State’s Largest School District Warned Over Free Speech Policy

“It is not, then, the speaking about Board members, staff, students, or members of the public in general the Governing Board is preventing, but only speech about those groups from a certain viewpoint. That is unconstitutional,” the letter said.

According to the letter, the U.S. Constitution “protects public comment periods at school board meetings. Even if viewed as ‘a limited public forum,’ a school board is only permitted to impose reasonable viewpoint-neutral restrictions on the time, place, and manner of speech.”

“It is a bedrock principle that the government cannot restrict speech just because the ideas may be ‘offensive’ or ‘disagreeable,’” the letter said.

The Center Square reached out to Courtney Davis, the president of the Mesa Public Schools Governing Board, for comment, but she did not reply before press time.

Adam Shelton, an attorney for the Goldwater Institute and author of the letter, said the governing board’s policy is “textbook viewpoint discrimination.”

“The Supreme Court has consistently held that viewpoint discrimination is almost always unconstitutional,” Shelton told The Center Square Tuesday.

The Goldwater Institute got involved after Mesa parents reached out to the organization, asking the institute to look into the matter, the attorney said.

The Phoenix-based institute found out the governing board reads the policy “before every public comment period,” Shelton said.

Of the parents who contacted the Goldwater Institute, Shelton said, no one has seen retaliation from the district for their criticism.

However, he said the policy has “chilled the speech of some of the parents. They’re afraid to speak out and bring problems before the school board.”

These parents are concerned about being “banned or punished for making negative comments about school board officials,” he added.

The Goldwater Institute has not received a reply from the governing board to its letter, Shelton said.

He noted sending the letter to the board is the institute’s “first step in trying to ensure that parents have the right to speak freely at [the] public comment period.”

The Goldwater Institute did not give the governing board a specific deadline to respond to the letter, Shelton said, adding that it wants to work with the governing board to ensure its policies “are in line with the Constitution.”

“That’s our main goal,” he said.

However, Shelton noted “all options are currently on the table” for the Goldwater Institute, and it is “considering all potential avenues to ensure that parents and community members’ right to bring issues to the school board are protected.”

The letter noted potential litigation could be expensive, citing a federal court case in which Florida-based Brevard Public Schools had to pay the Moms for Liberty organization in Brevard County nearly $600,000 in a settlement over a similar policy the school district had in place that limited “abusive” comments.