(The Daily Signal) — Four taxpayers in Pennsylvania have decided enough is enough after footing the bill for a school board attorney who told them that the school system could limit their First Amendment rights.
The taxpayers filed a free speech lawsuit in federal court that could set a precedent for invalidating policies that shield both school administrators and elected officials from public criticism.
“Our lawsuit seeks case precedent to establish that citizens cannot be censored or intimidated by government officials for exercising their First Amendment rights at a school board meeting,” Simon Campbell, a former member of the Pennsbury School Board, told The Daily Signal.
In their suit, Campbell and three other taxpayers whose children are or were enrolled in Bucks County’s Pennsbury School District ask the U.S. District Court for the Eastern District of Pennsylvania to strike down school board policies used to “censor” citizens who dissent.
The Institute for Free Speech, a Washington-based nonprofit law firm, represents the four plaintiffs. Their suit names Pennsbury School Board officers and other members as well as the board’s lawyers and current and former district officials.
Michael Clarke, an attorney for the Pennsbury School District who is among the defendants, is on record informing parents and other residents that they “don’t have First Amendment rights” during the “public comment” section of a school board meeting, according to the suit filed Oct. 1.
The lawsuit quotes Clarke at some length arguing that the First Amendment does not protect speech that violates what he describes as “reasonable guidelines.”
These guidelines could be extended to include comments that label government officials as “criminal” or “incompetent,” Clarke said during a Dec. 17 board meeting, one of several over the past year that figure in the litigation.
The Daily Signal called and emailed Clarke for comment, but he had not responded by publication time.
‘Educational Equity’ policy
Parental participation in school board meetings has gained national attention in recent months, as parents protested public school policies on transgender students, using critical race theory in classes, and imposing mask mandates and other COVID-19 restrictions.
In a controversial Oct. 4 memo, Attorney General Merrick Garland directed the FBI and Justice Department to pursue and possibly prosecute what he described as “criminal conduct toward school personnel.”
Legal analysts for The Heritage Foundation were among those criticizing the move, saying in a commentary that the “Garland memo looks like an effort to use the FBI to threaten and silence parents who are outspoken opponents of critical race theory in schools.” (The Daily Signal is the news outlet of The Heritage Foundation.)
The controversy in Pennsbury revolves around the school board’s decision in May to adopt Policy 832, known as “Educational Equity.” The policy calls for “distributing resources, access and opportunity based on fairness and justice regardless of race, ethnicity, color, age, religion, gender, gender identity, gender expression, sexual orientation, language, disability, or socioeconomic status.”
School board members implemented the policy in response to an “Equity Audit” conducted between August 2020 and February 2021 by Cherrissa Gibson, the district’s director of equity, diversity, and education. The stated purpose of the audit was “to identify the common causes of inequities that exist in the district.”
But parents who spoke out against the policy at board meetings view “educational equity” as an extension of critical race theory, which some policy analysts view as a reloaded version of Marxism that, in the words of a Heritage Foundation report, “makes race the prism through which its proponents analyze all aspects of American life.”
The plaintiffs in the suit include parents who have spoken out against the school board’s policy and the findings of the audit see a strong correlation between the tenets of critical race theory and diversity initiatives in their school district.
Their suit alleges that parents have been silenced and censored at every turn during the board’s public comment periods, saying:
“Defendants have purported to grant themselves the power to arbitrarily silence anyone speaking at school board meetings for any reason or no reason at all—and they have wielded it in dramatic fashion. They have done everything from shouting down citizens who dare question the official narrative; conspired to silence and denounce dissenters; and even ‘memory holed’ speech based on its viewpoint, deleting speech from public records as though it was never spoken.”
The plaintiffs are asking the court to strike down two board policies (903, on “public participation,” and 922, on “civility”) as unconstitutional restrictions on free speech. They also seek unspecified damages.
‘Counter to American tradition’
The Daily Signal sought comment on the allegations about the policies from the nine members of the Pennsbury School Board. None responded.
“Pennsbury officials are trampling on the First Amendment rights of parents and residents to speak their mind about their schools,” Alan Gura, vice president for litigation with the Institute for Free Speech, said in a press release. “They have cut off parents in the middle of sentences, yelled over critics to prevent them from being heard, edited remarks out of recordings of public meetings, and intimidated speakers by forcing them to publicly announce their home address.”
