Our district has a few citizens who don’t mince words when they comment at board meetings. Some of them have taken to naming the names of the district employees who they claim are responsible for specific ongoing problems that the district has had. (Believe it or not, I am not one of those people, at least yet.)
The school board’s response, on the whole, has been to act as if an unwashed anarchist had crashed their afternoon tea. According to the North Liberty Leader, the board would consider eliminating the public comment period altogether, if people can’t be more “respectful.” The board chair said:
The Board expects the community comment time to be a productive and respectful way for community members to voice their concerns about current school district issues to assist the board in making decisions that help our district be the best place possible to educate the students of this community.Seriously? These elected officials will shut down public comment at board meetings if the public isn’t sufficiently “respectful” and “productive”? Is it really the business of an elected body to protect itself, or the community, from public speech that it finds uncomfortable? What are they so afraid of?
When community comments address concerns about district departments or issues and are done so in a timely manner, the information given can be very helpful. It is the School Board’s desire to continue to have community comment as part of future agendas as long as the emphasis on ‘productive’ and ‘respectful’ are adhered to by all participants.
Some board members have suggested that the district might be liable if a speaker at the public meeting defames someone. I’m no expert on that subject, but I’m very, very skeptical that such a claim against the district could succeed, given the First Amendment issues it raises. The government is not ordinarily responsible for the conduct of people who speak in its public forums. (For example, the government is not promoting religion by permitting evangelists to speak in the public square.) Can anyone cite any legal support for the theory that the district would be liable in such a case?
One of the fundamental principles of a democratic society is that free and unrestrained debate on political issues will lead to better policymaking. I would like to think that the people in charge of educating my children were aware of that principle. Unfortunately, there are few institutions that need to relearn that principle more than the school system, where parents and the public are constantly admonished to leave the policymaking to the experts and are encouraged to tiptoe around any disagreement, or drop it entirely, for fear of seeming “unsupportive.” Require everyone to be calm and polite, not to get personal, never to express anger, and never to use strong rhetoric or, God forbid, a “bad word”: a great way to protect the status quo, a lousy way to make good policy.
In my view, our educational system’s discomfort with basic democratic values – unrestrained political debate, personal autonomy, pluralism, federalism, negative liberty, civil liberties, and self-governance, to name a few – is at the root of most of its many problems. Democracy can be messy, disconcerting, even chaotic. But maintaining order is not the only value, or the highest one. Our schools’ embrace of control over freedom at every opportunity is not only harming our kids’ education, it’s creating a nation of people who seem more and more comfortable with authoritarian government with each passing year.
School board members: If people want to rant and rave and name some names, suck it up and let them talk. The world won’t end, and might even improve.
Related posts here and here.
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25 comments:
I think you've nailed it Chris. This attitude is pervasive. It's posted throughout the comments of your blog. Just insert "support" for "respect". I find this attitude absolutely chilling.
Chris, what is "negative liberty"?
That would be really unfortunate to eliminate the public comment portion of the school board meeting.
It seems like eliminating the public comment portion of the meeting is really aimed at a couple of people...I don't think the school board should be changing the way they do business just to retaliate against a couple of people.
I can't say I have watched every school board meeting, but I do have an idea of who some of the frequent fliers are at the meetings over the years. I think some of the concerns and questions they bring up are worthy of a response by the school board. I can't say I know anything at all about the grounds maintenance company mentioned in the North Liberty Leader...but I can't understand why the issue of competitive bids can't be discussed.
Doesn't the school board theoretically exist to represent the community? How does the school board know what the views of the community are if they don't wish to have a public forum.
While it may be the board chair that spoke out on the issue I can't help but feel that another board member must be steering opinions on this matter.
FedUpMom -- “Negative liberty,” as I understand it, basically refers to freedom from constraints. In our legal system, it’s reflected in the default assumption that you are free to do as you please unless the government has specifically ruled something off limits. But it also refers more generally to the idea that individual freedom from government coercion should be given a high value.
The contrast is with “positive liberty,” which refers to the idea that the government should step in to enable people to do things that they otherwise could not do. The two aren’t opposites, but there is some tension between them. I’m all in favor of some forms of positive liberty, too. But taken too far, the idea of positive liberty can be a rationale for very authoritarian government, with the state devaluing individual rights to promote whatever it sees as a greater good.
I’m not a philosopher, so I may not be doing the best job of using these concepts. As to school policy, my point is just that, when it come to kids, it often seems like the discussion is always about how to intervene, and not about whether to. I think there’s value in giving kids some “freedom from.”
