Mom Files Federal Lawsuit Against Oregon School District, Alleging They Violated Her First Amendment Rights

March 14, 2024

(KGW 8)—Over the last few years, school board meetings across the U.S. have become a venue for some particularly heated rhetoric. Most of the time, the average meeting is still pretty boring—even if the topics are important. But occasionally, the public comment period can become an open mic night for culture war issues.

Oregon has been no exception, with some districts exploding into conflicts over issues of race, gender and sexuality. And some school board members have said that they don’t always feel safe, that they’ve been threatened or harassed, or that the debates create a volatile environment for kids.

Still, public comment is an essential part of most government meetings, sometimes bringing issues before a governing body that they may not know about. There’s a reason why public meetings are enshrined in Oregon law—although public comment is usually addressed by other statutes and policies, depending on the board.

There are certainly cases where speech can go too far. The question is, when can a governing body like a school board hit the brakes? Who decides where the line is, and what crosses that line?

According to Gladstone mom Glenda Scherer, officials in her kids’ district were the ones who crossed a line when they decided that they didn’t like what she had to say.

“I got a letter in the mail, basically saying that I had to ask the superintendent’s permission to come to school board meetings,” she said.

This all started back in 2020, when Oregon schools went remote due to the spread of COVID-19. Scherer said that she started posting on the Gladstone School District’s Facebook page with her criticisms.

“My main criticism of the district was that they weren’t following the guidance from Oregon Department of Education regarding the comprehensive distance learning that was in place,” she said.

The admin running the district’s Facebook page started removing her posts, Scherer said. The district also sent her a note, saying that her posts “weren’t helping” and that, “We’re all doing our best to make distance learning work.” The admin told Scherer that if she couldn’t be positive, she’d be removed from the page.

But that was just the beginning.

“(It) just continued to escalate of not allowing me to tag them on social media… sometimes even, you know, trying to criticize what I wanted to say—I had to submit my comments ahead of time,” Scherer said. “And they would go through and then send me an email and say, ‘Oh, you need to change this.'”

Scherer said she was told that if she wanted to speak up at school board meetings, she’d need to run her comments by the district in advance for approval. An email from then-school board chair Greg Lind to Scherer in 2021 said, “Please stick to your submitted comments.”

“If a person goes off-script, I will have to mute them,” Lind said.

“They didn’t let me read it, and it had some pretty significant criticisms of failing to provide students with pencil, paper packets and just basic things that as a teacher and educator, I knew that they needed to be doing,” Scherer said. “And then after I spoke out, it just seemed like it escalated. Any comment I would make, they try to cut me off.”

Another email to Scherer, this one in 2022 from then-board chair Steve Stewart, said, “Unfortunately, since you do not wish to follow the set procedures and submit your comments ahead of time, I regret to inform you that I cannot allow you to speak.” Yet another email directs Scherer to edit the first paragraph of her comments.

“The district just doesn’t want to hear my criticism,” Scherer said. “And I’m not calling names.”

Scherer said she continued to voice concerns about the district, calling out specific district employees, until she was banned from district property by Superintendent Bob Stewart.

A Certain Point of View

Now Scherer is suing the district, challenging those policies. Her attorney, Dean McGee of the Liberty Justice Center, calls it a case of “prior restraint”—a violation of free speech protections under the First Amendment.

“Prior restraint is essentially when the government tries to regulate and censor speech before it’s even uttered,” McGee said. “That’s the gist of it.”

The U.S. Constitution strictly limits when the government may use prior restraint. While there can be restrictions on public comment—time limits are the most common—there’s a high bar for policing speech.

“This demand that the public pre-submission their comments to a government board for review to make sure that the government board is pleased with the comments before they’re spoken out loud—it’s really outrageous,” McGee said.

The Gladstone School District declined to comment on the lawsuit or answer written questions from KGW. However, they did provide copies of the emails sent to Scherer, which confirm that she was told to pre-submit comments and that she was later banned from meetings.

Under “Frequently Asked Questions,” the school board’s web page says that all regular, special and emergency board meetings will be open to the public—and that the public may be invited to share comments during designated times on the meeting agenda.

“Speakers may offer objective criticism of school operations and programs, but the Board/Committee will not hear complaints concerning specific school personnel or students,” the page goes on to say. “Comments of this nature will not be heard. The Chair will direct the visitor to the appropriate means for Board/Committee consideration and disposition of legitimate complaints involving individuals.”

Those public comment policies do not lay out the grounds for removal from school board meetings, nor do they mention that spoken comments may need to be submitted for approval. A separate board policy covers public conduct on district property, which prohibits willfully violating board policies, “administrative regulations or school rules designed to maintain public order on district property.”

Regardless, Scherer’s attorney said, the board’s policies are too broad to stand up under the First Amendment in Scherer’s case.

“There’s a whole section of the meeting about… something like recognizing teachers and students, and that’s a really nice thing to do,” McGee said. “But when you’re saying essentially that school officials can be spoken about positively—but they cannot be criticized—that’s viewpoint discrimination.”

The board’s policies state that all members of the public attending school board meetings must treat one another and the board with respect. McGee argues that it’s too broad.

“That’s just not a demand the government gets to make,” McGee said. “Glenda happens to be a very respectful person, and I think she’s conducted herself respectfully, but she’s allowed to make criticisms—and a government board can’t vaguely tell you that your free speech rights are determined on whether or not you respect them.”

In the Eyes of the Court

Jim Oleske, a law professor at Lewis & Clark College, said that some courts have established that government boards can establish rules around decorum in meetings, prohibiting the discussion of individual employees. Still, the bar is high.

“Treating people with respect—is that too vague?” Oleske said. “If that empowers a government official to enforce it very differently with respect to the people they like and the people they don’t like, that starts to raise a danger of violating the free speech clause.”

The U.S. Supreme Court has recently shown a great deal of interest in free speech cases like this, Oleske said.

“One thing that is pretty clear is that if the policy prohibited only criticism but allowed praise, that would be what we would call viewpoint discrimination, and the courts would be very likely to find that unconstitutional,” he added.

According to Scherer, she just wants to have a voice in the meetings.

“The school board member is elected to be my representative in public education,” she said. “So, in order for that person to do his or her job, they need to know what the public wants and what is important to the public. And yes, it is an uncomfortable conversation.”

According to the Liberty Justice Center, the Gladstone School District previously agreed to stop requiring that public comment be screened ahead of meetings following a demand letter Scherer’s attorneys sent at the end of January, and they withdrew their decision to ban Scherer from meetings. But the law group called these “partial concessions” and decided to move forward with the lawsuit.