Gilmore v. Beveridge

JENNIFER GILMORE, Plaintiff, v. JOE BEVERIDGE, et al., Defendants.

No. 2:22-cv-02032-HLT-RES

United States District Court, D. Kansas

August 5, 2022

MEMORANDUM AND ORDER

HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

This case stems from Plaintiff Jennifer Gilmore's removal from the January 2022 Olathe School Board meeting because of comments she made during the public-comment period. Plaintiff asserts various claims, including deprivation of her First Amendment free-speech rights, against Defendants Joe Beveridge, Brent Kiger, Jim McMullen, the Olathe Board of Education, and the Olathe School District. Plaintiff seeks a preliminary injunction enjoining Defendants from enforcing certain policies against her. Doc. 33. For the reasons below the Court denies the motion.

I. BACKGROUND^[1]

Plaintiff is a parent of a child who is a student in the Olathe School District. Doc. 38 at ¶ 1. Beveridge is a member of the school board and was president of the school board at the time of the incident. Id. ¶¶ 7-8. Plaintiff ran for a seat on the school board in 2021 Id. ¶ 23. During the election, Jim Randall, an elected Johnson County precinct committeeman, advocated for the election of his daughter, Julie Steele, to the school board. Id. ¶ 24. Steele was elected, but Gilmore was not. See id. In addition to being Steele's father, Randall is also the father-in-law of Beveridge. Id. ¶ 25.

Plaintiff asked to speak at the January 13, 2022 school board meeting. Id. ¶ 27.^[2] She filled out a Public Participation Registration Card and listed the topic she planned to speak on as “community.” Id.; see also Doc. 13-2. The Court refers to the version of the card Plaintiff filled out as the “Former Participation Card.” The back of the Former Participation Card listed the “Format for Public Comments.” Doc. 13-2 at 2. It laid out the procedures for those wishing to speak, provided a time limit of up to five minutes, and stated that the school board president may deny speaking privileges to anyone whose statement is disruptive or “not germane to the business or activities of the Board.” Id. It also stated that “the Board shall not hear personal attacks, or rude or defamatory remarks of any kind about any employee or student of the School District or any person connected with the School District,” and prohibited vulgar or obscene language. Id.

The policy in place at the time was Policy BCBI, last revised in September 2021. Doc. 341 at 13. The Court refers to this policy as the “Former Policy.” The Former Policy stated that the “primary role of a Board of Education is to transact the business of the school district.” Id. Like the Former Participation Card, the Former Policy allowed the school board president to interrupt statements that were disruptive or “not germane to the business activities of the board.” Id. The Former Policy set a time limit of five minutes and permitted the school board president to deny anyone speaking privileges if previous conduct indicated that the meeting may be disrupted. Id.

Plaintiff spoke at the January 13, 2022 meeting, and shortly into her statement, the following exchange occurred between Plaintiff and Beveridge:

Plaintiff: Good evening. I didn't buy my board seat, but I'm still here because I care about - Beveridge: You know what -

Plaintiff: - this district. Don't interrupt me, please. We were told prior to enrollment that masks would be optional. We're doing the same thing year after year.

I agree that liars lie, but the only liar that lied in this election was Jim Randall. So let's -

Beveridge: OK, you're done. You're done. Uh, Dr. McMullen remove her.

Plaintiff: Why am I done?

Beveridge: You're done. You are done.

Plaintiff: Why am I done?

Beveridge: You're done. We're not doing this.

Plaintiff: I was talking to the board with a speech -

Beveridge: You are done.

Plaintiff: - that I can provide you.

Beveridge: You are done.

Plaintiff: Excuse me?

Beveridge: You are done -

Plaintiff: Mr. President -

Beveridge: - we are not going to talk about persons. We're not going to -

Plaintiff: - I'm not talking about persons.

Beveridge: You mentioned a person.

Plaintiff: Your father-in-law, of your sister that's on the board that spent $37,000 for her board seat.

Beveridge: I would like to take a five minute break, does anyone have an objection to that? Okay, we're gonna take a five minute break.