The four residents asked the district court to suspend enforcement of the new policies until the case is resolved, and a judge set a hearing Nov. 8 in Philadelphia to consider the motion.
In requesting the injunction, the four plaintiffs state:
“When government officials declare themselves or their policies off-limits to criticism or open discussion, they run counter to the American tradition of free and open debate, and violate the First Amendment rights of speech and petition. Defendant school board members, officials, and solicitors conspired to violate plaintiffs’ civil rights because they dared criticize the Pennsbury School Board, its members, and its ‘equity’ policy. They furthered and, if not stopped by this court, will continue to further their conspiracy through a variety of illegal means, including: censoring written comments that diverged from Pennsbury’s orthodoxy, memory holing and threatening to mute oral comments critical of their policies, and repeatedly interrupting and cutting short plaintiffs’ public comments that depart from the official narrative.”
A motion in the suit, filed Oct. 8, highlights several incidents in 2020 and 2021 when the parents say school board members and other district officials made a concerted effort either to silence or expunge public comments criticizing board policies.
The court filing includes details of an email exchange between Gibson, the district’s equity and diversity director, and board President Christine Toy-Dragoni in which Gibson asks that comments made during the board’s March 18 meeting by one plaintiff, Douglas Marshall, be removed from the public record.
Marshall had criticized Gibson’s diversity and equity policy, then under consideration by the school board. Two days later, according to the suit, Gibson emailed Toy-Dragoni “to condemn Marshall” and “demand that his speech be removed from the meeting’s public record, and advocate for real-time censorship of comments alleged to violate Policy 903.”
Gibson’s reference is to the school board’s policy on public participation in its meetings.
‘Mr. Daly, you’re done’
Altercations during the school board’s May 20 meeting, however, most dramatically highlights what is at issue for some parents.
Peter Amuso, the school district’s assistant solicitor, interrupted and cut off public comments from three men who are now plaintiffs in the lawsuit: Marshall, Tim Daly, and Robert Abrams.
Gibson delivered a presentation on “equity” as part of the agenda of the May meeting in which the board officially adopted its diversity and equity program.
“Amuso acted as the enforcer of Policy 903 during the public comment period,” according to the suit.
Amuso’s exchanges with Marshall, Daly, and Abrams are captured in a YouTube video.
The video opens with narration by Campbell, the former member of the Pillsbury School Board, who discusses the events that led to the litigation.
The video shows Daly being cut off after telling school board members that they had “misrepresented facts around equities in schools.”
Amuso interjects: “You know what? I’m going to stop you there … you can stop, Mr. Daly, you’re done.”
The board adopted its “civility” policy (922) at the conclusion of the same meeting.
‘A political agenda’
“The censorship that occurred before the May meeting is also very serious,” Gura, the lawyer with the Institute for Free Speech, said in a phone interview, adding:
“We have emails where the defendants are discussing censorship of public comments. The May meeting is a manifestation of what happened previously and the videos of the May meeting offer the most dramatic examples of censorship. But they are by no means the first incidents.”
“This suit is about ensuring the people are free to express their views and petition the government to address their grievances. There is no requirement that the board has to like being criticized and they don’t have to agree with what’s being said. But there’s also no requirement that members of the public have to tell board members how wonderful they are.”
The Daily Signal emailed Amuso for comment on the suit, but he did not respond.
Daly, however, agreed to an in-person interview. He has a daughter in ninth grade in the Pennsbury school system; an older daughter graduated last year.
“I initially became involved to try to get schools reopened during COVID-19. I then got asked by numerous community members to look into the DEI [diversity, equity, and inclusion] program and the associated curriculum,” Daly, 47, told The Daily Signal. “What I found is that Pennsbury was not teaching diversity in a way that was honest or beneficial to students or the teachers. There appeared to be a political agenda being laid forward by the school board and administration.”
“The Equity Audit which the school district conducted showed only 8% of Pennsbury families stating they were unhappy with the [previous] diversity initiatives, while African Americans scored Pennsbury a 4.25 on a scale of 5,” he said. “It was clear data was being misrepresented in the board presentation to meet a predetermined conclusion as they dismissed these relevant first-party data metrics.”
