IN THE SUPREME COURT OF MISSISSIPPI
NO. 2022-CA-00464-SCT
JACKSON PUBLIC SCHOOL DISTRICT
v.
JACKSON FEDERATION OF TEACHERS AND PSRPS
DATE OF JUDGMENT: 05/10/2022 TRIAL JUDGE: HON. JESS H. DICKINSON TRIAL COURT ATTORNEYS: GERALD LEE KUCIA, JR JOEL F. DILLARD LATOYA C. MERRITT MALLORY K. BLAND ERIKA DANIELLE ROBINSON LARRISSA CHANTRESE MOORE NICHOLAS FRANCIS MORISANI, SR. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: LATOYA C. MERRITT NICHOLAS FRANCIS MORISANI, SR. LARRISSA CHANTRESE MOORE MALLORY K. BLAND ATTORNEY FOR APPELLEE: JOEL F. DILLARD NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: REVERSED AND RENDERED - 10/26/2023 MOTION FOR REHEARING FILED:
BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
GRIFFIS, JUSTICE, FOR THE COURT:
¶1. Jackson Federation of Teachers (JFT) filed a complaint against Jackson Public School
District (JPS) and alleged that certain JPS policies violated the free speech rights of its
employees. The trial court (1) denied JPS’s motion to dismiss for lack of standing, (2) denied
JPS’s motion to dismiss for mootness, (3) found that JPS’s three policies were in violation of article 3, section 11, and article 3, section 13, of the Mississippi Constitution, and (4)
issued a permanent injunction enjoining JPS from enforcing the policies. JPS timely
appealed. Because JFT failed to establish standing, we reverse the trial court’s decision and
render judgment in favor of JPS.
FACTS AND PROCEDURAL HISTORY
¶2. There is no substantial dispute of the facts. The dispute centers around the
constitutionality of the policies under the Mississippi Constitution.
¶3. JFT is a labor union representing “member teachers, paraprofessionals, and school-
related personnel in the Jackson Public School District.” JFT claimed that JPS violated article
3, section 11, and article 3, section 13, of the Mississippi Constitution by restricting “the
speech of its employees through a web of formal and informal policies, guidance documents,
trainings and instructions” through its Confidential Information Policy (GACC), Staff Ethics
Policy (GBA), and Social Networking Websites Policy (GBAA). JFT requested that the trial
court find JPS’s actions unlawful, order an injunction prohibiting all current and future
enforcement of such actions, and require JPS to take affirmative actions to cure the
violations. JFT sought financial damages in the form of nominal and punitive damages as
well as costs and attorneys’ fees.
¶4. JPS moved to dismiss and asserted that JFT lacked standing to bring the suit. After
the second hearing, JPS asked the trial court to take judicial notice of certain policy changes
by its board of trustees that had occurred after JFT filed suit. The parties agreed that the trial
court should consider the record developed at the initial hearing and the two evidentiary
2 hearings and that the trial court would decide whether to dismiss the case or issue a
declaratory judgment and permanent injunction.
¶5. The trial court considered three JPS policies: (1) Confidential Information Policy
(GACC), (2) Staff Ethics Policy (GBA), and (3) Social Networking Websites Policy
(GBAA). The applicable portions of those policies are as follows:
GACC - CONFIDENTIAL INFORMATION
All information that pertains to the district, its employees, its students, its operations, and/or related matters constitutes proprietary information that belongs to JPS and is strictly confidential.
....
No employee shall disclose, divulge or otherwise compromise any confidential information except as authorized by the superintendent and/or board of trustees. In addition, this policy strictly prohibits the unauthorized possession, disclosure, removal, distribution or other use of confidential school or district information, records, property, or funds.
Any violation of confidentiality seriously injures the Jackson Public School District’s reputation and can have adverse consequences on the men, women, and students who rely upon the protections afforded by this policy. Therefore, any policy violation would result in termination.
