judge murphy's decision

8/18/2019 Judge Murphy's Decision

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIAROME DIVISION

JIM BARRETT,

Plaintiff,

V. CIVIL ACTION FILE NO.:

4:15-CV-0055-HLM

WALKER COUNTY SCHOOL

DISTRICT, et al.,

Defendants.

ORDER

This case is before the Court on Plaintiffs Motion for

Partial Sumnnary Judgment [41] and on Defendants' Cross

Motion for Partial Summary Judgment [55;.

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 1 of 95


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I. Background

A. Factual Background

Keeping in mind that, when deciding a motion for

summary judgment, the Court must view the evidence and

all factual inferences in the light most favorable to the party

opposing the motion, the Court provides the following

statement of facts. Strickland v. Norfolk S. Ry. Co., 692

F.3d 1151, 1154 (11th Cir. 2012). This statement does not

represent actual findings of fact. Rich v. Sec'y. Fla. Dep't of

Corn, 716 F.3d 525, 530 (11th Cir. 2013). Instead, the

Court has provided the statement simply to place the

Court's legal analysis in the context of this particular case

or controversy.

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As required by the Local Rules, Plaintiff filed a

Statement of Material Facts ( PSMF ) in support of his

Motion for Partial Summary Judgment. (Docket Entry No.

42.) As also required by the Local Rules, Defendants filed

a response to PSMF ( DRPSMF ). (Docket Entry No. 56.)

Similarly, as required by the Local Rules, Defendants filed

a Statement of Undisputed Material Facts ( DSMF ) in

support of their own Motion for Partial Summary Judgment

(Docket Entry No. 55-1), to which Plaintiff responded

("PRDSMF") (Docket Entry No. 65). As permitted by the

Local Rules, Plaintiff filed his own Statement of Additional

Material Facts ("PSAF") in response to DSMF (Docket Entry

No. 65),^ to which Defendants responded ("DRPSAF")

^Plaintiff filed both PRDSMF and PSAF in the same document.Plaintiff should have separated PRDSMF and PSAF into two

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(Docket Entry No. 67). The Court evaluates DSMF,

DRPSMF, PSMF, DRPSMF, PSAF, and DRPSAF infra.^

1. The Parties

Plaintiff lives and works in Walker County, Georgia.

(PSMF If 1; DRPSMF H 1 (admitting Plaintiff lives in Walker

County, Georgia, but arguing this proposed fact is

immaterial and unsupported by proper evidence).

Defendant Walker County School District ("Defendant

WCSD") is a school disthct existing under O.C.G.A. § 20-2-

49, and is managed by the Walker County Board of

Education (the "Board"). (Compl . (Docket Entry No. 1)1)2.)

separate documents.

'Defendants did not respond to PSAF TJ 64-66. (See

generally DRPSAF 64-66.) The Court deems those statements

admitted to the extent that the statements are supported by therecord citations provided.



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Five individuals, including Defendant Mike Carruth

("Defendant Carruth"), are members of the Board. Id)

Defendant Carruth is the Chairperson of the Board. Id |

3.) Defendant Damon Raines ("Defendant Raines") is the

Supenntendent of Defendant WCSD. Id 114.) Defendant

Raines, as the Superintendent of Defendant WCSD, is

responsible for the day-to-day operations of Defendant

WCSD, as well as for implementation of the policies set by

the Board. (DSMF U 30; PRDSMF 30.)

2. Policies and P rocedu res

a. Meetings and Planning Sessions

The Board meets on the third Monday of each month,

except for those months in which the third Monday falls on

a legal holiday. (DSMF 31 ; PRDSMF ̂ 31. ) The Board

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holds planning sessions on the Tuesday preceding each

meeting. (DSMF H 32; PRDSMF H 32.) The Board's

meetings and planning sessions are open to the public and

media, as required by Georgia's Open Meetings Act.

(DSMF H 33; PRDSMF H 33.) The full Board is present at

both meetings. (DSMF

34; PRDSMF H 34.)

Defendant Raines, in collaboration with Defendant

Carruth, prepares the agenda for the Board's meetings.

(DSMF 34; PRDSMF U 34.) Defendant Raines prepares

an agenda for each planning session and for each regular

monthly meeting. (DSMF H 34; PRDSMF H 34.) At the

planning sess ions . Defendant Raines provides each

member of the Board with a copy of the tentative agenda for

AO 72A

(Rev. 8/8



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the next regular monthly meeting. (DSMF H 34; PRDSMF

H 34.)

b. The Policy

Board Policy BCBI (the "Policy"), adopted on July 17,

2006, governs public participation in Board meetings.

(DSMF H 35; PRDSMF 35.) The Policy provides, in

relevant part:

Meetings of [the Board] are held to conduct the

affairs and business of the school system.

Although these meetings are not meetings of thepublic, the public is invited to attend all meetings

and members of the public are invited to address

the Board at appropriate times and in accordance

with procedures established by the Board or the

Superintendent.

The Superintendent shall make availableprocedures allowing members of the public to

address the Board on issues of concern. These

procedures shall be available at the

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Superintendent's office and shall be given, upon

request, to anyone requesting a copy.

Prior to making a request to be heard by the

Board, individuals or organizations shall meet with

the Superintendent and discuss their concerns. If

necessary, the Superintendent shall investigate

their concerns, and within ten work days, report

back to the individual or organization. After

meeting with the Superintendent, individuals or

organizations still desiring to be heard by the

Board shall make their written request to the

Superintendent at least one week prior to the

scheduled meeting of the Board stating name,

address, purpose of request, and topic of speech.

Any individual having a complaint against any

employee of the Board must present the complaintto the Superintendent for investigation. The Board

will not hear complaints against employees of the

Board except in the manner provided for

elsewhere in Board policies, procedures, and

Georgia law.

All presentations to the Board are to be brief andare intended for the Board to hear comments or

concerns without taking action.

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(PSMF Ex. A (Docket Entry No. 42-1 f . ) The Policy does

not require that a written request to speak at public

comment be mailed via United States Mail. (DSMF U 49;

PRDSMF 1149.)

c. Superintendent Procedures

The WCSD also has Superintendent Procedures that

Defendant Raines adopted to implement the Policy, which

govern public participation at Board meetings (the

"Superintendent Procedures"). (PSMF Ex. B (Docket Entry

No. 42-1); D S M F HH 11, 13, 37; PRDSMF ffl 11, 13, 37.)

The Superintendent Procedures provide, in relevant part:

^Plaintiff's counsel collectively filed Exhibits A through I toPSMF as one docket entry. (Docket Entry No. 42-1.) This is

improper. Counsel should have filed each individual exhibit as a

separate docket entry. The Court directs counsel to comply with

that filing procedure for any future exhibits.

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Meetings of tine [Board] are structured to allow the

Board to conduct its public business. Meetings ofthe Board are open to the public, but are not to be

confused with public forums. When time permits,

the [Board] as a matter of general operating

procedures offers an opportunity for citizens of the

school district to address the Board in open

session.

The following rules shall be adhered to:

1. Refer to [the Policy] concerning required

meeting with Superintendent

2. After meeting with the Superintendent,

individuals or organizations shall make written

request to the Superintendent at least oneweek prior to the scheduled meeting of the

Board. Please include name, address,

purpose of the request, and topic of speech.

3. Each person whose name is placed on the

agenda will be given five (5) minutes to make

their comments.

4. Where several citizens wish to address the

same topic or issue, the Board reserves the

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right to limit discussions should they become

repetitive.

