Mama Bears of Forsyth Cnty. v. McCall

642 F.Supp.3d 1338

MAMA BEARS OF FORSYTH COUNTY, Alison Hair, and Cindy Martin, Plaintiffs, v. Wesley MCCALL, Chair, Forsyth County Board of Education, in his officialand individual capacities; Forsyth County School District(also known as Forsyth County Schools); Kristin Morrissey,Vice Chair, Forsyth County Board of Education, in her officialand individual capacities; Tom Cleveland, Member, Forsyth County Board of Education,in his official and individual capacities; Lindsey Adams, Member,Forsyth County Board of Education, in her official and individual capacities;and Darla Light, Member, Forsyth CountyBoard of Education, in her official and individual capacities, Defendants.

Civil Action No. 2:22-CV-142-RWS

United States District Court, N.D. Georgia, Gainesville Division

Signed November 16, 2022

Endel Rohe Kolde, Institute for Free Speech, Washington, DC, Erika C. Birg, Nelson Mullins Riley & Scarborough, LLP, Atlanta, GA, for Plaintiffs.

Aparesh Paul, Phillip L. Hartley, Hieu Minh Nguyen, Harben, Hartley & Hawkins, LLP, Gainesville, GA, for Defendants.

ORDER

RICHARD W. STORY, United States District Judge

This case comes before the Court on Plaintiffs Mama Bears of Forsyth County, Alison Hair, and Cindy Martin's Motion for Preliminary Injunction [Dkt. 2]. After reviewing the parties' briefs, the Court enters the following Order.

BACKGROUND

I. Factual Background

Before diving into the (largely undisputed) facts of this case, the Court finds it prudent to briefly explain what the case is about and what it is not about. At its core, this case addresses fundamental First Amendment questions about what type of speech can and cannot be restricted at school board meetings. Though the speech at issue which gave rise to this litigation involved what types of books are and should be found and made available in school libraries, a topical and common debate in our society as a whole, there is no need or basis for the Court to wade into that issue. The Court will focus its attention on the important First Amendment issues that have been identified by the parties, not which books should or should not be in school libraries, and it encourages and instructs the parties to continue doing the same as this case progresses.

A. The Parties

Mama Bears of Forsyth County ("Mama Bears") is an association whose mission is to organize, educate, and empower parents to defend their parental rights. Alison Hair and Cindy Martin are both citizens of Georgia, residents of the Forsyth County School District, and members of Mama Bears. Ms. Hair and Ms. Martin both have school-aged children in Forsyth County, and Ms. Martin is the Chair of Mama Bears.

Forsyth County School District (or Forsyth County Schools) is a school district that operates the public schools of Forsyth County, Georgia. The school system is run by the Board of Education (the "Board"), which is composed of five elected members. The Board has the role of legislating the school system's policies and transacting business pertaining to the public schools. Wesley McCall is the Chair of the Board, Kristin Morrissey is the vice Chair, and Tom Cleveland, Darla Light, and Lindsey Adams are the remaining members.

B. Relevant Legislation and the Board's Public Participation Policy

Under Georgia law, local boards of education are required to hold monthly meetings. O.C.G.A. § 20-2-58(a). Each monthly meeting must be open to the public and include a public comment period. O.C.G.A. § 20-2-58(a), (c). The chair of the board may "limit the length of time for individual comments and the number of individuals speaking for or against a specific issue," O.C.G.A. § 20-2-58(a), and the board may "remove" a member of the public from the meeting "for an actual disruption of the proceedings." O.C.G.A. § 20-2-58(c)(4). Each board is required to "adopt rules of conduct for public meetings," which must include provisions for removal based on the "actual disruption of a public meeting" of the board. O.C.G.A. § 20-2-58(c)(3).

Due to this mandate, the Board has a policy entitled "Public Participation in Board Meetings" (the "public participation policy"). The public participation policy was revised on April 20, 2021 and included several provisions that are relevant here. First, the public participation policy stated that speakers' remarks "shall be made to the Board as a body and addressed through the chair" and "shall not be addressed to individual Board members." [Dkt. 1-3 - Public Participation Policy]. Second, it asked speakers "to keep their remarks civil" and stated that "[p]rofane, rude, defamatory remarks and personal attacks will not be allowed." [Id.]. Third, it clarified that the chairman was responsible for its enforcement "and speakers who are found in violation will have their allotted speaking time immediately concluded." [Id.]. And finally, the public participation policy provided that "[b]y reading and acknowledging acceptance prior to speaking during public participation, speakers attest that they understand and will abide by" its terms, and the "[f]ailure to abide by the policy may result in forfeiture of the right to participate in future Board meetings." [Id.].