(Emphasis added.) Once defined, the term “confidential information” permeates JPS’s
policies and training.
GBA - STAFF ETHICS
[E]mployees have a responsibility to the school system, to their fellow employees, parents and community and to the students that they serve to adhere to certain standards of behavior, performance and conduct. . . . [G]enerally speaking, the Jackson Public School District expects each of its employees to act in a professional and responsible manner at all times. In
3 addition, examples of some of the more obvious unacceptable behaviors that may subject an employee to disciplinary action, including termination or revocation of certification are set forth below. . . .
Employee [Standards of Conduct of Behavior] include the following:
6) Directing any criticism of other staff members or of any department of the school system toward the improvement of the school system. Such constructive criticism is to be made directly to the particular school administrator who has the administrative responsibility for improving the situation and then to the superintendent, if necessary. The complaint policy, GAE, is cross-referenced.
Prohibited Conduct:
Although not exhaustive, any of the following types of conduct by an employee is grounds for discipline, up to and including immediate termination:
7) The district recognizes the obligation of all employees of the school district to be conscious of their professional responsibility not to divulge information presented by a student, parent, a colleague, or an agency when that revelation is not in the best interest of the district. The district recognizes that within a human services organization as complex as a school district, it is necessary to share information on a “need to know” basis. However, the sharing of information should only serve to assist, rectify, or resolve a situation and should never be downgraded to idle gossip or negative commentary to the media, or others within the community.
36) Unauthorized disclosure or use of confidential school information . . . .
(Emphasis added.)
GBAA - SOCIAL NETWORKING WEBSITES
4 All employees, faculty and staff of this school district who participate in social networking websites shall not post any data, documents, photos or inappropriate information on any website or application that might result in a disruption of classroom activity. This determination will be made by the Superintendent. . . . [v]iolation of any of these policies may result in disciplinary action, up to and including termination.
USING SOCIAL MEDIA TO COMMUNICATE YOUR MESSAGE
[G]eneral guidelines for using social media, personally or professionally:
Confidential Information
Online postings and conversations are not private. Do not share confidential information whether it is internal school discussions or specific information about students or other staff. What you post will be seen by others and will be online for a long time. It can be forwarded or shared in just a few clicks. Do not write about colleagues or students without their expressed permission.
¶6. The trial court granted JPS’s motion to take judicial notice of the policy changes, but
it denied JPS’s motion to dismiss on the grounds of standing and mootness. JFT’s petition
for declaratory judgment and permanent injunction were granted in part and denied in part.
The trial court found that there was no evidence of retaliation by JPS but that JPS’s policies
were unconstitutionally vague, overly broad, and restrained the speech of its employees. The
trial court found that all of the GACC policy and portions of the GBA and GBAA policies
were in violation of article 3, section 11, and article 3, section 13, of the Mississippi
Constitution because they “unconstitutionally restrict[ed] the protected speech of JPS’s
employees” and were “a prior restraint on free speech[.]” The trial court further found that
“by restricting JPS’s employees’ speech, the enjoined policies unconstitutionally restrict[ed]
5 JPS employees’ right to petition their government.” The trial court issued a permanent
injunction regarding JPS’s enforcement of the GACC policy in its entirety and sections of
the GBA and GBAA policies. JPS was enjoined from instructing, training, or informing
employees to follow these policies and disciplining, terminating, or otherwise penalizing
employees for violations of these policies.
¶7. JPS timely appealed. On appeal, JPS argued (1) JFT lacks standing to challenge JPS’s
employment policies, (2) JFT’s challenge to the policies was moot at the time the trial court
entered its declaratory judgment and permanent injunction, (3) JPS’s policies are not
unconstitutional, and (4) JFT did not meet its burden to obtain a permanent injunction.
DISCUSSION
I. Standing
¶8. Standing “is a question of law reviewed under a de novo standard.” DeSoto Times
Today v. Memphis Publ’g Co., 991 So. 2d 609, 611 (Miss. 2008) (citing Dep’t of Hum.
