Pembroke officials’ decision to censor the criticism of school employees during public meetings is “the textbook definition” of an unconstitutional speech restriction, according to a group that works to protect civil liberties.
The American Civil Liberties Union of New Hampshire demanded in a seven-page letter sent Tuesday to the Pembroke School Board that it stop enforcing its unconstitutional practice of banning complaints against school personnel during the public comment period of its meetings.
Authored by Legal Director Gilles Bissonnette, the letter comes after the school board refused last month to allow a parent to publicly question Superintendent Patty Sherman’s handling of the arrest of the high school’s former dean of students, Rekha Luther, for heroin possession in February.
David Pearl, the father of a student from Hooksett, was silenced at the board’s May 10 meeting when he attempted to read email correspondence between him and Sherman. On May 24, when Pearl tried again, the board’s chairman, Tom Serafin, asked a plainclothes Pembroke police officer to eject Pearl for “interrupting the meeting.” Pearl maintained he was not committing any crime and opted to stay. A police sergeant arrived, and the officers decided Pearl wasn’t breaking any law.
Serafin said Tuesday evening that he hadn’t yet read the letter because the district’s email system was down.
In the letter, Bissonnette said the board’s treatment of Pearl – who died June 4 of an apparent heart attack – “violated clearly-established free speech principles.” Bissonnette noted that “at no time was Mr. Pearl disruptive. He simply wanted to read his letter, which addressed a matter of public concern.”
Bissonnette said the board’s policy – allowing praise but not criticism – is “the textbook definition of unconstitutional viewpoint discrimination.”
“Under this policy, a person is allowed to praise an employee’s performance. Yet, if a person wishes to criticize the employee’s performance, the person will be censored.
“For example, if Mr. Pearl’s letter indicated that he thought Superintendent Sherman was doing a good job or that he thought her proffered explanation was correct, he would have been permitted to speak. However, simply because Mr. Pearl offered a viewpoint that was perceived as being critical of Superintendent Sherman’s performance, the Board silenced his speech,” Bissonnette wrote.
Pearl said Sherman falsely cited federal law as barring her from informing the public of Luther’s arrest, which went unannounced to parents until after it was publicized by the news media.
A friend of Pearl’s from Hooksett, Marc Miville, told the board during public comment at its meeting Tuesday that Pearl’s “only intention in coming to these meetings was to solve something that was going wrong.”
“His main goal was – in a principled way and through his convictions – to show people the right way to do things,” said Miville, who handed out fliers saying “save freedom of speech.”
The school board’s policy barring criticism of individual employees is not justified under the state’s right-to-know law, Bissonnette said. While the law allows for nonpublic meetings when a person’s reputation is likely to be harmed, “it does not preclude discussion of such matters in public meetings by members of the public.”
Criticism and evaluation of public officials is held as “especially important” among First Amendment issues, Bissonnette said.
Bissonnette also took issue with the board’s consideration of restricting public commentary to subjects on the meeting agenda. In that case, “the Board cannot grant itself unfettered discretion to prohibit some non-agenda items from being discussed by members of the public, while allowing other non-agenda items to be discussed by members of the public. To do so would allow for arbitrary decision making by the Board that would effectively lead to impermissible viewpoint discrimination.”
Bissonnette requests in the letter that the school board immediately cease enforcing its policy of preventing members of the public from making complaints about school employees.
“The board should make clear that such complaints are permitted to ensure that individuals like the late Mr. Pearl do not have their free speech rights violated in the future,” he said.
(Nick Reid can be reached at 369-3325, nreid@cmonitor.com or on Twitter at @NickBReid.)