5. While citizens may use their allotted time to

take serious issue with Board decisions, the

Board will not permit anyone to become

personally abusive of individual Board

members or Board employees.

(PSMF Ex. B (italics in original).) The Superintendent

Procedures do not require that a written request to speak at

public comment be mailed via United States Mail. (DSMF

1149;

PRDSMF

Tl 49.)

According to Defendant Raines, "[t]he purposes behind

the required investigation about employee complaints are to

resolve issues at [the] earliest time as possible for the

efficient operation of the meetings and to preserve the

decorum of the board meetings." (Aff. of Mr. Damon Raines

(Docket Entry No. 55-3) H 8.) Defendant Raines also

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contends that "[t]he purpose behind the required meeting

with the supenntendent prior to requesting to speak at

public comment under [the Policy] is to resolve issues at the

earliest time in order to provide the official [sic] operation of

the district and board meetings." Id H 9.)

3. Policies from Other School Districts

a. The Catoosa County Policy

Catoosa County has a policy governing public

participation in its school board's meetings (the "Catoosa

County Policy"). (PSMF Ex. C (Docket Entry No. 42-1).)

The Catoosa County Policy states, in relevant part:

1. A person desiring to speak or to make a

presentation at a regular monthly meeting ofthe school board must complete the

appropriate form (Request to be Placed on

the Board Agenda). The form must be

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received at the School Superintendent's office

at least seven days prior to such meeting.Following notification of confirmation from the

Superintendent's office that the request to

speak has been received, the person desiring

to speak during public participation must be

present promptly at the beginning of the

public participation portion of the meeting and

must sign in on the sign-in sheet. Prior to

speaking, the participant must be recognized

by the presiding officer, who shall not

unreasonably withhold such recognition. If

the subject matter involves a personnel

matter, the name of the person at issue must

also be set forth on the form/sign in sheet.

The participant may only speak on subjects or

issues that are set forth on the form/sign insheet.

If a person desires to address the Board but

has not completed the Request to be Placed

on the Board Agenda form seven days prior

to the Board meeting, they may be provided

the opportunity to speak at the Board'sdiscretion. Such discretion will be exercised

based on a balancing of the following factors:

whether the granting of the request would

infringe upon the time allocated to those

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speakers who have completed the request

form in a timely manner; whether such personarrives promptly at the beginning of the Public

Participation portion of the meeting; whether

such person signs in their name and subject

matter of the proposed speech on the sign-in

sheet; and whether such subject matter

concerns the subject at hand.

3. A participant's time shall be limited to three to

five minutes in duration, as determined by the

presiding officer after a consideration of the

number of participants who have requested to

speak, and whether those who have

requested to speak are actually in

attendance.

4. No participant may speak more than once on

the same topic.

5. All statements shall be directed to the

presiding officer; no participant may address

or question Board members individually

unless a question is posed to the participantby a board member or unless the presiding

officer approves this procedure.

6. The presiding officer may:

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a. Call on members of the public to speak

who have not completed and turned inthe Request to be Placed on the Board

Agenda form seven days in advance of

the meeting in the event that the person

has signed in on the sign-in sheet

requesting to speak and there is plenty of

time remaining in the public participation

portion of the meeting;

e. Waive these rules when necessary for

the protection of privacy or the efficient

administration of the Board's business.

( Id at 1-2.) The Catoosa County Policy further states that

"the Board is designating a maximum of 30 minutes of the

regular monthly meetings for public participation as a limited

public forum," and that "[d]uring this time, comments from

the public concerning the subject at hand are encouraged

in order to have a free flow of information, ideas and

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viewpoints, which is the hallmark of a democratic

government." ( Id at 2.) The Catoosa County Policy also

provides:

[T]he Board can and will confine the public

participation portions of these meetings to the

"subject at hand," which is defined as those

subject matters that are determined by the

presiding officer to be open for public commentary

depending on their relevance to the agenda.

However, no participant shall be prohibited from

speaking by reason of the favor or disfavor of their

viewpoint. No participant shall be entit led to

filibuster, take-over or stall the proceedings of a

regular monthly meeting by use of this limitedforum; this is because such actions would cause

an interference with the business entrusted to the

Board by the taxpayers, students and parents, as

well as an impingement on the 1st Amendment

rights of other would-be speakers who have

followed this policy.

Public participation shall be extended to any

member of the public following this policy,

regardless of their status, gender, race, age,

religion, or ethnic background so long as the

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subject matter is relevant to a legitimate interest in

the actions of this Board or of the school district'sbusiness as determined by the presiding officer.

Public participation will occur in open session

except in cases involving such matters as some

personnel or student issues that are confidential

as provided for in state or federal law.

( Id at 3.)

b. The Rome City Schools Policy

The Rome City School System has a policy (the "Rome

City Schools Policy") that provides, in relevant part:

The Rome City Schools' Board of Educationrecognizes the need for communicating with

citizens in an effort to become more aware of

matters of community interest concerning the

schools and to permit the Board to explain general

policies governing the operation of the schools.

To provide for this communication process and to

insure Board meetings will be conducted in anorderly and efficient manner, any citizen or groups

of citizens may request in writing to be placed on

the agenda of the Board. This request should be

addressed to the Chairperson of the Rome City

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Schools Board of Education by 12 Noon the day

immediately preceding the regularly scheduledBoard meeting and state the nature of the matter

to be presented. If the matter is applicable for

Board consideration, the Chairperson at his/her

discretion may approve the request, allot a

reasonable time for presentation, and also limit

citizens' speeches.

Matters being presented should relate only to

those over which the Board has direct jurisdiction.

Areas of local involvement must follow due

process procedures at the school level and

Superintendent level.

(PSMF Ex. Cats . )

c. The Chattooga County Policy

The Chattooga County School District also has a policy

(the "Chattooga County Policy") governing public

participation in school board meetings. (PSMF Ex. C at 7.)

The Chattooga County Policy provides, in relevant part:

AO 72A

(Rev.8/8

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All official meetings of the Board shall be open to

the press and public. Also the Board reserves theright to meet publicly for work sessions and to

adjourn or recess a meeting at any time to discuss

such matters as may be properly considered in

executive sessions.

The Board desires citizens of the district to attend

its sessions so that they may become better

acquainted with the operation and programs of the

schools and that the Board may have opportunity

to hear the wishes and ideas of the public.

In order to assure that persons who wish to appear

before the Board may be heard and, at the same

time, conduct its meetings properly and efficiently,

the Board adopts as policy the followingprocedures and rules pertaining to public

participation in Board meetings.

1. Any party, other than a Board member,

desiring to have an item placed on the

Board meeting agenda must make such

request in writing to the Superintendentof Schools at least five (5) working days

prior to the date of the meeting. The

request must include the following:

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a. the name of the individual or party

making request;

b. the item to be placed on the agenda

with some background information if

practical;

c. the names of all individuals who

desire to make presentations;

2. Forms for submitting items on the Board

Agenda may be obtained at the

Superintendent's office.

3. Any individual desiring to speak shall

give name, address, and the group, if

any, that is being represented.

4. The presentation should be as brief as

possible. Unless an extension of time is

granted, a speaker shall be limited to five

minutes.

5. Speakers may offer such objectivecriticism of school operations and

programs as concern them. But, in

public session, the Board will not hear

personal complaints of school personnel,

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nor against any person connected with

the school system. Other channelsprovide for Board consideration and

disposition of legitimate complaints

involving individuals.

6. No profane or vulgar language nor

personal abuse against any person shall

be permitted.

The Board vests in its chairperson or other

presiding officer authority to terminate the remarks

of any individual when the rules established above

are not adhered to.

