A Hampden-based school district’s agreement to pay a far-right activist $40,000 to resolve a federal First Amendment lawsuit shows that school boards have to clear a high legal bar if they want to ban people they deem disruptive from their meetings.
RSU 22 and its insurers agreed to pay Shawn McBreairty in exchange for McBreairty withdrawing his lawsuit against the district in U.S. District Court, according to a settlement the two parties signed Tuesday.
RSU 22 serves students in Hampden, Winterport, Newburgh and Frankfort.
McBreairty accepted the money in exchange for absolving the district and school board of his claims against them. He claimed the regional school board had trampled upon his free speech rights by banning him from attending board meetings after he refused to stop playing a recording the district considered obscene at an April meeting.
The settlement and a July ruling from a federal judge that reversed RSU 22’s ban on McBreairty show school boards face a balancing act in enforcing policies aimed at keeping meetings from becoming disrupted while protecting free speech rights of members of the public who want to speak at meetings during designated comment periods.
School boards across the state for years have used public comment policies developed by the Maine School Boards Association, and only this year has the association begun hearing concerns about the policies not being followed, said the association’s executive director, Steven Bailey.
For its part, RSU 22 defended its actions in a statement Friday.
“The District acted appropriately in enforcing these policies, and will continue to call out inappropriate speech when necessary,” superintendent Nicholas Raymond said. “We urge people to be civil in their discussions and follow District policies so that all people, especially the students we serve, always feel welcome and included.”
McBreairty said he filed the lawsuit “because I believe that we do not have a Constitutional Republic without the First Amendment.
“I hope Chair Heath Miller and RSU 22 learned their lesson and they will treat everyone with the respect and dignity that we deserve from now on when it comes to our Constitutional rights.”
McBreairty, a volunteer with the Maine First Project, has attended board meetings all over Maine to protest books about LGBTQ people and people of color being included in school libraries and the teaching of critical race theory.
He previously received a deferred disposition for improperly influencing a Cumberland school official. The deferred disposition was set to expire earlier this year, and the improper influence charge was dismissed in July, according to Cumberland County District Attorney Jonathan Sahbreck.
The Cumberland-area school district, MSAD 51, banned McBreairty from attending campus events without superintendent approval after he received a criminal trespass order for breaking rules. He had been warned against padlocking a sign to a school fence, and he distributed flyers on students’ desks without permission.
More recently, Miller, the RSU 22 board chair, kicked McBreairty out of an April 27 meeting, then banned him from attending meetings through the end of the year after the activist played a recording of himself complaining to Miller over the phone about a book in a school library that he said referenced “hardcore anal sex,” and refused to stop when asked.
An attorney for the district said the ban was based on “McBreairty’s use of truly obscene speech and his willful violation of school board policies over an extended period of time.”
But U.S. District Judge Nancy Torresen reversed the ban in July, after McBreairty filed the lawsuit. The judge ruled the ban was unconstitutional, bolstering McBreairty’s claim that his free speech rights had been curtailed.
“It appears that McBreairty’s comments to the school board, though they reference sexual conduct, are not appealing to any prurient interest and are offered to make a political or philosophical point,” Torresen wrote in her 28-page opinion.
In addition, McBreairty had not violated board policy restricting people to only commenting on school-related issues, because he had limited his comments to “concerns he had with various RSU 22 matters, like the purported teaching of critical race theory, issues with reading lists and books in the school libraries, the handling of complaints by the school board and administrators, and other school governance issues,” the judge, an appointee of former President Barack Obama, wrote.
Though conflicts at school boards have reignited in recent years, the question over whether school boards can limit people’s ability to speak at meetings is not new.
The Sixth U.S. Circuit Court of Appeals ruled last year that an Ohio school board’s policies banning people from making “personally directed,” “abusive” and “antagonistic” comments violated the First Amendment.
Similar cases have arisen over the years in states like Virginia, Illinois and California, where a state attorney general and courts determined that board policies limiting people from making “rude” or “personal comments” were vague and infringed upon their right to free speech because they policed what people could say.
School board meetings are limited public forums, so citizens are entitled to speak about issues that fall within the board’s purview, like school budgets, curricula and policies, Bailey said.
But with that comes an expectation that attendees will follow board policies, like not attacking staff by name while giving public comment, he said.
RSU 22 adheres to the association’s policy prohibiting “gossip, defamatory comments, or abusive or vulgar language” and does not allow “confidential personnel information” about employees or students to be shared during public comment. There is a separate process that allows people to make private complaints about staff and faculty.
Most who attend board meetings respect this, but within the last year, the association has had to reinforce those policies to ensure meetings remained civil, after receiving complaints of violations, Bailey said.
“We want members of the public and parents to be engaged in their children’s education,” he said. “The intent of the policy is making sure that discourse at the meeting is civil and as respectful [as possible] within the guidelines of what would be expected at a public school board meeting.”
BDN writer Judy Harrison contributed to this report.