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Lowery v. Jefferson County Board of Education

October 9, 2007

JEFF LOWERY, LISA LOWERY, RANDY GILES, AND MICHAEL KELLEY, PLAINTIFFS,
v.
JEFFERSON COUNTY BOARD OF EDUCATION, DOUG MOODY, AND GREG SHARPE, DEFENDANTS.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

Judge Phillips

MEMORANDUM OPINION

This is an action brought under 42 U.S.C. § 1983 seeking damages for violations of the plaintiffs' First Amendment rights when they were denied the right to speak at a meeting of the Jefferson County Board of Education regarding their sons' dismissal from the Jefferson County High School varsity football team. The case was tried to a jury over a three-day period and resulted in a jury verdict in favor of defendants. Plaintiffs move the court for judgment in their favor as a matter of law, pursuant to Rule 50(b), Federal Rules of Civil Procedure, or, in the alternative, for a new trial, pursuant to Rule 59(a), Federal Rules of Civil Procedure.

As grounds for the motion, plaintiffs state that: (1) as a matter of law, defendants imposed an unconstitutional prior restraint on their speech prior to the December 8, 2005 meeting of the Jefferson County Board of Education; (2) defendants engaged in unconstitutional viewpoint discrimination; (3) the court erred when it found that Board Policy 1.404 was not unconstitutionally vague on its face; (4) the court erred when it found that the restrictions in Board Policy 1.404 where reasonable time, place and manner restrictions; (5) the jury's verdict was against the clear weight of the evidence; (6) the court failed to properly instruct the jury on the law relating to prior restraint; and (7) the court improperly admitted evidence of plaintiffs' communications with school administrators and individual Board members.

Defendants move the court for an order, pursuant to 42 U.S.C. § 1988, allowing them to recover their attorney fees from plaintiffs on the grounds that they are the prevailing parties and plaintiffs' suit was unreasonable, frivolous, groundless, meritless, vexatious or brought to harass or embarrass.

Motion for Judgment as a Matter of Law

At the close of plaintiffs' proof at trial, plaintiffs moved the court for judgment as a matter of law pursuant to the provisions of Rule 50, Federal Rules of Civil Procedure, a motion which was renewed at the close of the proof and before submission of the case to the jury. The court reserved ruling on the motions. The jury returned a verdict finding that defendants did not violate plaintiffs' constitutional rights. On April 11, 2007, the court entered judgment. Plaintiffs now renew their motion for judgment as a matter of law pursuant to Rule 50(b), which states:

If the court does not grant a motion for judgment as a matter of law made under subdivision (a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after the entry of judgment -- if the motion addresses a jury issue not decided by a verdict -- no later than 10 days after the jury was discharged. The movant may alternatively request a new trial or join a motion for new trial under Rule 59. Fed.R.Civ.P. 50(b). A renewed motion for judgment as a matter of law should be granted if in "viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion in favor of the moving party." Noble v. Brinker Int'l, Inc., 391 F.3d 715, 720 (6th Cir. 2004).

Denial of Plaintiff's Request to Speak was not an Unconstitutional Prior Restraint

Plaintiffs argue that defendants engaged in an unconstitutional prior restraint of plaintiffs' rights under the First Amendment when they prohibited plaintiffs from speaking at the December 8, 2005 meeting of the Board, based upon the content of their speech. The term "prior restraint" is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Alexander v. United States, 509 U.S. 544, 550 (1993).

The court finds, as a matter of law, that the requirement that plaintiffs request permission to be placed on the agenda for the school board meeting does not constitute a prior restraint. Prior restraint arises where the content of the expression is subject to censorship. O'Connor v. City and County of Denver, 894 F.2d 1210, 1220 (10th Cir. 1990). Governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated. Id. The Supreme Court has struck down regulations as unconstitutional prior restraints on speech where they gave "public officials the power to deny use of a forum in advance of actual expression." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975).