Persons appearing before the Board are reminded

as a point of information, that members of theBoard are without authority to act independently as

individuals in official matters; thus, questions may

be directed to the Board members but answers

must be deferred pending consideration by the

Board.

Comments and questions at a regular meetingmay relate with any topic concerned with the

Board's conduct of the schools. Comments at

special meetings can only deal with the call of the

meeting.

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All meetings of the Board are tape recorded and it

is necessary for each person addressing theBoard to state his/her name, address, and the

subject about which he/she wishes to speak, even

though the written request has been submitted.

( Id at 7-8.)

3. Plaintiff's Request to Speak

On September 10 , 2014 , Plaintiff requested information

by e-mail concerning speaking at the public comment

session of Board meetings. (DSMF 24 ; PRDSMF 24.)

On

that

same

day. Defendant Raines' staff provided Plaintiff

with a copy of the Policy. (DSMF H 24; PRDSMF If 24.)

On January 20, 2015, at 2:55 p.m.. Plaintiff e-mailed

Defendant Raines, asking to speak at the February 17,

2015, Board Meeting. (PSMF If 14, as modified per

DRPSMF Tf 14; DSMF Tf 51 ; PRDSMF Tf 51. ) That meeting

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was to be a regular Board meeting at which Board votes

were to be taken on agenda items. (Raines Aff. H 10.)

According to Plaintiff, he "specifically asked . . . to speak at

a regular board meeting," and he "wanted to speak at the

regular board meeting to ensure public exposure and media

coverage of [his] opposition to the standards based grading

policy." (Ded. of PI. (Docket Entry No. 25-1)112.) Plaintiff

contends that regular Board meetings and Board planning

sessions differ because "[t]he regular board meeting is well

attended by members of the public, including teachers,

parents, and students," while the Board planning session "is

a working session with often no public in attendance and

often no public comment" and is "an opportunity for the

Board to collect information, discuss future decisions and

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consider matters that may be on the horizon." ( Id f 3.)

Plaintiff states that he "specifically wanted every member of

the elected Board to hear [his] views on the grading

procedures unilaterally changed by" Defendant Raines.

( I d ) According to Plaintiff, he sought to have the full Board

take action concerning the grading procedures, "which could

only be done at a regular board meeting." ( Id

4.)

Plaintiffs e-mail, however, states, in relevant part:

I am again requesting to meet with you in order tospeak with the [Board ] at its next Planning Session

with respect to matters of school/district

administration. Even though I remain opposed to

the process and policy of having any individual

meet with the Superintendent[] before being

allowed to speak at Board meetings, I am asking

that you schedule this meeting pursuant to Boardpolicy and procedure so that I may speak [at] the

next School Board meeting after this request.

AO 72A

(Rev.8/8

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(PSMF Ex. D (Docket Entry No. 42-1) (emphasis added).)

Plaintiff recalls that his request to speak at the

February 17 meeting followed "a series of efforts on [his;

part" to raise concerns in other ways. (PI. Ded. 5.)

According to Plaintiff, in 2014, he "made continuing efforts

to discuss [Defendant Raines'] efforts to change the grading

policies," but Defendant Raines refused to meet with him to

discuss those concerns. ( ]d) Plaintiff also contends that he

requested to meet with Defendant Raines and to speak

publicly about the issue in May 2014 and in August 2014,

but his "efforts were repeatedly quashed by" Defendant

Raines. ( I d )

Defendant Raines replied on January 21 , 2015 at 1:23

p.m., offering to meet with Plaintiff on January 28, 2015.

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(PSMF

15, as modified per DRPSMF H 15; PSMF Ex. E

(Docket Entry No. 42 -1 ) ; DSMF n40,51; PRDSMF n40,

51.) Plaintiff agreed to that meeting, and . Plaintiff and

Defendant Raines met on January 28, 2015 . (PSMF f 15,

as modified per DRPSMF ff 15; DSMF K 41; PRDSMF H

41.) During the meet ing . Plaintiff provided Defendant

Raines with a memorandum listing a number of concerns

for investigation. (DSMF H 4 1 ; PRDSMF H 4 1 ; PSMF Ex. F

(Docket Entry No. 42-1) . ) Plaintiff requested that Defendant

Raines respond to his concerns in wri ting. (PSMF Ex. F.)

One week before the February 17 Board meet ing.

Plaintiff and Defendant Raines were scheduled to meet to

review the notes of Defendant Raines' investigation, and

Defendant Raines set the date, time, and place of the

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meeting via e-mail. (PSMF U 16; DRPSMF H 16; DSMFH

42; PRDSMF H 42 (admitting that a meeting occurred on

February 9, 2015).) Defendants contend that Plaintiff did

not respond to Defendant Raines' February 4 e-mail until

February 8, 2015. (DRPSMF H 16.) Defendant Raines' e-

mail stated, in relevant part: "I will have written

documentation prepared addressing the concerns

mentioned in your memo dated January 28, 2015," and "I

will deliver them on Monday, February 9, around 4:00 p.m.

there at [the school where Plaintiff taught]." (PSMF ^ 17,

as

modified per DRPSMF H 17; PSMF Ex. F.)

On February 9, 2015, Defendant Raines met with

Plaintiff and handed Plaintiff an investigation report

concerning the items that Plaintiff had asked Defendant

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Raines to investigate. (DSMF f 26; PRDSMF 1 1 2 6 : r

Defendant Raines claims that, during this meet ing . Plaintiff

said nothing to him about wanting to speak to the Board.

(First Aff. of Damon Raines (Docket Entry No. 13-1)1120.)

Plaintiff contends that he repeatedly informed Defendant

Raines during the February 9, 2015 meeting that he

intended to speak at the next Board meeting. (Second

Decl. of PI. (Docket Entry No. 65-1 ) 5.) The meeting was

scheduled for 4:00 p.m. and lasted until after the close of

business on that day. (PSAF ]\ 64.)

Plaintiff contends that he drafted and mailed his letter

requesting permission to speak at the February 17 meeting

to Defendant Raines on February 9, 2015. (PI. Decl.

10.)

AO 72A

(Rev.8/8

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According to Plaintiff, he did so at his "very first opp or tun i ty .

m

Defendants contend that Defendant Raines received

Plaintiffs letter on February 11, 2015, via U.S. mail, and

that Defendant Raines' administrative assistant stamped it

as received on that day. (DSMF UK 1, 44; PRDSMF 1,

44.) The letter that is stamped as received is undated, is

signed by Plaintiff, and introduces Plaintiff as the President

of the Walker County Association of Educators. (Aff. of

Janet Cobb (Docket Entry No. 55-2) Ex. A; DSMF U 5-6;

PRDSMF U 5-6.) The letter that Plaintiff initially claimed he

sent is attached to the Complaint, has a date of "February

9, 2014," rather than 2015, and is unsigned by Plaint iff (PI.

Decl. H 11 ; PSMF Ex. G (Docket Entry No. 4 2 - 1 ; DSMF HU

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Plaintiff, generated the postmark on the letter's envelope.

(PSAF H 63; DRPSAF

63 (admitting PSAF H 63, but

contending it is irrelevant to a facial challenge); see

also PSAF

65 ("The letter was postmarked on February

10, 2015 by the United States Post Office in Chattanooga,

Tennesee.").)

On February 11, 2015, Plaintiff received a letter from

Defendant Raines, which Plaintiff contends was postmarked

on that day, denying Plaintiff permission to speak at the

meeting. (PI. Decl. K14; PSMF Ex. H (Docket Entry No. 42-

1); DSMF H 44; PRDSMF H 44.) That letter stated, in

relevant part:

Pursuant to [the Policy], I received your written

notice on Wednesday, February 11, 2015

requesting to address the members of the [Board;

during a time of public participation.

