Cole v. Buchanan County School Bd.

In Cole v. Buchanan County School Bd., 504 F. Supp. 2d 81 (W.D. Va. 2007), a federal district court in Virginia held a public school board accountable for retaliating against a reporter who had criticized the school.

Traditionally public schools have won case after case in court, benefiting from a presumption that they are acting for the good of the community and children. Nearly ever lawsuit brought by parents against public schools has resulted in a crushing defeat for the parents.

But the Buchanan County School Board pushed its luck too far. A reporter for a small-town newspaper wrote a series of articles critical of several school board members. Rather than recognizing the First Amendment right of free speech, however, the targets of the criticism passed a surprise resolution at a school board meeting stating "that if the [reporter] entered school property, he would be prosecuted for trespass."

A few days later the school board passed a similar, more formal resolution, that began by claiming that the reporter on "multiple occasions hiding around trees and/or bushes" and that this caused concern by teachers and parents "especially when children are present while school is in session." Then the resolution, which passed, ordered that the Superintendent:

shall give written notice to Mr. Cole, or his counsel on his behalf, informing him that he shall not enter any school property during operational hours while school is in session and students are present, except upon express written invitation or to attend a public board meeting or to exercise his right to vote. Any violation of this notice may result in prosecution for trespass under Va. Code. §§ 18.2-119 and -128.

Perhaps the school board was imitating how a Massachusetts public school did arrest a parent who visited the school to object the pro-homosexual propaganda being taught to his young child. That school was never held accountable for its mistreatment of a parent, and the Virginia school probably thought it could treat a reporter the same way, just because of a bad remark made against the school.

The reporter sued for infringement of his constitutional rights, under Section 1983 of Title 42 of the United States Code, for infringing on his right to free speech, due process and equal protection of the law. The reporter added a claim for defamation. In response, the board insisted it enjoyed "legislative immunity" for liability for its actions.

District Judge James Jones was not impressed by the school board this time. Barely containing his disapproval of its actions, he held against the school board on every one of its major arguments. On the free speech claim, Judge Jones held against the school board, noting that:

"The First Amendment right of free speech includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000)). To sufficiently plead a First Amendment retaliation claim, a plaintiff must allege that: (1) he engaged in activity protected by the First Amendment; (2) the defendants are government officials who took some action that negatively impacted or chilled the exercise of his First Amendment rights; and (3) there was a causal relationship between the protected activity and the defendants' conduct. Suarez Corp. Indus., 202 F.3d at 686.

Judge Jones also held against the school board on its claim of legislative immunity (he decided that the resolution was not legislative but was administrative in nature because it focused on only one person), due process (the reporter was not given a chance by the board to clear his name) and equal protection of the law (because no other reporters were banned).