Pennsbury settles free speech lawsuit. What it could mean to other districts
The impact of a lawsuit the Pennsbury School Board settled last week with four district residents over their right to comment at board meetings could reach far beyond Bucks County.
The ruling is "a wake-up call for school boards across America. Parents and speakers have a First Amendment right to criticize school policies and officials at public meetings,” said Alan Gura, vice president for litigation at the Institute for Free Speech in Washington, D.C.
The nonprofit organization represented Lower Makefield residents Douglas Marshall, Robert Abrams, Simon Campbell and Tim Daly in their lawsuit filed in October seeking to prevent the Pennsbury board from using provisions in its policy code to deny their right to comment on a variety of issues, including the school district budget and its equity in education initiative.
“Public speech at school board meetings is in fact protected by the First Amendment,” wrote Judge Gene Ellen Pratter of the U.S. District Court for the Eastern District of Pennsylvania, who heard the case and issued a preliminary injunction stopping the district from enforcing regulations which the court found prohibited free speech, as well as a requirement that speakers state their home address.
The injunction led to the settlement agreement that the school board unanimously approved at its July 14 meeting.
The settlement stipulates that the school district's insurance carrier will pay the $300,000 settlement to cover the plaintiffs' attorney fees and nominal damages, and the district or its insurer will pay another $17.91 to each of the four plaintiffs. That amount was selected in recognition of the year 1791 when the First Amendment guaranteeing the right to free speech was ratified.
Most of the funds — $237,590 — will be paid to the Institute for Free Speech, while $62,410 will go to the law firm of Vangrossi & Rechuitti of Norristown, which also worked on the case, the settlement states.
Defendants included former School Board President Christine Toy-Dragoni; current board President T.R. Kannan; other current and former school board members; district Equity, Diversity and Education Director Cherrissa Gibson; former solicitors Peter Amuso and Michael Clarke; and former district Communications Director Ann Langtry.
The suit stems from comments the four men tried to make at board meetings from December 2020 to June 2021 in which they were allegedly cut short before their time to comment expired or their comments were deleted from the meetings' minutes or video.
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District officials cited the school board's policy codes 903, covering public participation at meetings, and 922, a "civility policy" against personal attacks or abusive or inappropriate language, but the men claimed in the suit they were not allowed to voice their viewpoints because they were critical of the board and its actions.
In ruling for the injunction, Pratter highlighted Marshall's comments from a March 2021 meeting were deleted from the meeting video.
"School Board President Christine Toy-Dragoni then issued a public statement explaining that the comments were removed because they 'were abusive and irrelevant to the work taking place in the Pennsbury School District' ... Ms. Toy-Dragoni stated that '(t)he comments escalated from expressing a viewpoint to expressing beliefs and ideas that were abusive and coded in racist terms, also known as "dog whistles."' She also apologized to the community for not interrupting Mr. Marshall as he was making his comments," Pratter wrote.
"The board's post-meeting actions (including the board president's public apology) were prompted by Dr. Cherrissa Gibson, the district's director of equity, diversity and education, who, after the meeting where Mr. Marshall spoke, conferred with the board about her views of Mr. Marshall's comments. Two weeks after the board-edited video was posted, it was replaced with the full, unedited version."
At a May 2021 meeting at which Abrams, Daly and Marshall spoke during the public comment period, the judge pointed out that then-Assistant Solicitor Amuso "shouted over the speakers during their allotted time segments, yelling, 'You're done.'"
The judge pointed out that the policies 903 and 922 "are vague because they are irreparably clothed in subjectivity. What may be considered 'irrelevant,' 'abusive,' 'offensive,' 'intolerant,' 'inappropriate' or 'otherwise inappropriate' varies from speaker to speaker and listener to listener."
The board has since revised Policy 903 and deleted 922.
Kannan said Monday that "The board is glad that this issue is resolved by mutual agreement and we can now focus on the students of our district. The Pennsbury community is better for the actions we have taken."
Clarke had no comment on the settlement. Amuso, Toy-Dragoni and Gibson could not be reached for comment.
"Rules for public comment periods are meant to maintain time limits and protect each speaker's right to be heard, not police which viewpoints are expressed. Pennsbury's rules were so vague and subjective that the board could effectively shut down any speech they didn't like, and that's exactly what they did," said Del Kolde, senior attorney at the Institute for Free Speech.
Gura said other school boards should "take note."
"Rules for public comments must respect the First Amendment rights of speakers. If you are limiting which opinions may be shared, you’ll be held liable for violating First Amendment rights,” said Gura.
Daly declined to comment on the settlement until it had been signed by all parties.
In a statement on the Institute for Free Speech website, plaintiff Simon Campbell, a former Pennsbury School Board member, said: “This lawsuit serves as a valuable civics lesson for America’s public school students. Pennsbury’s censorship-promoting school board is not above the law. When government officials strive to silence the First Amendment rights of American citizens, those officials can be held liable in federal court.”
The Pennsylvania School Boards Association has taken note of the Pennsbury developments. “PSBA recognizes the importance of the right to freedom of speech, as do our members. We draft policy guides based on state and federal laws and regulations and the court decisions that interpret those laws and regulations. The association advises districts to work with their school solicitor to further develop and implement the policy based on their unique school community and district operations," said spokeswoman Mackenzie Arcuri.
This article originally appeared on Bucks County Courier Times: Pennsbury School District settles free speech lawsuit
