Schmidt et al v. Falcon School District 49 et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–00883–MDB
DEBRA SCHMIDT, and
KELLY KOHLS,
Plaintiffs,
v.
FALCON SCHOOL DISTRICT 49,
JOHN GRAHAM, individually and in his official capacity as president of the Board of
Education of Falcon School District 49,
ROBERT KONZ, and
DAVID GLENN,
Defendants.
ORDER
This matter is before the Court on Plaintiffs’ Motion for Summary Judgment.
([“Motion”], Doc. No. 28.) Defendants filed a response ([“Response”], Doc. No. 32) and
Plaintiffs have replied ([“Reply”], Doc. No. 35). After reviewing the Motion, briefing and
relevant law the Motion is DENIED.
STATEMENT OF THE CASE
I. 	Undisputed Material Facts
Plaintiffs bring this First Amendment suit under 42 U.S.C. § 1983 in connection with
their expressive activity at a February 22, 2023, School District 49 (“District 49” or the
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“District”) Board of Education (the “Board”) meeting. (See generally Doc. No. 1.) The following
facts are undisputed unless otherwise noted.
On November 10, 2022, the Board conducted a special meeting to consider a proposed
resolution concerning an outspoken member of the Board, Ivy Liu. (Doc. No. 35-2 at ¶ 1; Doc.
No. 28-1 at ¶ 7.) During that meeting, certain attendees held signs calling on Ms. Liu to resign.
(Doc. No. 35-2 at ¶ 3; Doc. No. 28-1 at ¶ 8.) Others in attendance displayed signs that had
“thumbs up” or “thumbs down” symbols displayed. (Doc. No. 35-2 at ¶ 6; Doc. No. 28-1 at ¶14.)
Apparently, the chaotic nature of the November 10, 2022, special meeting prompted the
Borad to “reevaluat[e] standards of appropriate decorum at Board meetings.” (Doc. No. 32 at 14
(citing Doc. No. 32-21 at 33:15–37:24).) This re-evaluation led to what the Court will refer to as
District 49’s “Sign Policy.” (Doc. No. 1 at ¶¶ 49–57.) The Sign Policy prohibits District 49
meeting attendees from holding signs with specific written language on them—such as text
calling for a Board member to resign. (Doc. No. 35-2 at ¶ 10.) The Sign Policy allows for other
expressive conduct, including thumbs up/thumbs down signs, jazz hands, and standing.2 (Id. at
1 This document is the deposition of District 49 Superintendent and 30(b)(6) deponent, Peter
Hilts. In their Reply, Plaintiffs contend Defendants “failed to properly prepare Mr. Hilts to
provide testimony as a corporate designee” and “Mr. Hilts undertook no effort to prepare to
testify as the corporate designee” and “conducted no investigation and engaged in no effort to
ascertain the knowledge of the School District with respect to the designated topics.” (Doc. No.
35 at n. 2.) But this argument, raised in a single footnote, is too general to hold any weight.
Moreover, the fact that Plaintiffs appear to have raised this issue for the first time in their
summary judgment Reply—filed nearly four months after the 30(b)(6) deposition (compare Doc.
No. 32-2, with Doc. No. 35)—rather than in the Motion itself or, most appropriately, through the
Court’s discovery dispute procedures, leads the Court to the conclusion that the argument has
been waived.
2 A statement read at the beginning of District 49 meetings apparently includes an instruction
that signs with written messages are not allowed. (Doc. No. 32 at 14 (citing 32-2 at 37:17–24).)
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¶¶ 11–16; see Doc. No. 35-2 at ¶¶ 9, 11, 13, 14, 16; Doc. No. 28-3 at 11:9–13, 14:25–15:1,
78:16–18; 82:15–19; 86:8–10.) Defendants say they began enforcing this policy during the
November 10, 2022, regular meeting which immediately followed the same-day special meeting
regarding Ms. Liu. (Id. at 15 (citing Doc. No. 32-1 at 22:25–23:7; Doc. No. 32-7).)
