Eagle Point Education Ass'n/SOBC/OEA v. Jackson County School District No. 9

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EAGLE POINT EDUCATION Nos. 15-35704
ASSOCIATION/SOBC/OEA; DAVE 15-35972
CARRELL; STACI BOYER,
Plaintiffs-Appellees, D.C. No.
1:12-cv-00846-CL
v.
JACKSON COUNTY SCHOOL OPINION
DISTRICT NO. 9,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted October 10, 2017
Gonzaga University, Spokane, Washington
Filed January 26, 2018
Before: Susan P. Graber, Richard A. Paez,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
2 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
and attorney’s fee award in favor of plaintiffs in their action
brought under 42 U.S.C. § 1983 and state law challenging the
policies of a public school which prohibited, among other
things, picketing on school district property, and prohibited
strikers from coming onto school grounds, even for reasons
unrelated to an anticipated teachers’ strike.
The panel first rejected the school district’s assertion that
the policies enacted by the district during a teacher’s strike
should be viewed as “government speech” by the school
district itself and therefore should not be judged as
restrictions on the free speech rights of teachers or students.
The panel stated that this argument reflected a fundamental
misunderstanding of the government speech doctrine. The
panel held that no reasonable observer would have
misperceived the speech which the district sought to
suppress—speech favoring the teachers’ side in the strike—as
a position taken by the school district itself. The panel held
that the government speech doctrine does not authorize the
government’s suppression of contrary views.
The panel held that because the school district’s policies
were not government speech but were instead restrictions on
private speech, the First Amendment’s Free Speech Clause
was implicated. Determining that the policies were neither
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 3
reasonable nor viewpoint neutral, the panel held that they
failed even the non-public forum test. The policies therefore
violated plaintiffs’ First Amendment rights and their rights
under the Oregon Constitution. The panel further held that
the school district was liable for the action of its security
officer who barred a student from the school parking lot
because she had a sign on her car which supported the
teachers. Because the panel affirmed the district court’s
judgment, it also affirmed the award of attorney’s fees and
costs to plaintiffs, as the prevailing parties.
COUNSEL
Peter R. Mersereau (argued) and Thomas W. McPherson,
Mersereau Shannon LLP, Portland, Oregon, for Defendant-
Appellant.
Jason Walta (argued), National Educational Association,
Washington, D.C.; Margaret S. Olney, Henry J. Kaplan, and
Thomas K. Doyle, Bennett Hartman Morris & Kaplan LLP,
Portland, Oregon; for Plaintiffs-Appellees.
OPINION
CLIFTON, Circuit Judge:
In anticipation of a teachers’ strike, a public school
district adopted policies that prohibited picketing on property
owned or leased by the school district, prohibited strikers
from coming on school grounds, even for reasons unrelated
to the strike, and prohibited signs and banners at any facilities
owned or leased by the school district without advance
4 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
written approval by the district superintendent. The policies
were motivated by the strike, and they were formally
rescinded shortly after the strike ended. The union, one of its
members, and a student filed a civil rights action against the
school district under 42 U.S.C. § 1983, contending that the
district infringed on their First Amendment rights. The
district court granted summary judgment in favor of Plaintiffs
and subsequently awarded them attorney’s fees and costs.
The school district appeals, primarily arguing that the
policies enacted by the district during the teachers’ strike
should be viewed as “government speech” by the school
district itself and should not be judged as restrictions on the
free speech rights of teachers or students. That argument
reflects a fundamental misunderstanding of the government
speech doctrine. No reasonable observer would have
misperceived the speech which the district sought to
suppress—speech favoring the teachers’ side in the strike—as
a position taken by the school district itself. The government
speech doctrine does not authorize the government’s
suppression of contrary views. We affirm.
I. Background
Defendant-Appellant Jackson County School District No.
9 (“the District”) is a public school district located near
Medford, Oregon. Plaintiff-Appellee Eagle Point Education
Association/SOBC/OEA (“the Union”) is a labor organization
representing employees of the District, including both
teachers and staff members. Plaintiff-Appellee Dave Carrell
was at the relevant time acting president of the Union and an
employee of the District. Plaintiff-Appellee Staci Boyer was
then a student in the District’s high school. The strike which
lies behind this action took place in May 2012.
