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July 1, 1997


The opinion of the court was delivered by: MOSKOWITZ


 This matter comes before the Court on Plaintiffs' motion for permanent injunction and summary judgment, and Defendants' motion for summary judgment. Apart from the amended reasoning outlined below in Part IV, the Court adopts its order of June 18, 1997 and applies that order to Defendant David Hubbard and to the new Defendants -- Jenny Vervynck, Lance Vollmer, Linda Rhoades and Barbara Donovan, sued in their official capacity. Accordingly, for the reasons stated below, the Court grants in part and denies in part Plaintiffs' motion and grants in part and denies in part Defendants' motion.


 The following facts are undisputed. Plaintiffs Margaret C. O'Neill ("O'Neill") -- a resident, volunteer, and parent of a student in the Vista Unified School District (the "District") -- and Nancy Leventhal ("Leventhal") -- a resident and community volunteer of the District and a former teacher -- bring this action against the District and David Hubbard, Jenny Vervynck, Lance Vollmer, Linda Rhoades and Barbara Donovan, in their official capacity as members of the Vista School Board. Plaintiffs challenge School Board Bylaw No. 9002 (the "Bylaw") under the First and Fourteenth Amendments to the United States Constitution, Article I, §§ 2, 3 and 7 of the California Constitution, and the state's Brown Act, Cal. Gov't Code §§ 54954.3 and 54960, seeking declaratory and injunctive relief.

 During the public comment portion of the February 20, 1997 Board meeting, the Plaintiffs attempted to address the qualifications and job performance of the District Superintendent, Dr. Jack Gyves ("Gyves"). Specifically, Leventhal expressed concerns that Gyves had a social relationship with Board member Jenny Vervynck ("Vervynck"), and that the relationship might compromise Vervynck's ability to participate in Gyves's contract negotiations and performance evaluations. (Leventhal 1 Decl., P 5. *fn1" ) Because she had concerns over Gyves's fiscal administration of the District, his supervisory skills, and his prior performance as superintendent of another school district, (id. P 8), Leventhal also questioned aloud whether the Board had adequately investigated Gyves prior to hiring him. (Leventhal 1 Decl., P 8; Leventhal 2 Decl., P 5.) As soon as Leventhal mentioned Gyves's qualifications, Board President Hubbard interrupted her, stated that Leventhal was "moving into a personnel issue," and, pursuant to the Bylaw, informed her that her criticisms could not be made in a public Board meeting. (Leventhal 1 Decl., P 9; Leventhal 2 Decl., P 5.) According to Leventhal, after Hubbard's interruption, she "respectfully -- but not voluntarily -- terminated [her] comments about the hiring of Dr. Gyves, rather than face the indignity of further censorship and disruption of the proceedings . . . ." (Leventhal 2 Decl., P 7.)

 At the February 20 meeting, O'Neill also tried to raise the issue of Gyves's performance at his former position and was similarly rebuffed by Hubbard. (O'Neill 2 Decl., P 3.) O'Neill claims she omitted certain remarks about Gyves *fn2" from her prepared statement, "not voluntarily" but because "Mr. Hubbard threatened to clear the meeting room if I continued to criticize Dr. Gyves." Id. P 6.)

 During the next Board meeting on March 6, 1997, Vervynck responded to Leventhal's comments from the previous meeting. Vervynck characterized Leventhal as a "voice[] of criticism" who "sought to destroy and dismantle" through "innuendo" and the "impugning" of Vervynck's integrity. (Tr. of March 6, 1997 Bd. Mtg., Ex. B to Dow Decl., at 1.) Neither Hubbard nor any other Board member interrupted Vervynck during her statement. Leventhal then spoke, remarking that "it is totally inappropriate to have a community member who is using their free speech rights to speak . . . lectured and have judgments made about them publicly." (Id. at 5.) Hubbard responded to Leventhal, explaining that while criticisms of the Board and the District were permissible, "I'm not going to allow this to turn into a situation where members of the public engage board members in personal attacks. . . . If that's an abridgment of First Amendment rights, 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. *fn3"

 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 ...

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