The Board conducted another meeting on February 22, 2023. (Doc. No. 35-2 at ¶ 8; Doc.
No. 28-1 at ¶ 17.) For at least some portion of the meeting, Plaintiffs, sitting in the front row,
held 8½ x 11” letter-sized signs at chest level.3 (Doc. No. 35-2 at ¶¶ 19, 20, 21, 23.) These signs
called for the resignation of Defendant Graham, as well as fellow Board members, Lori
Thompson and Rick Van Wieren. (Doc. No. 1 at ¶¶ 33–34.) Nearly 2 hours and 45 minutes into
the February 22, 2023, meeting, a disagreement arose between Ms. Liu and Defendant Graham.
(Doc. No. 35-2 at ¶ 26; Doc. No. 28-3, Ex. 3 at 2:48:41–2:50:07.) Nearly 2 hours and 50 minutes
into the meeting, Defendant Graham halted the meeting and demanded that Plaintiffs not display
their signs. (Doc. No. 35-2 at ¶ 27; Doc. No. 28-1 at ¶ 23; Doc. No. 28-2 at ¶ 10; see Doc. No.
35-2 at ¶ 28; Doc. No. 28-3, Ex. 3 at 2:50:48–2:51:36.) Approximately a minute later, Defendant
Graham again paused the meeting and declared the Board was going into recess to address
Plaintiffs’ signs. (Doc. No. 35-2 at ¶ 29; Doc. No. 28-1 at ¶ 27; Doc. No. 28-2 at ¶ 13.)
3 The parties dispute how long the signs were held and how visible the signs were to the Board
members. Plaintiffs say the signs were “readily visible” to the Board and were held
“[t]hroughout the course of the meeting.” (Doc. No. 35-2 at ¶¶ 19–20, 22.) Defendants say
Defendant Graham only saw the signs “for a matter of minutes” and “did not observe Plaintiffs
holding signs ‘throughout the meeting.’” (Id. at ¶¶ 19–20, 22.)
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Shortly thereafter, Defendant Glenn, a safety and security specialist employed by District
49, told Plaintiffs their signs were disruptive to the meeting and that they needed to leave.4 (Doc.
No. 35-2 at ¶¶ 31–33; Doc. No. 28-5, Ex. 7 at 1:19–24.) Defendant Glenn was assisted by
Defendant Konz, another safety and security specialist employed by District 49. (Doc. No. 35-2
at ¶¶ 31–33; Doc. No. 28–4 at 6:21–25; 22:18–19.) Defendants Glenn and Konz then escorted
Plaintiffs from the meeting and did not allow them to use the restroom before leaving the
building. (Doc. No. 35-2 at ¶ 38; Doc. No. 28-1 at ¶ 28–30; Doc. No. 28-2 at ¶¶ 14–16; Doc. No.
28-4 at 31:22–32:4.)
II. 	Motion for Summary Judgment
In their Motion, Plaintiffs argue that, for the purpose of a First Amendment analysis, the
Board’s meetings are designated public forums, and thus, any content-based regulation of speech
must satisfy strict scrutiny, and any viewpoint-based restriction is prohibited. (Doc. No. 28 at 9–
12.) Plaintiffs argue the Board’s decision to bar them from holding their signs, and then remove
them from the February 22, 2023, meeting failed to satisfy the strict scrutiny test and thus
constituted a First Amendment violation. (Id. at 12–16.) Alternatively, Plaintiffs argue that even
if the Board’s meetings are the least protected type of forum, nonpublic forums, their First
Amendment rights were still violated because the restriction is unreasonable. (Id. at 16–20.)5
4 Defendant Glenn testified that he did not personally observe any disruption in the proceedings
or have concern about the safety of any meeting participant. (Doc. No. 35-2 at ¶¶ 34–35; Doc.
No. 28-5 at 20:25–21:8, 23:17–20, 25:8–26:20; 32:6–8.) Similarly, Defendant Konz said he was
not “in a position to say” what had disrupted the proceedings. (Doc. No. 28-4 at 30:5–12.)