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In response to your comment regarding "the late

timing of the Superintendent's response," pleaserefer back to the wording of the aforementioned

policy. According to the timing requirements

detailed in this policy, the scheduled appointment

by the Superintendent on Monday, February 9 to

report back and share the results of the

investigation occurred on the eighth work day after

being put on notice January 28, 2015.

Unfortunately, your request to be placed on the

next Board meeting agenda does not comply with

the requirement of the policy; "individuals or

organizations still desiring to be heard by the


Superintendent one week prior to the scheduled

meeting of the Board."

The Board agenda for Tuesday, February 17,

2015 will not include a time for public participation.

I am happy to place your name on the agenda

under public participation at the Board planning

session scheduled for Tuesday, March 10,2015 to

address the Board with your concerns. I am

attaching a copy of the Superintendent'sProcedures for Public Participation at Board

Meetings for your reference.

(PSMF Ex. H.)

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Raines repeatedly that he intended to comply with the

Policy so that he could speak at the next Board meeting,

and that he told Defendant Raines repeatedly during the

February 9, 2015 meeting that he intended to speak at the

next Board meeting. (PI. Second Decl. H 5.)

Defendant Raines notes that neither the February 17

meeting nor the March 10 meeting included agenda items

concerning the grading policy. (DSMF

22; PRDSMF H

22.) According to Defendant Raines, the Board meetings

held on August 12, 2014, and October 14, 2014, included

an item on Standards-Based Learning. (Raines Aff. 15 &

Ex. C.)

On March 1,2015, Plaintiff sent an e-mail to Defendant

Raines stating, in relevant part: "I received your letter dated

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February 11, 2015. I properly complied with [the Policy] in

order to speak at a full board meeting, rather than at a later

board planning session, and was not permitted to speak to

the full board in a timely manner." (Raines Aff. Ex. E.)

On March 3, 2015, Defendant Raines sent Plaintiff an

e-mail stating that Plaintiffs name would be placed on the

agenda for public comment for the March 10 meeting.

(Raines Aff. H 17 & Ex. E; DSMF

46; PSMF

46.)

Plaintiffs name was on the agenda, but the minutes from

the March 10 meeting reflect that Plaintiff did not attend the

meeting. (Raines Af f Ex. B.)

On April 20, 2015, a local parent spoke at the Board

Meeting during the public comment session, and made

comments concerning standard-based grading. (Raines

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Aff. 114 & Ex. A; DSMF H 48; PRDSMF 48 (admitting only

that a local parent was permitted to speak).) According to

Defendants, that parent satisfied the Policy's requirement to

meet with Defendant Raines before speaking. (Raines Aff.

114.) Plaintiff refutes that contention. (PRDSMF If 48.)

Defendant Raines also contends that, during the 2015 -

16 school year, staff and administrators can ask questions

concerning, or make comments about, Standards-Based

Grading through an informational newsletter that is e-mailed

on a weekly basis. (Raines Aff. U 19 & Ex. G; DSMF H 27;

PRDSMF 1127.)

Plaintiff contends that, despite the Policy, he has

spoken at regular Board meetings in the past without having

to meet twice with the Superintendent. (PI. Decl. H 15.)

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Plaintiff claims that, on those occasions, he spoke in

support of Board policies or the Superintendent's act ions,

and he simply called the central office and stated that he

wanted to speak. Id) According to Defendant Raines, a

review of the Board meeting minutes from July 2007

through February 2016 do not reflect any comments made

by Plaintiff during the regular Board meetings. (Raines Aff.

20.)

B. Procedural Background

On March 13, 2015, Plaintiff filed this lawsuit. (Docket

Entry No. 1.) Plaintiff also filed a Motion for Preliminary

Injunction and Consolidated Permanent Injunction ("Motion

for Preliminary Injunction"). (Docket Entry No. 2.) The

Court scheduled a hearing on that Motion for August 11,

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2015, which it then rescheduled after the Parties requested

a stay of proceedings. (Order of June 24, 2015 (Docket

Entry No. 28); Mot. Stay (Docket Entry No. 29); Order of

Aug. 5,2015 (Docket Entry No. 30).) The Parties attempted

to resolve this action through settlement negotiations and

through mediation before United States Magistrate Judge

Walter E. Johnson. (See generally Docket.) The Parties'

efforts ultimately proved unsuccessful,

On January 25, 2016, Plaintiff filed a Motion for Partial

Summary Judgment. (Docket Entry No. 41.) On January

26, 2016, the Court denied as moot the pending Motion for

Preliminary Injunction. (Order of Jan. 26, 2016 (Docket

Entry No. 43).) On February 24, 2016, Defendants filed

their Cross-Motion for Partial Summary Judgment. (Docket

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Entry No. 55.) The briefing processes for both Motions for

Partial Summary Judgment are complete, and the Court

finds that the matter is ripe for resolution. ^

II. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) allows a court to

grant summaryjudgment when "there is no genuine dispute

as to any material fact and the movant is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(a). The

party seeking summaryjudgment bears the initial burden of

showing the Court that summary judgment is appropriate

and may satisfy this burden by pointing to materials in the

Plaintiff filed a Notice of Correction of Citation in Plaintiff's

Response to Summary Judgment. (Docket Entry No. 69.) The

Court notes that it expects counsel to seek and obtain the Court's

permission before filing any notices of correction, corrected briefs,

or supplemental briefs.

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record. Jones v. UPS Ground Freight. 683 F.3d 1283,1292

(11th Cir. 2012). Once the moving party has supported its

motion adequately, the burden shifts to the non-movant to

rebut that showing by coming forward with specific evidence

that demonstrates the existence of a genuine issue for trial.

Id

When evaluating a motion for s u m m a r y j ud g m e n t , the

Court must view the evidence and draw all reasonable

factual inferences in the light most favorable to the party

opposing the motion. Morton v. K i rkwood. 707 F.3d 1276,

1280 (11th Cir. 2013); Strickland. 692 F.3d at 1154. The

Court also must '"resolve all reasonable doubts about the

facts in favor of the non-movant.'" Morton, 707 F.3d at 1280

(internal quotation marks and citations omitted). Further,

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the Court may not make credibility determinations, weigh

conflicting evidence to resolve disputed factual issues, or

assess the quality of the evidence presented. Strickland.

692 F.3d at 1154. Finally, the Court does not make factual

determinations. Rich, 716 F.Sd at 530.

The standard for a motion for summary judgment

differs depending on whether the party moving for summary

judgment also bears the burden of proof on the relevant

issue. As the United States Court of Appeals for the Sixth

Circuit has noted:

"When the moving party does not have the burden

of proof on the issue, he need show only that the

opponent cannot sustain his burden at trial. But

where the moving party has the burden-theplaintiff on a claim for relief or the defendant on an

affirmative defense-his showing must be sufficient

for the court to hold that no reasonable trier of fact

could find other than for the moving party."

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Calderone v. United States. 799 F.2d 254, 259 (6th Cir.

1986) (quoting William W. Schwarzer, Summary Judgment

Under the Federal Rules: Defining Genuine Issues of

Material Fact. 99 F.R.D. 465, 487-88 (1984)). "Where the

movant also bears the burden of proof on the claims at trial,

it 'must do more than put the issue into genuine doubt;

indeed, [it] must remove genuine doubt from the issue

altogether.'" Franklin v. Montgomery County. Md..No. DKC

2005-0489, 2006 WL 2632298, at *5 (D. Md. Sept. 13,

2006) (alteration in original) (quoting Hoover Color Corp. v.

