Last year, Carol Daigle picked up a mic at a Regional School Unit 10 board meeting in Rumford and criticized teachers for including LGBTQ lessons as part of their “radical homosexual agendas” to “get to the kids so that they can increase their numbers.”

Daigle, who lives in the town of Mexico, was allowed to continue under the board’s public commenting rules, but was then twice interrupted by board members who objected to her assertions about trans students and her vulgar language.

Another parent, Heather MacDonald of Rumford, then came forward and said her son’s individualized education plan was completed months later than required. She was frustrated, saying that teachers don’t have time to get the education plan reviewed before it is due, but “have time to invade the innocent minds of children and ask them about their sexuality, which is none of your business.”

Matthew Martin of Farmington then stepped forward to complain about the district’s connection with Great Schools Partnership, which he believed to be part of a “hopeless mire of equity and inclusion,” accusing board members of adopting the program to “add to your pocketbooks.”

Board directors then discussed the possibility of tightening rules for public comments, debating whether that meant consulting a lawyer for policy advice or coming up with firmer rules themselves.

“We’re just letting yelling happen and it’s just not conducive” for productive meetings, Director Bonnie Child said at the time.

This district is not alone in grappling with increasingly loud, nasty, false and accusing comments made by members of the public during board meetings, pushing boards across the state to adopt stricter and more narrow parameters for the public to comment.

Limiting public comments comes as a statewide school management association is advancing a policy that recommends districts restrict speech at school board meetings, specifically aimed to quell any speech, complaints or praise, involving specific staff or students. 

Just last week, members of the board overseeing the Hallowell-based RSU 2 discussed updating and revising their public participation policy for the first time since 2009, specifically to limit the amount of time the public could comment. On Thursday the board unanimously voted to send the updated policy to a second reading, though one board member, Chris Myers Asch, raised concerns.

“It does send a message, like, ‘You people, stay over here, and if you want, we are going to make you know you can’t step out of these lines,'” Myers Asch said. 

First Amendment advocates say the move to restrict speech conflicts with the public’s constitutional right to free speech and clashes with recent court decisions protecting speech at public meetings, including an instructive Massachusetts Supreme Judicial Court decision early this year declaring “civility restraints on the content of speech at a public comment session in a public meeting are forbidden.”

In Maine, the consequence is that some districts are expanding speech restrictions beyond offensive speech and are now also restricting praise of staff and accolades about specific students. Criticism and praise about programs and policies are allowed, but nothing — complimentary or critical — about specific people. 

In Barron v. Kolenda, the Massachusetts court clawed back in time to the words of cousins Samuel and John Adams and their support of people to assemble, a provision the court reminded plaintiffs “arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.”

While the public has an absolute right to peaceable assembly, the court ruled that “‘peaceable and orderly’ is not the same as ‘respectful and courteous,'” and that people have a right to be discourteous, rude and disrespectful in their personal speech.

In Maine last year, a federal judge ruled that the Hampden-based RSU 22 board violated Maine First Project advocate Shawn McBreairty’s constitutional right to attend school functions, including board meetings. McBreairty was banned from school grounds after he played an audio recording at an April school board meeting of a phone call that contained sexually explicit language, in violation of the board’s public comment policy prohibiting abusive or vulgar language.

Following the federal court’s ruling, the district settled McBreairty’s lawsuit claiming the district violated his First Amendment rights, and paid him $40,000. A second lawsuit is still pending.

THE ACTIONS OF A FEW

The Kennebec Journal and Sun Journal sent surveys to more than 70 superintendents and school board chairs from dozens of school districts. Respondents said that even though there are pockets of sometimes intense conflicts over discourteous speech, for the most part, public comment periods have not gotten so unwieldy that they’ve had to remove people from meetings or involve law enforcement.  

In June, based on the conflicts in RSU 22 and several other districts, the Maine School Management Association updated its sample public participation policy for school districts to adopt this fall. Amid a slew of routine edits and updates is a mandate that board chairs shut down conversations involving personnel, “including complaints, or positive or complimentary comments.” 

While districts are not required to adopt the association’s policies verbatim — they can modify them as they see fit — the association is seen as a standard-setter that defines best practices for the 285 public school districts in Maine.

According to Steve Bailey, executive director of the Maine School Management Association, the policy is partly a response to conservative activist McBreairty’s efforts to “voraciously (damage) the reputation of individuals” in Bangor-area school districts. 

In addition to playing the offensive recording, McBreairty claimed during public comment periods earlier this year that certain RSU 22 teachers (whom he mentioned by name) displayed “an LGBTQ cult war flag on the classroom wall” and “‘taught sex’ after school to students,” according to the still-pending lawsuit he filed against the district.