5 Plaintiffs further contend the Board’s actions violated their Equal Protection and Due Process
rights under the Fourteenth Amendment. (Id. at 20–23.) Plaintiffs’ Complaint references the
Fourteenth Amendment, but does not assert any specific Fourteenth Amendment claims. (See
Doc. No. 1.) In response, Defendants argue these “claims” are essentially subsumed by the
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Plaintiffs seek damages as well as declaratory and injunctive relief against the Board. (Id. at 23–
25.)
In response, Defendants argue school board meetings “are now near universally
recognized amongst federal courts as limited public forums,” subject to reasonable and
viewpoint-neutral speech restrictions. (Doc. No. 32 at 7–12.) Defendants then argue the
prohibition on Plaintiffs’ signs was viewpoint-neutral and reasonable and that Plaintiffs present a
distorted picture of the factual record. (Id. at 13–18.)
LEGAL STANDARD
The Court may grant summary judgment if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party has the burden of showing an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets
this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead, must designate “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c).
“A ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.’” Tolan v.
Court’s First Amendment analysis and are not appropriate for summary adjudication due to
factual disputes on the First Amendment claim. (Doc. No. 32 at 17–19.) Plaintiffs’ reply does not
address Defendants’ arguments or otherwise reference these “claims.” (See Doc. No. 35.)
Accordingly, the Court presumes Plaintiffs have abandoned these arguments.
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Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)). Whether there is a genuine dispute as to a material fact depends upon “whether the
evidence presents a sufficient disagreement to require submission to a jury,” or conversely,
whether the evidence “is so one-sided that one party must prevail as a matter of law.” Carey v.
U.S. Postal Serv., 812 F.2d 621, 623 (quoting Anderson, 477 U.S. at 251-52). A disputed fact is
“material” if “under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson, 477 U.S. at
248). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return
a verdict for the nonmoving party. Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th
Cir. 2011) (citing Anderson, 477 U.S. at 248). “Where the record taken as a whole could not lead
a rational trier of fact to find for the [nonmovant], there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In evaluating a motion for summary judgment, a court may consider admissible evidence
only. Johnson v. Weld Cnty., 594 F.3d 1202, 1209–10 (10th Cir. 2010). The factual record and
reasonable inferences therefrom are viewed in the light most favorable to the party opposing
summary judgment. Concrete Works, 36 F.3d at 1517. However, this standard does not require
the Court to make unreasonable inferences in favor of the nonmoving party. Carney v. City &
Cnty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008). The nonmovant must establish, at a
minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir. 1994).
ANALYSIS
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The First Amendment prohibits any law “abridging the freedom of speech.” U.S. Const.
amend. I. The First Amendment applies to state and local governments through the Fourteenth
Amendment’s Due Process Clause. Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 35 (10th
Cir. 2013); Hawkins v. City & Cnty. of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999).
A plaintiff may bring two types of First Amendment challenges to government policy:
facial and as-applied. Colo. Right to Life Comm. v. Coffman, 498 F.3d 1137, 1146 (10th Cir.
2007). “A facial challenge considers the restriction’s application to all conceivable parties, while
an as-applied challenge tests the application of that restriction to the facts of a plaintiff’s concrete
case.” Id.; see Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir.
2014) (noting that “the precise boundaries of facial and as-applied challenges are somewhat
elusive—certain challenges can have characteristics of both”).
Here, the exact nature of Plaintiffs’ challenge is not entirely clear. Plaintiffs bring a single
First Amendment claim, arguing that Defendants violated their freedom of speech during the
February 22, 2023, special meeting. But neither the Complaint nor the parties’ briefing
specifically describes the challenge as either a facial challenge or an as-applied challenge. (Doc.
Nos. 28; 32; 35.) On the one hand, the Complaint suggests an as-applied challenge by contending
the Sign Policy “stifled and censored” Plaintiffs’ personal “core political speech.” (Doc. No. 1 at
¶ 52.) Moreover, the primary focus of the Motion is the specific “prohibition against Ms.
