Judge Murphy's Decision

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 1 of 95
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ROME 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;.
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.
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
3
(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,
immaterial
and
but arguing
unsupported
this
by
proposed
proper
Defendant Walker County School District
fact
is
evidence).
("Defendant
WCSD") is a school disthct existing under O.C.G.A. 20-249, 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 HTJ 64-66. (See
generally DRPSAF
64-66.) The Court deems those statements
admitted to the extent that the statements are supported by the
record citations provided.
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 H 30.)
2.
Policies and Procedures

a.
Meetings and Planning S e s s i o n s
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 % 3 1 ; PRDSMF ^ 31.) The Board
5
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 H 34; PRDSMF H 34.)
Defendant Raines, in collaboration with Defendant
Carruth, prepares the agenda for the Board's meetings.
(DSMF H 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
sessions.
Defendant
Raines
provides
each
member of the Board with a copy of the tentative agenda for
A O 72A
(Rev. 8/8
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 H 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 the
public, 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
available
procedures allowing members of the public to
address the Board on issues of concern. These
procedures
shall
be available
at
the
7
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 complaint
to 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 and
are intended for the Board to hear comments or
concerns without taking action.
(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); DSMF
HH
11, 13, 37; PRDSMF
Iffl 11,
13, 37.)
The Superintendent Procedures provide, in relevant part:
^Plaintiff's counsel collectively filed Exhibits A through I to

PSMF 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.
9
Meetings of tine [Board] are structured to allow the

Board to conduct its public business. Meetings of
the 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

meeting with Superintendent
2.
After meeting with the Superintendent,

individuals or organizations shall make written
request to the Superintendent at least one
week 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
10
required
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.)
11
Defendant Raines also
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.
Catoosa
The Catoosa County Policy
County
has
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 of
the school board must complete the
appropriate form (Request to be Placed on
the Board Agenda).
The form must be
12
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 in
sheet.
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's
discretion. 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
13
speakers who have completed the request

form in a timely manner; whether such person
arrives 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 participant
by a board member or unless the presiding
officer approves this procedure.
6.
The presiding officer may:

14
a.
Call on members of the public to speak

who have not completed and turned in
the 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.
( I d 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
15
viewpoints,
which
is the
hallmark
of
democratic
government." ( I d 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 entitled to
filibuster, take-over or stall the proceedings of a
regular monthly meeting by use of this limited
forum; 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
16
subject matter is relevant to a legitimate interest in

the actions of this Board or of the school district's
business 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.
( I d 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 Education
recognizes 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 an
orderly 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
17
Schools Board of Education by 12 Noon the day

immediately preceding the regularly scheduled
Board 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. C a t s . )
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:
18
A O 72A
(Rev.8/8
All official meetings of the Board shall be open to

the press and public. Also the Board reserves the
right 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 following
procedures 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 Superintendent
of Schools at least five (5) working days
prior to the date of the meeting. The
request must include the following:
19
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 objective

criticism of school operations and
programs as concern them.
But, in
public session, the Board will not hear
personal complaints of school personnel,
20
nor against any person connected with

the school system.
Other channels
provide 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 the
Board 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 meeting
may 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.
21
All meetings of the Board are tape recorded and it

is necessary for each person addressing the
Board to state his/her name, address, and the
subject about which he/she wishes to speak, even
though the written request has been submitted.
( I d 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 H 24; PRDSMF H 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
22
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
23
consider matters that may be on the horizon." ( I d 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."
( I d H 4.)
Plaintiffs e-mail, however, states, in relevant part:

I am again requesting to meet with you in order to
speak 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 Board
policy and procedure so that I may speak [at] the
next School Board meeting after this request.
24
A O 72A
(Rev.8/8
(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. H 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 2 1 , 2015 at 1:23
p.m., offering to meet with Plaintiff on January 28, 2015.
25
(PSMF H 15, as modified per DRPSMF H 15; PSMF Ex. E

(Docket Entry No. 42-1); DSMF n40,51;
51.)
PRDSMF
n40,
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 4 1 ; PRDSMF H
41.)
During the meeting. 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 writing. (PSMF Ex. F.)
One week before the February 17 Board meeting.
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
26
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' email
stated,
documentation
in
relevant
prepared
part:
"I
will
addressing
have
the
written
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