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 5
In anticipation of that strike, the District adopted two
resolutions on May 2, 2012. One of those resolutions,
identified as the Resolution on Picketing, provided that “[n]o
picketing will be allowed on any district property or facilities
owned or leased by the District” and that “[p]icketers are
prohibited from entering school facilities for any reason
whatsoever.” The policy was not limited to property used
specifically for instructional purposes. At about the same
time, the District entered into a three-month lease for a vacant
lot across the street from school district headquarters that had
been used by the Union in the past for organizing. After
renting the lot, the District notified the Union that it could not
use that lot.
The other resolution, the Resolution on Signs and
Banners, provided that “[s]igns and banners will not be
allowed in or upon buildings and other facilities unless
written approval of the Superintendent is obtained in
advance.” By its terms, it was not limited to locations used
for instruction either, but applied to “any and all other
facilities owned or leased by the District.”
At about the same time, the District sent a “Check-Out
Notification Letter” to members of the Union. That letter
informed recipients that they would “not be permitted on
school property during the strike.” Union members were
required to sign a statement in which they agreed not to enter
school property during the strike. The District informed its
staff that “[a] parent who is a striking teacher shall not visit
his/her child on any day in which they are participating in the
picket line.” (The two Resolutions, the Check Out
Notification Letter, and the requirement to sign the statement
will collectively be referred to as “the District policies.”)
6 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
The Union went on strike on May 8, 2012. The District
enforced the policies. Use of the newly rented vacant lot
across the street from the District administrative office was
prohibited. District security personnel directed picketers to
stay off District property, including gravel by the side of a
public roadway adjacent to an elementary school and areas
that were not cordoned off either before or after the strike.
Striking employees were prohibited from entering school
grounds, even for reasons unrelated to picketing. Plaintiff
Carrell testified that he was turned away by a security guard
when he tried to attend a weekend flower sale at the high
school.
Plaintiff Boyer, then a high school senior, drove into the
school parking lot on May 11, 2012, with a sign on the back
windshield of her car that stated “I Support D9 Teachers.” A
District security guard prohibited her from parking in the lot.
An assistant principal at her school explained to her that signs
supporting teachers or “protesting” were forbidden.
After another student posted a picture of her pet on
Facebook with a sign that said “Strike Dog,” the principal of
the high school sent an email to the same assistant principal
identifying that student by name, along with three others,
stating that “students that have posted negativity on
Facebook” should be “inform[ed] . . . that they are not
coming to school on Monday.”
The strike ended, and Union members returned to work
on May 17, 2012, after the Union and the District reached a
tentative agreement. The District rescinded the Resolutions
on June 13, 2012.
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 7
Prior to the strike, the District had policies regulating use
of school grounds. It nonetheless officially encouraged
parental school visits and the use of school facilities for civic
and recreational purposes. School-sponsored events were
permitted on school grounds without a permit, including
charitable fund-raising, confidential pregnancy counseling,
and an annual Mother’s Day weekend plant sale.
Plaintiffs filed suit against the District on May 14, 2012,
alleging that the District policies violated their free speech
rights under the First Amendment and the Oregon
Constitution. The parties later filed cross-motions for
summary judgment. The court granted Plaintiffs’ motion for
summary judgment and denied the District’s motion.
A judgment was entered on August 18, 2015, declaring
that the District violated Plaintiffs’ free speech rights under
the First Amendment of the United States Constitution and
under Article I, section 8 of the Oregon Constitution,
enjoining the District from re-enacting the resolutions and
policies declared unlawful, and awarding Plaintiffs nominal
damages in the amount of $100. The District timely appealed.
Plaintiffs petitioned for an award of attorney’s fees and
costs, and the parties stipulated to the amount of $150,000.
The District reserved the right to challenge on appeal
Plaintiffs’ entitlement to such an award. The court entered a
Stipulated Judgment for Attorney Fees and Costs on
November 29, 2015. The District timely appealed.