SCHMIDT and Ms. KOHLS displaying their ... signs.” (See, e.g., Doc. No. 28 at 11–16.)
Plaintiffs also seek damages, further suggesting an as-applied challenge. (Doc. No. 1 at ¶ 57); see
Hunt v. City of Los Angeles, 638 F.3d 703, 710 (9th Cir. 2011) (“A plaintiff may ... seek damages
by raising an as-applied challenge, asserting ‘that the law is unconstitutional as applied to his
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own speech or expressive conduct.’” (quoting Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1034 (9th Cir. 2006)); Six Star Holdings, LLC v. City of Milwaukee, 821
F.3d 795, 803 (7th Cir. 2016) (“[A] facial challenge usually invites prospective relief, such as an
injunction, whereas an as-applied challenge invites narrower, retrospective relief, such as
damages.”).
On the other hand, certain aspects of the suit point to a facial challenge. For example, the
Complaint asserts the Sign Policy generally “violate[s] the First Amendment rights of those who
attend meetings of the Board ... by prohibiting and forcing the removal of individuals who hold
signs during the course of such meetings and who do so in a manner that is not disruptive or
interfering with the meeting itself or those in attendance.” (Doc. No. 1 at ¶ 56.) Likewise,
Plaintiffs argue in their Motion that the Sign Policy lacks “objective criteria” for its enforcement
and allows certain admittedly disruptive behaviors while arbitrarily barring others. (Doc. No. 28
at 17–20.) Moreover, certain relief sought by Plaintiffs, including a declaration that the “policies,
practices, and customs” of District 49 violated the First Amendment, and a preliminary
injunction against Defendant Graham’s enforcement of the Sign Policy against Plaintiffs and
“and others similarly situated,” suggests a facial challenge. (Doc. No. 1 at ¶ 57); see John Doe
No. 1 v. Reed, 561 U.S. 186, 194 (2010) (noting that if the relief sought “reach[es] beyond the
particular circumstances of these plaintiffs” a facial challenge is presented); Six Star Holdings,
821 F.3d at 803.
Accordingly, the Court will review the claim as both a facial and an as-applied challenge
to the Sign Policy.
I. 	Facial Challenge
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In determining whether the Sign Policy is an appropriate restriction of public expression,
the Court engages in a three-step analysis. First, it must determine whether Plaintiffs’ conduct is
protected speech, second, it must “identify the nature of the forum, because the extent to which
the [defendant] may limit access depends on whether the forum is public or nonpublic,” and
third, it must determine “whether the justifications for exclusion from the relevant forum satisfy
the requisite standard.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797
(1985); see Verlo v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016).
There is no dispute as to the first step and thus the Court moves on to steps two and three.
(See Doc. No. 28 at 8–9; Doc. No. 32 at n.1 (“Defendants agree that Plaintiffs’ speech or
expression on the evening of February 22, 2023, was protected speech under the First
Amendment.”).); see also City of Madison, Joint Sch. Dist. No. 8 v. Wis. Emp. Rels. Comm’n,
429 U.S. 167, 174–75, (1976) (holding that the First Amendment protects the rights of speakers
at school board meetings that were opened for direct citizen involvement and permitted public
participation); see, e.g., Gilmore v. Beveridge, 2022 WL 3139023, at *5 (D. Kan. Aug. 5, 2022)
(“[T]here is no meaningful dispute that Plaintiff’s statements to the school board are protected
speech.”); Miller v. Goggin, 672 F. Supp. 3d 14, 46 (E.D. Pa. 2023) (“Plaintiff's criticism of the
school board ... is undoubtedly protected by the First Amendment.”); see also City of Ladue v.
Gilleo, 512 U.S. 43, 48 (1994) (“[S]igns are a form of expression protected by the Free Speech
Clause.”).
A. Are District 49 Meetings a Designated Public Forum or a Limited Public
Forum?
“The government’s ability to regulate protected speech on government or public property
turns on the character of the space in which it seeks to implement such regulation.” Browne v.