Servs. v. Gaddis, 730 So. 2d 1116, 1117 (Miss. 1998)). “Standing is a jurisdictional issue,
City of Madison v. Bryan, 763 So. 2d 162, 166 (Miss. 2000); Frisby v. City of Gulfport (In
re City of Biloxi), 113 So. 3d 565, 570 (Miss. 2013), and therefore addresses the fundamental
question of the power of courts to act.” Butler v. Watson (In re Initiative Measure No. 65),
338 So. 3d 599, 605 (Miss. 2021). “[S]tanding must exist when litigation is commenced and
must continue through all subsequent stages of litigation, or the case will become moot.” Id.
(alteration in original) (internal quotation marks omitted) (quoting Hotboxxx, LLC v. City
of Gulfport, 154 So. 3d 21, 28 (Miss. 2015)).
6 ¶9. In response to JPS’s motion to dismiss for lack of standing, JFT asserts it has standing
in its own right and through associate standing. We separately address each issue.
A. Standing In Its Own Right
¶10. To establish standing in its own right, JFT must show it had a legal interest or “a right
to judicial enforcement of a legal duty[.]” Id. (quoting City of Picayune v. S. Reg’l Corp.,
916 So. 2d 510, 526 (Miss. 2005)). We follow “the traditional articulation of ‘adverse
impact’ to describe when a party can assert standing to bring a suit[.]” Id. (internal quotation
marks omitted) (quoting Reeves v. Gunn, 307 So. 3d 436, 439 (Miss. 2020)).1 We have
described our general law on standing as follows:
[D]ifferent standing requirements are accorded to different areas of the law, and an individual’s legal interest or entitlement to assert a claim against a defendant must be grounded in some legal right recognized by law, whether by statute or by common law. Quite simply, the issue adjudicated in a standing case is whether the particular plaintiff had a right to judicial enforcement of a legal duty of the defendant or whether a party plaintiff in an action for legal relief can show in himself a present, existent actionable title or interest and demonstrate that this right was complete at the time of the institution of the action.“Such is the general rule.”
Id. (citations omitted) (quoting City of Picayune, 916 So. 2d at 526).
¶11. JFT identifies itself as “a local labor union affiliated with the American Federation
of Teachers.” JFT represents “all member teachers, paraprofessionals, and school related
personnel in the Jackson Public School District.” (Emphasis added.) JFT asserts it can
challenge rules that explicitly prohibit its protected speech and that single out professional
1 “It is worth reiterating that the Court recently abandoned the ‘colorable interest’ standard for establishing standing.” In re Initiative Measure No. 65, 338 So. 3d at 605 (quoting Reeves, 307 So. 3d at 438-39).
7 associations like JFT for unconstitutional limits on recruitment. The trial court agreed and
found that JFT had a legal interest or entitlement to assert a claim against JPS. But by its own
identification, JFT can only represent and assist its current members.
¶12. JFT offered five witnesses, none of whom were current JPS employees.2 None of
these witnesses stated that they had knowledge that any of the current JPS employees were
current JFT members. While there was testimony regarding their dual loyalties during their
employment and the then-simultaneous membership of others, there was no testimony to
show that at the time this litigation was commenced, JFT had at least one member who was
a current JPS employee.
¶13. JFT states that it can rely on circumstantial evidence to prove that it had concurrent
members at the time of this lawsuit. JFT relies on the testimony of JPS witness, Tommy
Nalls, who stated that when he was a teacher, joining a union “was kind of like a part of
becoming a teacher in the building. You know, you get on board, you fill out your hiring
paperwork, you join a professional organization.” But Nalls’s testimony discusses joining a
union, not JFT specifically, and it discusses what was done in the past, while this Court
requires that there be current membership throughout the case to establish standing. In re
Initiative Measure No. 65, 338 So. 3d at 605 (quoting Hotboxxx, LLC, 154 So. 3d at 28).