This court consolidated the two appeals filed by the
District.
8 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
II. Discussion
We review a district court’s ruling on cross-motions for
summary judgment de novo. Council of Ins. Agents &
Brokers v. Molasky-Arman, 522 F.3d 925, 930 (9th Cir.
2008).
A. Government Speech
The primary argument presented by the District is that its
policies were a form of government speech. If the policies
were government speech, then they would not be subject to
the Free Speech Clause. See Pleasant Grove City v. Summum,
555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts
government regulation of private speech; it does not regulate
government speech.”). On the other hand, if the policies were
instead regulatory policies restricting private speech on
government property, then the Free Speech Clause would
apply and the policies would be subject to a “forum analysis.”
See Walker v. Tex. Div., Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239, 2250 (2015) (“We have previously used
what we have called ‘forum analysis’ to evaluate government
restrictions on purely private speech that occurs on
government property.”).
The District’s argument stretches the government speech
doctrine beyond logical bounds, however. The District was
entitled to make its own position known, and it did, but the
doctrine did not give the District leave to suppress speech by
others.
The starting point in applying the government speech
doctrine is to establish that the action in question was in fact
something that should be treated as a statement by the
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 9
government. Two recent Supreme Court decisions, Summum
and Walker, illustrate the doctrine.
In Summum, the Supreme Court held that the First
Amendment rights of a religious organization were not
violated by a city’s denial of its request to erect a monument
in a city park. 555 U.S. at 481. The 2.5 acre park located in
the historic district of Pleasant Grove, Utah, had
15 permanent displays, at least 11 of which were donated by
private groups or individuals. The displays included a historic
granary, a wishing well, the City’s first fire station, a
September 11 monument, and a Ten Commandments
monument donated by the Fraternal Order of Eagles in 1971.
Summum was a religious organization that requested
permission to erect a “stone monument,” which would
contain “the Seven Aphorisms” of its faith and would be
similar in size and nature to the Ten Commandments
monument. The city denied the request. Id. at 464–65.
The Court rejected the argument that the city’s denial
violated Summum’s First Amendment rights. It noted that
“[t]here may be situations in which it is difficult to tell
whether a government entity is speaking on its own behalf or
is providing a forum for private speech, but this case does not
present such a situation. Permanent monuments displayed on
public property typically represent government speech.” Id.
at 470. That the monument may have been donated by a
private party did not alter the conclusion. “[B]ecause property
owners typically do not permit the construction of such
monuments on their land, persons who observe donated
monuments routinely—and reasonably—interpret them as
conveying some message on the property owner’s behalf. In
this context, there is little chance that observers will fail to
appreciate the identity of the speaker.” Id. at 471.
10 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
In sum, the focus was on whether a reasonable observer
would view the statement made by the monument to be a
statement by the government. The Court concluded that an
observer of Summum’s proposed monument would
reasonably understand it to convey a message on the part of
the city. Under the government speech doctrine, the city was
permitted to decline to make such a statement.
Similarly, in Walker, the Court held that the Texas
Department of Motor Vehicles Board did not violate the free
speech rights of the Sons of Confederate Veterans when it
denied that organization’s application for a specialty license
plate featuring the Confederate battle flag. 135 S. Ct. at 2253.
The state authorized the issuance of a variety of different
specialty plates, for an annual fee. The state legislature
authorized certain plates and the Board itself approved others,
including plates requested by private individuals and
organizations. The Court concluded that specialty license
plates conveyed government speech, so the state could refuse
to issue the requested plate. Id. at 2246. “When government
speaks, it is not barred by the Free Speech Clause from
determining the content of what it says.” Id. at 2245.