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City of Grand Junction, Colorado, 27 F. Supp. 3d 1161, 1166 (D. Colo. 2014) (citing Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). Traditionally, courts have
recognized “three types of fora: the traditional public forum, the public forum created by
government designation [“designated forums”], and the nonpublic forum.” Cornelius, 473 U.S.
788, at 802 (1985). However, courts have increasingly recognized a fourth type—the limited
public forum. See 16A Am. Jur. 2d Constitutional Law § 542. The government’s ability to
regulate speech in a limited public forum falls closer to the nonpublic forum than the designated
public forum, because limited public forums are specifically “created for certain groups or for
the discussion of certain topics,” Moms for Liberty - Brevard Cnty., FL v. Brevard Pub. Sch., 118
F.4th 1324, 1331 (11th Cir. 2024), whereas designated public forums are “generally available to
a class of speakers.” 16A Am. Jur. 2d Constitutional Law § 541; see Barrett v. Walker Cnty. Sch.
Dist., 872 F.3d 1209, 1224 (11th Cir. 2017) (“[A] designated public forum grants ‘general
access’ to the designated class, while a limited public forum can be set up to grant only ‘selective
access’ to that class.”). Broadly speaking, “the Constitution imposes more severe restrictions on
government regulation of private speech in a traditional public forum or a designated public
forum than in a limited public forum or a non-public forum.” Child Evangelism Fellowship of
MD, Inc. v. Montgomery Cnty. Pub. Sch., 457 F.3d 376, 383 (4th Cir. 2006).
In their Motion, Plaintiffs argue District 49 meetings are designated public forums rather
than limited public forums and therefore, any regulation on speech triggers strict scrutiny. (Doc.
No. 28 at 9–11.) In making their argument, Plaintiffs rely heavily on one line in Hawkins v. City
and County of Denver. 170 F.3d 1281, 1287 (10th Cir. 1999) (holding that Denver law banning
leafleting and picketing in a covered pedestrian walkway in a performing arts complex did not
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violate the First Amendment). There, the court briefly noted that “school board meetings open to
the public by state statute” are an example of a designated forum. Id. (citing City of Madison, Jt.
Sch. Dist. No., 429 U.S. at 174–75). But, as Defendants argue, Plaintiffs’ reliance on Hawkins is
misplaced.
First, Hawkins is factually distinct in meaningful ways. Second, the limited public forum
was not yet a recognized concept when Hawkins was decided. See id. at 1286 (“The Supreme
Court has identified three distinct categories of government property: (1) traditional public fora;
(2) designated public fora; and (3) nonpublic fora.”); see also Doe v. City of Albuquerque, 667
F.3d 1111, 1130 (10th Cir. 2012) ((observing that “the Supreme Court has only recently clarified
the terminology of ‘designated’ and ‘limited’ public fora” (citing Christian Legal Soc’y Chapter
of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661 (2010)); Pleasant Grove
City v. Summum, 555 U.S. 460, (2009))). And third, the Tenth Circuit has expressly described the
forum examples in Hawkins, as dicta. See Doe, 667 F.3d at 1128 (saying the Hawkins
“pronouncement” that public libraries are designated public forums was “dicta”).
Neither the Tenth Circuit nor any court in this District has expressly determined whether
school board meetings are designated public forums or limited public forums.6 But the Tenth
6 Some decisions have come close. For example, in Pollak v. Wilson, Tenth Circuit analyzed a
school board’s meeting policy within the context of the limited public forum. 2022 WL
17958787, at *7–9 (10th Cir. Dec. 27, 2022) (unpublished). But there, the parties agreed the
meetings were limited public forums. Id. Additionally, this Court recently analyzed an as-applied
challenge in the context of a school district board meeting. See Case No. 1:24-cv-02490-MDB,
Doc. No. 47. But on the threshold issue of qualified immunity—and whether it was clearly
established that enforcement of a certain policy constituted viewpoint discrimination—the Court
was not required to resolve the limited or designated public forum issue, because under either
framework, viewpoint discrimination is forbidden. See Shero v. City of Grove, Okl., 510 F.3d
1196, 1202 (10th Cir. 2007) (“Any government restriction on speech in a limited public forum
must ... be viewpoint neutral.”); People for the Ethical Treatment of Animals v. Tabak, 109 F.4th
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Circuit provides a framework for making that determination.7 It instructs that limited public
forums “arise[ ] where the government allows selective access to some speakers or some types of
speech in a nonpublic forum, but does not open the property sufficiently to become a designated
public forum.” Shero v. City of Grove, Okl., 510 F.3d 1196, 1202 (10th Cir. 2007) (quoting
Summum v. City of Ogden, 297 F.3d 995, 1002 n. 4 (10th Cir. 2002)). In other words, a limited
public forum is a forum “reserved for its intended purpose.” Gilmore, 2022 WL 3139023, at *6
(citing Cole v. Goossen, 402 F. Supp. 3d 992, 1015 (D. Kan. 2019)).
