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PORTLAND, Ore. (Pamplin Media Group) — The union that represents the nearly 300 teachers in the Newberg School District is heralding a settlement in a lawsuit that claimed the school board’s 2021 ban on BLM, Pride and other political symbols in classrooms was unconstitutional.
The lawsuit, first filed in Yamhill County Circuit Court by the Portland law firm Bennett Hartman, was advanced to U.S. District Court in Portland in December 2021 as a civil rights case. It argued that the board’s ban — introduced as an amendment to board policy GBG in July 2021 by vice-chairman Brian Shannon and approved by chairman Dave Brown and directors Renee Powell and Trevor DeHart — was so vague and overbroad it could impact teachers’ abilities to work in the district.
The lawsuit was filed in August 2021 on behalf of four teachers and counselors: Jennifer Schneider, Andrew Gallagher, Katherine Villalobos and Sara Linnertz.
The settlement, according to a release from the Newberg Education Association, accomplished three things, primarily that the school board will not appeal the lower court’s ruling that the ban be lifted; that the board will either add language to GBG recognizing the lower court’s ruling or rescind the amendment entirely, which the board did at its Jan. 10 meeting; and that the board reimburse the union for a “significant portion of the legal fees incurred from fighting this illegal amendment,” the release said.
“The ruling validates our claims and assertions,” the NEA release said. “It supports all the steps we have taken to fight the policy change. It protects marginalized populations in our student and staff bodies. We can continue to create safe spaces in our schools and offer support to students who identity as LGBTQIA+ and students of color without fear of retaliation.”
Attempts to gain comment from the author of the board policy amendment, Shannon, for his thoughts on the settlement were unsuccessful by press time Saturday.
The settlement, rendered in December, means the court case will not go forward. It is exclusive to this particular case, though, and doesn’t apply to the other lawsuits that have been filed against the district and the school board, of which there are many.
Aruna Masih, the attorney from Portland law firm Bennett Hartman who was representing the NEA and the four teachers/counselors, said she couldn’t comment on the particulars of the case, but speaking in general terms said that once two parties reach an agreement on resolution of a case, called a stipulated notice of dismissal, the court typically accepts the notice and dismisses the case.
Thomas Crist, a Portland attorney who filed a friend of the court brief in the case on behalf of the plaintiffs, concurred with his cohort from the legal community.
“The parties jointly moved to dismiss the case on the grounds it was now moot,” Crist said. “I assume that is because the state court had already enjoined enforcement of the school board policy that led to both of the lawsuits. There is no point in a federal judge striking down something that a state judge already had.”
The NEA said the board’s decision to ban political symbols was unwarranted and ill-conceived, hence the settlement.
“If the school board had rescinded the policy back in August 2021, when we along with our Newberg community, spoke out publicly against the changes, and then again when we directly addressed the board on the matter — warning them we would be forced to pursue legal action — and finally when we served them with a tort claims notice, we could have saved hours of legal preparation and public funds,” it said in the release. “We could have upheld the Newberg traditions of the past and collaborated together as a united team.”
Background of lawsuit
The lawsuit named the school district as well as Brown, Shannon, Powell and DeHart as defendants. They were represented by Karen O’Casey of the Portland law firm Hart Wanger.
The lawsuit requested a jury trial, sought an injunction stopping enforcement of the board’s directive and asked for a declaratory judgement from the bench admonishing the board for their actions.
“Plaintiffs seek a declaration that the district policy prohibiting plaintiff association members from ‘hanging, posting, erecting or otherwise displaying any posters, signs, flags, banners, pictures or other digital or physical image that depicts support of opposition relation to a policy, quasi-political or controversial topic,’ violates plaintiffs’ guarantees under Article 1, Section 20 of the Oregon Constitution against vague laws that confer unbridled discretion, because such discretion creates the potential for unequal application of the law, and thus arbitrary or unequal treatment of individuals,” the filing said.
The lawsuit further argued that prohibiting teachers from displaying signs in their classrooms was a violation of their rights of free speech and free association guaranteed by the First Amendment to the United States Constitution.
“Defendants and their agents acted under color or authority of state law,” the lawsuit continued. “They knew or should have known that their actions were unlawful under both the Oregon and federal constitutions.”
The lawsuit also alleged that the school board violated teachers’ 14th Amendment rights to due process and equal protection by adopting a directive that “is vague and overbroad in its scope, leaving association members without guidance as to what speech is prohibited and potentially a violation of district policy leading to potential discipline by the district and/or or their licensing through the Teacher Standards and Practices Commission.”
Decision in one case leads to another
In September 2022 Yamhill County Circuit Court Judge Cynthia Easterday 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. Easterday granted a summary judgment in the case of teacher Chelsea Shotts vs. the district and the four conservative members of the board.
“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,” Crist said in an earlier story. “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.