from the United States District Court for the Northern
District of Georgia
ROSENBAUM, JULIE CARNES, and GILMAN, [*] Circuit Judges.
ROSENBAUM, Circuit Judge:
the clock and control the game. Winning coaches in many
sports have employed this strategy. And Plaintiff-Appellee Jim
Barrett asserts that the lesson wasn't lost on
Defendant-Appellant Walker County School District, either. To
speak at a Walker County Board of Education meeting, the
District requires a member of the public to first go through
a process that can consist of several steps. If the entire
process is not completed at least one week before the Board
meeting, the citizen may not speak at the meeting. Yet
critically, the Board completely controls the timing of a
step at the beginning of the process. If the Board drags its
feet in completing this step, a member of the public cannot
finish the rest of the steps in time to be permitted to
is a public-school teacher who believes that the District has
wielded this policy to unconstitutionally censor speech
critical of the Board and its employees at school-board
meetings. He filed suit in federal court, asserting a variety
of First Amendment facial and as-applied claims in his quest
for, among other things, an injunction against various
aspects of the Board's policy governing public comment at
district court ultimately granted Barrett a permanent
injunction based on some of his facial claims and enjoined
the Board's public-comment policy. It also allowed a
number of Barrett's other claims to proceed to discovery.
now appeal the injunction. We have appellate jurisdiction
under 28 U.S.C. § 1292(a)(1), which allows us to review
"[i]nterlocutory orders . . . granting . . .
injunctions." After careful review, and with the benefit
of oral argument, we affirm in part, vacate in part, and
remand for further proceedings.
to his verified complaint, Barrett is employed by the
District as a seventh- and eighth-grade social-studies
teacher. He is also the president of the Walker County
Association of Educators ("WCAE").
District is managed by the Walker County Board of Education,
which itself is composed of five elected officials. One of
those officials, Defendant Mike Carruth, is the Chairperson
of the Board; in that capacity, he presides over Board
meetings, signs documents on behalf of the Board, and
performs other duties. Defendant Damon Raines is the
Superintendent of the District, a job that makes him
responsible for all operations of the District, including the
implementation of District policies and procedures.
in January and February, the Board holds a meeting every
month. The Board also holds a planning session each month.
Members of the public are allowed to comment at the meetings
and planning sessions. In advance of each meeting or planning
session, the Board publishes an agenda of items to be
discussed, and the agenda indicates the time allotted for
public comment. The Board has a policy that governs how
members of the public may obtain permission to speak during
these public-comment sessions (the "Policy").
is no stranger to the public-comment sessions of Board
meetings: according to his complaint, he "has publicly
participated in Board meetings in the past by endorsing
actions of the Board, commending the Board on past actions
and recognizing employees of the Board for good deeds."
And he contends that, despite the existence of the Policy, he
"has not been subjected to the procedural requirements
of [the Policy] prior to making such public comments."
Barrett asserts that the Board's tune changed when
Barrett's comments began to strike the wrong chord with
the Board: Barrett contends that the Board started requiring
him to comply with the Policy only when he started speaking
critically of the Board.
litigation saga begins with a topic controversial in any
school: grades. In the period from May 2014 to January 2015,
Barrett became a "vocal critic" of new grading
procedures that the Superintendent had implemented without
the Board's having taken any official action. As Barrett
saw things, this new grading policy negatively affected
student performance and teacher-performance evaluations.
his capacity as President of WCAE, Barrett publicly
criticized the grading policy during meetings of WCAE and
during in-person discussions with the Superintendent.
According to Barrett, he had "several discussions with
Superintendent Raines on this topic" during which the
Superintendent "vehemently disagreed with Mr. Barrett
about the impact of his new procedures" and "often
became agitated and upset with Mr. Barrett for his attempts
to raise this issue with the Board and in public."
eventually took the issue of the grading policy to the
membership of WCAE, and "the organization agreed to
publicly speak against the new grading policy." The
Board meeting scheduled for February 17, 2015, presented
"the first opportunity for WCAE to speak to the Board in
opposition to the policy." So Barrett set out to obtain
permission from the Board to speak during the public-comment
session of that meeting.
comply with the Policy, Barrett e-mailed the Superintendent
on January 20, 2015, "requesting to meet with [the
Superintendent] in order to speak with the [Board] at its
next Planning Session with respect to matters of
school/district administration." The Superintendent
responded that he was "available" eight days later,
"on Wednesday, January 28." Barrett and the
Superintendent met on the agreed-upon day, and Barrett
"presented his concerns in writing and requested the
process to be completed so that he could appear at the
February Board meeting."
the meeting, Barrett followed up with the Superintendent by
e-mail, asking that the Superintendent respond in writing to
Barrett's written concerns. The Superintendent replied by
e-mail on February 4, stating that he would "have
written documentation prepared addressing the concerns"
and that he would "deliver [the documentation] on
Monday, February 9."
and the Superintendent met for about an hour on February 9.