Courts consider three “non-exhaustive factors” for determining “whether the government
has created a designated public forum instead of a limited public forum.” Celebrity Attractions,
Inc. v. Oklahoma City Pub. Prop. Auth., 660 F. App’x 600, 605 (10th Cir. 2016) (quoting Doe,
667 F.3d at 1129). First, the forum’s purpose, second, the extent of the forum’s use, and third,
the government’s intent in opening the forum to the public. Celebrity Attractions, Inc. v.
Oklahoma City Pub. Prop. Auth., 660 F. App’x 600, 605 (10th Cir. 2016) (quoting Doe, 667
F.3d at 1129).
In Doe, the court found a city’s public libraries constitute designated public forums. Doe,
667 F.3d at 1128–30. In coming to this conclusion, the Court emphasized that libraries are open
627, 632 (D.C. Cir. 2024) (noting that designated public forums are subject to the same standard
as public forums, and that in public forums “restrictions ... based on viewpoint are prohibited”
(quoting Minn. Voters All. v. Mansky, 585 U.S. 1, 11 (2018)).
7 Additionally, the Tenth Circuit has expressly stated “that a ‘designated public forum’ and a
‘limited public forum’ are distinct categories and subject to different standards in evaluating
governmental restrictions on speech in these fora.” Doe, 667 F.3d at 1128 (citing Martinez, 561
U.S. 661 (2010)). Thus, the Court rejects any suggestion by Plaintiffs that a limited public forum
is not a distinct forum type in First Amendment jurisprudence. See id.
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“to the public to engage in myriad ways to receive information,” allow “general access to the
public, without any need for pre-approval” and are intended to “provide a forum for all of the
City’s residents to engage in the receipt of information.” Id. at 1129–30.
At the outset, the Court acknowledges that—like a city’s public libraries—District 49
meetings are generally open to members of the public and anyone is free to attend without pre-
approval. See Doe, 667 F.3d at 1129–30. Cf. Celebrity Attractions, 660 F. App’x at 605 (finding
the requirement of permits—with specific considerations for granting such permits—suggested a
limited public forum). Additionally, meeting attendees are permitted to engage in broad
expressive activity while observing the proceedings. Thus, the first factor appears to weigh in
favor of a designated public forum.
However, the remaining two factors decidedly weigh in favor of a limited public forum.
Unlike a public library, the purpose of District 49’s meetings is to discuss and conduct the
specific business of District 49. Attendees are not allowed to engage with the meetings in any
matter and on any topic they see fit. Instead, they must limit their comment time and adhere to
relevant topics. (See, e.g., Doc. No. 32 at 12 (noting that public comment during District 49
meetings is limited to two minutes per person and must “deal with topics related to the Board’s
conduct of the schools”).) “That purpose indicates a selective design as to the speakers and types
of speech allowed at the [meeting],” suggesting a limited public forum. Celebrity Attractions,
660 F. App’x at 605. Moreover, the government’s apparent intent in opening the forum, for the
limited purpose of allowing public observation of, and limited participation in, District 49’s
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decision-making, also points to a limited public forum.8 See Celebrity Attractions, Inc., 660 F.