KD -- I think the board realizes that they would really get themselves in First Amendment hot water if they tried to ban one or two specific people from speaking at board meetings based on the content of their speech. Legally, eliminating the comment period altogether might be the only way to keep those people from speaking at the meetings. Like you, I'm not sure why they'd want to keep those people from speaking in the first place, and I really don't understand why they'd want to do that at the expense of shutting down public comment entirely.
I completely agree with you here, Chris. It's chilling, as Mandy says. I guess this is the expansion of PBIS we've been told to await: it aims to apply to everyone, everywhere, all the time . . . .
The board may be under no obligation to provide a public forum at all, but if their decision to dismantle an existing forum were found to be a pretext for viewpoint discrimination, wouldn't that make for a free speech issue?
Great series of posts last week, btw. Very Dickensian. Now that we've reread Great Expectations in our household, maybe we'll turn next to Bleak House.
I join all the folks who used the word "creepy" to describe their impressions of the form letter and so-called agreeement.
Chris,
If they eliminated the public comment period, a person could request to be put on the agenda correct? Can the request then be denied and does the board have to make public the fact that they denied a request to be put on the agenda?
Thanks, Mandy. Some posts practically write themselves. As for your question about the agenda, I just don't know the answer.
Doris -- Yes, it really does sound like PBIS for all!
As for your discrimination question, I don't know enough to say. If they're under no obligation to provide a forum, I'm not sure if there would be any legal basis for scrutinizing their motives for eliminating it.
It's hard to see their "fear of liability" concern as anything but a pretext. This is the school board who just last year came within one vote of prohibiting the peaceful carrying of signs at board meetings -- a move much more likely to trigger a meritorious lawsuit than allowing the public to speak at public meetings would ever be.
Chris
I think you and others have misinterpreted Marla's comments. For one, she does not have the unilateral authority to get rid of community comment and would be hard pressed to get enough votes to do so.
Second, I think you also misinterpreted my comments regarding potential district liability for personal attacks. My exact statement was that it could potentially subject the district to additional litigation and unnecessary attorneys fees … not whether that litigation would be successful. As you are well aware, it takes very little to file a lawsuit and very little to survive the initial motion to dismiss stage…especially in Iowa where we have notice pleadings standards. In addition, there is real potential for liability given the fact that the district is responsible for the public broadcast, and now rebroadcast, of the meetings. It is not a defense to a defamation suit that the board or district was not the person making the potential defamatory conduct if we provide the broadcast medium. In addition, and while truth is an absolute defense for both the speaker and the district if named for broadcasting a defamatory statement, truth not always a complete defense in “false light” claims.
Personally, and while I think the personal attacks are distasteful, I have not personally attempted to silence them other then voicing my concerns. If they want to proceed with their personal negative attacks … have at it. All it serves to do is continue to portray our district in a negative light to those watching or listening, continue to feed the negative press pieces and, in all likelihood, further diminishes these commenter’s chances of being elected when they all run again in 2 years. The real irony is they continue to blast at the board regarding specific district employees while praising the efforts of Superintendent Murley. I unfortunately fear that the few that watch or read think the board has the ability to fire this or any other employee. We don’t. The boards sole employee is the Superintendent.
Finally, the continued negativity prohibits our ability to focus on moving the district in a positive manner and address some of our issues. That is not to say we don’t have problems. Rather, be a part of the solution instead of part of the blame team.
KD
As I understand it, the Quality Care grounds maintenance contract was opened for competitive bid when it was done a few years ago. The issue, as I understand the critics, is that it wasn’t a true competitive bid since QC was the only company large enough to service the entire contract and that it has not been resubmitted for bid for 3 or more years.
The QC contact has been extended to the end of this school year at which time the contract will again be put up for competitive bidding. I am sure if they win the contract again the critics will not be happy. There is also some backstory to this issue relative to the critics that I fear may be coloring their comments.
The district already has implemented protocol for opening up all contracts over a certain dollar value for competitive bidding. As that protocol is used and reworked it is my understanding that the dollar value will drop or be eliminated altogether.
Mandy
The agenda is set by approval of the majority of the board. I personally tried to add an item last week to discuss the nutritional value (or lack thereof) of strawberry and chocolate milk based upon statistics we have showing the obesity % in our schools. Yes, its my goal to ban or limit their use in our schools. The other board members voted unanimously against my request to put it on the agenda. I guess discussing nutrional value of our lunches is not much of a priority to them. Good luck getting them to discuss lunch time if they wont agree to talk about suger infused milk.
It is also practice that they have not allowed the public to dictate or request agenda items. While some eventually make there way to the agenda (ie. school class sizes), it could quickly get out of hand if we were to open up our agenda to any request. It also creates problems if we were to allow some requests, but not others.