The Superintendent gave Barrett four single-spaced written
pages in response to Barrett's previously raised
concerns, and the two discussed the results of the
Superintendent's investigation. As Barrett tells the
story, "The Superintendent expressed his dissatisfaction
with Mr. Barrett's views on the issues and Mr.
Barrett's efforts to speak to the Board about education
policy issues that were critical of actions taken by [the
District] and the Superintendent."
after the meeting, Barrett mailed a letter to the
Superintendent. The letter, dated February 9, asked that the
Superintendent "accept th[e] letter as [Barrett's]
written request to speak at the February 16, 2015 regular
meeting of the Walker County Board of Education."
Barrett explained in the letter that he wished to speak about
the new grading policy and three other topics.
days later, on February 11, 2015, Barrett received a letter
from the Superintendent postmarked February 11. The letter
noted that, on February 11, the Superintendent received
Barrett's request to speak. This, the letter explained,
was too late under the Policy for Barrett to be permitted to
speak at the Board's February 17 meeting. The letter
further indicated that the Board agenda for the February 17
meeting would not include a public-comment session.
Nevertheless, the Superintendent's letter did state that
the Superintendent was "happy to place [Barrett's]
name on the agenda under public participation at the Board
planning session scheduled for Tuesday, March 10, 2015."
did not attend the March 10 planning session. Timing was
critical for Barrett, because in anticipation of the February
17 meeting, he "had organized a large number of
employees of the [District] to appear at the Board meeting to
show their dissatisfaction with the switch in grading
procedures implemented by the Superintendent." Barrett
asserts that the Superintendent, who knew of Barrett's
association with WCAE, decided "to deny Barrett's
request and to cancel all public comment at the February 17,
2015 Board meeting . . . for viewpoint-specific reasons
related to Mr. Barrett, and the association he represents,
and their critical views of the actions taken with respect to
the switch in grading procedures."
this setback, Barrett states that he "seeks to speak to
the Board in the future about timely matters, often in a
manner critical of Defendants." Barrett is concerned,
however, that Defendants "will often bar his speech by
refusing to place him on [a] meeting agenda."
Policy states, 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
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
procedures ("Procedures") promulgated by the
Superintendent under the Policy provide, as pertinent here, as
Meetings of the [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
The following rules shall be adhered to:
1. Refer to [the Policy] concerning required meeting with
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 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
6. When issues arise that stimulate high community interest,
the Board may schedule special meetings specifically to
invite public comment. In those circumstances, the Board will
establish special guidelines for participation.
7. The Board Chair may:
a. Interrupt, notify, or terminate a participant's
statement when the statement exceeds the prescribed time
limit, is abusive or disruptive, is obscene, or is irrelevant
to a subject under consideration; . . . if a speaker fails to
follow these rules one time during a meeting, he or she loses
the opportunity to continue to speak at the meeting.
* * *
8. The Board will not respond to comments or questions posed
by citizens in their presentations, but will take those
comments and questions under advisement.
filed a complaint, together with a motion for a preliminary
and consolidated permanent injunction, against the District,
Carruth, and Raines. In Count I of the complaint, Barrett
requested a declaratory judgment, injunctive relief, and
damages for Defendants' alleged violation of his rights
under the Free Speech Clause of the First Amendment to the
U.S. Constitution, as incorporated against the states under
the Fourteenth Amendment, based on various facial and as-
applied challenges. In Count II, Barrett sought a declaratory
judgment, injunctive relief, and damages for Defendants'
alleged violation of his rights under the Georgia
Constitution based on essentially the same theories as those
asserted in Count I.
motion for injunctive relief, Barrett asked the court to
consolidate the grant of preliminary injunctive relief with
the grant of permanent injunctive relief by way of a summary
trial on the merits pursuant to Federal Rule of Civil
Procedure 65(a)(2). In support of his request, Barrett
contended that no evidentiary hearing was warranted because
the court could grant injunctive relief by ruling on those
claims of ...