App’x at 605 (finding that being open “solely to the discussion of certain subjects,” is the
hallmark of a limited public forum).
In short, the Court concludes that the District 49 meetings at issue here are limited public
forums. This conclusion is consistent with decisions around the country finding school board
meetings constitute limited public forums. See, e.g., McBreairty v. Sch. Bd. of RSU 22, 616 F.
Supp. 3d 79, 92 (D. Me. 2022) (“[M]ost courts that have considered the issue have found that
[school board meetings] fall in the limited public forum category”); Moms for Liberty., 118 F.4th
at 1331 (“[T]he school board meetings here qualify as limited public forums.”); Barna v. Bd. of
Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017) (describing a
school board meeting as “a limited public forum”); Green v. Nocciero, 676 F.3d 748, 753 (8th
Cir. 2012) (“For First Amendment purposes, the School Board meeting was what has variously
been called a nonpublic or a limited public forum.”).
Plaintiffs appear to pivot in their Reply, arguing Defendants’ focus on “a meeting of a
generic board of education” ignores the specifics of a District 49 meeting. According to
8 Though the Tenth Circuit’s test theoretically involves separate consideration of the forum’s
purpose and of the government’s intent in opening the forum, the natural similarity of these two
inquiries tends to cause them to be satisfied by the same or similar facts. See Doe, 667 F.3d at
1128–30 (saying the purpose of a public library is to allow the “public to engage in myriad ways
to receive information” and that the government intent in opening a library is to “provide a forum
for all of the City’s residents to engage in the receipt of information”); Celebrity Attractions, 660
F. App’x at 605 (saying the purpose of a city music hall was “to serve as a venue for large scale
productions of art forms like ballets, symphonies and Broadway shows” and the government
intent in opening the theater was to “to bring year-round, world class entertainment, by offering
the best of ballet, theatre, Broadway, chorus, and orchestra and to develop a revenue stream
needed to maintain, operate and upgrade the [venue].”).
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Plaintiffs, because attendees of District 49 meetings “could engage in various expressive
activities throughout the course of the entire meetings” rather than solely during the public
comment portion of the meeting, (Doc. No. 35 at 4 (emphasis in original)), the Board has
“expanded the scope” of its meetings beyond “the business of the school district,” and thus the
meetings are designated public forums. (Id. at 5.) But Plaintiffs do not point to—and the Court
has not found—any case suggesting that by allowing attendees to express themselves from their
seats while observing school board meetings, the District constrains its ability to regulate speech.
Indeed, such a rule strikes the Court as illogical. Under that formulation, the District would be
motivated to further restrict speech they may not otherwise care to restrict.
B. Is the Sign Policy Reasonable and Viewpoint Neutral?
In a limited public forum, the government can put reasonable limits on content based on
the nature of the forum, so long as the distinctions are viewpoint neutral. Gilmore, 2022 WL
3139023, at *6 (emphasis in original) (citing Summum v. Callaghan, 130 F.3d 906, 916 (10th
Cir. 1997)); see Shero, 510 F.3d at 1202 (“Any government restriction on speech in a limited
public forum must only be reasonable in light of the purpose served by the forum and be
viewpoint neutral.”). Plaintiffs do not appear to challenge the Sign Policy on the basis of
viewpoint discrimination; thus, the only remaining question is whether the Sign Policy places
reasonable limitations on content. (See generally Doc. No. 28.)
There appears to be no written version of the Sign Policy, and the parties have not
provided a copy of the message read at the beginning of District 49 meetings, which apparently
conveys—among other things—the Sign Policy. However, the parties appear to agree that the
Sign Policy bars District 49 meeting attendees from holding signs that display written messages,
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even though it does not bar other expressive activities, such as standing or using jazz hands, or
holding signs with a thumbs up or down symbol. (Doc. No. 35-2 at ¶¶ 10–16.) Thus, the Court is
tasked with determining whether a “no-written-messages” restriction is reasonable as a matter of
law.