Bayer Corp.. 199 F.3d 160, 164 (4th Cir. 1999)).

III. Discussion

Plaintiff argues that he is entitled to summaryjudgment

on his claim for injunctive relief based on the alleged facial

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unconstitutionality of the Policy. (See generally Br. Supp.

PL's Mot. Partial Summ. J. (Docket Entry No. 41-1).) A

facial challenge is a challenge to the terms of a statute or

policy, and involves "an examination of whether the terms

of the [statute or policy] itself measured against the relevant

constitutional doctrine, and independent of the

constitutionality of particular applications, contain a

constitutional infirmity that invalidates the [statute or policy;

in its entirety." Doe v. City of Albuquerque. 667 F.Sd 1111,

1127 (10th Cir. 2012) (internal quotation marks and citation

omit ted).^

'Because Plaintiff does not seek summary judgment on an

"as-applied" theory, the Court does not consider whether the Policy

is unconstitutional as applied to Plaintiff or whether Plaintiff

satisfied the Policy's requirements. As such, many of the Parties'

factual disputes concerning Plaintiff's request for permission to

speak and Defendant Raines' resolution of that request are

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To obtain a preliminary injunction, a party must

establish the following elements: (1) a substantial likelihood

of success on the merits; (2) that irreparable injury will be

suffered unless the injunction is issued; (3) the threatened

injury to the moving party outweighs whatever damage the

proposed injunction might cause the non-moving party; and

(4) if issued, the injunction would not be adverse to the

public interest." Jysk Bed'N Linen v. Dutta-Roy. 810 F.3d

767, 774 (11th Cir. 2015) (internal quotation marks and

citation omitted). The standard for obtaining a permanent

injunction is essentially the same as the standard for

obtaining a preliminary injunction, except that a party

seeking a permanent injunction must show actual success

immaterial for purposes of the instant Order.

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on the merits instead of a likelihood of success. I d at 774

n.16. Although the factors required for obtaining injunctive

relief are in theory distinct, in the First Amendment context,

the analysis essentially reduces to the question whether the

plaintiff is likely to succeed on the merits of his claims. Wi l -

Kar. Inc. v. Vi l l . of Germantown. 153 F. Supp. 2d 982, 987

(W.D. Wis. Aug. 13, 2001). "This is because the loss of

First Amendment freedoms is presumed to constitute

irreparable harm, and irreparable injury establishes that

there is no adequate remedy at law. Further because

government compliance with the First Amendment always

serves the common good, the public interest also turns on

the merits." I d '

^Plaintiff did not argue in his initial brief in support of his Motion

for Partial Summary Judgment that the Policy constituted a prior

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restraint on speech. (See generally PL's Br. Supp. Mot. PartialSumm. J.) "A prior restraint on expression exists when the

government can deny access to a forum for expression before the

expression occurs." United States v. Frandsen. 212 F.Sd 1231,

1236-37

(11th Cir. 2000). "Although prior restraints are not per se

unconstitutional, there is a strong presumption against their

constitutionality." I d

at 1237.

Here, it appears that the Policy allows an individual to speak

at a Board meeting only if the individual complies with the Policy'srequirements. (See generally Policy.) The Policy, however, simply

requires that an individual make a written request to speak, and

does not provide that the Superintendent must grant or approve

that request before the individual may speak at a Board meeting.

(See generally id ) Instead, the Policy does not appear to give the

Superintendent discretion to deny a request to speak that complies

with the requirements of the Policy. (See generally id.) As such,

the Policy may not be a prior restraint on expression.See Frandsen. 212 F.3d at 1237 (finding that a regulation was a

prior restraint on expression because the regulation allowed

expressive activities in national parks only if the park

superintendent issued a permit in advance of the activity, and the

park superintendent could deny use of the park for expression by

denying a permit).

Further, the United States Court of Appeals for the Sixth

Circuit rejected an argument by parents that "denying a request [to

speak at a school board meeting] ahead of time, rather than waiting

to regulate the speech after hearing it, imposes a prior restraint on

the speaker." Lowery v. Jefferson Cnty. Bd. of Educ. 586 F.Sd

427, 4S4 (6th Cir. 2009) (internal quotation marks omitted). The

court observed: "It is true that the defendants restrained the

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A. Substant ial Likelihood of Success

1. Standing

Certainly, "[s]tanding is crucial." Am. Civil Liberties

Union of Fla.. Inc. v. Dixie Cnty.. Fla.. 690 F.Sd 1244 , 1249

(11th Cir. 2012). Further, "[a]n essential part of standing is

that the plaintiff suffered an injury that is concrete and

particularized, not conjectural or hypothetical." I d (internal

quotation marks and citation omitted); see also Dermer v.

Miami-Dade Cnty.. 599 F.Sd 1217, 1220 (11th Cir. 2010)

("Standing for Article III purposes requires a plaintiff to

plaintiffs from speaking prior to the meeting, but that does not make

their actions a prior restraint in a First Amendment sense."

I d

(internal quotation marks omitted). The court found that the

requirement that an individual obtain permission to speak at a

school board meeting prior to that meeting was a time, place, and

manner restriction, rather than a prior restraint, i d Given that

authority, the Court is not convinced that the Policy is a prior

restraint on speech.

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provide evidence of an injury in fact, causation and

redressibility.").

"In First Amendment facial challenges, federal courts

relax the prudential limitations and allow yet-unharmed

litigants to attack potentially overbroad statutes-to prevent

the statute from chilling the First Amendment rights of other

parties not before the court." Fairchild v. Liberty Indep. Sch.

Dist.. 597 F.Sd 747, 754 (5th Cir. 2010) (internal quotation

marks, footnote, and citation omitted). "At the same t ime.

Article III standing retains rigor even in an overbreadth

claim." I d (footnote omitted). "Chilling a plainti ffs speech

is a constitutional harm adequate to satisfy the injury-in-fact

requirement." I d at 754-55 (internal quotation marks and

citation omitted). Where a plaintiff alleges that he or she "is

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seriously interested in engaging in a course of conduct

arguably affected with a constitutional interest, but

proscribed by statute," the plaintiff will have suffered a

sufficient injury to have standing. I d at 755 (internal

quotation marks and footnotes omitted). The United States

Court of Appeals for the Eleventh Circuit has observed;

"Although the injury requirement is most loosely applied

when an ordinance is challenged as unconstitutional on its

face under the First Amendment, we have repeatedly

stressed that when seeking prospective relief, an injury

must be imminent." Dermer. 599 F.Sd at 1220 (internal

quotation marks and citation omitted).

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Plaintiffs evidence indicates that the Policy chilled his

speech. Under those circumstances, Plaintiff has standing

to pursue his claims.

2. First Amendment

As an initial matter, it is clear that Plaintiff has First

Amendment rights. "[T]eachers may not be compelled to

relinquish the First Amendment rights they would otherwise

enjoy as citizens to comment on matters of public interest

in connection with the operation of the public schools in

which they work." City of Madison. Joint Sch. Dist. No. 8 v.

Wise . Emp't Relations Comm'n. 429 U.S. 167, 175 (1976)

(internal quotation marks and citation omit ted). However,

"[t]he freedom of expression protected by the First

Amendment is not inviolate; the Supreme Court has

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established that the First Amendment does not guarantee

persons the right to communicate their views at all times or

in any manner may be desired." Rowe v. City of Cocoa.