¶14. JFT also relies on the testimony of its union organizer, Chris Radican, who testified
2 Of JFT’s five witnesses, Martha Taylor, Anthony Gunter, Shannon Anderson, and Akemie Stout had worked for JPS while a member of JFT at some point in time. No witness, however, worked for JPS at the time of this case. This means that at the time in question, they were not bound by JPS’s employment policies. JFT’s final witness, Chris Radican, never worked for JPS.
8 regarding his visits to the schools to sign up JPS employees. This testimony, however, fails
to show that any JPS employees actually joined JFT, how long they maintained JFT
membership, or that any JPS employees were JFT members at the time of litigation.
¶15. Finally, JFT asserts that JPS deputy superintendent Michael Cormack’s ongoing
correspondence with JFT president Akemie Stout over grievances shows current
membership. But again, these issues appeared to take place before the start of litigation, and
there was no specific time frame provided showing that it was done concurrently with this
litigation as required. Id. (quoting Hotboxxx, LLC, 154 So. 3d at 28).
¶16. This Court has not recognized circumstantial evidence to prove this element of
standing.3 Even if we did recognize such evidence, we find the evidence presented by JFT
is insufficient.
¶17. JFT argues that it presented sufficient circumstantial evidence to show membership
and that it cannot name individuals for fear of retaliation.4 But there was no need for specific
names. Instead, at any time throughout the litigation, JFT only needed one of its members to
state that he or she knew of at least one member who currently worked for JPS. That did not
happen.
¶18. JFT incorrectly relied on circumstantial evidence, and it failed to show a “present,
3 There have been cases in other jurisdictions in which circumstantial evidence was used to prove the element of irreparable harm. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 163 (4th Cir. 2000) (allowing the use of “circumstantial evidence such as proximity to polluting resources, predictions of discharge, and past pollution to prove both injury in fact and traceability”). But no such cases exist regarding the use of circumstantial evidence to prove standing. 4 The trial court did not find sufficient evidence to justify a finding of retaliation.
9 existent actionable title or interest, and demonstrate that this right was complete at the time
of the institution of th[is] action.” In re Initiative Measure No. 65, 338 So. 3d at 605
(quoting S. Reg’l Corp., 916 So. 2d at 526). As a result, we find JFT lacks standing in its
own right.
B. Associate Standing
¶19. As an association, JFT claims it may still have standing to bring suit on behalf of its
members if it shows “(1) its members would otherwise have standing to sue in their own
right, (2) the interest it seeks are germane to the organization’s purpose, and (3) neither the
claim asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Miss. Manufactured Hous. Ass’n v. Bd. of Aldermen of the City of Canton, 870
So. 2d 1189, 1192 (Miss. 2004) (emphasis added) (citing Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977)).
¶20. As previously discussed, JFT failed to show any current members employed by JPS.
As a result, JFT failed to fulfill the first element of associate standing. Consequently, JFT
lacks associate standing.
¶21. The dissent asserts that witness testimony “provides ample evidence . . . that [JFT] .
. . will be adversely impacted by [JPS]’s policy changes unconstitutionally limiting their
employee’s speech.” Diss. Op. ¶ 35. But without current members employed by JPS, JFT
will not be adversely impacted by JPS’s policy changes.
¶22. The dissent further asserts that direct evidence of membership is not required, and, in
support, cites Mississippi Manufactured Housing Association. But in that case, the
10 Association had at least one member who owned property and managed a retail
manufacturing housing center within the City of Canton. Id. at 1193. Here, there is simply
no evidence that JFT “had a right to judicial enforcement of a legal duty of [JPS]” or that JFT
showed a “present, existent actionable title or interest, and demonstrate[d] that this right was
complete at the time of the institution of the action.” In re Initiative Measure No. 65, 338
So. 3d at 605 (quoting S. Reg’l Corp., 916 So. 2d at 526).