The debate in that 5-4 decision was whether a reasonable
observer would perceive the plate’s message as a statement
by the State of Texas. The dissent described the large variety
of plates that were available and asked, rhetorically: “As you
sat there watching these plates speed by, would you really
think that the sentiments reflected in these specialty plates are
the views of the State of Texas and not those of the owners of
the cars?” Id. at 2255 (Alito, J., dissenting). The dissenters
thought the answer to the question was “No.” In contrast, the
majority concluded that the plate’s message amounted to
government speech which the Board was empowered to
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 11
control, noting that license plates “long have communicated
messages from the States,” id. at 2248 (majority opinion),
that plate designs “are often closely identified in the public
mind with the State,” id. (internal quotation marks and
brackets omitted), and that “a person who displays a message
on a Texas license plate likely intends to convey to the public
that the State has endorsed that message,” id. at 2249.
There is no counterpart in this case to the park monument
or specialized license plate at issue in Summum and Walker.
The District argues that “[t]he District’s official position . . .
that it could not accede to the demands made by the Union
. . . . was quintessentially ‘government speech.’” But nobody
contested the District’s ability to express its position. The
issue is whether the District could, through the policies at
issue, limit the ability of Plaintiffs to express their views. The
government speech doctrine would be relevant to those
policies only if observers might reasonably have concluded
that the District itself endorsed the pro-strike positions which
Plaintiffs sought to express. Stated in the words of Summum,
the question is “whether a government entity is speaking on
its own behalf or is providing a forum for private speech.”
555 U.S. at 470.
Here, unlike in Summum and Walker, a reasonable
observer would not think that the pro-strike message of the
strikers or their supporters was a statement made or endorsed
by the District. The District superintendent acknowledged
that the “activities engaged in by strikers. . . were obviously
12 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
not sponsored by the District.” A reasonable observer would
have understood that.1
Indeed, the District has not actually argued that anyone
would have misunderstood Plaintiffs’ pro-strike message as
a statement by the District. The most that the District argues
is that it would have sent
a garbled message to parents and taxpayers by
allowing the striking teachers access to school
property to picket, chant, and display . . . signs
and banners denouncing the District’s official
policy. Reasonable observers would have
doubted the resolve of the School District and
suspected that administrators of particular
schools were allowing the picketers access
[to] school property because they themselves
openly or covertly disagreed with the
District’s collective bargaining position.
None of that supports treating the enforcement of the
District policies here as government speech. The answer to
the concern that observers might doubt the resolve of the
District is found in the First Amendment itself. It protects the
expression of views that disagree with the government. Even
“high school students can appreciate the difference between
1
We note that the District itself did not immediately recognize the
policies in dispute here to be justified as speech by the District itself. In
its first memorandum in connection with the motions for summary
judgment, the District did not contend that its action was covered by the
government speech doctrine. That argument first arose during oral
argument. That delay does not mean that the District waived the argument,
but its own failure to perceive the policies as “government speech” cuts
against any claim that a reasonable observer would view it as such.
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 13
speech a school sponsors and speech the school permits
because legally required to do so.” Rumsfeld v. Forum for
Acad. & Instit. Rights, Inc., 547 U.S. 47, 65 (2006).
The District’s position would authorize any government
to block the expression of views on government property that
did not match the government’s own favored position, out of
fear that the government’s “resolve” might be questioned.
The government speech doctrine has not so swallowed the
First Amendment. In Summum, the Court noted that “[w]hile
government speech is not restricted by the Free Speech
Clause, the government does not have a free hand to regulate
private speech on government property.” Summum, 555 U.S.
at 469. Because the speech restricted by the District policies
would reasonably have been recognized as speech by
Plaintiffs and their allies, not the District’s own speech, it is
subject to the First Amendment.
B. Forum Analysis
Because the District’s policies were not government
speech but were instead restrictions on private speech, the
First Amendment’s Free Speech Clause is implicated. The
District policies applied to actions on property owned or
leased by the District. It argues that it, “no less than a private
owner of property, has power to preserve the property under
its control for the use to which it is lawfully dedicated,”
quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 46 (1983). There is no doubt that the District had
a legitimate interest in keeping its schools open and in
avoiding disruption of its mission to educate students.
That does not end the discussion, however. It has long
been established that teachers and students have First
14 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
Amendment rights. “It can hardly be argued that either
students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
506 (1969). Plaintiffs contend that the District violated their
First Amendment rights.
