A Yamhill County court has struck down the Newberg school board's 2021 ban on political signs, declaring it a violation of the state constitution's guarantees of free speech.
Circuit Court Judge Cynthia Easterday granted a summary judgment in the case of special ed teacher Chelsea Shotts vs. the district, board chairman Dave Brown, vice-chairman Brian Shannon and directors Trevor DeHart and Renee Powell.
"Shotts asked the court to declare that the board's policy was unconstitutional and the court agreed, at least with respect to the free speech guarantee in Article I, Section 8," said Thomas Christ, a Portland attorney who filed an amicus (friend of the court) brief in the case. "That means the board can't enforce the policy against Shotts or, for that matter, anyone else. They can't discipline her or them for putting up a poster in violation of the policy."
Shotts, a special education teacher in a Newberg elementary school, filed the lawsuit with the aid of the American Civil Liberties Union and a Portland law firm in late-2021, challenging the board's policy restricting "political, quasi-political or controversial" displays, including Black Lives Matter and LGBTQ+ flags.
As Shotts was awarded a summary judgment, the case will not go to trial and the district must rescind the ban immediately.
"In Oregon, the government is presumed to follow the law as declared by a court," Christ said. "The district can appeal, of course, but that will take years and unless and until a higher court reverses the judge's ruling the district must follow it."
The next step is that the lawyers on either side of the case — defendant's attorney Karen O'Casey and plaintiffs attorney Meagan Hines — will present a proposed order to Easterday for her signature and final judgment. If the district chose to appeal, it would follow the actions by Easterday.
"Some lawsuits present difficult legal questions. This one doesn't," Christ said. "The only difficult question is why the board — or, more precisely, a majority of it — would adopt a policy so obviously unconstitutional. Either they didn't care about that, or they got really lousy advice from their newly-hired legal counsel."
Easterday heard online oral arguments on Thursday in the case. O'Casey argued that the lawsuit fell under the tenets of the Robertson analysis, which under Oregon law concerns "laws that focus on the content of speech or writing and are written in terms directed to the substance of any opinion or any subject of communication."
"From the district and the defendants' perspective this is a Category 2 (Robertson) case because it does not proscribe expression, it proscribes the means of expression," O'Casey said. "Put very, very simply, it is a policy that simply says there is a limit on the visual expression of personal viewpoints. The policy makes it very clear that it does not (prohibit) discussions of any political topic whatsoever. All it says is you cannot, in the course and scope of your time as a public school teacher teaching students, post banners or flags concerning a political or controversial topic." A D V E R T I S I N G | Continue reading below
Hines countered that the Shotts case was simple and solely based on the text of the board policy, which the court must look at first before considering other tenets of the Robertson analysis.
"If the text is written in terms directed to the substance of any opinion or any subject of communication, then it is spatially unconstitutional …," she said. "Here the text prohibits Ms. Shotts and other district educators from displaying political, quasi-political or controversial signs and that text, standing along, is a content-based restriction because it is written in terms directed to the political, quasi-political or controversial substance of the proscribed displays.
"By definition restricting speech based on what it says restricts speech based on content. It requires whoever is enforcing the policy to look at the message to determine whether the policy has in fact been violated."
In her finding, Easterday agreed with Hines' assessment:
"Is the policy content neutral? I just can't get past there. I think it is spatially invalid based on the (statutes). I don't think it is content neutral. You actually have to be able to look at it to see whether or not it fits in the category that is barred or proscribed."
Easterday did, however, grant summary judgment on the defendants' behalf on the second contention of the Shotts lawsuit, that alleged that the board policy also violated another section of the constitution. A D V E R T I S I N G | Continue reading below
The school district acknowledged the court decision in a Friday post on social media, adding that its attorney "will be updating us in regard to the impact of this ruling" and speculated that it would release a statement at a later date.
Shott's lawsuit against the district and four conservative board members came about after retired attorney Mike Gunn filed a complaint in September 2021 with former Dundee Elementary School Principal Reed Langdon and Brown after spotting a sign in the window of Shotts' classroom that displayed a rainbow-patterned heart and the words "Be Known," a slogan used in George Fox University ad campaigns.
The sign was erected prior to the board adopting its new policy a month prior. Under the board policy, Gunn's complaint was to first be addressed to Shotts herself, then by Langdon, then forwarded to the school superintendent and the board if the complainant was unsatisfied with the principal's decision.
Brown replied to Gunn's complaint in an email: "The decision to remove all flags and banners in our schools is to remove all political signs and banners. The United States flag and the Oregon state flag are the only flags to be used in our schools. Removing the Pride flag and banners in no way means we are not committed to any and all students who identify as LBGQT+ in any way."
Brown further commented at an October 2021 board meeting that enforcing the policy was proving difficult. A D V E R T I S I N G | Continue reading below
"Some of our staff members have shown very clearly where they stand on this issue," he said. "The defiance is through the roof and it's … troubling to a lot of people in our community."
Later that month Langdon emailed Gunn that he would not order the sign to be removed, arguing that it is not political, but "one that honors students and tells them they are welcome at Dundee Elementary."
Langdon's determination prompted Gunn to forward his complaint to former Superintendent Joe Morelock, who ruled that Shott's banner "is not a political, quasi-political or controversial sign and should not be removed," causing Gunn's complaint to be forwarded to school board for a determination.
The board addressed Gunn's complaint at a November 2021 meeting but tabled it indefinitely after struggling with the language in its own policy.
"This is like the grayest of gray areas for me, because is any rainbow pattern automatically a Pride flag?" Shannon, the director who authored the policy and headed the drive to eliminate political signs from schools, said. "I don't think it is. My daughter wears rainbow pajamas all the time. So, this is a tough one, I'm not going to lie."
He added, however, that he believed the sign appeared to intentionally skirt the tenets of the policy. A D V E R T I S I N G | Continue reading below
"So, here's the thing, I think that (the sign) is a work-around to get around the policy and I don't like that," he said. "At the same time, I'm afraid that by interpreting the policy too rigidly … we would be endangering the policy itself in court."
DeHart countered that it was apparent Shotts' display was politically motivated.
"There (are) many types of different ducks in the world and they've got different coloring, different shapes, but in the end they're all ducks. If we take a Pride flag or a BLM flag or a MAGA flag and put a heart on it, does it change the essence of what it is?"
It was at that meeting that the board chose to not renew Morelock's contract after board members and some in the local citizenry had complained the superintendent wasn't enforcing the ban on political signs instituted by the board.
Morelock told an OPB reporter soon after his termination that some people probably felt "frustrated" that the policy wasn't being enforced quickly enough. He had made it clear to the board in early September 2021 that he would not implement the policy as the district's legal counsel said it appeared illegal and would subject the district to additional legal action.
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