Doc. 34 at 7-8.^[3] At that point, Kiger, who is a school security employee, approached Plaintiff and indicated she must leave. Doc. 38 at ¶¶ 12, 43. Kiger and McMullen then escorted Plaintiff to her chair to collect her things and then out to the hallway, where they told her to leave the building. Id. ¶¶ 52-53. Plaintiff initially declined to leave the building, but McMullen told her Beveridge had asked them to remove her from the building. Id. ¶¶ 54-55.

Beveridge later stated that he had “zero misgivings about [his] decision,” that no other school board members complained about his action, and that “as long as I am board president, no one will attack family members of any of our board members during public comments.” Doc. 343 at 3, 5.

Plaintiff filed this case on January 23, 2022. Doc. 1. She asserted various claims for injunctive relief and damages. On January 24, 2022, counsel for the school board sent Plaintiff a letter in response to her email for more information about the “written district protocol.” Doc. 345 at 1. The letter stated the school board disagreed that Plaintiff's free speech was violated and noted that her statement that “‘the only liar that lied in this election was Jim Randall' was not only a personal attack but also was rude, potentially defamatory, and inherently disruptive” and “was not germane to the business or activities of the board of education.” Id.

Shortly after filing the case, Plaintiff filed a motion for preliminary injunction, which was initially set for a hearing on April 27, 2022. See Doc. 11. The Court scheduled a phone call with the parties on April 15, 2022, to discuss the procedures for and the issues that would be discussed at the preliminary-injunction hearing. Doc. 14. But on April 14, 2022, Defendants filed a notice indicating that the school board had issued a revised policy. Doc. 26. After discussing these events during the call, Plaintiff sought leave to amend her complaint to address the new policy. The Court denied the preliminary-injunction motion as moot and without prejudice. Doc. 31. Plaintiff subsequently amended her complaint, see Doc. 38, and filed a second motion for preliminary injunction, Doc. 33. This second motion is currently at issue.

As indicated in Defendants' notice of revised policy, Doc. 26, the participation card and Policy BCBI were revised on April 7, 2022.^[4] The Court refers to these revised documents as the Revised Participation Card and Revised Policy. The Revised Participation Card states that the school board meetings are a limited public forum, and that “[t]opics discussed in public comments shall be germane to the business of the Board.” Doc. 45-3 at 2. The provision about “personal attacks, or rude or defamatory remarks of any kind about any employee or student of the School District or any person connected with the School District” was not included in the Revised Participation Card. See id. But the Revised Participation Card does state that if “comments relate to complaints concerning students or staff, the board requests that such complaints first be addressed to the district's administration as provided under Board Policy KN (Complaints).” Id. Board Policy KN (Complaints) states that complaints “made directly to the Board . . . will be referred to the Administration for study and possible resolution.” Doc. 34-1 at 26. The Revised Participation Card asks speakers to “[p]lease direct your comments to all members of the board” and states that “[i]n the event of the continued violation(s) of these rules, the board may indefinitely discontinue a speaker's privilege to address the board.” Doc. 45-3 at 2.

The Revised Policy allows the school board president or presiding officer to set a time limit on a speaker during the limited public forum portion of school board meetings. Doc. 34-7. The Revised Policy states that “[t]opics expressed during the limited public forum shall be germane to the business of the board. Threats of harm or violence will not be permitted.” Id. It additionally provides that school board members should not interact with speakers during the limited public forum except to “ask clarifying questions.” Id. Like the Revised Participation Card, the Revised Policy requests that complaints concerning students or staff first be addressed to school district administration as provided for in Board Policy KN (Complaints). Id.

Plaintiff testified at the preliminary-injunction hearing that she spoke at school board meetings in September 2020, December 2020, August 2021, September 2021, and October 2021. She did not call anyone a liar at those school board meetings and was not interrupted. Plaintiff testified that she would like to speak at school board meetings about critical or negative things if she thinks it's in the interest of the school or the children who attend school in Olathe. She would also like to be able to tell school board members if she believes their conduct is unethical, which she believes would be a personal attack on them. She also testified that Beveridge has historically used Kiger and McMullen to confront speakers at school board meetings. Beveridge was replaced as school board president in July 2022 during an annual reorganization of board officers. It is unclear what authority Beveridge has towards speakers in his current role.

As part of her amended complaint, Plaintiff submitted a declaration...