Ordinarily, in considering speech restrictions on
government property, we start by looking at the place where
the restrictions apply. “[T]he extent to which the Government
can control access depends on the nature of the relevant
forum.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 800 (1985). Government property is generally
divided into three categories: public fora, designated or
limited public fora, and non-public fora. Flint v. Dennison,
488 F.3d 816, 830–31 (9th Cir. 2007).
The district court assumed that the property covered by
the District policies was a non-public forum, where the
government has the greatest authority to restrict speech.
Because it concluded that the District policies violated the
First Amendment even under the non-public forum standard,
it did not need to determine which forum standard applied.
We follow the same approach and also assume that the
locations covered by the District policies were non-public
fora.
Speech in a non-public forum can be restricted, but the
restrictions must be (1) “reasonable” and (2) “not an effort to
suppress expression merely because public officials oppose
the speaker’s view.” Cornelius, 473 U.S. at 800 (quoting
Perry, 460 U.S. at 46); cf. Davenport v. Wash. Educ. Ass’n,
551 U.S. 177, 189 (2007) (explaining that restrictions on
speech in a non-public forum are permissible if they are
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 15
“reasonable in light of the purpose served by the forum” and
“viewpoint neutral”). The District acknowledges as much.
The District policies do not satisfy either requirement,
however.
To support the position that the restriction is reasonable,
there must be evidence that the restriction reasonably fulfills
a legitimate need. Sammartano v. First Judicial Dist. Court,
303 F.3d 959, 966–67 (9th Cir. 2002), abrogated on other
grounds by Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008). “The government need not choose the
least restrictive alternative when regulating speech in a non-
public forum. However, its failure to select simple available
alternatives suggests that the ban it has enacted is not
reasonable.” Id. at 967 (citation and internal quotation marks
omitted); see Tucker v. Cal. Dep’t. of Educ., 97 F.3d 1204,
1216 (9th Cir. 1996).
The district court concluded that the District policies were
not reasonable. Although the District argues that its action
was required to keep the schools operating normally, it does
not directly challenge the district court’s determination that
there was no evidence that the policies were actually needed
to prevent disruption. Notably, the district court concluded
that “school administrators had no indication of potential
violence, disruption, or other potential harm to students or
teachers or members of the public, which might have justified
their actions.” The District did not demonstrate that school
officials actually “anticipated that signs or banners would
cause substantial disruption of or material interference with
school activities.” The District failed to show “how signs and
banners would have a harmful impact on actual operation of
the schools [or] how the blanket ban would alleviate such
harms.” And, the district court concluded, “the restrictions in
16 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
the Picketing Resolution and the Check-Out Notification
Letter have nothing to do with education of students. For
instance, restrictions are not based on a certain time of day
when picketing would disturb classes, or certain areas of
school property that would be out of sight for students or
otherwise less distracting.”
Our review of the record leads us to the same conclusions.
The District did not submit evidence sufficient, even by the
standards applicable to summary judgment, to justify its
sweeping prohibitions. “[U]ndifferentiated fear or
apprehension of disturbance is not enough to overcome the
right to freedom of expression.” Police Dep’t of Chicago v.
Mosley, 408 U.S. 92, 101 (1972) (quoting Tinker, 393 U.S. at
508). The District may have had a genuine concern for
keeping the schools open, but a generalized fear of
“disruption” is not enough. The District needed “reasonable
ground to fear” that some disruption would occur. United
States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 475
(1995) (quoting Whitney v. California, 274 U.S. 357, 376
(1927) (Brandeis, J., concurring)). Evidence of that was
missing.
The district court also concluded that the policies were
not viewpoint neutral. The purpose behind a challenged
restriction is the “threshold consideration” in deciding
whether a policy is appropriately neutral. Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 763 (1994). “Viewpoint
discrimination . . . occurs when the specific motivating
ideology or the opinion or perspective of the speaker is the
rationale for the restriction . . . .” Alpha Delta Chi-Delta
Chapter v. Reed, 648 F.3d 790, 800 (9th Cir. 2011) (internal
quotation marks omitted). “[W]here the government is plainly
motivated by the nature of the message rather than the
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 17
limitations of the forum or a specific risk within that forum,
it is regulating a viewpoint rather than a subject matter.”