27
Raines to investigate.
(DSMF f 26; PRDSMF 1 1 2 6 : r
Defendant Raines claims that, during this meeting. 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) H 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. H 10.)
28
A O 72A
(Rev.8/8
According to Plaintiff, he did so at his "very first opportunity."
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
44.)
1,
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 HU 5-6;

PRDSMF HU 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 Plaintiff (PI.
Decl. H 11; PSMF Ex. G (Docket Entry No. 42-1; DSMF HU
29
2-3.) According to Plaintiff, he did not retain a signed copy

of the letter that he sent to Defendant Raines, and the
version attached to his Complaint is an earlier version of
that letter. (PI. Second Decl. HU 2-3.) Plaintiff acknowledges
that the copy of the letter stamped as received is a
photocopy of the letter that he placed in the mailbox on
February 9, 2015. ( I d H 3.) In any event, the letter stated
that Plaintiff requested to speak at the "February 16, 2015
regular meeting" of the Board. (PSMF Ex. G.)
The letter stamped as received has a postmark date of
February 10, 2015. (DSMF H 9; PRDSMF H 9.)
Plaintiff
contends, however, that he actually mailed the letter on

February 9, 2015. (PI. Decl. H 11; Second PI. Decl. H 3.)
According to Plaintiff, the United States Postal Service, not
30
Plaintiff, generated the postmark on the letter's envelope.

(PSAF H 63; DRPSAF H 63 (admitting PSAF H 63, but
contending it is irrelevant to a facial challenge); see
also PSAF H 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. 421); 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.
31
In response to your comment regarding "the late

timing of the Superintendent's response," please
refer 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
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's
Procedures for Public Participation at Board
Meetings for your reference.
(PSMF Ex. H.)
32
According to Defendants, Plaintiffs request was not

timely made, and no one satisfied the requirements to
speak at the public comment portion of the February 17
meeting. (DRPSMF H 22.) In any event, the February 17
meeting was canceled because of inclement weather.
(DSMF HU 18, 45; PRDSMF HU 18, 45.)
According to
Defendants, the Board agenda items for that meeting were

transferred to the March 10, 2015, meeting. (Raines Aff. H
11.) The March 10, 2015, meeting included board votes on
agenda items. (DSMF H 20; PRDSMF H 20.) According to
Defendant Raines, Plaintiff never told him "that he ever had
any urgent issue that he wanted to speak on during public
comment at the board meeting." (Raines A f f H13.) Plaintiff
refutes that contention, noting that he told Defendant
33
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 H 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. H 15 &
Ex. C.)
On March 1,2015, Plaintiff sent an e-mail to Defendant
Raines stating, in relevant part: "I received your letter dated
34
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 H 46; PSMF H 46.)
Plaintiffs name was on the agenda, but the minutes from
the March 10 meeting reflect that Plaintiff did not attend the
meeting. (Raines A f 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.
35
(Raines
Aff. 114 & Ex. A; DSMF H 48; PRDSMF H 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 201516 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.
36
(PI. Decl. H 15.)
Plaintiff claims that, on those occasions, he spoke in

support of Board policies or the Superintendent's actions,
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,
37
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
38
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.
39
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 summaryjudgment, 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. Kirkwood. 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,
40
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-the
plaintiff 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."
41
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
42,
unconstitutionality of the Policy. (See generally Br. Supp.

PL's Mot. Partial Summ. J. (Docket Entry No. 41-1).)
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
constitutionality
doctrine,
of
and
particular
independent
applications,
of
contain
the
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
omitted).^
'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
43
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.

44
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. WilKar. Inc. v. Vill. 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
45
restraint on speech. (See generally PL's Br. Supp. Mot. Partial

Summ. 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's
requirements. (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 i d ) 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
46
A.
Substantial Likelihood of S u c c e s s
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.
47
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 time.
Article III standing retains rigor even in an overbreadth
claim." I d (footnote omitted). "Chilling a plaintiffs 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
48
seriously interested in engaging in a course of conduct

arguably
affected
with
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).
49
A O 72A
(Rev.8/8
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 omitted). However,
"[t]he freedom
of expression
protected
by the
First
Amendment is not inviolate; the Supreme Court has

