Thursday •  September 22, 2022

Guest Post: On the HCPSS Board of Education Violating the First Amendment

By Barb Krupiarz

This post is not about whether certain books should be in HCPSS libraries.  It IS about citizens’ rights to express their opinions. 

Over the past year, there has been nationwide discussion over certain controversial books, including here in Howard County.  At the May 26, 2022 Board of Education meeting, a parent testified during public forum about her concerns regarding those books.  She handed written materials directly to Board members and then proceeded to read the most salacious parts from these books. She was momentarily interrupted but then allowed to continue.  Crisis averted.

However, by the next full meeting, the Board had changed its opening statement for public forum.  This new statement, a violation of our freedom of speech, is against the very values that schools should be teaching our children:

“In accordance with Policy 1000, the Board encourages participants of Public Forum to refrain from using language that is indecent, profane, threatening, or abusive in nature.”

It is not a question of whether words in a public forum are offensive.  The issue is about a citizen’s right to say them. The foundation of our democratic society is to permit speech, whether we agree with those words or not.

While certain words, phrases, or ideas may be offensive to some and not to others, the members of the Board of Education are not the arbitrators of what is considered “indecent, profane, threatening, or abusive in nature.”

Imagine if the criteria for choosing books in our schools resulted in the elimination of literature that contains language that is “indecent, profane, threatening, or abusive in nature.” The Color Purple, To Kill a Mockingbird, A Brave New World, and The Catcher In The Rye would all be gone.

The Howard County Board of Education Handbook recognizes the right to free speech by instructing Board members to “encourage the free expression of opinion.” 

The National School Board Association (NSBA) concurs, stating in an article entitled Protect Your Citizens’ Free Speech Rights at Your Meetings that school boards are to be “extremely cautious about restricting what citizens say during the period set aside for public comments at school board meetings.”   The NBSA goes on to say that school boards should “allow the public to speak about any matter within the school board’s authority.”

This echoes the United States 6^th Circuit Court ruling in Ison v. Madison Local School District Board of Education that the “school board’s policy prohibiting ‘personally directed’, ‘abusive’ and ‘antagonistic’ comments violated free-speech rights…” and “…the government can’t prohibit speech purely because it disparages or offends. Doing so would be discriminating against speech on the basis of the viewpoint of the speech.”

In addition to the HCPSS BOE’s new opening statement for public forum that censors citizens, the dais is now blocked off using theater-style ropes, which of course, would never actually keep someone from harming Board members. This decision, coupled with the revised opening statement for public forum, certainly sends a loud and clear message to the Howard County community: “Stay away.”

To understand the development of this new opening statement, a Public Information Act (PIA) request was submitted for the emails between the Board, the Superintendent, and his “cabinet” related to the decision-making process.  The emails revealed that the Director of ‘Communication and Engagement’ drafted the sentence that violates the first amendment. Ironic, I know.  

When asked about the statement, the new HCPSS General Counsel found an obscure law (that has probably never been enforced because it is unconstitutional) from Rockville, MD that he quoted in an email to the Director of Communication and Engagement, with the Subject: “If we were in Rockville – we could prohibit:” and text that included the ludicrous code that makes it a misdemeanor to swear along a street, sidewalk, or highway.

Sadly, your tax dollars funded an attorney to attempt to restrict your first amendment rights rather than find a way to protect them. If this attorney had instead focused on protecting citizens’ rights, he would have found cases where state Supreme Courts ruled in favor of free speech. 

In Cohen v. California, 403 U.S. 15 (1971), the court overturned a conviction of a man for wearing a jacket with a swear word on it in a public building.  The opinion stated, “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), a suspension was overturned noting that public universities cannot punish students for indecent or offensive speech. 

In Rosenfeld v. New Jersey, 408 U.S. 901 (1972), a conviction was overturned for a man using profane language at a New Jersey school board meeting. In 2015, a Michigan law was overturned as unconstitutional that read “Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.”

Yes, words can offend. And it is true some minors may be watching these Board of Education meetings. But we are in serious times with serious adult decisions being made.  It is expected that our diverse community can and should vigorously debate books, proclamations, and many other topics. We each care deeply about our children’s future and discussions such as these make for a strong democracy. What weakens our democracy, however, is a Board of Education intent on silencing dissent and discussion by infringing on the very right that makes that discourse possible.

We should not accept being censored when discussing our most important cause – our children’s education.

DISCLAIMER: This post is a HoCo Watchdogs Guest Reader Contribution. 

The opinions and views expressed in this publication are solely those of the listed author and do not necessarily reflect the opinions or views of HoCo Watchdogs, LLC or the HoCo Watchdogs main blog author, Steven Keller.