Sammartano, 303 F.3d at 971. “[E]ven where a proffered
justification for regulating a non public forum is facially
reasonable, the justification cannot save a regulation ‘that is
in fact based on the desire to suppress a particular point of
view.’” Id. (quoting Cornelius, 473 U.S. at 812).
Even viewing the evidence in the light most favorable to
the District, there was no issue of material fact as to the
motivation behind the policies. They were enacted because of
the impending strike and were rescinded after the strike
ended. The District superintendent acknowledged that “[t]he
purpose of the resolution—the reason we passed resolutions
on these particular dates . . . is that we believed that we were
going to have an employee strike.” More than simply
avoiding disruption from the strike, the District sought
specifically to restrict pro-Union speech. As the District itself
argued to us, it wanted to avoid sending “a garbled message
to parents and taxpayers by allowing the striking teachers
access to school property to picket, chant, and display . . .
signs and banners denouncing the District’s official policy.”
The District policies were directly aimed at stifling
disagreement with the District’s position.
The overbreadth of the District policies further
demonstrates that they were designed to do more than prevent
disruption of classes. If that had been the goal of the policies,
they need not have covered all District property (even the
leased vacant lot across from the District offices, where
instruction did not take place), targeted all signs (even non-
inflammatory ones), prohibited all strikers from entering
campus (even to pick up children), or applied at all times,
including after school hours (even to prevent a striker from
18 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
attending a flower show on the weekend). The desire of the
high school principal to require students who expressed
support for the strike—described as “students that have
posted negativity on Facebook”—to miss a day of school was
a telling demonstration of the desire to suppress dissent even
at the expense of instruction.
Because the District policies were neither reasonable nor
viewpoint neutral, they fail even the non-public forum test.
We need not reach the issue of whether all school property
was a non-public forum for free speech purposes. The District
policies violated the First Amendment rights of Union
members.
C. The Restriction on Student Speech
The District does not defend the action of its security
officer in barring Plaintiff Boyer, at the time a student in the
District high school, from the school parking lot because she
had a sign on the back windshield of her car that stated “I
Support D9 Teachers.” It acknowledges that, as a student,
Boyer had a right to be on school property and also had a
right to express her opinions in a non-disruptive manner. The
District does not contend that her sign was disruptive.
Instead, the District attempts to avoid responsibility for
the violation of her rights by arguing that the restriction
imposed on Boyer was not an application of the District
policies. Specifically, it contends that Boyer was a victim of
the security guard’s own decision, not of the Resolution on
Signs and Banners. That argument is not persuasive.
There is no suggestion that the security officer would
have taken any action but for the adoption and enforcement
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 19
of the policies. The policies might not have clearly spelled
out how far the prohibition on signs extended, but the
application of the Resolution on Signs and Banners by the
security guard was by no means an implausible interpretation.
Though the District argues that the policy by its terms applied
only “in or upon buildings and other facilities” of the District,
not to the parking lot, the District itself broadly extended the
reach of its prohibitions to the vacant lot across from its
offices. It was not illogical for the security officer similarly
to treat the parking lot as a school “facility.” Moreover, at the
time of the incident, the high school’s assistant principal did
not tell Boyer that the guard had made a mistake. He told her
that signs supporting teachers or “protesting” were forbidden.
As a result, the District was properly held liable because
“implementation of its official policies or established customs
inflict[ed] the constitutional injury.” Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 708 (1978). The
District’s liability did not arise “solely because it employ[ed]
a tortfeasor.” Id. at 691. This is not an application of
respondeat superior. See id. Rather, the District is liable
because its Resolution on Signs and Banners caused the harm
inflicted on Boyer.
