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ACLU — again — calls for SM school board to end policy banning public complaints

The American Civil Liberties Union of Kansas has called for the Shawnee Mission School Board to eliminate a policy that prohibits complaining about individual elected officials or district employees during the public comments forum at board meetings.

In a letter sent to the district on Dec. 6, legal director emeritus Doug Bonney said that a new open forum policy approved Nov. 27 “continues to violate the Speech Clause of the First Amendment.”

The school board’s new policy requires speakers who participate in the open forum section of school board meetings to present information in a “positive” and “constructive way.”

The policy states that complaints against individual school board members and/or individual employees are “inappropriate” for open forum, and must be submitted in writing to the superintendent or board president.

Bonney said a policy prohibiting complaints is unconstitutional because it bans a certain subject. He also said the First Amendment and New York Times vs. Sullivan case law grants individuals the right to express “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

The December letter is the second letter Bonney has sent the school district in regards to its open forum policy.

In May, then-school board president Sara Goodburn told parent Jeff Passan that he could not criticize school board member Debra Zila by name after Passan expressed concerns that Zila had a conflict of interest when she voted on a contract earlier in the year.

Goodburn later said she had incorrectly enforced the board’s guidelines, which at the time only prohibited referencing all matters related to individual employees and students.

The incident sparked outrage from parents who felt the board was restricting scrutiny of elected officials.

On May 30, Bonney wrote a letter to the district outlining concerns that the district’s policy was in violation of the First Amendment, which grants individuals the right to criticize both elected officials and other public servants.

Bonney said he never received a response to the letter.

This November, the School Board approved a new board manual that included a policy that bans complaints against both employees and school board members during open forum.

While school districts are not legally required to host open forums, most districts opt to hold the opportunity for patrons to direct questions or comments to board members.

While restrictions related to sharing information about individual employees and students are typical in school districts because of legal and ethical obligations to protect privacy, bans on complaints against school board members are unusual.

Board members told The Star that the restrictions related to individual employees are intended to protect the privacy of staff and prevent defamation. Bonney said comments made by board members to The Star indicated that rules related to the criticism of elected officials are less clear.

Board President Craig Denny said last week that the policy was meant to address concerns about decorum from speakers and said speakers should ask the sitting board president for guidance on whether a comment is appropriate for open forum.

But he also said that Passan’s comments in May seemed like “less of a complaint than an attack,” a charge Passan has vehemently pushed back against. Other board members told The Star they would accept criticism related to board matters but had concerns about the manner in which patrons present issues.

“The policy is constitutionally problematic because it does not set clear standards for school board presidents to follow in distinguishing between permitted and prohibited complaints,” Bonney wrote.

He urged board members to delete the policy.

Katy Bergen: 816-234-4120, @KatyBergen