N.Y. Community Education Council Speech Restrictions Likely Violate First Amendment
An excerpt from yesterday’s long opinion by Judge Diane Gujarati in Alexander v. Sutton (E.D.N.Y.); read the whole thing for more:
New York Education Law Section 2590-c sets forth that each community district shall be governed by a community district education council (“CEC”)…. Plaintiffs declare that they understand that for CEC 14’s December 18, 2023 public meeting, CEC 14 adopted “Community Guidelines.” … [Among other things, the Guidelines] provide a list of “Absolute no’s,” as follows:
- This is not a space where we will tolerate antagonistic behavior or any of the following: homophobia, transphobia, misogyny, ableism, racism, or any other forms of oppressive beliefs or behaviors. Anyone who violates this guideline will be removed.
- There will be no name-calling of any community members in this space. If you violate this, you will be removed.
- If you continually disrespect the community, you will be given 2 warnings before being removed.
Plaintiffs further declare that they understand that CEC 14 rewrote its rules as “Community Commitments” in connection with the January 2024 public meeting. The Community Commitments, also referred to as the “Community Agreements,” provide [in part]:
- … We reserve the right to remove participants causing discord, spreading misinformation and/or affiliated with hate groups. The DOE may not utilize this practice or standard, but we do.
The court held that many of these restrictions are unconstitutionally overbroad, vague, or viewpoint-based, and held (among other things) that the removal of one plaintiff from CEC likewise violated the First Amendment:
Although the Second Circuit does not appear to have addressed the constitutionality of Regulation D-210, courts outside of the Second Circuit—referencing Tam and/or Iancu—have held speech restrictions similar to those set forth in Regulation D-210 to violate the First Amendment. See, e.g., Ison v. Madison Loc. Sch. Dist. Bd. of Educ. (6th Cir. 2021) (concluding that school board’s restrictions on “abusive,” “personally directed,” and “antagonistic” speech, facially and as applied, constituted impermissible viewpoint discrimination because “they prohibit speech purely because it disparages or offends”); Mama Bears of Forsyth Cnty. v. McCall (N.D. Ga. 2022) (concluding that school board’s “respectfulness” requirement, which court interpreted to be prohibition against “offensive, rude, insulting, or abusive” speech, was viewpoint-based and thus facially unconstitutional and that “because the Plaintiffs’ facial challenge is successful, the Court need not address their as-applied challenge”); see also, e.g., Marshall v. Amuso (E.D. Pa. 2021) (concluding that defendant had not met burden to show that school district’s prohibitions against speech deemed, inter alia, “personally-directed” and “abusive” did not constitute viewpoint discrimination as applied to plaintiffs, and concluding that defendant had not met burden to show that prohibitions against speech deemed, inter alia, “personally directed,” “abusive,” “offensive,” “otherwise inappropriate,” “personal attack,” “inappropriate,” and “intolerant” were not facially vague or overbroad); but see Moms for Liberty—Brevard Cnty. v. Brevard Pub. Schs. (M.D. Fla.), aff’d (11th Cir. Nov. 21, 2022)….
Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portions of Regulation D-210—namely, the prohibitions against “frequent verbal abuse and unnecessary aggressive speech that serves to intimidate and causes others to have concern for their personal safety”; “derogatory or offensive comments about any DOE st
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