Thanks for the info and input, Jeff. I'm glad to hear that you think I may have misinterpreted Marla's comments. Maybe she didn't mean to convey the impression I got, but she does talk in terms of "the School Board's desire" being to continue the comment period "as long as" people are sufficiently respectful and productive, so I think my interpretation was pretty understandable. What do you think she was meaning to say?
As for the possibility of litigation, I don't think the board should allow fear of meritless lawsuits to drive its policy decisions, especially on an issue as important as allowing public comment at meetings. Sure, people can always sue you with no grounds whatsoever, but nothing can prevent that from happening; you'd be paralyzed if you had to craft policy to preclude that.
I remain very skeptical about the idea that the district could be liable for defamation for rebroadcasting a meeting at which a member of the public said something defamatory, given the First Amendment and open government issues it would raise. Public comment periods are common throughout the country at all levels of government. Has there been a case, anywhere in America, ever, in which a governmental body was held liable on that theory?
I'm not making any comment in this post on the wisdom of these commenters exercising their speech rights in the way that they do. But I certainly don't think anyone should be inhibited from voicing criticism of the district out of a concern that it will be "negative" or generate bad press. That's just blaming the messenger. If they're wrong, someone should explain why. If they're not, the district should act accordingly, and the bad press will go away.
People express themselves in all kinds of ways, not just in preapproved ways, and that's a strength, not a weakness, of the democratic process. (Would the Occupy Wall Street movement have made the mark that it has made if it had confined itself to forms of expression that other people thought were appropriate and "productive"?) This idea that people are somehow harming the district if they're insufficiently "positive" in their commentary is exactly the problem I'm talking about in this post. That idea itself does real harm, because it inhibits a lot of people from raising and hashing out genuine problems in a forthright way.
As a practical matter, it seems farfetched to me to suggest that people shouldn't raise complaints about anyone other than the superintendent at board meetings. It took years of people complaining about the executive director of administrative services before that issue finally got resolved by his departure. If people hadn't started raising hell about that -- including at board meetings -- it's hard to believe that it ever would have changed.
But ultimately, I agree with your conclusion: the board should allow the public comment to continue, even if they think it's distasteful.
I tend to lean toward your view on the sugar-flavored milk issue, by the way. I recently read some interesting commentary both ways, though, here, here, and here.
Jeff...thanks for commenting. I guess one thing that frustrates me watching the school board meetings is that often the board offers no response to the comments given.
As for the negative commenters giving people a negative view of the district...I disagree with that. Those sorts of people show up at city council meetings and school board meetings everywhere. What gives people a negative perception of the board, is how the board handles the commenters. One particular board member with petulant body language I think more than anyone gives a negative impression of the board.
KD -- I agree. As for the board's lack of a response to people's comments, what I've heard is that the board feels constrained from responding by the Open Meetings law -- that, by responding, they'd be raising a topic that wasn't on the agenda, which would violate the law. I haven't examined the Open Meetings law at all, so I can't confirm or deny that interpretation of it (maybe Jeff can chime in with more particular details). But if the law really does prevent that kind of interaction at public meetings, I'd be inclined to say that it goes too far and ought to be changed. (I'd like to hear the full counterargument, though, before reaching a conclusion about that.)
Just did a little more digging. I looked up and read the Iowa Open Meetings law. The law specifically states that the board must publish its “tentative agenda,” a day in advance of the meeting. It does not explicitly say that the board can’t depart from that agenda if, for example, a member of the public raises an issue that isn’t on it. The word “tentative,” if anything, seems to suggest the opposite. On its face, the statute just seems to preclude the board from intentionally omitting an item from the agenda that it knows it intends to discuss.
The courts, however, have given the statute a stricter interpretation than a facial reading might indicate. The law “allows discussion and action on emergency items that are first ascertained at a meeting for which proper notice was given . . . . However, if action can be reasonably deferred to a later meeting, this should be done.” But, unless the matter is an “emergency,” the board should not discuss it until it has put it on the public agenda in advance of a meeting. And, of course, if the board knew that the issue would come up in time to put it on the tentative agenda, it can’t qualify as an “emergency.”
I’m not sure that’s really what the legislature intended, but I can at least see the logic to it.
There is a way around the problem, though, along the lines of what KD was suggesting: Allow people who intend to speak at public comment period to notify the board in advance of what they plan to talk about. The board could then note that in its tentative agenda. As to those items, at least, some discussion could occur. People could still raise other issues in the public comment period, but the board could not discuss or act on those items.
