Can the school board restrict free speech?

Kaye Rust of Valdese has something to say about Superintendent David Burleson and the Burke County school board's decision to end his contract.
She tried to sign up to speak at the upcoming board meeting, but was told the school board won't allow remarks about Burleson or any other topic that's not on the agenda.
Rust was outraged.
"This is the United States of America!" she said. "They cannot tell us what we can or cannot say when it's a public comment."
A University of North Carolina School of Government expert on public meetings, A. Fleming Bell II, believes Rust may be correct.
And, after hearing Bell's opinion, school board attorney Jon Jones said he will advise Board Chair Tracy Norman to modify the "Rules regarding public comments" before the board convenes at 5 p.m. today in Central Office, 700 E. Parker Road.
The school board almost always allows time for public comments during its regular meetings (but not special called ones). People can sign up until the meeting begins, but they're encouraged to sign up in advance.
Rust called last week and asked Sue Lowdermilk in the superintendent's office to put her on the sign-up list.
"I knew I had to give her my topic and I told her, 'Well, it's about Mr. Burleson.' And she said, 'About his contract and all?' And I said, 'That's fine; just put that down.'"
Lowdermilk called back the next day.
Rust said, "She told me that Miss Norman had come by and had told her to let people know, who are signing up to speak, that the school board is not going to allow any comments to be made concerning Mr. Burleson and his contract during the public-comments period of the school board meeting."
Rust remains on the list.
"I called the school this morning and changed my topic to 'decisions of the board,'" she said.
And Rust said she still intends to speak her mind.
Bell, an attorney and UNC professor of public law and government, believes Rust may be within her rights, including the U.S. Constitution's First Amendment right to freedom of speech.
"In my opinion," Bell said, "any subject that is within the scope of what school boards work on or do anything about is an eligible subject for the comment period."
In addition to restricting comments to what's on the board's agenda, the proposed rules also say no one will be allowed to "engage in person (sic) attacks against the board of any individual."
But Bell said board members are not classified as employees under state law, so he believes people can talk about board members, both individually and collectively, in their public comments.
"They (the public) can talk about board members," he stated simply.
Discussing employees is a different matter, Bell said, and a school board should consider alternatives to allowing comments about individuals' performance.
"When you get into the matter of individual personnel discussions or decisions about employees ... there are some issues, because we do have statutes that make it a crime to disclose things that are in a personnel file and the like," Bell said.
Jones still believes the school board can limit public comments to what's on the agenda. Otherwise, comments on all kinds of subjects might take up hours the board needs to do its work.
People have other ways to bring items to the board's attention, Jones said. People can send letters or e-mail to the board. They can ask to be put on the agenda to make presentations.
They also can ask a board member to add an item on the agenda; for example, reconsideration of the superintendent's contract. Then it would be a topic for public comments.
Under Robert's Rules of Order, the agenda can be amended until the board votes to approve it.
Jones, amplifying Bell's remarks, defended the board's "general prohibition" on comments, either pro or con, about personnel matters. The danger is that some commenter might delve into issues that the board, by law, must keep confidential.
If people have concerns about individual employees' performance, Jones said the school district has policies and procedures for them to take those concerns to the school administration and, if need be, to the school board.
After hearing Bell's opinion concerning comments about board members themselves, Jones agreed his proposed rule may be too broad. He said he may recommend eliminating it altogether.
Jones believes personal attacks on the school board or rehashing its past decisions aren't constructive.
However, he said, if someone commenting about a topic on the board's agenda makes a remark directed at a specific board member, "I absolutely agree; you can't restrict that."
"I would tend to agree with Mr. Bell," he said, "that you just sort of have to leave the door open for public attacks."
For example, Jones said, "If you're in the course of speaking about the school dress code policy and you say you think the board's a bunch of idiots, nobody can do anything about that."
But no one can stand up and simply blast board members personally. Jones said a prohibition against personal attacks is supported by a recent 4th Circuit Court decision.
Jones, interviewed Friday afternoon, said he intends to discuss the rules with Norman and make suggestions for modifying them.
If or when The News Herald receives an advance copy, the rules will be posted at www.morganton.com.