Fla.. 358 F.3d 800, 802 (11th Cir. 2004) (internal quotation

marks and citation omitted).

"Whether an activity is protected by the First

Amendment is a question of law." Zapach v. Dismuke. 134

F. Supp. 2d 682, 687 (E.D. Pa. Mar. 26, 2001). "The

Supreme Court has articulated a three-step, forum-based

test for determining whether a state actor violated a

plaintiffs First Amendment right to free speech." Jd A

court "must determine (1) whether plaintiffs speech is

protected by the First Amendment; (2) the nature of the

forum: public, designated or limited public, or nonpublic; and

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(3) whether the defendant's justifications fo r limiting the

plaintiffs speech satisfy the requisite standard." Jd

(footnote omitted).

a. Plaintiffs Speech Is Protected

Here, Plaintiffs proposed speech, which sought to

address the new Standards-Based Grading Standards, was

speech on a matter of public concern. See Maples v.

Martin. 858 F.2d 1546, 1553 (11th Cir. 1988) (stating that

"teachers whose speech directly affects the public's

perception of the quality of education in a given academic

system find their speech protected," and citing case finding

that "educational standards and accreditation are matters of

public concern"); Anderson-Free v. Steptoe. 970 F. Supp.

945, 961 (M.D. Ala. Feb. 27, 1997) (noting that speech

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questioning the educational standards of a university was

speech on a matter of public concern). As such, Plaintiffs

proposed speech would be protected by the First

Amendment.

b. Type of Forum

"When a regulation restricts the use of government

property as a forum for expression, an initial step in

analyzing whether the regulation is unconstitutional is

determining the nature of the government property

involved." Frandsen. 212 F.Sd at 1237. "The nature of the

property determines the level of constitutional scrutiny

applied to the restrictions on expression." Jd "The

Supreme Court has delineated three categories of

government-owned property for purposes of the First

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Amendment: the traditional public forum, the designated

public forum, and the nonpublic forum." Id.

"Streets and parks are the quintessential traditional

public fora, because those areas have immemorially been

held in trust for the use of the public and, time out of mind,

have been used for purposes of assembly, communicating

thoughts between citizens, and discussing public

questions." Frandsen. 212 F.Sd at 12S7 (internal quotation

marks and citation omitted). "Restrictions on expression in

traditional public fora receive heightened scrutiny." I d ; see

also N.A.A.C.P.. Western Region v. City of Richmond. 74S

F.2d 1S46, 1S55 (9th Cir. 1984) (observing that ordinance

restricting access to streets "is subject to a particularly high

degree of scrutiny," and that "the government must bear an

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extraordinarily heavy burden to regulate speech in such

locales").

Meetings of city commissions and school boards that

are open for public comment are "limited public fora-i.e., a

forum for certain groups of speakers or for the discussion of

certain subjects." Rowe, 358 F.Sd at 802 (internal quotation

marks and citation omitted); see also Bach v. Sch. Bd. of

City o f V a . Beach. 1S9 F. Supp. 2d 7S8, 741 (E.D. Va. Apr.

27, 2001) ("[B]y incorporating a public comment period into

its agenda, the School Board created a limited public

forum."); Angle v. Sabatine. No. CIV. A. 96-CV-6646, 1998

WL 54400, at *7 (E.D. Pa. Jan. 27, 1998) ("[W]hen the

School District decided to allow the public a question and

answer period, the District created a public forum where the

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approved speakers had First Amendment rights."). Those

fora are areas "where speech may be restricted to specified

subject matter." Rowe. 358 F.3d at 802 (internal quotation

marks and citation omitted). "[T]he government may restrict

access to limited public fora by content-neutral conditions

for the time, place, and manner of access, all of which must

be narrowly tailored to serve a significant government

interest." I d at 802-03 (internal quotation marks and

citation omitted). Certainly, [tjhere is a significant

governmental interest in conducting orderly, efficient

meetings of public bodies." I d at 803; see also i d at 803

("As a limited public forum, a city coun[ci]l meeting is not

open for endless public commentary speech but instead is

simply a limited platform to discuss the topic at hand.");

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Shields V Charter

Twp . of Com s tock . 617 F. Supp. 2d 606,

613 (W.D. Mich. May 27, 2009) ("A governmental body has

significant discretion to regulate its own meetings in the

manner it seeks fit. Limitations on speech must be

reasonable and viewpoint neutral, but that is all they need

to be." (internal quotation marks and citations omitted)).

"In public fora, the government may regulate the time,

place, and manner of expression so long as the restrictions

are content-neutral, are narrowly tailored to serve a

significant government interest, and leave open ample

alternative channels of communicat ion." Frandsen. 212

F.3d at 1238 (internal quotation marks and citation omitted).

"After the government has created a designated public

forum, setting boundaries on classes of speakers or topics

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of speech, designated public fora are treated like traditional

public fora." Zapach. 134 F. Supp. 2d at 690; see

also Harris v. City of Valdosta. Ga.. 616 F. Supp. 2d 1310,

1322 (M.D. Ga. Apr. 15, 2009) ("The government may

restrict access to limited public fora by content-neutral

conditions for the time, place, and manner of access, all of

which must be narrowly tailored to serve a significant

government interest." (internal quotation marks and citation

omitted)).

Here, the Court finds that the public comment portions

of the Board's meetings and planning sessions are limited

public fora. See Fairchild. 597 F.3d at 759 (finding that

school board meeting and comment session was a limited

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public forum). Thus, the Board has discretion and ability to

regulate speech during those periods. Jd

c. Defendants' Justifications

Ordinarily, "the government may restrict access to

limited public fora by content-neutral conditions for the time,

place, and manner of access, all of which must be narrowly

tailored to serve a significant government interest." Rowe,

358 F.3d at 802-03 (internal quotation marks and citation

omitted). Plaintiff argues that this standard does not apply

here because the Policy is not content-neutral.

The Supreme Court has explained:

At the heart of the First Amendment lies the

principle that each person should decide forlimself or herself the ideas and beliefs deserving

of expression, consideration, and adherence. Our

political system and cultural life rest upon this

ideal. Government action that stifles speech on

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account of its message, or that requires the

utterance of a particular message favored by theGovernment, contravenes this essential right.

Laws of this sort pose the inherent risk that the

Government seeks not to advance a legitimate

regulatory goal, but to suppress unpopular ideas

or manipulate the public debate through coercion

rather than persuasion. These restrictions rais[e;

the specter that the Government may effectively

drive certain ideas or viewpoints from the

marketplace. For these reasons, the First

Amendment, subject only to narrow and well-

understood exceptions, does not countenance

governmental control over the content of

messages expressed by private individuals.

Turner Broad. Sys.. Inc. v. F.C.C.. 512 U.S. 622.641 (1994)

(alteration in original) (internal quotation marks and citations

omitted). Indeed, [i]f there is a bedrock principle underlying

the First Amendment, it is that the government may not

prohibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable." Texas v.

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Johnson, 491 U.S. 397, 414 (1989). Thus, there is a

general prohibition against content-based restrictions on

speech, because "content discrimination raises the specter

that the Government may effectively drive certain ideas or

viewpoints from the marketplace." R.A.V. v. City of St. Paul.

Minn.. 505 U.S. 377, 387 (1992) (internal quotation marks

and citation omitted). "[T]he guiding First Amendment

principle that the government has no power to restrict

expression because of its message, its ideas, its subject

matter, or its content applies with full force in a traditional

public forum." McCullen v. Coak lev .

134 S. Ct. 2518, 2529

(2014) (internal quotation marks and citation omitted).

