A federal judge on Monday concluded a man who was ejected from an Academy District 20 school board meeting in December 2023 had not stated viable claims that district officials violated his constitutional rights.

Brett Dayberry had been speaking during the public comment period about “numerous extremely vile passages” in a book that was available in his granddaughter’s school library. When he started quoting passages that employed profanity, the board president told Dayberry to refrain from using those words. Dayberry continued, prompting security to remove him from the meeting.

Dayberry then alleged the El Paso County-based district and its officials violated his First Amendment rights and his right to equal protection of the laws. But after hearing the arguments from both sides, U.S. Magistrate Judge Maritza Dominguez Braswell found Dayberry had not shown his removal under the circumstances was unconstitutional.

“The court agrees with defendants that the plaintiff has not met his burden to demonstrate a clearly established right to use profanity in a public forum,” she said.

Dayberry’s lawsuit alleged he “simply sought to read from a book made available to minor students in the libraries of” the school district. Dayberry allegedly was unable to file a complaint about library books because of his status as the grandparent of a student, so he took his concerns to the Dec. 14, 2023 school board meeting.

As depicted on the video recording, Dayberry started his two-minute remarks by criticizing the policy preventing grandparents from objecting to library materials, and then suggested any children in attendance “cover your ears as I read this.”

Dayberry then quoted from “Almost Perfect,” a book the American Library Association has listed on its roster of the top 100 most frequently challenged books from the past decade. Nearly 90 seconds into his comments, Dayberry started to read profane words when board President Aaron Salt told him that “the policy states that we are not allowed to have profanity.” After Dayberry did not stop, Salt asked security to remove Dayberry for “not following the policy.”

Security officers then physically removed Dayberry from the lectern.

In his lawsuit, Dayberry alleged the district’s policy against profanity was unconstitutional and that he was discriminated against for the viewpoint he expressed.

In moving to dismiss the claims against Salt and the individual security officers who removed Dayberry, the defendants invoked qualified immunity, which is a judicial doctrine shielding government employees from civil lawsuits unless they violate a person’s clearly established legal rights. The defendants argued “decades-long precedent” establishes that profanity restrictions are viewpoint-neutral and that Dayberry’s own allegations showed he was allowed to speak critically about the district up until he used profanity.

During the hearing on the defendants’ motion, Dominguez Braswell pointed out Dayberry needed to show government officials were on notice prior to the meeting that they would have acted unconstitutionally by enforcing an anti-profanity policy.

“The way you want me to frame this question is whether there’s a clearly established right to be free of viewpoint discrimination. That is an obvious thing,” she said. “You haven’t offered a case that allows me to find that the right to profanity — or the right to be free from a prohibition against profanity — is clearly established.”

“If somebody got up there and started praising the board of education, 99 times out of 100 nobody’s gonna say anything,” countered Curt C. Hartman, the attorney for Dayberry. Instead, the district “found it embarrassing” that Dayberry was reading explicit passages from a book available to students.

“I feel like you just answered my question by admitting it wasn’t the prior viewpoint that was the motivation for the shutdown of the comments. It was the use of the profanity,” Dominguez Braswell interjected. “And yes, maybe there was embarrassment as a result of it and people didn’t like he was reading from the language of this book. But you’re admitting it wasn’t because of the prior critical viewpoints he expressed toward the board.”

Hartman responded that he would “concede that” point.

Ultimately, Dominguez Braswell concluded Dayberry had failed to credibly allege a violation of his equal protection rights because there was no indication any commenter had used profanity under similar circumstances and was treated differently. She also rejected his First Amendment challenge, noting several court cases have suggested a public entity’s anti-profanity policy is not equivalent to viewpoint-based discrimination.

Even though Dayberry was critical of the board in his comments, “plaintiff’s own allegations demonstrate that it was not until after he began to use profanity that he was removed from the meeting,” she added.

Dominguez Braswell granted qualified immunity to the individual defendants. Dayberry’s lawsuit will proceed solely against the school district for its own allegedly unconstitutional actions.

The case is Dayberry v. Academy School District 20 et al.