The chairman of the Pembroke school board has assured the American Civil Liberties Union of New Hampshire that the board will no longer censor critical comments from the public during its meetings – so long as those comments are relevant to an agenda item.
The ACLU of New Hampshire became involved after the board threatened to have police kick out Pembroke Academy parent David Pearl from a meeting in May for comments he made critical of the administration’s handling of an employee’s arrest. The civil liberties group sent a letter to the board calling the incident a “textbook definition” of unconstitutional speech restriction.
Pearl promised to come back to board meetings every two weeks to say the board was wrong to remain quiet after dean of students Rekha Luther’s arrest on heroin possession charges.
“I’ll just come back at the next meeting and we can start all over again,” Pearl said. “Maybe by that time, you will all have educated yourselves on the law.”
Pearl died of a sudden heart attack in June.
In its letter, the ACLU warned that government is allowed to regulate speech during public comment periods, but only if that restriction is content-neutral and doesn’t discriminate against a particular opinion.
The board’s policy at the time – allowing praise but not criticism – was “the textbook definition of unconstitutional viewpoint discrimination,” ACLU-NH Legal Director Gilles Bissonnette argued in a seven-page letter.
“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,” Bissonnette wrote.
At the time of the ACLU’s letter, the school board had already changed its policies to remove its prohibition during public meetings of comments critical of “any person connected with the school system.” But its new policy still included some troubling elements, according to the ACLU.
Bissonnette pointed to certain passages in the new policy – “complaints regarding individual employees (or) personnel . . . will be directed to the Superintendent” – and suggested a prohibition on critical comments was still in place.
That’s not the case, board Chairman Tom Serafin reassured the ACLU, telling the organization the policy required the Board to direct complaints to the Superintendent after hearing them from the public – not that a member of the public could only voice criticisms through an internal process.
“We agree that from time to time, the agenda items will result in public comment that is critical of the Board or the Administration of the District,” Serafin told the ACLU in a letter dated July 21. “The board does not intend to interpret (its policies) in a manner which would limit that comment unless the comment violates student and family privacy rights or personnel privacy rights and the speaker is under duty not to do such.”
The ACLU also noted a new addition to the board’s public comment policy – that comments pertain to an agenda item – was allowable but potentially problematic in its enforcement.
“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,” Bissonnette wrote in his letter. “To do so would allow for arbitrary decision making by the Board that would effectively lead to impermissible viewpoint discrimination.”
The board is sticking with its policy that public comments must not stray from the agenda. Serafin said in an interview Tuesday that the policy was in the interest of keeping the board productive within a limited time frame.
“The point of public comment is that it’s an avenue to give feedback to the board relative to what the board is working on,” he said.
Serafin added that people could always call ahead to place an item on the agenda, but said he couldn’t “guarantee” space on it.
“We are pleased that the Pembroke School Board agreed not to enforce its policies in a viewpoint-discriminatory way,” Bissonnette wrote in an email. “That said, we will be monitoring how the Board implements this policy to ensure that people do not have their free speech rights violated in the future.”
Bissonnette said the ACLU-NH intervenes “a few times a year” in similar cases across the state. The organization most recently litigated a case out of Alton, where resident Jeffrey Clay was arrested and charged with disorderly conduct for criticizing select board members during public comment. A Laconia circuit judge dismissed the charges, and the town settled a federal civil rights claim with the resident for $42,500.
The Nackey S. Loeb School of Communications has named Pearl a recipient its annual First Amendment award.
(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)