Must District 86 Allow Slurs And Obscenities During Meetings?

DARIEN, IL — The Hinsdale High School District 86 board got an education in the First Amendment last week — mandated as part of a lawsuit settlement.

The lawsuit was prompted by a former board president's decision to bar some residents from speaking during the public input portion of a meeting.

On Thursday, Maryam Judar, a lawyer and executive director of the Elmhurst-based Citizen Advocacy Center, told the board that it can set a common limit for each speaker and ban disruptive behavior at meetings.

But she said public comment rules must be content neutral to meet constitutional muster.

That prompted inquiries from board President Kevin Camden, who is also a lawyer. In asking his first question, he said he would use Hinsdale South High's principal, Arwen Pokorny Lyp, as an example because of his respect and affection for her.

"If a member of the community steps up and says, 'I'm an avowed white supremacist, and I think Arwen does a terrible job because she's a Jew,' do we have to allow that to continue?" he asked.

Judar called such a comment "distasteful," but she said a member of the public has the right to speak for the set amount of time under board rules, which is three minutes.

"You can say this has nothing to do with the district," she said. "If for some reason, that person would bring forth the First Amendment, they may be able to justify how that is related. They may be able to describe why those statements had to be made in order to make their political statement, so you run the risk of a First Amendment lawsuit."

Camden tried another approach.

"A community member comes in and uses very offensive language to describe their child's sexuality and says, 'You don't start my kid because you know he's a f-----," a slur against gays, Camden said. "Is that acceptable?"

Judar responded it would be unacceptable and that obscenities are not protected speech under the First Amendment.

"The word f----- in and of itself does not reach the level of obscenity as it is defined in the law," Judar said. "I think if there was a lawsuit brought forth because you told someone that they cannot use the term f----- during their public comment, I think the court could say you're trampling on their free speech rights because you're not allowing them to use the word they want to use."

Camden asked about the use of the N-word during public input. But then he pivoted to note that it didn't help the board to suggest that it should let all speech come in and then say it could be handled with litigation afterward.

Judar said that if a person spoke during public input and, for instance, put down women, "that's that person's problem."

"You cannot police their thoughts. That's the way they want to deliver their comments," she said. "That gives you information about that person. That gives the community information about that person. Does that contribute to the public debate? Maybe not in a positive way. But now everyone knows where that person stands. It has contributed to the understanding of the community."

Camden said his concern was if public commenters repeatedly came in to bully and harass an employee during public comment.

Judar said such people are allowed to speak as long as they commit no disorderly conduct and stick to the set time. She said the board could encourage people to keep their comments civil, but could not mandate it.

In an email to Judar, Patch asked whether the N-word could be forbidden during public comment.

Judar said it was hard to say. She noted the 1971 Supreme Court ruling that found a court violated the free speech rights of a man wearing a "F--- the draft" T-shirt in a courtroom. It was considered speech that was not disruptive to the court and that he should not have been arrested for disturbing the peace.

"I don't believe the n-word has been part of any litigation where political speech was suppressed by the government," Judar said in an email. "These situations can be highly context specific, which is part of the reason that government has to afford latitude to speakers lest government chill speech, which is a passive aggressive form of prior restraint."

Last year, the school board barred three residents from speaking about their contention that a top District 86 official took different positions on a science curriculum proposal.

The speakers sued in federal court and reached a settlement with the district. Under the agreement, the district was required to pay the speakers' $21,000 in legal costs, undergo the First Amendment training and let the speakers give the previously prohibited comments. The $21,000 was in addition to the $25,000 that the district had spent for its lawyers.

Public comment has continued to be an issue in the district. In September, Camden announced a policy that he would move public comment from the beginning of meetings to the end. He did this because he was upset over comments about reopening schools. No board member objected.