¶23. JFT established neither standing in its own right nor did it establish associate standing.
As a result, the trial court erred by finding that JFT had standing to bring this action. We
reverse the trial court’s denial of JPS’s motion to dismiss, and we render judgment in favor
of JPS. S. Reg’l Corp., 916 So. 2d at 513.5
¶24. REVERSED AND RENDERED.
RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, P.JJ.
COLEMAN, JUSTICE, DISSENTING:
¶25. The majority holds the Jackson Federation of Teachers lacks standing because it did
not present direct evidence that it had members who were employed by the school district.
Accordingly, the majority asserts that the Federation failed to demonstrate it will be adversely
impacted by the Jackson Public School District’s policies. The holding is wrong for two
reasons: (1) voluminous testimony in the record showed that the Federation is a legitimate
organization, the interests of which are significantly affected by the District’s policies; and
5 Because the issue of standing is outcome determinative, we decline to address the remaining issues asserted by JPS on appeal.
11 (2) parties are not required to present evidence in the record to prove what is common
knowledge. For these reasons, and because the Federation’s First Amendment arguments are
sound, I would affirm the judgment of the trial court.
I. The Jackson Federation of Teachers had standing.
¶26. In Reeves v. Gunn, 307 So. 3d 436, 438 (¶ 10) (Miss. 2020), we clarified the
requirements for standing in Mississippi. The amorphous term “colorable interest” was
removed from our judicial parlance, and we retained the clearer “adverse impact” standard.
Id. at 439 (¶ 11) (internal quotation marks omitted).
a. Ample evidence in the record shows that the Federation is a legitimate organization that will be adversely impacted by changes to the District’s policies.
¶27. All seven witnesses at trial—five for the plaintiff and two for the defense—gave
testimony that reinforced the legitimacy of the Federation as an organization representing
teachers employed by the District. The testimony clearly shows a close, interdependent
relationship between the Federation and the teachers.
¶28. The District’s first witness, its director of recruitment, testified that the District would
“encourage [the new teachers] to meet with the representatives. And if they weren’t a
member of a professional organization such as the Federation, then, you know, they should
be encouraging them to join.” In describing his philosophy on teachers’ participation in the
Federation, he testified, “it’s one of those things that it’s a benefit to our teachers, and we
strongly encourage that if they become a member—an educator within the district, state
employee that they join a professional organization such as the Federation . . . .”
12 ¶29. The following testimony also establishes that the Federation has current District
employees as members:
Question: As the director of recruiting, what is your philosophy in terms of your teachers’ participation in the Jackson Federation of Teachers?
Answer: It would really be the same philosophy that was placed upon me when I became a teacher in the district; that it's one of those things that it’s a benefit to our teachers, and we strongly encourage that if they become a member.
He further testified that the District schools would host the Federation in their teachers’
lounges, would make announcements that the Federation was on-site if employees wanted
to talk to them, and would encourage the Federation to set up vendor tables at District events.
His testimony illustrates the close and widespread cooperation between the two
organizations, and it shows that the District considered the Federation a legitimate
professional organization.
¶30. The District’s second witness, its deputy superintendent, testified that he met with
senior Federation staff as part of his District orientation, personally facilitated the
Federation’s access to schools during the period of COVID-19 restrictions, and gave his
personal cell phone number to the president of the Federation. In describing how beneficial
he considers his relationship with the Federation president, he testified: “There are things that
she has line sight to that occur in schools.” He additionally testified that the Federation
president participated in the school reopening committee and has chimed in on school
policies at public board meetings.