In April 2022, Georgia passed O.C.G.A. § 20-2-324.6(b), which required each board of education to establish a new, streamlined complaint resolution policy for reviewing school material that may be harmful to minors by January 1, 2023.

C. The Mama Bears' Participation at Board Meetings

For this Court's purposes, the dispute at issue began at the Board's February 15, 2022 meeting. At the start of the public comment portion of the meeting, Chair McCall read aloud from the public participation policy. In so doing, he added some language not found in the text of the public participation policy, stating that speech on "inappropriate public subjects" was not allowed.

Ms. Hair and Ms. Martin both spoke during the public comment period at this meeting, and both intended to criticize the Board for not removing what they deemed to be sexually explicit books from school libraries and to ask the Board to address the issue differently. Ms. Hair spoke first, and she explained that she would read aloud an excerpt from the book "Extremely Loud and Incredibly Close" during her speaking time. She started reading: "I know that you give someone a blow job by putting your penis . . . ." At that point, Chair McCall sounded his gavel, and said the following:

So, you have, we have a couple options. One is you can continue and go back to the rules that we talked about at the beginning . . . . Or two. We can finish now. We have other people that are younger in this and I, we understand your point . . . But we don't know . . . We have not had an opportunity to vet this. We . . . also have a vetting system in place . . . so the books are not read out loud.

Ms. Hair then tried to continue speaking:

I will move on to the rest of my comments and I would like my time . . . To please be returned . . . . And how, how dare you say 'Oh well there's minors in here, wait, what is it? My son's a minor and this book that you all have copies of is in my son's middle school. So, here's what I'm here to tell you. I am here to confront evil . . . .

At that point, Chair McCall interrupted Ms. Hair to tell her that her speaking time was up.

Later in the public comment period, Ms. Martin took the opportunity to speak and express her disappointment with the Superintendent. At that time, Chair McCall interrupted her and instructed her to "be respectful." She then read from what she considered to be a sexually explicit school library book but substituted acronyms and pauses for certain sexually explicit words.

The Board held its next meeting on March 15, 2022. Chair McCall again began the public comment period by reading aloud from the public participation policy, again adding some language not found in the policy. This time, he stated that "comments which involve inappropriate public subjects" and "read[ings] [which are] inappropriate to being stated in public" were prohibited. Later in the meeting, Chair McCall stated that speakers could not "call out any board member by name" or "make any direct comment to them" so that they could "all feel respectful."

Ms. Hair spoke at this meeting, first imploring the Board to respect her First Amendment rights. Then, she tried to read aloud from "Georgia Peaches and Other Forbidden Fruit." She stated:

We pushed back together feeling the warmth and silk of each other's skin. Our breaths were coming faster and harder. My mouth circles the soft skin of my breasts and I cried, arching up into her . . . . I flip over again straddling her. I kiss my way down her breastbone. I'm taking each nipple right in between my teeth . . .

Chair McCall then banged his gavel and interrupted Ms. Hair. She asked for her public comment time to be restored to her, and he demanded that she "follow [the] rules." They went back and forth for a bit, during which Chair McCall stated that Ms. Hair had violated the rules while reading the book and concluded that he was simply enforcing the guidelines. The audience became animated as well. Chair McCall ultimately called for a recess and did not permit Ms. Hair to finish her speaking time. Ms. Hair then left the Board meeting.

A few days later, on March 17, 2022, Chair McCall wrote Ms. Hair a letter stating that she could not return to future Board meetings until she "states in writing, to [him], that [she will] follow the rules of the Board regarding public participation and that [she will] follow [his] directives." On May 11, 2022, the full Board sent her a letter reaffirming her prohibition from its meetings because her "remarks were not civil." Ms. Hair has not since gone to any Board meetings, and Ms. Martin has refrained from speaking at Board meetings herself for fear of being silenced or removed.

D. Revised Public Participation Policy

On August 16, 2022, the Board announced that it was proposing a revised public...