The Hampden-based district ordered police to escort McBreairty out, then swiftly blocked all public conversations about employees during public comment periods.

In another case that is still pending, the nearby Hermon School Department sued McBreairty for allegedly calling a teacher a “sexual predator” and “head of the hyper-sexualization movement.” And, in 2021, he pleaded guilty to improperly influencing a public official after threatening the Cumberland-based district’s board chair.

That charge was dismissed in July 2022 after a motion by the state to terminate his deferred disposition failed. McBreairty was permitted to withdraw his guilty plea and prosecutors dismissed the charge.

Districts were not required to build in time for community members to speak at school board meetings until the Legislature compelled it through a law passed in 2019.

“The law says members of the public can comment on ‘school and education matters,’ but it’s broad, and we needed a little more definition of what that means,” Bailey said. “That’s where we felt the need to craft the guidance for the public on what they could and couldn’t say (about personnel).”

“Nothing in this subsection restricts the school board from establishing reasonable standards for the public comment period, including time limits and conduct standards,” the law states.

When teachers are challenged or “defamed” publicly, Bailey said, it drives them out and worsens staffing shortages. Complaints about specific individuals and incidents should be addressed to a teacher or principal, not the board, he said, adding that many districts outline the appropriate steps to take in “chain of command” policies.

“One thing we want to make sure of is (teachers) have the support and protection offered in policy in this public forum,” Bailey said. 

NEW POLICY QUESTIONS 

The Maine School Management Association plans to encourage districts to adopt the updated public commenting policy in October. But many superintendents and board chairs said they do not feel the policy is needed. 

Most who responded to the newspapers’ survey reported that attendance at board meetings is generally “sporadic” unless there is a hot topic on the agenda, and board chairs say they are aware of what can or cannot be discussed.

“We have members of the public speak positively about school staff, but I cannot think of a time when the opposite has happened,” said Megan Parks, chair of the Lewiston School Committee. The board last updated its public comment policy in June 2022 as part of a standard review schedule.

The new policy could limit the ability to advocate for employees who run programs facing budget cuts.

When Hallowell-based RSU 2 considered cutting its Japanese program, around 30 members of the public attended the board meeting to plea on behalf of the employee and program during public comment. In August, another employee used the public comment period to advocate for their job that was also cut from the budget. 

Bailey said the instances from RSU 2 would have to be shut down under the new, updated policy that the district has not adopted yet. Other controversial issues that don’t involve staff such as mascots, library books and COVID-19 policies would be allowed.

Greg Buccina, chair of the Rumford-based RSU 10 school board, said that during public comment, people are expected to “follow common rules of etiquette — no gossip, no defamatory comments or abusive or vulgar language.” 

If a person has a comment related to an employee, Kelley Hooper, board chair for the Winthrop Public Schools, said she asks the speaker to contact the “appropriate administrator outside of the meeting.”  

But others have felt compelled to bring in outside help to protect staff and meeting attendees.

Jay Charette, superintendent of Readfield-based RSU 38, said his district had a police officer at the meetings for approximately four months during the pandemic due to “an individual that was not interacting with the board members in a socially acceptable (way) for the setting.”

RSU 38 again enlisted law enforcement for several months last fall after someone became “aggressive and confrontational” with board members and administrators “to the point where the only way to get the person to leave was to call the police,” Charette said. He did not describe what the individuals had complained about.

UMPIRES OF OFFENSIVE LANGUAGE 

When a government body opens up a forum to the public, they’re allowed to place some restrictions on speech. Those restrictions typically come in the form of time limits, preventing a speaker from exceeding the allotted time to the point where it begins to disrupt the meeting and that government body’s ability to conduct its business, according to Justin Silverman, executive director of the New England First Amendment Coalition. 

Any restrictions on public speech should be “reasonable and viewpoint neutral,” he said.

“So there are restrictions that can be placed, that are First Amendment-friendly, that allow this government body to conduct its business, but still provide an opportunity for citizens to speak,” said Silverman, who is also an adjunct professor at the University of Maine School of Law.

Many school districts have limited the amount of time a person gets to speak to either two or three minutes, according to the newspapers’ analysis of more than 40 districts’ policies.

Where First Amendment conflicts begin to emerge are “when these restrictions go beyond what’s reasonable and start limiting people’s right to speak based on the fact that the government body might find that speech disagreeable in some way or offensive or objectionable,” he said.

Having a government body define etiquette or language that it believes is polite and respectful or nonvulgar, is problematic, according to Silverman.

“It really matters what the definition of these words are. Where it’s vague or unclear, that, in itself, is a First Amendment concern because it could chill the speech of those who want to stay clear of whatever kinds of restrictions were put in place, despite not knowing where those lines are,” he said.

