urged the board to “remove the guideline that prohibits commenters from mentioning district employees by name. Further, I trust that you will in the future refrain from admonishing commenters who mention board members by name.”

It’s the second time in as many months that the ACLU has felt compelled to send a letter to the board. In April, Bonney wrote to ask that they clearly detail a policy regarding law enforcement agents and students whose parents may be under investigation by Immigration and Customs Enforcement. At its April meeting a few days later, the district adopted a resolution on students’ rights and immigration enforcement.

The ACLU’s new letter is embedded below:

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