The federal appeals court based in Colorado agreed on Tuesday that Denver Public Schools could not restrict a man’s access to district property or bar him from his volunteer football coaching position, despite the district’s concern about harassment and bullying directed toward employees.

DPS sent a letter to Brandon Pryor in October 2022 outlining his numerous comments to and about staff advocating for their firing, telling them to “stay the f–k away from me” and accusing them of “flagrant racism.” The letter informed Pryor he was prohibited from district property because his “persistent intimidating conduct” was affecting DPS operations.

However, a trial judge issued an injunction blocking DPS from enforcing its restrictions after concluding they likely violated Pryor’s First Amendment rights. On appeal, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed the restrictions appeared to target Pryor’s offensive speech, rather than to address any physical threat he may have posed.

“Plaintiff spoke on matters of serious concern to the taxpaying public — school funding, cronyism, educational choice, and discrimination,” wrote Judge Joel M. Carson III in the April 30 opinion. “The impoliteness, passion, or profanity of his speech do not overcome his free speech interests.”

“I am glad that the retaliation that I experienced has been recognized,” Pryor said in a statement following the ruling.

A spokesperson for DPS said the district was disappointed by the 10th Circuit’s decision and “looks forward to the opportunity to have the original case heard by a jury.”

Pryor has a history of advocating on behalf of educational equity to DPS, and is one of the founders of the Robert F. Smith STEAM Academy in Northeast Denver. However, on Oct. 18, 2022, DPS general counsel Aaron J. Thompson notified Pryor he could not enter the STEAM Academy or continue his volunteer coaching at the school based on his behavior toward various district employees:

• Pryor made Facebook posts calling a principal a “disgrace,” demanding that she resign and accused her and her husband of working to “steal” a football game

• Pryor yelled and cursed at a regional instructional superintendent, told her to “stay the f–k away from me and my school” and promised he was “going to make sure that you’re fired”

“Rather than attempting to engage in discussion with, or even directing advocacy toward these individuals, your behavior in each instance – which can fairly be described as confrontational and hostile – was calculated to intimidate, harass, bully, and threaten these leaders,” Thompson wrote.

Pryor appealed within DPS, resulting in loosened restrictions that allowed him to attend school board meetings, but he otherwise remained barred from district property except for public events. He then filed suit alleging DPS retaliated against him for exercising his First Amendment rights.

After a multiday hearing in late 2022, U.S. District Court Senior Judge John L. Kane agreed Pryor was likely to succeed on his claim.

“School employees deserve to feel safe and secure in their workplaces, and there is no doubt that a lack of security could impact the performance of their duties,” he wrote. “Still, they are public employees whose actions are matters of public concern, and as public servants, they cannot be insulated from criticism related to their employment.”

Kane acknowledged that not all of Pryor’s comments appeared constitutionally protected and nothing stopped DPS from placing restrictions on Pryor for reasons unrelated to his speech. But Kane suggested there was a racial dimension to the sanctions on Pryor, who is Black.

“A theme of Defendants’ case is Mr. Pryor’s failure to act with ‘civility’ and ‘professionalism.’ These accusations are necessarily met with skepticism, as standards of ‘civility’ and ‘professionalism’ have been used as tools of discrimination and to silence opposition,” he added.

The district appealed to the 10th Circuit, noting the relevant decision makers, including Thompson and Superintendent Alex Marrero, were people of color. However, at oral arguments in November, the appellate panel noticed an apparent disconnect between the district’s sanctions and the alleged problem. Although school officials took issue with Pryor’s Facebook posts, text messages, phone calls and public comments, the restrictions were instead aimed at his physical presence on school grounds.

“Would lifting the preliminary injunction make that much of a material difference?” wondered Judge Scott M. Matheson Jr. “He’s been a disruptor though all of those avenues. Even under the restrictions, he can continue to do all of those things, can’t he?”

“Is there a point where a school district can — I’m not quite sure how to phrase this — but, sort of, enforce a code of civility?” asked Judge Timothy M. Tymkovich.

The district can take action against harassment or “fighting words,” Pryor’s attorney, Andrew McNulty acknowledged, but not enforce overall politeness.

“You couldn’t, for example, ban someone from the courthouse for posting on social media, ‘Judge Tymkovich should be impeached and lose his job’,” McNulty said.

“I’ve seen that,” Tymkovich responded to laughter.

Ultimately, the panel agreed the restrictions likely violated Pryor’s First Amendment rights as retaliation for his harsh commentary.

DPS “lacks a valid interest in avoiding embarrassment or irritation at the expense of community members’ free speech rights,” Carson wrote.

The defendants have filed a motion to dismiss the underlying case, which is currently pending before Kane.

The case is Pryor v. School District No. 1 et al.