50
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
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
51
A O 72A
(Rev.8/8
(3) whether the defendant's justifications for 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
52
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."
Supreme
Court
has
delineated
three
Jd
"The
categories
of
government-owned property for purposes of the First
53
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
54
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
55
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).
governmental
Certainly,
interest
"[tjhere is a significant
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.");
56
Shields V. Charter Twp. of Comstock. 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 communication."
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
57
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
58
AO 72A
(R3V.8/8
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 for
limself 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
59
account of its message, or that requires the

utterance of a particular message favored by the
Government, 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 wellunderstood 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.
60
A O 72A
(Rev.8/8
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. Coaklev. 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
61
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) ("Contentbased
laws-those that target
speech
based
on
its
communicative content-are presumptively unconstitutional

and may be justified 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.
62
A O 72A
(Rev.8/8
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:
63
P]iscussion of public business cannot be confined

to one category of interested individuals. To
permit 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
64
A O 72A
(Rev.8/8
omitted). "In determining whether a restriction is contentneutral, 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 omitted).
"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
65
speech on certain topics." McCullen. 134 S. Ct. at 2 5 3 1 .

"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."
id
(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 narrowly
tailored 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 be
narrowly tailored, it must not burden substantially more speech than
is necessary to further the government's legitimate interests."
I d (internal quotation marks and citation omitted). "Such a
regulation, unlike a content-based restriction of speech, need not
be the least restrictive or least intrusive means of serving the
government's interests." Jd (internal quotation marks and citation
omitted). "But the government still may not regulate expression in
66
A O 72A
(Rev.8/8
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 obvious.
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."
I d at 2540.
67
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."
Id
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)).
68
Such
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 or
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 complaint
to the Superintendent for investigation. The Board
will not hear complaints against employees of the
Board except in the manner provided for
69
A O 72A
(R8V.8/8
elsewhere in Board policies, procedures, 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
70
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
71
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
72
"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
73
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
74
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
75
"[u]nstructured, chaotic school board meetings not only

would be inefficient but also could deny other citizens the
chance to make their voices heard").
The Policy thus
serves an important-although perhaps not compelling-government interest.

The Policy, however, fails the narrowly-tailored portion
of the test. If Defendants are correct in their assertion that
Defendant Raines, not the
Board, makes
personnel
decisions for Defendant WCSD, allowing such comments

during the public comment portion of Board meetings would
serve little practical purpose. In theory, citizens who wished
to raise concerns about Defendant WCSD personnel would
obtain a more efficient resolution
by bringing
those
concerns directly to Defendant Raines, and that avenue
76
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.
Plaintiff
Unbridled Discretion
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
77
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, specific time limits on the decision-making process."
Frandsen. 212 F.Sd at 12S6. For example, in Frandsen. the
78
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 requirement, 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
79
AO 72A
(Rev.8/8
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
80
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
81
prior to any form of judicial review."
29 F.Sd at 1501
(emphasis in original) (internal quotation marks and citation

omitted).
failed
"to
The Eleventh Circuit found that the ordinance

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
82
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 discretion
83
requirement because it does not set significant time

limitations on Defendant Raines' second meeting.^
In sum, the Policy is unconstitutional because it does
not impose time limits for setting Defendant Raines' second
meeting with individuals or organizations who wish to speak
at Board meetings.
Plaintiff therefore has succeeded on
his facial challenge to the Policy based on this argument.
^The Court cannot read out of the Policy the requirement that
the individual or organization seeking permission to speak give the
Superintendent an opportunity, which could take up to ten work
days, to investigate the concerns and, if necessary, to meet again
with the individual or organization. Reading that requirement out
of the Policy would defeat the stated purpose of the Policy: to give
the Superintendent an opportunity to investigate and to address
and report on the concerns before the individual or organization
brings the concerns to the Board.
84
4.
Plaintiff
Advance Notice
also
argues
that
the
Policy
is
facially
unconstitutional because it substantially inhibits speech by

requiring advance notice.
In support of this argument,
Plaintiff relies on a case from the United States Court of

Appeals for the Ninth Circuit, which observed that an
ordinance requiring advance notice "substantially inhibits
speech" for two reasons:
First, all advance notice requirements tend to
inhibit speech. The simple knowledge that one
must inform the government of his desire to speak
and must fill out appropriate forms and comply
with applicable regulations discourages citizens
from speaking freely. Second, the delay inherent
in advance notice requirements inhibits speech.
By requiring advance notice, the government
outlaws spontaneous expression.
Immediate
speech can no longer respond to immediate
issues. The quantity of effective speech is limited.
85
A O 72A
(Rev.8/8
N.A.A.CP. Western Region, 743 F.2d at 1355.
Plaintiff
points to other local Board policies, which have shorter

advance notice periods, and some of which allow the local
Board to authorize individuals to speak at meetings even
though those individuals have not
complied with the
policies' advance notice requirements.

