then I'll wait for a court of law to tell me that." (Id.)
In addition to Leventhal and O'Neill, other members of the District community have expressed concerns regarding their ability to address the Board on matters of public concern.
The Board addressed the propriety and legality of the Bylaw at a March 20, 1997 open Board meeting, reiterating that the regulation barred criticism of District employees in open sessions and explaining that the District had no intention of changing the bylaw. The Plaintiffs have declined invitations to air their complaints about the Superintendent in closed sessions.
Since the March meetings, the Plaintiffs contend that the Bylaw continues to inhibit their ability to discuss public issues at open Board meetings. For example, concerns have recently arisen as to whether several top school officials -- including Superintendent Gyves -- have failed to comply with state bidding laws in connection with the renovation of Vista High School's softball fields. Although the controversy has received some media attention, see, e.g., Philip K. Ireland, VUSD board to discipline employees, North County Times, June 7, 1997, at A1, Leventhal refrained from discussing it in a June 7, 1997 Board meeting lest she violate the Bylaw and risk being silenced or ejected from the meeting. (Leventhal 3 Decl., P 2.)
I. Eleventh Amendment immunity
Defendants argue that because school districts are state agencies for purposes of the Eleventh Amendment, see Belanger v. Madera Unified School Dist., 963 F.2d 248, 251 (9th Cir. 1992), the District and the individual Defendants are immune from suit.
As to the District itself, the Court agrees that the Eleventh Amendment bars the Plaintiffs' claims. See, e.g., Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 972 (9th Cir. 1994) (holding college school district immune from suit in federal court under Eleventh Amendment). This holding has little practical effect, however, because Plaintiffs' claims against the Board members in their official capacity remain in the case. Since Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), it has been well established that plaintiffs may sue state officers in their official capacity for prospective injunctive and declaratory relief. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 134 L. Ed. 2d 252, 116 S. Ct. 1114, 1132 (1996) ("Since our decision in Ex parte Young. . ., we have often found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief . . . ." (citation omitted)); Papasan v. Allain, 478 U.S. 265, 278, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986) ("Relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury."); Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 423 (9th Cir. 1996) (holding that Eleventh Amendment does not bar federal suit against state official for prospective injunctive relief); Cerrato, 26 F.3d at 973 ("It is well established that the Eleventh Amendment does not bar a federal court from granting prospective injunctive relief against an officer of the state who acts outside the bounds of his authority."). Accordingly, the Board members are subject to suit under 42 U.S.C. § 1983 for prospective injunctive and declaratory relief. See, e.g., Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir. 1989) ("Although the Supreme Court held recently [in Will v. Michigan Dep't of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989)] that state or state officials are not considered 'persons' under § 1983, this holding does not apply when a state official in his or her official capacity is sued for prospective relief.").
II. Applicable law
As a general rule, courts should "avoid adjudication of federal constitutional claims when alternative state grounds are available." Vernon v. City of Los Angeles, 27 F.3d 1385, 1391-92 (9th Cir. 1994). This concept applies even where, as here, the alternate ground is based in state constitutional law. See Carreras v. City of Anaheim, 768 F.2d 1039, 1042-43 (9th Cir. 1985).
In the instant case, however, the avoidance doctrine conflicts with an even stronger constitutional rule. In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), the Supreme Court held that the Eleventh Amendment bars federal courts from granting injunctive relief against state officials for violations of state law. See Ashker v. California Dep't of Corrections, 112 F.3d 392, 394 (9th Cir. 1997). The Court thus lacks jurisdiction to hear Plaintiffs' pendent state law claims for declaratory and injunctive relief. Although the Defendants did not raise this argument, the Court has an independent duty to examine its own jurisdiction. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990). Accordingly, the Court need not and cannot invoke the avoidance doctrine to consider Plaintiffs' state law claims.
III. Ban on criticism of employees in open meetings: Bylaw No. 9002 §§ B and C
Plaintiffs' primary claims challenge the Bylaw's restrictions on raising "complaints" or "charges" against District employees at open Board meetings.
Bylaw, §§ B & C. As explained below, the Court finds the criticism provisions to be violative of core First Amendment values.
Because it concerns the government's ability to limit private expression in a public context, this case is governed by the public forum doctrine. Although the doctrine's roots can be traced back to dicta in the Supreme Court's decision in Hague v. CIO, 307 U.S. 496, 515, 83 L. Ed. 1423, 59 S. Ct. 954 (1939), the modern categorical approach began with Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). In Perry, the Court identified three distinct types of fora: first, "traditional" public fora -- "places which by long tradition or government flat have been devoted to assembly and debate;" second, "limited" public fora -- "public property which the State has opened for use by the public as a place for expressive activity;" and third, "nonpublic" fora -- property not dedicated in any significant way to free or open communication. 460 U.S. at 45-46.
