Public schools and parents’ free speech rights
In deciding a lawsuit that involved a Washington State school district, the U.S. Court of Appeals, Ninth Circuit offered some reminders about the requirements for applying the First Amendment to the United States Constitution in a public school setting.
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In L.F. v. Lake Washington School District #414, a parent of two daughters sued the district, claiming that the district’s imposition of a communication plan that restricted the parent’s interactions with school personnel violated the parent’s First Amendment rights.

At the trial court, the district contended that the parent had engaged in a pattern of “sending incessant emails to staff accusing them of wrongdoing, making presumptuous demands, leveling demeaning insults, … and in face-to-face interactions, acting in an aggressive, hostile, and intimidating manner.” Accordingly, the district developed a communication plan to address the unproductive communication pattern. Substantively, the communication plan limited the parent’s communications with the district about his children to bi-weekly, in-person meetings with two district administrators and advised the parent to refrain from emailing or communicating with other district employees. By its terms, the communication plan did not apply to an emergency and did not affect the parent’s right to appeal a decision affecting his daughters’ education, accessing school records or attending school activities.

The trial court granted summary judgment to the district and dismissed the parent’s claims. The judge ruled that the parent’s First Amendment right was not violated because the district did not restrict the parent’s speech, but rather the district regulated the types of communication that district personnel would respond to. The judge determined further that, even assuming that the communication plan restricted the parent’s speech, the plan did not violate the First Amendment, because it was a reasonable, viewpoint-neutral restriction in a non-public forum.

On appeal, the Ninth Circuit upheld the lower court’s ruling. In addressing the parent’s contention that prohibition of his communications with his children’s teachers violated his First Amendment rights, the court determined that the district’s communication plan did not so prohibit the parent, rather, the plan limited the parent to specified channels with respect to communications for which he wanted a response. The court stated that the district was well within its rights to impose such a limitation, as “the First Amendment does not compel the government to respond to speech directed toward it.”

In analyzing whether the parent’s First Amendment right was violated, the appellate court reiterated a long-standing distinction in the standard of review applicable to regulation of speech on government properties. According to the court, regulation of speech on a government property that has traditionally been available for public expression or has been designated as a public forum is subject to the highest scrutiny, while regulation of speech on other types of public property — non-public fora — attracts a much more limited review. Regulation of speech in a non-public forum will be permitted so long as it is reasonable and not an effort to suppress the speaker’s speech because of disagreement with the speaker’s viewpoint. Applying the analysis to the instant case, the court concluded that the parent’s speech fell into the “non-public forum” category and that the communication plan was a reasonable effort by the district to manage the parent’s “relentless and unproductive communications with district staff.”

Generally, while this Ninth Circuit decision enhances basic understanding of the contours of First Amendment rights of parents in their interactions with school staff, public school administrators and boards need to be aware that, where a California school is involved, the judicial determination of a challenge to restrictions such as those involved in this case could depend on considerations beyond the First Amendment. Article 1, Section 2 of the California Constitution contains an equivalent provision that is as broad, if not broader than, the First Amendment in its protection of free speech. Additionally, California’s Education Code, Section 51101 explicitly provides parents certain educational rights, including the right to communicate with their child’s teacher(s) and to participate in decisions related to the education of their children. As such, any district considering a communication plan to address a parent’s volatile, hostile, aggressive or intimidating behavior should consult its legal counsel for a thorough analysis of such restrictions to ensure that they do not violate a parent’s state constitutional or statutory rights.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your legal counsel for questions related to this information.