D. The Oregon Constitution Claims
In addition to finding a violation of the First Amendment,
the district court concluded that the District violated
Plaintiffs’ rights under the Oregon Constitution, which
prohibits state actors from “restraining the free expression of
opinion, or restricting the right to speak, write, or print freely
on any subject whatever.” Or. Const. art. I., § 8. Speech
regulations “that focus on the content of speech or writing,”
with some exceptions that do not apply here, violate the
20 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
Oregon Constitution. State v. Plowman, 838 P.2d 558, 562
(Or. 1992) (citing State v. Robertson, 649 P.2d 569, 579 (Or.
1982)).
At the threshold, the District argues that federal courts
lack subject matter jurisdiction over the Oregon Constitution
claims because the Oregon Employment Relations Board
(“ERB”) has exclusive jurisdiction over those claims. The
ERB has exclusive jurisdiction over unfair labor practice
claims, but it does not have exclusive jurisdiction over all
claims by employees against their employers.
The “ERB has exclusive jurisdiction to determine whether
an unfair labor practice has been committed.” Ahern v. Or.
Pub. Emps. Union, 988 P.2d 364, 368 n.4 (Or. 1999). If
resolving the complaint does not require determining whether
an unfair labor practice has occurred, it does not thereby
create a danger of “inconsistent rulings about what acts may
constitute an unfair labor practice.” Id. at 368 (holding that
the ERB’s exclusive jurisdiction is a way to prevent
inconsistent rulings about which acts constitute unfair labor
practices). Plaintiffs’ allegation that their free speech rights
under the Oregon Constitution were violated does not require
determining whether an unfair labor practice occurred. The
claim before us is not contingent on labor laws. Because the
resolution of Plaintiffs’ claims does not risk an inconsistent
ruling on which acts constitute unfair labor practices, those
claims fall outside the scope of the ERB’s exclusive
jurisdiction and may be pursued in the current action.
Regarding the merits, for reasons already discussed, we
agree with the district court that the District policies focused
on the content of speech. Speech regulation adopted because
of government disagreement with the speech’s message is
EAGLE POINT EDUC. ASS’N V. JACKSON CTY. 21
content-based even if the regulation is facially content
neutral. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227
(2015).
The District argues that because Oregon law designates
school land for educational purposes, “constitutional rights
must be applied in a manner that accommodates” those
purposes. It contends that schools may restrict access to their
property in order to preserve the educational purposes of
schools. Merely asserting a right to protect schools’
educational aims does not shield regulation from
constitutional concerns, however. Those regulations must still
be “content-neutral regulations of speech that are imposed for
reasons of public safety, aesthetics, or other important public
purposes.” State v. Carr, 170 P.3d 563, 568 (Or. Ct. App.
2007) (citing Outdoor Media Dimensions, Inc. v. Dep’t of
Transp., 132 P.3d 5, 11–12 (Or. 2006)).
The District policies did not meet these requirements.
They were not viewpoint neutral, let alone content neutral.
Moreover, they were not imposed simply to preserve
educational purposes; they were imposed because the District
opposed the Union’s position. Because the District policies
were neither reasonable nor content neutral, they violated
Plaintiffs’ rights under the Oregon Constitution.
E. Attorney’s Fees and Costs
Neither party contests the reasonableness of the amount
of attorney’s fees and costs awarded. The District objects to
the award of fees and costs only on the ground that Plaintiffs
should not be the prevailing parties. Because we affirm the
district court judgment, Plaintiffs are the prevailing parties.
We thus affirm as well the award of attorney’s fees and costs.
22 EAGLE POINT EDUC. ASS’N V. JACKSON CTY.
III. Conclusion
We affirm the judgment of the district court that the
District violated Plaintiffs’ rights under the First Amendment
and the Oregon Constitution. We also affirm the award of
attorney’s fees and costs.
To be clear, we do not hold that a public school district or
any other governmental unit is precluded from taking any
action to continue operations during a strike or from imposing
reasonable, viewpoint-neutral restrictions generally on access
and expressive activities in a non-public forum. But
restrictions on free speech rights cannot be aimed at stifling
expressions of dissent, even where—indeed, especially
where—such restrictions are intended to show the
government’s resolve.
AFFIRMED.