That federal judges have determined that some of Walker County School District's rules governing public meetings are unconstitutional could prove costly.

The three-justice panel for the U.S. Eleventh Circuit Court of Appeals on Oct. 2, affirmed Judge Harold Murphy's ruling in a lawsuit filed by Jim Barrett against the Walker County Board of Education and Superintendent Damon Raines.

The lawsuit alleges Barrett's First Amendment right to free speech was violated when his attempt to speak in opposition to changes in the system's grading policy — put forth by Raines— was denied.

The superintendent and school board defended their policy but, since the lawsuit is ongoing, have been advised to withhold comment until the matter is closed.

The court notes that during the period of May 2014 and January 2015, Barrett became a "vocal critic" of the new grading policy implemented by the superintendent without the school board having taken any official action.

The appellate court ruling notes Barrett, who in addition to his teaching position was president of the Walker County Association of Educators, had had "several discussions" before he was prepared to publicly express his opposition to the policy during the Feb. 17, 2015, board meeting.

In reply to his request, Barrett was informed it had been received too late for inclusion on the Feb. 17 agenda and that he could instead speak at the March 10, 2015, public planning session.

After consultation with Georgia Association of Educators legal staff, Barrett sued.

Michael McGonigle, legal services director for GAE, said the professional association supported Barrett's claims and in March 2015 filed the lawsuit in the United States District Court for the Northern District of Georgia.

Barrett's attorneys said Judge Murphy had tried to resolve the matter through mediation, something that would have precluded a trial, but the school system rejected that option.

The case moved forward and Judge Harold Murphy, in April 2016, granted an injunction against Raines' and the school district policy.

The defendants filed an unsuccessful appeal and on Oct. 2, 2017, Justices Robin Rosenbaum, Julie Carnes and Ronald Lee Gilman ruled in Barrett's favor. The opinion by the Court of Appeals for the Eleventh Circuit affirmed part of the Circuit Court judge's decision, vacated part of his decision and remanded a portion of the case back to Judge Murphy for further action.

On Oct. 12, Raines issued a statement saying he could not comment on particulars of the case, as the lawsuit is ongoing. He did note the policy in question had been in place for about 30 years and that it had been Barrett's decision to not attend a board meeting and air his concerns about grading policies.

The full content of that statement accompanies this article.

McGonigle said the federal judges agreed the school board policy was overly restrictive and left too much discretion as to when someone could bring an item before the board in the hands of the superintendent.

In the appellate court's decision, Circuit Judge Rosenbaum referenced legendary basketball coach Dean Smith, who was famous for his Four Corners offense, a strategy that is all about controlling the clock and often involved stalling play to keep the ball away from opponents.

"Control the clock and control the game," Rosenbaum wrote. "Winning coaches in many sports have employed this strategy. And plaintiff-appellee Jim Barrett asserts that the lesson wasn't lost on defendant-appellant Walker County School District, either. To speak at a Walker County Board of Education meeting, the District requires a member of the public to first go through a process that can consist of several steps. If the entire process is not completed at least one week before the Board meeting, the citizen may not speak at the meeting. Yet critically, the Board completely controls the timing of a step at the beginning of the process. If the Board drags its fee in completing this step, a member of the public cannot finish the rest of the steps in time to be permitted to speak."

Barrett's legal team — McGonigle, along with attorneys Gerry Weber and Craig Goodmark — agreed the clear problem with the WCBE policy was its strictly setting a time line for action without guaranteeing that timeframe could be met. They noted that "in some districts, no advance notification is required."

Previously, the board members and superintendent have said advance notice is necessary if specific questions or technical matters are to be brought forth.

Such action is not uncommon in municipal or county meetings, but such matters are often considered as "new business" and, if not acted on immediately, are tabled for study and acted on as "old business" at a future meeting.

But the manner of scheduling agenda items — who could speak and on what topics — was seen as censorship by the court.

Weber, a highly regarded attorney concerning matters of civil liberties and civil rights, said the matter could have been avoided if WBE, like so many others, allows anyone to speak — within a standard time limit — by simply placing their name on a signup sheet at meetings.

Since the policy has been ruled illegal, Goodmark said the board can either appeal the appellate court's ruling or change the policy.

The case has been sent back to Judge Murphy for determination on whether Barrett was illegally denied his First Amendment right and, if so, would he be awarded monetary damages.

Barrett's counsel estimated legal fees associated with the original lawsuit could easily exceed $100,000 and the same amount could be billed for the appeal. That means the federal court could order the school system, through its insurer, to pay Barrett's legal costs.

It is important to note that the appellate court's decision was published — not just upheld or rejected — which means it is law throughout the Eleventh Circuit that consists of Alabama, Florida and Georgia.

"This is a significant win for educators and all citizens who are concerned about their public schools in Georgia and throughout the 11th Circuit Court of Appeals," GAE President Sid Chapman said. "This ruling maintains their rights to freely speak before a school board to express their concerns whether or not they are complimentary of the school board. It puts school boards on notice that they cannot muzzle educators and other citizens when it comes to matters concerning their schools and children."

This is the statement issued Oct. 12, 2017, by Walker County Schools and Superintendent Damon Raines:

"The Superintendent’s Office was contacted concerning a ruling by the federal court of appeals in a lawsuit filed against the Walker County School System ("System") by Dr. Jim Barrett, a teacher at Saddle Ridge Middle School. Several items related to this decision as reported by various media sources are incorrect.

"€ The System’s defense is being handled by the insurance carrier and not with System funds.

"€ Dr. Barrett’s right to speak at the February 2015 Walker County School Board meeting was not violated. That meeting was cancelled due to inclement weather and never occurred. The next Board meeting was held on March 10, 2015. Dr. Barrett was placed on the agenda for that meeting to address the Board but, without any notice to the Board or Superintendent, Dr. Barrett did not appear at that meeting.

"€ Prior to Dr. Barrett’s suit, the Board’s public comment policy had been in effect for approximately 30 years. Point in fact, before the injunction was issued, a citizen complied with the Board’s public comment policy without difficulty and addressed the Board in a public meeting on the grading issue Dr. Barrett stated he wanted to speak about.

"€ The only issue decided by the federal court of appeals was whether the law required the Board’s public comment policy to contain a time limit within which the Superintendent is to schedule and conduct a meeting with a person wanting to address the Board. The federal court of appeals did not rule that any other provisions of the Board’s policy were unlawful. In fact, Dr. Barrett abandoned all of his other complaints about any other provision of the Board’s policy.

"This case is still ongoing, and the Board may address the public comment policy once this litigation has concluded. The Board is taking all steps it believes are in the best interest of the School System, the children of Walker County, and the citizens of Walker County regarding this issue."

Mike O'Neal is assistant editor for the Walker County Messenger in LaFayette, Ga. He can be reached at the Messenger office at 706-638-1859 and by email at moneal@npco.com.