Strict scrutiny applies to regulations, ordinances, or

policies "that suppress, disadvantage, or impose differential

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burdens upon speech because of its content." Turner

Broad. Sys.. Inc.. 512 U.S. at 642: see also Reed v. Town

of Gilbert. Ariz.. 135 S. Ct. 2218, 2226 (2015) ("Content-

based laws-those that target speech based on its

communicative content-are presumptively unconstitutional

and may be justif ied only if the government proves that they

are narrowly tailored to serve compelling state interests.");

United States v. Playboy Entm't Grp.. Inc.. 529 U.S. 803,

812(2000) (observing that content-based speech restriction

"can stand only if it satisfies strict scrutiny"). "In contrast,

regulations that are unrelated to the content of speech are

subject to an intermediate level of scrutiny." Turner Broad.

Sys.. Inc.. 512 U.S. at 642.

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Thus, "[i]f a statute regulates speech based on its

content, it must be narrowly tailored to promote a

compelling Government interest." Playboy Entm't Grp.. Inc..

512 U.S. at 813; see also Perry Educ. Ass'n v. Perry Loca

Educators' Ass'n. 460 U.S. 37, 45 (1983) ("For the state to

enforce a content-based exclusion, it must show that its

regulation is necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that end."). "If a

less restrictive alternative would serve the Government's

purpose, the [governing body] must use that alternative."

Playboy Entm't Grp.. Inc.. 512 U.S. at 813. "To do

otherwise would be to restrict speech without an adequate

ustification, a course the First Amendment does not

permit." I d Indeed, the Supreme Court has observed:

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P]iscussion of public business cannot be confined

to one category of interested individuals. Topermit one side of a debatable public question to

have a monopoly in expressing its views to the

government is the antithesis of constitutional

guarantees. Whatever its duties as an employer,

when the board sits in public meetings to conduct

public business and hear the views of citizens, it

may not be required to discriminate between

speakers on the basis of their employment, or the

content of their speech.

City of Madison. Joint Sch. Dist. No. 8. 429 U.S. at 175-75

(footnotes omitted).

"Deciding whether a particular regulation is content

based or content neutral is not always a simple task."

Turner Broad. Sys.. Inc.. 512 U.S. at 642. "The restriction

of speech is content-neutral ifit is justified without reference

to the content of the regulated speech." Harris. 616 F.

Supp. 2d at 1322 (internal quotation marks and citation

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omitted). "In determining whether a restriction is content -

neutral, the Court's controlling consideration is the purpose

in limiting the Plaintiffs' speech in a public forum." Id

(internal quotation marks and citation omitted). "As long as

a restriction serves purposes unrelated to the content of

expression, it is content-neutral even if it has an incidental

effect upon some speakers or messages but not others."

Id. (internal quotation marks and citation omit ted). "A

content-neutral restriction is one that does not restrict either

a particular viewpoint or any subject matter that may be

discussed." Id (internal quotation marks and citation

omitted).

Further, "a facially neutral law does not become content

based simply because it may disproportionately affect

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speech on certain topics." McCullen. 134 S. Ct. at 2531.

"On the contrary, [a] regulation that serves purposes

unrelated to the content of expression is deemed neutral,

even if it has an incidental effect on some speakers or

messages but not others." i d (alteration in original)

(internal quotation marks and citation omitted). "The

question in such a case is whether the law is justified

without reference to the content of the regulated speech."

jd ^ (internal quotation marks and citation omitted).^

content-neutral regulation or law "still must be narrowlytailored to sen/e a significant governmental interest." McCullen.134 S. Ct. at 2534 (internal quotation marks and citation omitted)."For a content-neutral time, place, or manner regulation to benarrowly tailored, it must not burden substantially more speech thanis necessary to further the government's legitimate interests."I d

(internal quotation marks and citation omitted). "Such aregulation, unlike a content-based restriction of speech, need notbe the least restrictive or least intrusive means of serving thegovernment's interests." Jd (internal quotation marks and citationomitted). "But the government still may not regulate expression in

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In a recent decision, the Supreme Court provided

guidance for courts struggling with the "content based"

analysis, noting: "Government regulation of speech is

content based if a law applies to particular speech because

of the topic discussed or the idea or message expressed."

Reed. 135 S. Ct. at 2227. "This commonsense meaning of

the phrase 'content based' requires a court to consider

whether a regulation of speech 'on its face' draws

distinctions based on the message a speaker conveys." Id.

"Some facial distinctions based on a message are obv ious.

such a manner that a substantial portion of the burden on speech

does not serve to advance its goals." Jd (internal quotation marks

and citation omitted). "To meet the requirement of narrow tailoring,

the government must demonstrate that alternative measures that

burden substantially less speech would fail to achieve the

government's interests, not simply that the chosen route is easier."

Id at 2540.

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defining regulated speech by particular subject matter, and

others are more subtle, defining regulated speech by its

function or purpose." ! d "Both are distinctions drawn

based on the message a speaker conveys, and, therefore,

are subject to strict scrutiny." I d The Supreme Court

further observed: "Our precedents have also recognized a

separate and additional category of laws that, though

facially content neutral, will be considered content-based

regulations of speech: laws that cannot be 'justified without

reference to the content of the regulated speech,' or that

were adopted by the government 'because of disagreement

with the message [the speech] conveys.'" i d (alteration in

original) (internal quotation marks omitted) (quoting Ward v.

Rock Against Racism. 491 U.S. 781, 791 (1989)). Such

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laws, "like those that are content based on their face, must

also satisfy strict scrutiny." Id.

Applying Reed's guidance, the Court finds that the

Policy is content-based. The Policy provides, in relevant

part:

Prior to making a request to be heard by the

Board, individuals or organizations shall meet with

the Superintendent and discuss their concerns. If

necessary, the Superintendent shall investigate

their concerns, and within ten work days, report

back to the individual or organization. After

meeting with the Superintendent, individuals ororganizations still desiring to be heard by the


Superintendent at least one week prior to the

scheduled meeting of the Board stating name,

address, purpose of request, and topic of speech.

Any individual having a complaint against any

employee of the Board must present the complaintto the Superintendent for investigation. The Board

will not hear complaints against employees of the

Board except in the manner provided for

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elsewhere in Board policies, p rocedures , and

Georgia law.

(Policy (emphasis added).) On its face, the Policy "draws

distinctions based on the message a speaker conveys," as

it completely bars a speaker from raising complaints against

employees of the Board. Reed. 135 S. Ct. at 2227; see

also Police Department of the City of Chicago v. Mosley.

408 U.S. 92 at 94-95 (1972) (finding that a City of Chicago

ordinance that generally prohibited picketing next to a

school, but that exempted peaceful labor picketing from the

prohibition, was content based); see also Bach, 139 F.

Supp. 3d at 741 n.1 & 743 (concluding that a school board

bylaw that directed speakers to "[a]void references,

statements, or conduct reasonably likely to result in

disruption or undue delay in the orderly transaction of the

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business scheduled for consideration by the Board,"

including "attacks or accusations regarding the honesty,

character, integrity or other like personal attributes of any

identified individual or group" was content-based).

The Court acknowledges that, "[w]hen the [government

establishes a limited public forum, the [government] is not

required to and does not allow persons to engage in every

type of speech." Cleveland v. City of Cocoa Beach. Fla..