Board members shouldn’t act as umpires of what is and is not “offensive” language, Silverman said.

“Under the First Amendment, that’s not a role government should play,” he said.

The fundamental point of the First Amendment is to allow people to criticize the government and people who work for it “because what they’re doing affects you, and you’re paying their salary,” said Brett R. Nolan, a senior attorney with the Institute for Free Speech, a nonprofit advocacy group based in Washington, D.C.

“The thing I think that you’re seeing with schools is that these are government services that directly affect people’s kids, and obviously that brings a lot of emotion to it, but it brings a lot of emotion to it because it’s really important,” Nolan said. “These are the government institutions that are interacting with people’s kids every day for long periods of time.

“If they’re government officials, the decisions they make have to be subject to criticism.”

If someone is slandered by a public speaker, that victim could be made whole by bringing a civil action in the judicial system, Silverman said, “so there’s recourse.”

And the First Circuit Court of Appeals has taken up a debate about whether or not school boards can prevent people from mentioning the names of people who work for the school district.

“Whatever the First Circuit decides here — that’s going to be the law in not just Maine but other states as well,” said Nolan.

‘CIVILITY CANNOT BE REQUIRED’ 

Last fall and through the early part of 2023 in School Administrative District 17, which includes students from eight mostly rural communities in the Oxford Hills area, a proposed policy on student gender identity was the subject of heated debate for months, splitting relationships among board members and creating tension between parents and staff members.

A lot of that tension bubbled up at board meetings where, during public comment periods, some parents angrily accused specific teachers of usurping parental rights and others accused specific staff members of providing the board with misinformation to force passage of the policy.

During months of consecutive meetings it became difficult to keep discussion civil. Multiple directors expressed dismay that many people became too intimidated to speak up and that students who attended these meetings to support the proposal were sometimes marginalized by policy opponents.

At the height of the fight over whether to move the policy forward, the rancor spilled out of board meetings and prompted a plan by a group of Paris residents to target and purge school board members they felt were promoting a nonconservative agenda; one director resigned her position and another was recalled at a special election over her support of the identity policy. Two other directors resigned in protest.

The board chair vacated her seat and did not run when her term expired. The proposed policy was indefinitely postponed early this year.

Governments across the country have been receiving more attention, and litigation, around free speech in recent years because more people have been participating in public meetings and testing the limits of long-standing policies, said Nolan, of the Institute for Free Speech. This is particularly true since the COVID-19 pandemic prompted heated debates about masking and vaccines, and elections drove interest around social issues like gender policies.

The U.S. Supreme Court also issued rulings related to trademark law in 2017 that grappled with what it meant to discriminate against viewpoints, Nolan said.

“The big thing that the Supreme Court said is that if you are trying to restrict people’s speech because it is offensive or because it is disparaging, that’s viewpoint discrimination. And that’s not allowed under the First Amendment,” he said. “And so, you have a lot of school board policies that have existed for a decade, two decades, that do things like prohibit you from disparaging people or things like that. These two events, I think happened (around) the same time, and it puts a lot of in it (perspective). So that’s I think why you have this sort of moment in history.”

Public boards across New England have been considering so-called “civility ordinances” as a way to maintain order, said Brett G. Johnson, who studied the trend as a legal fellow at the New England First Amendment Coalition this summer.

In March, in the Massachusetts case, the court “held that towns were free to regulate public comment sessions in ways that were neutral toward the viewpoints of members of the public,” Johnson wrote in a recent newsletter. “They can establish rules limiting the subject matter of public comment to items on the council’s agenda, limiting the time for public comment and only recognizing one speaker at a time. Towns can also prohibit speech that falls outside of constitutional protection, such as making true threats or inciting imminent violence.”

“Although civility can and should be encouraged in political discourse, it cannot be required,” the justices ruled. “In this country, we have never concluded that there is a compelling need to mandate that political discourse with those with whom we strongly disagree be courteous and respectful.”

Free speech is a nonpartisan issue, Nolan said.

“I’m sure that a lot of elected officials want to have their meetings and they don’t want to face hostile voters or citizens who are really upset about decisions that they’ve made,” he said. “But that’s the guarantee of the First Amendment, is that they have to.”

Sun Journal Staff Writer Steve Collins contributed to this report. 

Editor’s note: This story was updated on Oct. 11, 2023 to note the October 2021 misdemeanor conviction of Shawn McBreairty on a charge of improperly influencing a public official was dismissed in July 2022 after a motion by the state to terminate his deferred disposition failed. McBreairty was permitted to withdraw his guilty plea and prosecutors dismissed the charge. 

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