“[T]he reasonableness of a particular regulation is determined by a fact-intensive
balancing test that takes into account such factors as the uses to which the forum typically is put,
the particular risks associated with the speech activity at issue, and the proffered rationale for the
restriction.” New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 20 (1st Cir. 2002)
(citing Int'l Soc’y for Krishna Consciousness, Inc. v. Lee (ISKCON), 505 U.S. 672 (1992)).
However, “[f]or a court to uphold a speech restriction as reasonable, ‘it need not be the most
reasonable or the only reasonable limitation.’” Hawkins, 170 F.3d at 1287 (quoting International
Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683 (1992). Defendants have the
burden of demonstrating reasonableness. See United States v. Playboy Ent. Grp., Inc., 529 U.S.
803, 812 (2000) (“When the Government restricts speech, the Government bears the burden of
proving the constitutionality of its actions.”).
Here, the reasonableness of the restriction turns on certain disputed facts. Most
significantly, Defendants say the no-written-messages restriction is justified because written
messages are more disruptive than other forms of expression. (Doc. No. 32-2 at 30:12–32:5; see
Doc. No. 32 at 17 (“[G]eneral expressions of agreement or disagreement with a speaker have not
been found to be disruptive in the same way as displaying specific written messages directed at
Board members.”). Plaintiffs on the other hand, contend the distinction is illogical and lacks a
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sensible basis.9 In other words, there is a genuine dispute over the reasonableness of the
restrictions. Resolving that dispute will require evidence and witness testimony concerning the
November 2022 special meeting and the particular risks that came to light as a result of that
meeting. This is turn will require credibility determinations and weighing of evidence that is
reserved for a factfinder. See Tolan, 572 U.S. at 656. Accordingly, Plaintiffs’ Motion is denied as
to their facial challenge.
II. 	As-Applied Challenge
Next, the Court turns to whether the Sign Policy has been applied to Plaintiffs in an
unconstitutional manner. Plaintiffs contend the Board enforced the policy against them solely
because of their political viewpoint and that unlike Plaintiffs, the attendees who previously held
signs calling for Ms. Lui’s resignation, were not required to put down their signs.
Defendants argue Plaintiffs’ version of the factual record is distorted and misleading.
(Doc. No. 28 at 13–16.) Specifically, Defendants contend the Sign Policy was created in
response to the special meeting concerning Ms. Liu, and therefore could not have been enforced
against the other sign-holders during the special meeting. Defendants also present evidence that
9 Plaintiffs also argue the Sign Policy was not developed using “any objective factors ... when
coming to the conclusion that the practice would only allow thumbs up or thumbs down sign.”
(Doc. No. 28 at 17, 19.) This argument fails. The Supreme Court’s use of the phrase “objective,
workable standards” in First Amendment cases does not refer to the method in which a
restriction was developed, but rather the manner in which the restriction is applied. See Mansky,
585 U.S. at 21 (saying that election judges implementing a ban on clothing with political
messaging at polling places “must be guided by objective, workable standards”). Moreover, to
the extent Plaintiffs also argue the Sign Policy is not applied using objective, workable standards
(see Doc. No. 28 at 20), the Court rejects that argument as well. The Policy is objective and
workable: signs with written messaging are not allowed. The Policy draws a clear line and allows
its enforcer to make simple, objective decisions.
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the Sign Policy was indeed enforced on those seeking Ms. Liu’s resignation during the regular
meeting immediately following the special meeting. (Doc. No. 32-1 at 22:25–23:7.) Moreover,
Defendants offer evidence that the policy was consistently enforced and that Plaintiffs were not
singled out. (Doc. No. 32 at 16 (citing Doc. No. 32-2 at 31:24–32:5 (“[I]t was our practice that
written signs were disallowed and every time, which is only two instances, every time that a
written sign was put up, the board president consistently said put that down. The difference is in
these two cases in November, they immediately put them down, and in February they denied, or
declined, to put them down.”).) The parties’ genuine dispute over material facts precludes
summary judgment.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment. (Doc. No. 28) is
DENIED. Trial and pre-trial hearing dates will be set by separate order.
Dated this 21 st day of March, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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