Here, the Board did not ban the presentation of any communication or grant the Executive Committee the discretion to suppress any speech based upon its content. Plaintiffs were not prevented from expressing their message in any one of several different ways; they were simply denied a place on the agenda for the December meeting. The testimony presented to the jury showed that the Board did not forbid the plaintiffs from speaking at the December meeting. Further, the testimony showed that the Executive Committee made recommendations as to agenda items, but if the Board wanted to hear something, they were able to put it on the agenda for discussion or for action either before or during the meeting. Douglas Moody, Director of Schools, testified that any number of people have spoken at board meetings even though they did not get permission to do so prior to the meeting.

Moody further testified that the football situation was not the type of matter that the Board would ordinarily handle. He stated that the Board did not hire or fire coaches and that the Board did not have any authority regarding who would play on a football team or who would be dismissed therefrom. Those issues were within the province of the school athletic director, principal, and ultimately, the director of schools, not the Board.

Regarding the December 2005 Board meeting, Moody testified that he believed the presentation from Kelley would be harassing to the employees of the school system, based on comments made by Kelly at the November meeting. He also believed it would be repetitive of the statements made previously and that the presentation should not be authorized for a second time. For these reasons, Moody and Sharpe determined that Kelley would not be placed on the agenda to speak at the December meeting. Further, although plaintiff parents attended the December meeting, none of them stood up and asked to present comments or otherwise speak to the Board at the end of the meeting. In fact, the jury heard testimony that the plaintiff parents specifically did not intend to speak at the December board meeting.

The jury also heard testimony establishing that plaintiffs spoke before the Board as a unit in November as well as with the individual board members and school officials outside of the board meeting:

! Plaintiff Giles spoke to Kisbeth [Jefferson County High School Athletic Director] the day of the dismissals in October 2005.

! Plaintiff Giles met with Schneitman [Jefferson County High School Principal] the day of the dismissals in October 2005. ! Plaintiff Giles had a lengthy telephone conversation with Moody on Monday, December 5, 2005. ! Plaintiff Giles had a lengthy lunch meeting with Sharpe and delivered a packet of materials on December 2, 2005. ! Plaintiff Giles had a lunch meeting with Powell [Jefferson County Board of Education member] and delivered a packet of materials. ! Plaintiff Giles met with Potts [Jefferson County Board of Education member] and explained his position. ! Plaintiff Giles met with Schneitman again one more time before the lawsuit was filed. ! Plaintiff Giles communicated his views in writing to the board by preparing and presenting to Sharpe and Powell a packet of material regarding his complaints about the football situation, seeking termination of employment for those persons involved, prior to the December 2005 meeting.

Plaintiffs' argument that the Board's failure to place Kelley on the agenda for the December meeting constitutes a "prior restraint" on their free speech rights is without merit. As shown at trial, plaintiffs were afforded many opportunities to speak to the Board members and plaintiffs took advantage of those opportunities. Moreover, plaintiffs did not stand up and request to speak to the Board at the December meeting. Consequently, they cannot now say that the Board's failure to place them on the agenda for the December meeting constituted a prior restraint on their First Amendment rights.

Plaintiffs' reliance on the Supreme Court's decision in Southeastern Promotions is misplaced. The Southeastern Promotions case related to a Chattanooga municipal board's denial of a permit allowing a theatrical promotions company to use a municipal theater for the public production of the musical Hair. The board determined that the musical was not suitable for public consumption and denied the permit months before the production was going to be performed.

The instant case does not relate to a performance in a public theater, this was a request to speak at a school board meeting about a topic that was not part of the agenda and for which the school board had no authority or responsibility. The Executive Committee of the Board, in denying plaintiffs' request to be placed on the agenda, balanced the interests of the plaintiffs with that of the Board and its agenda, and the time already spent by various board members and school officials in discussing the football situation with the plaintiffs prior to the December meeting. The jury declined to find that plaintiffs' First Amendment rights were violated, and the court concurs, as a ...


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