TBJ MARCH 2023
Texas Public Comment Law
The strengthening of the public’s right to criticize school boards.
Written by Miles T. Bradshaw
Introduction
Controversy in public schools is nothing new, but school board
presidents and school district police officers are experiencing
increasing numbers of situations as the court of public opinion boils
over at school board meetings.1 While it is no surprise that
people who attend school board meetings could get emotional when
discussing their children (as students), their jobs (as employees), or
their taxes (as property owners), criticism at school board meetings is
on the rise. This increase is attributable, at least in part, to House
Bill 2840, commonly referred to as the “public comment” law.2
In 2019, the statute was enacted as an addition to the Texas Open
Meetings Act. It was considered the codification of what most school
boards were already providing to the public. While most school board
meetings had “public comment” or “open forum” periods at each regular
meeting, those periods were not required by law and school boards had a
great deal of discretion in setting up the rules of decorum. HB 2840
requires a public comment period with some conditions, and members of
the public are now entitled to speak about agenda items at meetings of
certain types of governmental bodies. Under the new law, “a governmental
body may not prohibit public criticism of the governmental body,
including criticism of any act, omission, policy, procedure, program, or
service, except criticism otherwise prohibited by law.”3 In
essence, the public has more access to public officials and their
business, which some say is a good thing.4 Others believe
that more access is not a good thing and has increased instances in
which the public criticizes school board trustees and limited how school
boards can run their meetings.5
The History of Public Speakers at School Board
Meetings
Until recently, public comment at school board meetings was not
required by law.6 In fact, I recall a time 30 years ago, as
counsel for a school district, when I attended my first school board
meeting. The board had what it called “open forum,” where citizens could
speak on school matters for a few minutes each at public meetings. A key
attribute of open forum at that time was that it was included at the
option of the school board and subject to strict rules of decorum
established by the school board. No law required open forum, and if
speakers became unruly in the discretion of the presiding officer, they
would often be shut down. In most cases, open forum speakers attended to
express gratitude toward teachers and others, not to talk politics or
debate the social issues of the day.
Fast forward to just about any school board meeting in the 2020s and
one is likely to witness citizens showing up in costume, carrying props
and signs, and flinging personal criticisms at individual board members
and superintendents. Common topics might include the masking of
children, critical race theory, or which books belong in school
libraries—all debated while donning clothing with messages of
self-promotion or politics. Some citizens will even take their show on
the road and attend several different school districts’ board meetings
even though they have no tangible stake in that school district (e.g.,
not a district parent, employee, vendor, or resident). Board meetings
that were once filled with accolades to students, teachers, and parents
are now filled with arguments that stir up legal hotbeds in our
schools.
Texas Public Comment Law
Prior to HB 2840, a member of the public in Texas had no statutory
right to participate in a school board meeting beyond notice and
the right to observe via open meeting laws. The law is now codified as
part of the Texas Open Meetings Act and protects the right of a “member
of the public” to air their concerns at public governmental board
meetings as long as those concerns are “regarding an item on the agenda
for an open meeting.” The law allows the school board to adopt
“reasonable rules,” including a time limit on speakers. However, the
school board “may not prohibit public criticism of the governmental
body.”7
Prior to the public comment law, in response to citizens pushing the
envelope, some school districts simply eliminated public comment from
board meetings and directed disgruntled citizens to the district’s
grievance process—a more formal and slower process that could take
months to ever reach the school board level and a public audience. It’s
fair to assume that HB 2840 was in direct response to the elimination of
open forum by some school boards. As a result, today “public comment” is
a routine part of every school board meeting whether boards and school
administrators like it or not.
Key Points of Public Comment
Key points of the public comment law are:
-
Each member of the public must be allowed to address a posted agenda item either “before or during the body’s consideration of the item”
-
The board may set “reasonable rules,” including a sign-up deadline for speakers
-
The rules may limit the total time a citizen may address the body on a given item
-
The rules may include the discretion to lower the allotted time per speaker as long as it was “reasonable”
-
The time limit must be doubled (at least) for a speaker using a translator
-
The board may not prohibit public criticism of the governmental body (unless otherwise prohibited by law)
-
A board may always remove a person who “disrupts” a board meeting8
The result of the passage of HB 2840 is that the public has more
opportunities to speak at a school board meeting and school boards have
fewer options to curtail public comments. Boards have received some
guidance from the attorney general when he recently opined that “a rule
capping the total amount of time a speaker has to address all agenda
items is permissible if the rule is reasonable,” [and] its
reasonableness will depend on “many factors including the number of
agenda items and their complexity.”9 In the question posed,
there was one speaker who wanted three minutes on each of the 17 agenda
items (totaling 51 minutes). The governing body wanted to limit that
speaker to a total amount of time that would have been less than three
minutes per item (e.g., one minute per item). The attorney general ruled
that the governing body could set a “reasonable” cap on the “total
time,” but stated that the amount that was reasonable depended on
several factors such as “the number of agenda items and their
complexity.”
With the passage of the public comment law, most school districts have
adjusted by providing two separate periods of public input—one for the
mandatory “public comment” period (regarding agenda items only), and a
second period similar to the old optional “open forum” period
(practically any topic). Usually, the public comment period occurs at
the beginning of the meeting and the open forum period happens at the
end of the meeting. In addition, the rules set by boards often allow the
chair to change the order of items for consideration, such as when
several speakers appear for an item otherwise listed near the end of the
agenda. Already lawsuits are being filed claiming that boards and board
presidents are not applying the rules evenly and thereby are engaging in
viewpoint discrimination.
Conclusion
Before the creation of the “public comment” law, school boards held
the upper hand in controlling public speakers. If matters became too
political or personal, the board could simply eliminate public comment
from the agenda. While speakers still had certain free speech and equal
protection rights if allowed to speak, they had no statutory
right to speak in the first place. Additionally, presiding officers had
little risk in shutting down unruly speakers who violated the rules of
decorum—after all, those were the rules, and the board made the rules.
Times have changed with the passage of HB 2840, which has led to an
increase in public participation at local school board meetings.
Presiding officers of public meetings must tread lightly when trying to
control unruly speakers, or else risk legal action from the public under
the Open Meetings Act or other laws. Since the public comment law
specifically prohibits the school board from prohibiting public
criticism of the board, it could be difficult to comfortably enforce
rules of decorum for fear of chilling a speaker’s right to be critical.
While the statute allows school boards to adopt “reasonable rules,” the
scope of those rules has yet to be tested in the courts. Times have
certainly changed with the passage of HB 2840. TBJ
MILES T. BRADSHAW
has practiced in the areas of school and municipal law for almost 30
years. He continues to represent school districts and others in Houston,
Nacogdoches, and all across the state.