This wouldn’t be quite the same as allowing members of the public to set the board’s agenda. The board could still decide not to discuss an item that someone raised in the public comment period, even if there were advance notice of it. But they would have to justify that decision on grounds other than the Open Meetings law. And they would at least have the legal freedom to respond if they chose to. What would be wrong with that system?
Chris,
Your blog took me by surprise and has been on my mind for days. That public officials can so easily justify attempts to shut down the expression of opposing views because they might look bad in the press is more than a little scary. The condition of the district operations infrastructure fell behind the times, the technology, and deserves the poor grades the Synesi Report awarded it after years of ineffective district stewardship over the previous superintendent by a bobble-head, let them eat cake board. Carver Governance discussion was apparently more important than a functioning district business model (or anything else for that matter). Hearing you call it so well, recognize what’s really important, and explain why so honestly is a joy after the last 3 years of insanity coming from the board. I am completely serious when I say that your answers exemplify the kind of thinking that makes me most proud of where I choose to live. “Our Liberties We Prize and Our Rights We Will Maintain” is an Iowa tradition, certainly not something to passively watch eroded by some self-important school board director unwilling to acknowledge responsibility for what has gone so very wrong in this district. If there wasn’t so much to hide, the Synesi Audit wouldn’t have found so many deep and pervasive problems. Food service quality issues will be worked out in the near future with new leadership, new ideas, and strong support from the community. Board director responsibility for past poor stewardship can only be worked out when they step up to publicly own it, learn as much as possible about how it happened to better avoid it in the future, and commit their strongest, positive support to the district administration efforts to address the many identified problems with fast, proactive, effective change.
Julie
Chris, I have another question that maybe you or Jeff can shed some light on. Is there some public record of what agenda requests were made and what was voted down? As a voter, I would like to know what items were and were not allowed on the agenda, who voted for and against, and maybe even who requested the item be on the agenda. I think that sort of information would be helpful in my decision on election day.
Who knew open meetings law could be so interesting? :) I still have a couple of questions about the responding to questions during the comments period as well but I'll wait to see if anyone has anymore insight.
Jeff, again thanks for the comments.
there is a nice little Open Meetings, Open request handbook here
Also the Attorney General's office has a nice list of "Sunshine Advisories" on open meetings here
Mandy -- Thanks for those links. The second one isn't working for some reason -- is this it?
While we're at it, here's an interesting critique of the Open Meetings law by former board member Nick Johnson.
I'll have to let Jeff or someone else with more knowledge of this board's practices answer your question about whether they keep records of how people voted on agenda proposals.
Finally, I couldn't help but notice this in today's paper: the board is now scheduling twice-a-month listening posts to be able to discuss people's concerns more informally than at the public comment period. They get around the Open Meetings law by having only three board members present at any one listening post. This seems like a step in the right direction (though I hope they put some at more convenient times than 1:00 on a weekday afternoon).
I'm not sure it's a substitute for more meaningful dialogue at board meetings, though. For one thing, the listening posts are not likely to be as well-attended as board meetings, and part of the reason people speak at public comment time is to be heard not just by the board but by the other attendees. Second, it's not quite as satisfying to be heard by a non-quorum as by the full board. I like the listening posts, but I still think something like the idea I described above would be a worthwhile improvement.
I don't think anyone who speaks at public comment time expects the board to immediately take up their issue and do something about it right then and there. But when the response is, basically, "Next!", people can't help but feel that their comment is falling on deaf ears. So if we just let people identify their subject matter in advance, the board members could respond in a way that at least conveys that they hear and understand the speaker's concerns. It doesn't mean allowing the speakers to take over the meeting: everyone would understand that there's a limited amount of time available for the public comment period, and that the meeting at some point has to go on to other things. But it would humanize the interaction a bit, no?
Thanks, Julie! On the one hand, the Synesi audit did identify a lot of problems, but on the other hand, we do finally have an audit, and it does seem like this board is going to try to address some of those problems. I think they deserve some time to do that. But the Synesi report is a great example of how criticism can be "supportive": there's an awful lot of "negativity" in the report's collection of community comments, but it's exactly what the board needed to hear.
I hope that the board will expand its focus beyond just the "district operations" that the audit focused on, and take a hard look at how the district's philosophy of education, and its attitude toward interacting with children, has evolved. For example, given that the district has spent the last four years training all of its teachers to enthusiastically embrace the use of material rewards to enforce behavioral rules, and is apparently now pushing principals to take an even more over-the-top approach to behavior and discipline, it's hard to imagine what the board would have to do to reverse that mentality. I don't get the sense that those issues are on the board's radar at all -- though the expiration of the PBIS grant might at least force the issue to some extent. I'm hoping to write more posts soon on how the district might address these issues in a post-PBIS world.