Under this categorical system, the state's ability to regulate speech depends on the nature of the forum. The government's power to restrict expression in traditional public fora, the Perry Court explained, is extremely limited: "reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest" Id. at 46. The Court imposed similar restraints on speech in limited public fora: "Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum." Id. In nonpublic fora, the government may restrict expression only if the regulation is reasonable and viewpoint-neutral. Id.
The first step in the public forum analysis requires the Court to determine the nature of the forum at issue. Here, the Court finds that the open Board meetings are limited public fora, "i.e., fora open to the public in general, but limited to comments related to the school board's 'subject matter.'" Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996). In City of Madison, Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 50 L. Ed. 2d 376, 97 S. Ct. 421 (1976), where the Supreme Court invalidated a restriction on nonunion employee speech at open school board meetings, the Court noted that "the State had opened a forum for direct citizen involvement." Id. at 175. Because the case pre-dated Perry's categorical public forum approach, the Court in Madison did not explicitly refer to the school board meeting as a "limited public forum." Nonetheless, in establishing the three public forum categories, the Perry Court cited the school board in Madison as a quintessential example of a limited public forum, Perry, 460 U.S. at 45, 46 n. 7. Since Perry, courts have regularly read Madison to have declared open school board meetings to be limited public fora. See, e.g., Cornelius v. NAACP Legal Defense & Educ. Fund. Inc., 473 U.S. 788, 803, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985) ("In Madison. . ., the Court held that a forum for citizen involvement was created by a state statute providing for open school board meetings."); Baca, 936 F. Supp. at 728, 729 (citing Madison and holding that school board meetings are limited public fora); Clark v. Burleigh, 4 Cal. 4th 474, 489, 841 P.2d 975 (1992) (noting that Madison "presented a designated public forum unlimited as to speakers but not as to topic: any member of the public could speak, but only on school board business").
Although the Ninth Circuit has expressed uncertainty about Madison's application to city board meetings, Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270 (9th Cir. 1995) (stating that city council and city board meetings "fit more neatly into the nonpublic forum niche"), those meetings are distinguishable from the District's Board meetings for several reasons. First and most simply, since Madison the Supreme Court has never wavered from its characterization of school boards as limited public fora. Second, California statutory law mandates the open nature of school board meetings not only in the Brown Act, Cal. Govt Code §§ 54953 and 54954.3 (requiring meetings of certain public bodies, including school boards, to be open to the public, and declaring that the public must be allowed to speak "on any item of interest to the public . . . that is within the subject matter jurisdiction of the legislative body"), but also in the Education Code, Cal. Educ. Code § 35145.5 ("Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the governing board on any item of interest to the public . . . that is within the subject matter jurisdiction of the governing board.").
As noted above, content-based restrictions in a limited public forum (beyond those defining the forum's boundaries) are permissible only if they are narrowly drawn to advance a compelling state interest. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 120 L. Ed. 2d 541, 112 S. Ct. 2701 (1992). It seems clear that the Bylaw's prohibition on criticism of District employees is a content-based regulation. See Baca, 936 F. Supp. at 729 ("It is difficult to imagine a more content-based prohibition on speech than this policy . . . ."). It is equally clear that the District's concerns and interests in proscribing public commentary cannot outweigh the public's fundamental right to engage in robust public discourse on school issues.
Debate over public issues, including the qualifications and performance of public officials (such as a school superintendent), lies at the heart of the First Amendment. See, e.g., Schenck v. Pro-Choice Network, 137 L. Ed. 2d 1, 117 S. Ct. 855, 858 (1997) (noting that "commenting on matters of public concern" is "classic form of speech that lie[s] at the heart of the First Amendment); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 115 S. Ct. 1511, 1518, 131 L. Ed. 2d 426 (1995) (remarking that political speech "occupies the core of the protection afforded by the First Amendment"); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978) (suggesting that discussion of public issues lies "at the heart of the First Amendment's protection"); Buckley v. Valeo, 424 U.S. 1, 14, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) ("The First Amendment affords the broadest protection to . . . political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" (second alteration in original) (quoting Roth v. United States, 354 U.S. 476, 484, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957))). Central to these principles is the ability to question and challenge the fitness of the administrative leader of a school district, especially in a forum created specifically to foster discussion about a community's school system. As the Supreme Court explained in New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964):
The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for vigorous advocacy no less than abstract discussion.
Id. at 269 (internal quotations and citations omitted).
Defendants contend that these concerns are outweighed by the District's interest in protecting the privacy and property rights of its employees. They rely primarily on section 54957 of the Brown Act, which provides:
Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency . . . from holding closed sessions . . . to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.