Daly continued, criticizing the school system’s focus on outward appearance:
“Pennsbury’s issues are socioeconomic, not racial. I have had the opportunity to review the raw data used to construct the Equity Policy and DEI [diversity, equity, and inclusion] program; the influence of socioeconomic factors was overwhelming. The data also definitively showed that less affluent white Caucasian children were disciplined more frequently than more affluent African American children.”
“I strongly believe there is an approach to teaching diversity that would benefit the students and the community. But that’s not what they’re doing here as we are solely focused on a singular aspect of diversity. And when our school board and solicitors suppressed our right to free speech by silencing any dissent as ‘irrelevant,’ we cannot move forward to develop an improved, quality DEI initiative reflective of our community’s needs.”
Gibson did not respond to The Daily Signal’s request for comment on Daly’s criticism of her audit and the diversity and equity curriculum.
‘About trying to divide people’
Campbell, 54, a member of the Pennsbury School Board from 2009 to 2013, has three college-age children who previously attended Pennsbury public schools.
Campbell said he has questions about the cost to taxpayers associated with the diversity curriculum and sees an opportunity to reinvigorate free speech at the local level.
Speaking to the school board at its June meeting, Campbell rebuked attorneys and administrators who cut off parents during the previous meeting, as seen in this YouTube video.
“Gibson was promoted into a position that did not previously exist and should not exist, because taxpayers should not be forced to pay for the school board’s political agenda,” Campbell said in an email to The Daily Signal. “Our lawsuit seeks case precedent to establish that citizens cannot be censored or intimidated by government officials for exercising their First Amendment rights at a school board meeting.”
Campbell added:
“The left is trying to take over the English language in a way that might appeal to rational people with innocent-sounding words like ‘diversity’ and ‘inclusion,’ but it’s really about trying to divide people and distort history. We are asking the federal court to declare the offending school board policies to be unconstitutional and for the offending public school officials to be held accountable. Perhaps in North Korea or China government officials can get away with behaving as Pennsbury’s officials did. But this is the United States of America.”
In a YouTube video, Campbell goes into additional detail about the dispute in the school district over critical race theory and the censorship that allegedly occurred during the May 2021 school board meeting.
The school board doesn’t have the right to limit public comments that are germane to its agenda, the Institute for Free Speech’s Gura said.
“During the May meeting, the board voted on the equity policy and Gibson gave a presentation on equity,” Gura told The Daily Signal. “This was on the agenda, and the public can certainly say she was wrong and they can offer a different point of view.”
“This suit does not take a position on the merits of the equity program or items like the school budget,” the lawyer added. “This is about ensuring people have the right to express their views without being censored.”
The Pennsbury School District recently appears to be making changes to its “public participation” policy in light of state action on how local government bodies must disclose certain agenda items.
Jennifer Stefano, executive vice president of the Commonwealth Foundation, a free market think tank in Harrisburg, Pennsylvania, told The Daily Signal in an email that the Pennsbury School Board’s policies should be uprooted.
“School board members censoring parents is, first and foremost, suppressing free speech,” Stefano said. “That elected officials believe they can silence not just the taxpayers who voted them in, but the very people who are responsible for the education of and well-being of a child—their parents—is outrageous. And yet that’s been the status quo—and it’s been highlighted over the past two years, as parents have been forced to sit on the sidelines as bureaucrats and school boards make decisions for our children.”
An education bill advancing in the Pennsylvania General Assembly would create more public and private options for parents and students.
Known as HB1 and dubbed the Excellent Education for All Act, the legislation would increase the availability of scholarships funded with contributions encouraged by tax credits. The bill also would protect charter schools, homeschooling, and learning pods as viable options while offering roughly $6,000 per child for parents to use on education expenses as they see fit.
“The answer here is to put power and authority where it belongs: in the hands of the parents,” Stefano said. “The way to do that is to let the money follow the child—rather than just fund a system. That’s why legislation like Pennsylvania’s HB1 is vital.”
The education bill is moving forward in Pennsylvania as a recent poll from Real Clear Opinion Research found that a strong majority of independents, Democrats, and Republicans say they support school choice.
The poll of more than 2,000 registered voters also found that this rising level of support comes in response to ongoing battles over mask mandates and school curriculum.