Chris--thanks for the link to the Nick Johnson open meetings article.
Please forgive my long response. I am unfortunately a victim of my profession and cant avoid trying to make my point. I also hope you find my propensity to overresearch an issue to be an asset to the board, not a liability. Thus, here goes:
You are correct that the potentially slanderous statements are the responsibility of the speaker. By comparision, the continual rebroadcast of those statements, via our online streamed meetings, are the responsibility of the district. Agree or disagree, it is black letter law that one who republishes a defamatory statement is subject to liability just as if he had published it originally, even though he attributes the libelous statement to the original publisher, and even though he expressly disavows the truth of the statement. Restatement, Second, Torts § 578 (1977) ("one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it"); 1 Harper & James, supra, § 5.20 at 417; Prosser, Torts § 113 at 768 (4th ed. 1971).
Perhaps my "favorite" case on this subject is Kelley v. Dillon, 5 Ind. 426 (Ind. 1854). There, the Court held "there is no legal difference between saying that a woman is a whore, and there is a report or rumor she is a whore. * * * Let it be understood that a bare rumor or report is sufficient to justify the retailing of slander, and character would be at the mercy of the artful and designing, as such defences could be easily manufactured beforehand to suit any emergency. We will not drive parties out of Court, with injured characters, to hunt down those who first gave birth to calumnious reports.
Want something more on point to the school board context, see Aware v. Orange Unified Sch. Dist., 2008 Cal. App. Unpub. LEXIS 7487 where the Court stated:
By voluntarily producing a videotape of one of its meetings, and distributing it to cable television, the District is [*66] voluntarily republishing the contents of that meeting. Such a republication subjects the District to potential liability for defamation which is entirely separate from whatever liability may have attached to Rocco's original comments. "[W]hen a person repeats a slanderous charge, even though identifying the source or indicating it is merely a rumor, this constitutes republication and has the same effect as the original publication of the slander." (Ringler Assocs. v. Md. Casualty Co. (2000) 80 Cal.App.4th 1165, 1180.) Moreover, that voluntary republication does not enjoy the same privilege as the original statement. (Copp v. Paxton (1996) 45 Cal.App.4th 829, 844 [county official's voluntary republication of memo to third-parties did not qualify for absolute privilege].)
Thanks for that follow-up, Jeff. I’m still not persuaded, though. I’m aware that someone can become liable for defamation by republishing a defamatory statement, but when the defendant is a governmental entity rebroadcasting a public meeting for the benefit of the public, I think different concerns come into play. For one thing, I’m guessing that the videotape itself is a public record that members of the public would be legally entitled to view. Moreover, there is a public interest served in enabling people who did not attend the meeting to watch it on TV or on the internet, or to read a transcript of it. I think there’s a good argument that those concerns would trump the usual rule about republication, maybe via some kind of “qualified privilege.”
The one case you cited that involved a governmental entity wasn’t about a plaintiff suing for defamation. Instead, the plaintiff was a school board member who was upset that the school board had deleted his comments from a rebroadcast of a public meeting. The school board justified the deletion on the grounds that his comments were potentially defamatory. The board member sued. The appellate court concluded that the school board was within its rights to delete the board member’s comments from the rebroadcast, because the voluntary republication “could subject it to liability – or at a minimum to a lawsuit asserting such liability. . . .” In other words, the court held that the school board was justified in deleting the board member’s comments from the rebroadcast to avoid “potential liability” and the expense of litigating the issue. The court didn’t have to decide whether the school board would actually have been liable for the republication or whether the comments were, in fact, defamatory. So if there is any case in which a governmental body has been held liable on that theory, we still haven’t seen it.
I would also note that the case was not only from California, and thus not binding on Iowa courts, but was also an unpublished decision, which, under California court rules, is not binding – and can’t even be cited – in a California court. If we have to hunt that far to find case support for this kind of liability, you have to wonder how much liability risk there really is.
In any event, if that case stands for anything, it’s that a school board might justifiably refuse to rebroadcast statements that it thinks are defamatory. If our school board were similarly concerned, wouldn’t that option be available to it? How could the liability concern possibly justify discontinuing the public comment period entirely?
Chris you said, "Allow people who intend to speak at public comment period to notify the board in advance of what they plan to talk about"
I believe this is the practice in the school district I work. Typically, the public comment portion of the agenda is at the beginning of the meeting. Any person may register prior to the meeting (although exceptions have been made) to speak during this part of the meeting on any topic of interest. The board president recognizes registered individuals to speak before any information or action items are discussed on the agenda.
Matt -- Thanks for the comment! Where there's a will, there's a way. What's missing in this case is the will.
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