News

In Fairchild v. Liberty Independent School District, a three judge panel of the Fifth Circuit Court of Appeals upheld the constitutionality of two school board policies that are used widely throughout the state.  The court first ruled that a policy prohibiting specific complaints against school employees during the public comment section of a board meeting did not, on its face, violate the First Amendment right to free speech.  The court also ruled that a policy closing an employee’s post-termination grievance hearing to the public was not unconstitutional, either on its face or as applied to the employee, because she intended to accuse another employee of misconduct.  (A complete summary of the case can be found in April’s print edition of the Legal Digest.)

Director of TASB Legal Services Joy Baskin called the decision “very helpful,” as the Fifth Circuit’s holding supports the idea, popular among school boards, that the public comment period is not an appropriate time to air complaints about individual employees or students.  The two policies at issue in Fairchild were BEC(Legal), regarding public participation in board meetings, and DGBA(Local), which establishes a grievance procedure.  (According to Carolyn Counce, Director of TASB Policy Service, the “Legal” label denotes reference material that is intended to support the actual policies, which are labeled “Local.” Districts that subscribe to TASB Policy Service are encouraged to read the two types of documents together but only to adopt the actual policy.  In this case it appears Liberty ISD adopted both Legal and Local documents as board policy, a common occurrence.)  A look at the history behind the TASB policies illustrates the significance of Fairchild in the ongoing struggle to achieve balance between individuals’ right to free speech and school districts’ legitimate interests in conducting orderly board meetings and efficiently resolving workplace disputes.

In First Amendment parlance, the public comment section of a school board meeting is known as a “limited public forum.”  This means that a school board may adopt reasonable regulations for speakers but may not discriminate on the basis of a speaker’s viewpoint.  According to Baskin, at one time it was widespread practice across Texas to prohibit complaints about specific teachers or students during public comment.  Reflecting this practice, TASB’s model policy used to be very overt that the public comment time could not be used to air complaints.  However, TASB attorneys noticed that courts from around the country were finding unlawful viewpoint discrimination in school board policies that disallowed statements based on the negative nature of the speaker’s opinion.

Due to these concerns, TASB changed its model policy language as part of a routine policy update in 2004.  The current version of the policy no longer specifically prohibits complaints and concerns but requires an officer or designee of the board to determine whether a speaker has attempted to resolve a matter administratively “through resolution channels established by policy” and, if necessary, to refer the speaker to the appropriate administrative process. 

The facts in Fairchild presented a dilemma under the TASB policies and the Texas Open Meetings Act: if Fairchild’s grievance was the subject of discussion, then she would normally have the right to a hearing before the board in open session.  But if she really wanted to complain about a district employee’s performance, then that employee would have the right to determine whether those complaints should be aired in public. 

Baskin was impressed with the compromise made by the Liberty school board.  Fairchild was allowed to discuss her termination in a public hearing, but to the extent she wanted to talk about other district employees, that discussion would take place in closed session. To Baskin, Fairchild reflects a shift in how the court looked at viewpoint discrimination: “Until now, courts considered the relevant viewpoints to be saying nice things about school employees versus saying bad things.  If a school board restricted criticism but allowed compliments, that looked discriminatory.  In this case, the Fifth Circuit shifted the lens of the First Amendment analysis.  The court saw the relevant viewpoints as the two opposing sides of a potential grievance, not complaints versus compliments.”  In upholding the policies, the court recognized a district’s “substantial state interests in employee privacy and disciplined agenda while ensuring the accuracy of information disclosed at the hearing.”

Attorney Richard Morris, who represented Liberty ISD at the district court and the Fifth Circuit, says he hopes the decision can “give districts some comfort”: “The Fifth Circuit’s opinion very thoughtfully recognizes that there is a difference between matters of public concern and [employees’] complaints about their own work, and the board has a right to deal with them differently.”  After thoroughly considering the interplay between the TASB policies, the decision legitimizes districts’ practice of requiring employees to avail themselves of the grievance process instead of using public comment.  “If an employee shows up at a meeting and begins to use public comment for the purpose of complaining, particularly if seeking some form of relief, it is perfectly appropriate to say, this is not the time, and redirect them to the grievance process in hopes of resolving a workplace dispute.  If they can’t resolve it, that employee will still have the right to get before the board, but they should be required to go through the chain of command to get there,” Morris explains. 

Going forward, attorneys at TASB will look at whether there is language in Fairchild that should be incorporated into updated versions of the policies.  On March 23, Fairchild filed an appeal in the Fifth Circuit for a rehearing en banc.  Stay tuned to the legaldigest.com for updates on this important case.