Defendants, on the other hand, contend that the oneweek notice requirement is necessary because agendas are
prepared six days prior to the Board's meetings, which is
necessary to provide an efficient discussion and resolution
of the issues.
Defendants also note that alternative
methods of raising concerns remain available, such as

specially-called Board meetings to hear urgent matters of
public concern, or the weekly newsletter.
86
Although the
Court certainly questions whether, with the technology

available today, the Board could not effectively prepare its
meeting agendas and distribute those agendas within a
much shorter period before each meeting, the Court cannot
find, as a matter of law, that the Policy is unconstitutional
because it substantially limits speech. The Court finds that
Plaintiff has not established success on this portion of his
facial challenge to the Policy.
5.
Summary
In sum, the Court finds that Plaintiff has established

success on two portions of his facial challenge to the Policy:
content-based discrimination and failure to impose time
limits for conducting second meetings.
87
The Court next
determines whether Plaintiff has established the remaining

three requirements for obtaining injunctive relief.
B.
Irreparable Harm
"It is well-established . . . that [t]he loss of First

Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury."
White v.
Baker. 696 F. Supp. 2d 1189, 1312 (N.D. Ga. Mar. 3, 2010)

(alteration in original); see also Deerfield Med. Ctr. v. City of
Deerfield Beach. 661 F.2d 328, 338 (5th Cir. Unit B Nov. 3,
1981) ("It is well settled that the loss of First Amendment
freedoms for even minimal periods of time constitutes
irreparable injury justifying the grant of a preliminary
injunction.").^ Thus, a plaintiff who "show[s] a chilling effect
^Opinions of the United States Court of Appeals for the Fifth
Circuit issued prior to October 1, 1981, the date marking the
88
on free expression [has] demonstrated an irreparable

injury." White. 696 F. Supp. 2d at 1312-13.
As discussed above, Plaintiff has shown a First
Amendment violation.
Plaintiff consequently has satisfied
the irreparable harm requirement for obtaining injunctive

relief.
C.
Balance of Harms
The Court also finds that Plaintiff prevails on the

balance of harms factor.
Defendants certainly have an
interest in regulating the flow of the Board's meetings, and

enjoining the Policy will impede that interest, at least until
Defendants can draft a new Policy or revise the old one.
creation of the United States Court of Appeals for the Eleventh

Circuit, are binding precedent on this Court. Bonner v. City of
Prichard. Ala.. 661 F.2d 1206, 1209-11 (11th Cir. 1981) (en banc).
89
A O 72A
(Rev.8/8
The impact on Defendants, however, is minor as they can

revise their Policy relatively quickly to accommodate the
constitutional challenges.
Given the importance of First
Amendment rights, the Court finds that the harm to Plaintiff

absent an injunction outweighs any harm to Defendants that
an injunction might cause.
0.
Public Interest
The Court further finds that granting injunctive relief is

not adverse to the public interest. Although Defendants
may have an interest in regulating the flow of the Board's
meetings, granting injunctive relief will not significantly
interfere with that interest.
Contrary to Defendants'
arguments, granting injunctive relief should not close the

public's access to public comment at all Board meetings.
90
Defendants can, and should, draft a new Policy or revise the

old one to address concerns, rather than shutting down
public comment entirely. As previously noted. Defendants
should be able to revise the Policy to address the
constitutional infirmities in fairly short order.
The Court
further notes that "[t]he public interest is served by the

maintenance of First Amendment freedoms and could not
possibly
be
served
by
the
enforcement
of
an
unconstitutional [Policy]." Curves. LLC v. Spalding Cnty..