221 F. App'x 875, 878 (11th Cir. 2007) (per curiam)

(alterations in original) (internal quotation marks and citation

omitted). Although the public entity "may not censor speech

about an authorized topic based on the point of view

expressed by the speaker, it has broad discretion to

preserve the property under its control for the use to which

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it is lawfully dedicated." I d (internal quotation marks and

citation omitted). "[T]he restriction must not discriminate

against speech on the basis of viewpoint, . . . and the

restriction must be reasonable in light of the purpose served

by the forum." I d (second alteration in original) (internal

quotation marks and citation omitted). Thus, "[a]t a limited

public forum, content discrimination is permissible if it is

reasonable, given the limited forum's purpose; viewpoint

discrimination is not." Id.: see also Ballard v. Patrick. 163 F.

App'x 584, 585 (6th Cir. 2006) ("[C]ity and county board

meetings are limited public fora in which speech regulations

must be reasonable and viewpoint neutral, but that is all

they need to be." (internal quotation marks and citation

omitted)). Certainly, a city council or school board can

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"confine public comment to the subject at hand and forbid

disruptive, irrelevant or repetitious speech." Timmon v.

Jeffries. No. 1:08-CV-645, 2009 WL 270043, at *2 (W.D.

Mich. Jan. 30, 2009) (internal quotation marks and citation

omitted).

The Court also acknowledges that other courts have

found that policies prohibiting personal attacks on

individuals during public comment periods of school board

meetings are not viewpoint-based. See Fairchild.. 597

F.3d at 760 (concluding that school board policy prohibiting

attacks on individuals in public comment period was not

viewpoint-based); Steinberg v. Chesterfield Cnty. Planning

Comm'n. 527 F.3d 377, 387 (4th Cir. 2008) ("We conclude

that a content-neutral policy against personal attacks is not

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facially unconstitutional insofar as it is adopted and

employed to serve the legitimate public interest in a limited

forum of decorum and order. Such a policy is deemed

content-neutral when it serves purposes unrelated to the

content of expression . . . even if it has an incidental effect

on some speakers or messages but not others." (alteration

in original) (internal quotation marks and citation omitted)).

The Policy, however, does not simply prohibit disruptive or

irrelevant speech or personal attacks~on its face, it

prohibits speakers from airing complaints about employees

of the Board. This is classic viewpoint discrimination.

Because the Policy is content-based, it must be

narrowly tailored to serve a compelling government interest.

Admittedly, privacy concerns and the need for the Board to

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act as an impartial tribunal in disciplinary hearings when

dealing with complaints against employees are important

governmental interests. See Fairchild. 597 F.Sd at 752, 760

(rejecting challenge to school board policy that required

issues involving named teachers or individual employees to

proceed first through an alternative process, and noting that

this rule was reasonable given the board's interest in

protecting "student and teacher privacy and [in] avoid[ ing;

naming or shaming as potential frustration of its conduct of

business"). Likewise, the Board "has a substantial interest

in ensuring order at its meetings so it can conduct its

business." Timmons. 2009 WL 270043 at *3; see

also Lowery. 586 F.Sd at 433 (noting that school board's

policy served significant governmental interests because

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appears to be open. The problem is that the Policy, on its

face, prohibits all complaints about employees, not just

those complaints that would qualify as sensitive personnel

matters. As such, the Policy is not the least-restrictive

means for achieving the Board's stated interests.

In sum, the Policy is content-based and cannot survive

strict scrutiny. Plaintiff thus has succeeded on this portion

of his facial challenge to the Policy.

3. Unbridled Discretion

Plaintiff also argues that the Policy is facially

unconstitutional because it does not place time limits on

Defendant Raines concerning scheduling meetings. A rule

or ordinance "that gives public officials the power to decide

whether to permit expressive activity must contain precise

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and objective criteria on which they must make their

decisions; an ordinance that gives too much discretion to

public officials is invalid." Lady J. Lingerie. Inc. v. City of

Jacksonville. 176 F.Sd 1S58, 1S61 (11th Cir. 1999).

Further, such a rule or ordinance "must also require prompt

decisions." Id Thus, a rule or ordinance "that permits

public officials to effectively deny an application by sitting on

it indefinitely is also invalid." I d ; see also FW/PBS. Inc. v.

City of Dallas. 49S U.S. 215, 226 (2004) ("[A] prior restraint

that fails to place limits on the time within which the

decisionmaker must issue the license is impermissible.").

"A form of unbridled discretion is the failure to place

brief, specif ic time limits on the decision-making process."

Frandsen. 212 F.Sd at 12S6. For example, in Frandsen. the

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United States Court of Appeals for the Eleventh Circuit

found that a federal regulation that required a parks

superintendent "to issue a permit without unreasonable

delay" did not satisfy that requ i rement , i d at 1240 (internal

quotation marks and citation omitted). The Eleventh Circuit

observed that the regulation did "not provide the

superintendent, the public, or the reviewing court, with any

guidance as to what is considered unreasonable," and failed

"to put any real time limits on the [decision maker]."

I d (alteration in original) (internal quotation marks and

citation omitted). The court noted: "A park superintendent

who does not agree with the political message to be

espoused could allow the permit request to sit on his desk

for an indefinite period of time-resulting in speech being

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silenced by inaction." Id The court therefore held "that a

regulation that merely requires a permit to be issued

without unreasonable delay without more is unconstitutional,

because it fails adequately to confine the time within which

the decision maker must act." Id

(internal quotation marks

omitted); see also FW/PBS. Inc.. 493 U.S. at 227 ("Where

the licensor has unlimited time within which to issue a

license, the risk of arbitrary suppression is as great as the

provision of unbridled discretion. A scheme that fails to set

reasonable time limits on the decisionmaker creates the risk

of indefinitely suppressing permissible speech.").

Similarly, in Lady J. Lingerie. Inc.. the Eleventh Circuit

found that an ordinance regulating adult-oriented business

zoning was unconstitutional because it failed "to put any real

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time limits on the zoning board." 176 F.Sd at 1S6S.

Although the ordinance required the board to hold a public

hearing within sixty-three days after a business applied for

an exception, nothing in the ordinance required a decision

within sixty-three days or within any other period of time. Id

The Eleventh Circuit found that "[t]he ordinance's failure to

require a deadline for decision renders it unconstitutional."

Id

Likewise, in Redner v. Dean. 29 F.Sd 1495 (11th Cir.

1994) , the Eleventh Circuit concluded that an ordinance that

provided for the clerk of a board "to schedule a hearing for

as soon as the Board's calendar will allow" did not place a

time limit on the board and created "the risk that protected

expression will be restrained for an indefinite period of time

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prior to any form of judicial review." 29 F.Sd at 1501

(emphasis in original) (internal quotation marks and citation

omitted). The Eleventh Circuit found that the ordinance

failed "to impose reasonable time limits on the

decisionmaker." Id.

Here, the Policy imposes some reasonable time limits

on Defendant Raines. After meeting with the individual

requesting permission to speak, and after concluding that

investigation is necessary . Defendant Raines must make

his decision within ten work days and report back to the

individual seeking public comment. Further, the Court

accepts as true Defendants' contentions that, once an

individual satisfies the notice requirements of the Policy,

Defendant Raines cannot refuse to put them on the agenda

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for the Board's meetings and planning sessions. Plaintiff

correctly notes, however, that the face of the Policy does

not place a time limit on the Superintendent's time frame for

conducting a second meeting with an individual who

requires a second meeting. Because the Policy does not

contain such a time limitation, it may have the effect of

allowing Defendant Raines to schedule the initial meeting,

conduct his investigation, and to report back to the

individual requiring a second meeting in a manner that will

leave that individual without sufficient time to make his

written request to speak at the Board meeting at least one

week prior to the Board meeting. Under those

circumstances, the Policy fails the unbridled discr

judge murphy's decision

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