In September, CSBA’s Education Legal Alliance (ELA) and its partner law firm F3 were awarded the California Lawyer’s Association Award for Outstanding Achievement in Public Law for the amicus brief the ELA filed in the U.S. Supreme Court case, O’Connor-Ratcliff v. Garnier. The award is a testament to the ELA’s continued work and success in protecting the rights of school district and county board of education members and their local educational agencies.

O’Connor-Ratcliff v. Garnier was a case of great concern to board members, as it could have had significant impacts on their ability to use social media — both legally and as a communication tool for trustees to directly connect with their constituents and communities. The Ninth Circuit Court had held that two board members had violated the rights of two members of the public when they blocked them from their individual, privately-run social media pages, finding that they were “state actors” because they used their social media pages to address issues relevant to their role as board members, focusing on the appearance of the social media page or account. The board members’ district never directed them to create the pages or provided any support or funding for them, yet the Ninth Circuit’s ruling relied on how the public might perceive the pages as “official” rather than private. When the board members appealed to the U.S. Supreme Court, the ELA decided to provide an amicus brief because the issue had so many potential far-ranging consequences for CSBA members.

In a rare unanimous decision, written by Justice Amy Coney Barrett, the Court acknowledged the ELA’s arguments that public officials, such as board members, “are also private citizens with their own First Amendment rights.” (The Court ruled in a similar case, Lindke v. Freed and applied that decision to the O’Connor-Ratcliff matter.) Thus, courts must undertake a factual inquiry as to whether the public official is, indeed, speaking on behalf of the state, holding that the following test applies to these cases: public official’s speech is attributable to the state only if the official (1) possessed actual authority to speak on the state’s behalf, and (2) purported to exercise that authority when they spoke on social media. This repudiated the Ninth Circuit’s holding that relied on the appearance of the accounts or pages and requires that, for there to be state action such that a board member can violate the First Amendment, the board member must actually have authority to speak on behalf of the district or county office and be exercising that power. This ruling acknowledges the ELA’s argument that board members may not act individually but may only act as a board majority.

Moreover, Justice Barrett and the Court agreed with the ELA that board members needed practical guidance as to how to protect themselves from such claims, holding that the placement of a disclaimer on an individual public official’s social media account that the account is not an official, public agency account would entitle the individual official to a “strong presumption” that they were acting on their own behalf and not the state’s. Neither of the parties in the case raised the disclaimer article, only the ELA. The ELA’s unique take on these issues, from our member’s perspective, had a significant impact on the Court’s decision, which is how the ELA always approaches its actions.

CSBA and the ELA thank the California Lawyer’s Association for honoring the ELA with this important award. Further thanks goes to the ELA’s valued partner F3 for its excellent work on the amicus brief. To learn more about the ELA and becoming a member, visit csba.org/advocacy/EducationLegalAlliance.