¶31. Anthony Gunter, a former part-time teacher, testified that he remained a member of
13 the Federation at the time of trial. Gunter had placed himself at risk of disciplinary action
at the hands of the District when, in February 2019, he spoke to a news reporter about an
outbreak of tuberculosis that occurred at Provine High School. Among other interactions
with District personnel, his immediate supervisor informed him the day after he gave the
interview that he was in violation of the district policy at issue here and would “be facing
some form of consequences.” Although he contradicted himself during cross-examination,
Gunter testified that at the end of that day, Provine’s principal, Dr. Kerry Gray, called Gunter
into his office and terminated his employment. To be clear, the District did not employ
Gunter at the time the complaint was filed or at the time of trial. Nevertheless, Gunter was
a Federation member who testified that the District penalized him for speaking in violation
of the school’s policy.
¶32. The five witnesses for the Federation each testified in different ways describing the
relationship between the two organizations. Most of the witnesses were former District
employees who had been members of the Federation while employed by the District but who
now work for the Federation. The president of the Federation testified about the
longstanding relationship between the organizations and the expansive free flow of
information between them. The treasurer of the Federation testified that part of her role
involves collecting dues—dues presumably paid by members. A former Federation recruiter
described the wide-ranging access the District granted to the Federation.
¶33. Representations that current District employees were members of the Federation
abound in the filings. The Federation represented that their membership roll included current
14 District employees in other court communications that remain in the record. On the face of
the Complaint, the Federation wrote that it “represents all member teachers,
paraprofessionals, and school related personnel in the Jackson Public School District.” In
its Memorandum in Support of Plaintiff’s Response in Opposition to Defendant’s Motion to
Dismiss, the Federation claimed to be “an organization whose membership and executive
board are almost all [District] employees.”
¶34. Even more compelling, in response to the court’s question, the attorney for the
Federation replied, “[The Federation] have current members. They’re employees of JPS.”
The information given by the Federation’s attorney—an officer of the court—can and should
be considered here in the context of standing. “While it is true that what the lawyers say is
not evidence to the jury, it is indisputable that their representations to the trial court
contribute to what the trial judge is aware of . . . . So, the trial judge erred by requiring proof
of the explanation.” Kuebler v. State, 204 So. 3d 1220, 1227-28 (¶ 18) (Miss. 2016). The
Kuebler Court relied on the Court’s opinion in BB Buggies, Inc. v. Leon, 150 So. 3d 90
(Miss. 2014), and described the Leon Court’s treatment of counsel’s representations as
follows:
In BB Buggies, Inc. v. Leon, several defendants appealed a trial court’s refusal to set aside a default judgment in a products-liability suit. BB Buggies, Inc. v. Leon, 150 So. 3d 90, 94–[9]5 (Miss. 2014). To establish the colorable defense necessary to set aside the default judgment, the defendants’ attorney read from a product manual but never put that manual in evidence. Id. at 102–03. On appeal, the plaintiffs argued that this Court should disregard that defense because “counsel’s arguments are not evidence.” Id. This Court rejected their argument, stating “[w]e will not relegate the representations of counsel, officers of the court, to pulling something ‘out of thin air.’” Id.
15 Kuebler, 204 So. 3d at 1227 (¶ 18) n.7.
¶35. The extent of interaction between the Federation and the District is demonstrated at
length by the witnesses. Counsel for the Federation represented to the trial court that the
Federation has current members employed by the District. Taken as a whole, the record
provides ample evidence showing that the Federation is a legitimate organization that will
be adversely impacted by the District’s policy changes unconstitutionally limiting their
employee’s speech.
¶36. Additionally, the majority’s holding contradicts a previous decision. In Mississippi
Manufactured Housing Ass’n v. Board of Aldermen of City of Canton, 870 So. 2d 1189
(Miss. 2004), an organization representing the manufactured housing industry sued the city
of Canton over a zoning decision. The city argued the association lacked standing, and the
circuit court granted its motion to dismiss. On appeal, we reversed the circuit court’s
judgment and held that the association had standing despite its concession that “there is
nothing in the record that indicates it has a member within the City of Canton.” Id. at 1193
(¶ 16) n.3.
