With group gatherings currently not allowed because of the coronavirus, school boards across the country have been transitioning public meetings to virtual platforms. But if they don’t have a plan for allowing public comments, are they at risk of violating open meeting laws?
Such laws vary from state to state, and not all specify whether members of the public have a right to address public officials. But some do. In California, for example, citizens have a right to attend — or in today’s reality — view the meeting and to “directly address each agenda item under consideration by the body either before or during the body’s discussion,” according to the state statute.
Other states, such as Alabama, don’t have overarching laws that give citizens the right to comment in all public meetings, but do have specific statutes requiring public comment for state and county school boards.
“I think everybody is trying to figure out the best way through this,” said Tom Gentzel, executive director and CEO of the National School Boards Association.
In Florida, with its strict Sunshine Law, Gov. Ron DeSantis waived the requirement that governmental bodies establish an in-person quorum in order to hold a meeting. But some school boards are continuing to hold in-person meetings with social distancing guidelines observed in order to not violate other aspects of the law. The Hillsborough County School Board used a combination of virtual and in-person proceedings and allowed members of the public to enter the meeting room one at a time to address the board.
Other districts have had a shaky start to holding virtual meetings, drawing complaints over transparency. But Tom Hutton, interim executive director of the Education Law Association, said questions over whether a topic should have been discussed in an open or closed meeting "are not more true in an online setting."
"This is not a perfect world right now," he said. "Some situations are going to erupt faster than the guidance might be there."
Commenting ‘in real time’
Some school boards holding only virtual meetings are collecting emails and written comments from the public prior to meetings in place of their usual two- or three-minute comment periods in public. Francisco Negrón, chief legal officer for NSBA, said those options give members of the public even “greater access” because they don’t have to limit their comments as much.
But depending on the state, asking just for written comments in advance isn’t necessarily within the spirit of the law, suggests David Snyder, executive director of the First Amendment Coalition, based in San Rafael, California.
Because in-person meetings are generally not an option at this time, “the next best thing is when people can comment in real time,” he said. “I recognize all the challenges, but it’s important for school districts to do everything reasonable in their power to provide opportunities for comments during the meeting.”
That’s an opportunity some parents in Boston Public Schools didn’t get when they wanted to address the school committee about a recent state audit showing problems such as chronic absenteeism, inadequate services for special needs students and pockets of poor student performance.
In late February, members of Massachusetts Parents United testified before the Massachusetts state board regarding their concerns about BPS. They were also scheduled to address the school committee in March, but the meeting was canceled due to the coronavirus.
“They wanted to talk to their city leaders,” said Keri Rodrigues, who founded the parent group and now leads the National Parent Union, a coalition of similar organizations across the country. “It is critical that parents are able to speak and give their context.”
While the school committee later held a virtual school committee meeting, “there was little to no outreach to communities of color and no interpretation provided to parents who speak other languages,” Rodrigues said, adding the committee is not hearing the full range of views from parents on the state’s partnership with the district to address issues raised in the audit.
Massachusetts' open meetings law states members of the public don’t need permission from a presiding officer to address a governmental body, but it doesn’t guarantee people the right to do so.
Rodrigues added now is not the time to be “making policy decisions about the future of public education” if not all parents have an opportunity to weigh in. She recommended board members and district leaders reach out to “trusted ambassadors” in the community and ethnic media outlets to connect with low-income and minority families. “We’re trusted when we say something to a parent,” she said, “It has our seal of approval.”
Hutton agreed that if possible, boards should postpone meetings. But Gentzel said that's not realistic for a lot of boards at this time. “At some point, it’s a balancing of interests,” he said. “There are times that the board just needs to meet and make some decisions.”
In California, Gov. Gavin Newsom also waived provisions of state laws governing public meetings, but governmental bodies, for example, are still required to provide at least one location where members of the public can watch the meeting.
In the Los Angeles Unified School District, board meetings have been canceled temporarily. But Board Member Member Nick Melvoin would like to see the district try virtual or hybrid approaches to conducting meetings and including public comment.
Public comments, he said, are generally not part of a board's official agenda, and therefore, including written comments into the public record would be sufficient. But when an item on the agenda calls for public comment, board members are allowed to respond to or ask questions of the speakers. One option is to provide Zoom access at satellite locations where members of the public can address the board.
Snyder said it’s important not only for the public to hear from other interested parties, “but for the elected or appointed leaders to hear from the public” at the time they are making decisions.
He suggests district leaders not only use video platforms, but also add telephone access with a queue for allowing members of the public to address the board. As in traditional meetings, time limits could be set on comments.
'Forcing our hand'
Hutton and others suggest virtual options may remain part of how the public participates in school board meetings in the future.
"Looking forward, it is clear that some statutes should be updated anyway," he said. "I expect that we end up with greater improved public access. All the governmental bodies will have had some experience with this."
in LAUSD, Melvoin noted that prior to the pandemic, the board discussed the possibility of allowing members of the public to address the board virtually.
"We know it's very difficult for some people to go [to a board meeting]. This is now forcing our hand on this," he said, adding that with the district spending money on devices for students, virtual participation in board meetings might be one of the "adaptations that sticks."