Ga.. 569 F. Supp. 2d 1305, 1314 (N.D. Ga. Apr. 6, 2007)
(first alteration in original) (internal quotation marks and
citation omitted).
Indeed, "the public interest is always
served in promoting First Amendment values."
Suntrust
Bank v. Houghton Mifflin Co.. 268 F.3d 1257, 1276 (11th
91
Cir. 2001). The Court consequently finds that Plaintiff has

satisfied this factor.
E.
Official Capacity Claims
Defendants seek dismissal of Plaintiffs official capacity

claims against the individual Defendants. In his response
to Defendants' Motion for Summary Judgment, Plaintiff
states that he "has no objection to dismissal of these
defendants if injunctive relief is held to apply to all persons
covered by Federal Rule of Civil Procedure 65(d)." (PL's
Reply and Response (Docket Entry No. 64) at 13.) Given
this representation, and given that the Court can structure
the injunctive reliefto accommodate Plaintiffs concerns, the
Court grants Defendants' Motion for Summary Judgment as
92
to Plaintiffs claims asserted against Defendants in their

official capacities.^
F.
Summary
In sum, the Court finds that Plaintiff has demonstrated

that the Policy is facially unconstitutional and that Plaintiff is
entitled to an injunction with respect to two of his facial
challenges to the Policy.
The Court therefore grants
Plaintiffs Motion for Partial Summary Judgment as to

liability for Plaintiffs injunctive relief claim, and denies
Defendants' Cross Motion for Partial Summaryjudgment as
to Plaintiffs claims for injunctive relief The Court, however,
grants Defendants' Motion as to Plaintiffs official capacity
claims against Defendants Raines and Carruth.
"This Order does not address Plaintiff's claims against the
individual Defendants in their individual capacities.
93
IV.
Conclusion
ACCORDINGLY, the Court G R A N T S Plaintiffs Motion
for Partial Summary Judgment [41], and G R A N T S IN PART

AND DENIES IN PART Defendants' Cross Motion for
Partial Summary Judgment [55]. The Court grants Plaintiffs
Motion [41] as to liability on Plaintiffs facial challenge to the
Policy and as to Plaintiffs request for injunctive relief with
respect
to
his
facial
challenge.
The
Court
DENIES Defendants' Cross Motion [55] as to Plaintiffs

claims for injunctive relief, but G R A N T S the Motion as to
Plaintiffs official capacity claims against Defendants Raines
and Carruth.
The Court DISMISSES Plaintiffs official-
capacity claims against Defendants Raines and Carruth.

The Court P E R M A N E N T L Y ENJOINS Defendant WCSD,
94
as well as its agents, representatives, and employees, from

enforcing the Policy. Plaintiffs as-applied challenge to the
Policy, his claims against the individual Defendants in their
individual capacities, and his claims for damages remain
pending and shall proceed through the discovery process.
IT IS SO ORDERED, this the ^ 4 a y of April, 2016.
4^
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Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 1 of 95

IN THE UNITED STATES DISTRICT COURT

CIVIL ACTION FILE NO.:

WALKER COUNTY SCHOOL

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 2 of 95

Keeping in mind that, when deciding a motion for

Court has provided the statement simply to place the

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 3 of 95

As required by the Local Rules, Plaintiff filed a

Local Rules, Plaintiff filed his own Statement of Additional

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

(Docket Entry No. 67).

The Court evaluates DSMF,

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

Plaintiff lives and works in Walker County, Georgia.

Defendant Walker County School District

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 5 of 95

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

Defendant Carruth is the Chairperson of the Board. (Id |

Policies and Procedures

Meetings and Planning S e s s i o n s

The Board meets on the third Monday of each month,

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 6 of 95

holds planning sessions on the Tuesday preceding each

(DSMF H 32; PRDSMF H 32.)

meetings and planning sessions are open to the public and

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

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 7 of 95

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

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

The Policy provides, in

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 8 of 95

Superintendent's office and shall be given, upon

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 9 of 95

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

The WCSD also has Superintendent Procedures that

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

11, 13, 37; PRDSMF

The Superintendent Procedures provide, in relevant part:

^Plaintiff's counsel collectively filed Exhibits A through I to

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 10 of 95

Meetings of tine [Board] are structured to allow the

Refer to [the Policy] concerning

After meeting with the Superintendent,

Each person whose name is placed on the

Where several citizens wish to address the

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 11 of 95

right to limit discussions should they become

While citizens may use their allotted time to

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

Procedures do not require that a written request to speak at

Defendant Raines also

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 12 of 95

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

Policies from Other School Districts

The Catoosa County Policy

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

A person desiring to speak or to make a

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 13 of 95

received at the School Superintendent's office

Case 4:15-cv-00055-HLM Document 70 Filed 04/04/16 Page 14 of 95

speakers who have completed the request

A participant's time shall be limited to three to

Judge Murphy's Decision

Judge Murphy's Decision