¶37. The majority claims that Mississippi Manufactured Housing should not control and
is distinguishable from the instant case because “the Association had at least one member
who owned property and managed a retail manufacturing housing center within the City of
Canton.” Maj. Op. ¶ 22 (citing Miss. Manufactured Housing, 870 So. 2d at 1193 (¶ 16).
In fact, the full quote to which the majority refers reads: “MMHA asserts that one of its
members owns property and manages a retail manufacturing housing center in the City of
16 Canton.” Miss. Manufactured Housing, 870 So. 2d at 1193 (¶ 16). In the current case, JFT
also asserts that it has members who are current employees of the District. The knowledge
that the Association in Mississippi Manufactured Housing had a member in Canton did not
come from direct evidence in the record. “MMHA concedes there is nothing in the record
that indicates it has a member within the City of Canton.” Id. at 1193 (¶ 16) n.3 (emphasis
added). Rather, the knowledge came to the Court either from pleadings in the trial court
proceedings or from representations in the appellate briefs.
¶38. The majority holds that solely because there is no testimony containing the very
specific magic words, “The Federation has members who teach in Jackson Public School,”
the Federation lacks standing. In Mississippi Manufactured Housing, the Court held that
the association did have standing, though there was no direct evidence in the record that it
had members residing in Canton. Id. at 1194 (¶ 24). Although the Mississippi
Manufactured Housing Court operated under the now-abandoned colorable-interest
standard, the Court noted: “Members of [the association] will experience an adverse affect
. . . .” Id. at 1194 (¶ 18). Direct evidence in the record of membership was not required in
that case to prove standing, and it is not required in the case sub judice. The Court can make
reasonable inferences to determine standing.
¶39. Evidence in the record shows that the Federation is a teachers’ union located in
Jackson that has been in operation for forty years. The inherent function of a union is to
represent its members in negotiations with their employer. The reason there was no
testimony presented saying “we have members who are currently employed by Jackson
17 Public Schools” is that all parties took it to be understood. All parties knew that the
Federation represented current District employees because it is the essence of its existence.
If it had no the District employee members, the Federation would have no reason to be.
¶40. When testimony established that the Federation was a teachers’ union, no further
testimony was required to explain the basic purpose and function of a union. The court
understands the plain meaning of words and does not require evidence to be presented to
explain every definition. “[T]here are certain facta probanda or propositions in a party’s
case, as to which he will not be required to offer evidence; these will be taken for true by the
tribunal without the need of evidence, either because they are notoriously known or capable
of unquestionable demonstration.” Eidt v. City of Natchez, 421 So. 2d 1225, 1229 (Miss.
1982) (citations omitted) (quoting 9 Wigmore, Evidence § 2565 (Chadbourn rev. 1982)),
superseded by rule as stated in McIntosh v. Miss. Real Est. Comm’n, 233 So. 3d 214 (Miss.
2017). By definition, a Jackson teachers’ union represents Jackson teachers. A court may,
and should, proceed through trial without requiring parties to present evidence on definitions
of words in the common knowledge. “The court can take judicial notice of a thing in the
common knowledge and use of the people throughout the country.” Brown v. Piper, 91 U.S.
37, 38 (1875).
¶41. Here, the trial court knew the definition of and function of a teachers’ union. The trial
court knew that the Federation is a teachers’ union. For purposes of our de novo review of
the standing issue, there is more than enough evidence in the record to make the reasonable
inference that members of the Federation were employed by the District. More evidence is
18 not required to be put into the record to prove that the Federation performs the normal duty
of a teachers’ union—representing current teachers.
¶42. Because all three elements of associational standing are met, see Belhaven
Improvement Ass’n, Inc. v. City of Jackson, 507 So. 2d 41, 47 (Miss. 1987) (citing Hunt
v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977)), I respectfully dissent on the
issue of standing.
II. The District’s policies violate article 3, section 13, of the Mississippi Constitution by infringing on its employees’ free speech rights.
