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Barrett v. Walker County School District

United States Court of Appeals, Eleventh Circuit

October 2, 2017

JIM BARRETT, Plaintiff - Appellee,
WALKER COUNTY SCHOOL DISTRICT; MR. DAMON RAINES, in his official and individual capacities; MR. MIKE CARRUTH, in his official capacity; Defendants - Appellants.

         Appeal from the United States District Court for the Northern District of Georgia

          Before ROSENBAUM, JULIE CARNES, and GILMAN, [*] Circuit Judges.

          ROSENBAUM, Circuit Judge:

         Control the clock and control the game. Winning coaches in many sports have employed this strategy.[1] 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 speak.

         Barrett 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 its meetings.

         The 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.

         Defendants 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.



         According 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").

         The 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.

         Except 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").

         Barrett 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."

         But 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.

         Barrett's 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.

         So in 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."

         Barrett 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.

         To 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."

         After 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."

         Barrett 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."

         Immediately 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.

         Two 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."

         Barrett 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."

         Despite 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."


         The 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 taking action.

         The procedures ("Procedures") promulgated by the Superintendent under the Policy[4] provide, as pertinent here, as follows:

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 session.
The following rules shall be adhered to:
1. Refer to [the Policy] concerning required 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 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.
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.


         Barrett 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.

         In his 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 ...

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