By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Schools can’t ban parents from campus because they said something that was “offensive or inappropriate,” a federal appeals court has ruled.

In a unanimous ruling, a panel of the 9th Circuit Court of Appeals said there is nothing wrong with a school having a policy that prohibits interference with or disruption of an educational institution. But judges said Marana Unified School District expanded on that to include “use of speech or language that is offensive or inappropriate to the limited forum of the public school environment.”

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” wrote Judge Milan Smith for the panel. And he said because the district’s policy allows it to prohibit such speech “it runs afoul of this principle.”

The ruling does not mean that Rebecca Hartzell, who filed the lawsuit, will ultimately win her case against the district. But, unless overturned, it gives her a chance to convince a jury that her words are what got her banned from schools that her children attend.

There was no immediate response from the district.

According to court records, the case stems from what had been a yearslong dispute between Hartzell and the district, going back to 2008 where she had expressed numerous concerns to district personnel about everything from event scheduling and children accessing pornography on school computers to restrictions on the ability of children to speak with one another during lunch.

Hartzell testified her advocacy resulted in a district employee telling her she was not welcome at any school except those attended by her children.
In 2020, the Dove Mountain school hosted an event where students presented projects on which they had been working.

Hartzell complained to principal Andrea Divijak about two of her children presenting at the same time.

And she admitted being sarcastic.

Divijak said when she tried to walk away Hartzell grabbed her wrist. Hartzell characterized it as accidentally touching the principal’s arm and saying, “Stop, I’m talking to you.”

That eventually resulted in a call to Marana police with an officer telling her she could not enter school property and would have to arrange for someone else to drop off and pick up her children.

That order eventually was lifted and misdemeanor charges of assault were eventually drooped at the request of the town prosecutor.

Hartzell filed suit in federal court. A trial judge threw most of it out before trial, citing a number of legal and procedural issues; a jury subsequently sided with the school on separate claim of defamation.

But Smith noted the trial judge did not allow her to pursue her complaint of a First Amendment violation. That, the appellate court said was in error.
“A reasonable jury could have concluded that Hartzell was unconstitutionally banned based on official district policy,” Smith wrote.

“The provision of (the policy) banning ‘speech ... that is offensive or inappropriate’ would be unconstitutional if applied to ban Hartzell for criticizing Divijak,” the appellate judge continued. “And Hartzell presented sufficient evidence to conclude that the district relied on this policy, rather than Hartzell’s alleged assault on Divijak, to ban Hartzell from the Dove Mountain school premises.”

Smith said the district defends the policy on the basis that schools have substantial authority to regulate speech on school grounds.

“It is certainly true that courts must apply the First Amendment in light of the special characteristics of the school environment,” he wrote. “Even so, for school officials to justify prohibition of a particular expression of opinion, they must be able to show that their action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

What that could include, Smith said, is a showing that the conduct materially and substantially interfered with the need to maintain appropriate discipline in school operations.

“Here, the district failed to make this showing,” he wrote.
For example, the appellate judge said schools may have an interest in protecting children from some types of language.

“But although Hartzell’s speech was critical and sarcastic, it was not vulgar or lewd,” he said.

“The district cannot constitutionally prohibit all speech on school property that if finds ‘offensive or inappropriate,’” Smith said. “Nor can the district prohibit that speech by defining it as disruptive or intrusive.”