Court of Appeals for the Eleventh Circuit affirmed part of the Circuit Court judge’s decision, vacated part of his decision and remanded a portion of the case back to Judge Murphy for further action.
On Oct. 12, Raines issued a statement saying he could not comment on particulars of the case, as the lawsuit is ongoing. He did note the policy in question had been in place for about 30 years and that it had been Barrett’s decision to not attend a board meeting and air his concerns about grading policies.
The full content of that statement accompanies this article.
McGonigle said the federal judges agreed the school board policy was overly restrictive and left too much discretion as to when someone could bring an item before the board in the hands of the superintendent.
In the appellant court’s decision, Circuit Judge Rosenbaum referenced legendary basketball coach Dean Smith, who was famous for his Four Corners offense, a strategy that is all about controlling the clock and often involved stalling play to keep the ball away from opponents.
“Control the clock and control the game,” Rosenbaum wrote. “Winning coaches in many sports have employed this strategy. And plaintiff-appellee Jim Barrett asserts that the lesson wasn’t lost on defendantappellant 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 fee in completing this step, a member of the public cannot finish the rest of the steps in time to be permitted to speak.”
Barrett’s legal team — McGonigle, along with attorneys Gerry Weber and Craig Goodmark — agreed the clear problem with the WCBE policy was its strictly setting a time line for action without guaranteeing that timeframe could be met. They noted that “in some districts, no advance notification is required.”
Previously, the board members and superintendent have said advance notice is necessary if specific questions or technical matters are to be brought forth.
Such action is not uncommon in municipal or county meetings, but such matters are often considered as “new business” and, if not acted on immediately, are tabled for study and acted on as “old business” at a future meeting.
But the manner of scheduling agenda items — who could speak and on what topics — was seen as censorship by the court.
Weber, a highly regarded attorney concerning matters of civil liberties and civil rights, said the matter could have been avoided if WBE, like so many others, allows anyone to speak — within a standard time limit — by simply placing their name on a signup sheet at meetings.
Since the policy has been ruled illegal, Goodmark said the board can either appeal the appellant court’s ruling or change the policy.
The case has been sent back to Judge Murphy for determination on whether Barrett was illegally denied his First Amendment right and, if so, would he be awarded monetary damages.
Barrett’s counsel estimated legal fees associated with the original lawsuit could easily exceed $100,000 and the same amount could be billed for the appeal. That means the federal court could order the school system, through its insurer, to pay Barrett’s legal costs.
It is important to note that the appellant court’s decision was published — not just upheld or rejected — which means it is law throughout the Eleventh Circuit that consists of Alabama, Florida and Georgia.
“This is a significant win for educators and all citizens who are concerned about their public schools in Georgia and throughout the 11th Circuit Court of Appeals,” GAE President Sid Chapman said. “This ruling maintains their rights to freely speak before a school board to express their concerns whether or not they are complimentary of the school board. It puts school boards on notice that they cannot muzzle educators and other citizens when it comes to matters concerning their schools and children.”