¶43. The Mississippi Constitution states: “The freedom of speech and of the press shall be
held sacred[.]” Miss. Const. art. 3, § 13. The Court has interpreted the section to mean that
the Mississippi Constitution is “more protective of the individual’s right to freedom of
speech than [is] the First Amendment since our constitution makes it worthy of religious
veneration.” ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123, 127 (Miss. 1976).
¶44. The District has an official district policy defining confidential information. The
definition is extremely broad, and a violation of the policy could result in termination. Once
defined, the term “confidential information” is found throughout the District’s policies. The
staff ethics policy mandates that “Directing any criticism of other staff members or of any
department of the school system toward the improvement of the improvement of the school
system,” if not made to the correct administrator, is grounds for termination. Additionally,
the ethics policy forbids “divulg[ing] information . . . when that revelation is not in the best
interest of the district.” Violation of the rule also could lead to termination. The social
networking websites policy makes posting “any data, documents, photos or inappropriate
19 information on any website or application that might result in a disruption of classroom
activity,” a fireable offense, subject to the discretion of the superintendent alone.
¶45. The trial court found the sprawling free speech limitations throughout these policies
to be, at times, vague, overbroad, and unconstitutional. The requirement for employees to
seek permission for speech from the superintendent was an unconstitutional prior restraint
on employees’ speech. The requirement not to share “negative commentary to the media,”
while allowing other commentary, was unconstitutional viewpoint discrimination. The trial
court was correct on all counts. The policies enacted by the District violate the fundamental
freedoms guaranteed to Mississippi citizens by our constitution. Freedom of speech is one
of the bedrock principles underlying our democracy, and we guard it vigorously.
III. The case is not rendered moot by the District’s later policy changes.
¶46. After the trial, but before the trial court’s decision, the District changed the definition
of “confidential information” in its policies. The District argues that the change renders the
case moot. The argument fails for several reasons.
¶47. We have held that “[a] case is moot so long as a judgment on the merits, if rendered,
would be of no practical benefit to the plaintiff or detriment to the defendant.” Fails v.
Jefferson Davis Cnty. Pub. Sch. Bd., 95 So. 3d 1223, 1225 (¶ 10) (Miss. 2012) (internal
quotation marks omitted) (quoting Gartrell v. Gartrell, 936 So. 2d 915, 916 (¶ 8) (Miss.
2006)). If violations of the Federation’s rights to free speech persist after the changes, then
a judgment in its favor is of practical benefit.
¶48. The changes the District made to its confidential information policy failed to address
20 the free speech violations found by the trial court that arose from the District’s staff ethics
policy and its social networking websites policy.
¶49. The ethics policy still:
• prohibits all employees from “[d]irecting any criticism of other staff members or of any department of the school system toward the improvement of the school system,” except to “the particular school administrator who has the administrative responsibility for improving the situation and then to the superintendent, if necessary”; and
• prohibits all employees from divulging information that “is not in the best interest of the district”; and
• requires employees to share information on a “need to know” basis; and
• bans “idle gossip or negative commentary to the media, or others within the community.”
¶50. The social networking policy still prohibits “[a]ll employees, faculty and staff of this
school district who participate in social networking websites” from posting “any data,
documents, photos or inappropriate information on any website or application that might
result in a disruption of classroom activity.” Under the policy, the superintendent, alone, has
the authority to monitor proposed postings and prohibit them, should the superintendent
deem them “a disruption of classroom activity.”
¶51. The post-trial changes made to the District’s policy did not alleviate all of the
constitutional violations that the trial court found, and there is nothing to guarantee that the
District will not reinstate the previous violative definition at some point. The issue was not
rendered moot by the District’s change to the definition.
21 ¶52. In the case sub judice, the plaintiff had standing, the issue was not moot, and multiple
free speech violations occurred. Accordingly, I would affirm the judgment of the trial court,
and I respectfully dissent.
KITCHENS AND KING, P.JJ., JOIN THIS OPINION.