The issue of school board restriction on public comment at school board meetings has resurfaced — this time in Marshall County.
https://www.wpsdlocal6.com/news/kentucky-news/experts-say-first-amendme…
WPSD reports:
“At the [May 19] meeting, three people attended the meeting to speak during the public comments section, including two students and one retired teacher.
“The school board chair told the three they could not say negative comments about any specific member of the administration, including the district superintendent and the school's principal.
“However, they could make negative comments about the administration as a whole. They were also allowed to share positive comments if they wanted.”
Reporter Jane Kim questioned the legality of the board protocol that left those in attendance feeling “stifled.”
Michael Abate, a First Amendment lawyer with Kaplan Johnson Abate & Bird in Louisville, suggested the protocol offends legal precedent:
"The First Amendment case law says the agency can't pick and choose among the viewpoints that it wants to allow, it wants to be expressed at the meeting. So you couldn't have a rule that says only comments complementary of the school board or employees of the school."
For example, in July 2021 the Sixth Circuit Court of Appeals ruled that an Ohio school board's public comment policy restricting "lengthy, personally directed, abusive, off-topic, antagonistic, obscene or irrelevant" remarks constituted unconstitutional viewpoint discrimination.
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0156p-06.pdf
https://www.journal-news.com/news/federal-appeals-court-says-madison-sc…
A similar dispute erupted in the Jefferson County Public Schools when the board of education resumed public meetings in 2021.
https://www.courier-journal.com/story/news/education/2021/07/21/how-spe…
The controversy concerning the board’s decision to suspend in-person meetings and public comment, following a series of serious disruptions, may — or may not, according to its sponsor, — have prompted the 2022 enactment of HB 121, mandating a 15 minute public comment period at all school board meetings.
https://apps.legislature.ky.gov/record/22rs/hb121.html
https://wfpl.org/bill-requiring-school-boards-to-hold-public-comment-ne…
The Kentucky Open Government Coalition noted, then, that policies regulating public comment do not offend the open meetings law which is entirely silent on the right of public comment. We quoted past open meetings decisions:
“The open meetings law ‘invests the public with the right to listen with its ears and see with its eyes. It does not invest the public with the right to participate by comment or impose a corresponding duty on the public agency to permit such comment.’”
https://www.facebook.com/419650175248377/posts/952140745332648/?d=n
Complaints about public comment protocols are not, therefore, actionable under the Kentucky open meetings law.
