Last week, the Ninth Circuit Court of Appeals, provided further direction to California school board members in the case of Garnier v. O’Connor-Ratcliff on remand from the U.S. Supreme Court[1]. In short, a school board member may be deemed to be speaking on behalf of their school district and thus, can be prohibited from blocking unwanted comments and followers, if:
- Board Bylaws grant them the authority to speak on behalf of their district, which most do; and
- Their social media page more closely resembles that of a public official than a personal account of a private citizen.
The Ninth Circuit found that the school board member in the case should not have blocked a community member who posted numerous repetitive critical posts on the board member’s social media page because her use of the page created a public free speech forum. The reason the Court found the social media page to be a public forum is that the board member’s page resembled an official account more so than a mixed use or personal page. More specifically, on the social media page the board member:
- Identified herself as president of the board;
- Identified herself as a “Government Official”;
- Provided her official district email address;
- There was no disclaimer indicating that the page or posts were intended to be personal;
- The content on her page “overwhelmingly” provided information about the board’s official activities and district schools;
- The content on her page solicited public opinion on district issues; and
- The account was used to discharge official duties and to make official statements, even before information was made otherwise available to the public.
What can board members do to inadvertently create a public forum on their social media accounts, which limits their ability to block members or posts?
We recommend:
- Eliminate mixed use pages or minimize content related to board or district activities on a personal page;
- Include a disclaimer that the account is personal;
- Refrain from using district resources or staff to manage the social media account;
- Review bylaws to clarify who has authority to speak on behalf of the board and when; and
- Engage in governance training on board member use of social media.
F3 represented and advocated on behalf of the California School Boards Association (CSBA) when this case was before the United States Supreme Court. The F3 legal team that wrote the United States Supreme Court amicus brief was comprised of Peter Fagen, Chris Keeler, Gretchen Shipley, and Lynn Beekman.
If your school district has questions regarding the decision or is interested in a virtual governance training on school board social media management and bylaw review, please contact one of the authors listed above or the F3 attorney with whom you normally consult.
[1] Garnier v. O’Connor-Ratcliff, No. 21-55118, 2025 WL 1387929 (9th Cir. May 14, 2025).
