Free speech, part 2

Thought I would reprint parts of an email conversation I've been having, in response to my previous comments about public comments:

[the first writer had said that the BOE's public comment policy was designed to suppress free speech]

I hear what you are saying, but consider: what if the policy is not to suppress free speech but rather to establish a structure for meetings of the board while simultaneously fulfilling our legal obligation to support district staff? Would we be failing (legally) in the latter if we allowed a meeting attendee to publicly criticize (or actually defame) a teacher for something that allegedly happened in a classroom last week? I think so.

What about this analogy: when a visitor is in my home, if they want to start insulting my kid or my husband, don’t I have the right to tell them I don’t allow that? Don’t I have the right – even with our country’s freedom of speech – to try and stop them? (And, yes, I know the Ed Center is technically the public's "home" because the public pays the taxes that pay for it...is freedom of speech determined by the ownership of the locale? Or the "ownership" of the meeting...Haven't thought about it...indulge me this analogy to try and make my point!)

Did you know that there is no legal obligation to allow public comments at Board of Ed meetings? The Open Public Meetings Act says that we must meet in public, period. It is the tradition that boards invite public comment, but it is not a legal mandate.
[4/5/11 NOTE: THE ABOVE FACT WAS GIVEN TO ME BY NJ SCHOOL BOARDS ASSOCIATION IN 2009. I HAVE SINCE CONFIRMED WITH OUR LEGAL COUNSEL THAT SOME FORM OF PUBLIC COMMENT IS REQUIRED, ALTHOUGH THE FORMAT, TIME ALLOWED, ETC., IS UP TO THE BOARD.]

I agree with you that the policy in question can make people think that the Board doesn’t want to deal with confrontation or dissent. But why must the only other choice be to whisper in the market? Is there nothing in between? If you think a teacher sucks, you are welcome and encouraged to “confront” the principal (the teacher’s supervisor) and tell him/her how you feel. Or tell the superintendent how you feel. That chain of command will surely get you real action, as opposed to telling the Board at a public meeting. The Board is prohibited from getting involved in personnel issues, until they have run through the chain. A parade of 500 citizens can stand at the mic and say the teacher sucks or, worse, that he did something egregious. We aren't allowed to do anything about it until it has been brought to the superintendent without being resolved.

So you're right, it can look bad, regardless of the law. And the pre-comment statement is written with a slightly condescending/paternalistic tone (in my opinion). Dealing with that perception is a challenge. Personally, I wish we could have more of a give-and-take or conversation at our meetings. But based on policy and the laws, I don’t think that conversation is ever going to happen at Board meetings. That’s one of the reasons I’ve advocated for other “town hall” type meetings, set-up specifically for people to talk to us. We did a couple last month for the budget and they were quite successful. Do you think if we held school-based town halls, or issue-based town halls, that anyone would come?

Free speech at Board of Ed meetings.

At tonight's Board of Ed meeting, there were a lot of people in the audience (yay!), but because we had been informed that there would be lots of public comment, Mr. Vallerini, (who, by the way, was re-elected as President of the Board for the 09-10 school year), read a statement prior to the public comment portion of the meeting. During those public comments, all of which (I think) addressed the "awarding" of tenure to a particular teacher, one person took the mic to criticize Mr. Vallerini's statement, as he felt the Board was trying to limit free speech.

[I don't have the text of the statement...maybe I'll try to watch the meeting webcast and transcribe it.]

Anyway, first, let me say I'm a big free speech proponent. The statement Mr. Vallerini read was recommended by our lawyer and is primarily to serve three purposes: 1) To explain why Board members don't respond to comments about staff, because it is illegal for us to do so; 2) To inform speakers that they speak at their own risk and open themselves up to defamation issues; 3) To inform that Board policy #1120 says: "Board meetings are not the appropriate forum for the public criticism of individual staff members and such comments will not be entertained."

Now, that policy may be wrong. It may be overly controlling. It may go against the spirit of free speech laws. But the fact that it's in the district policy manual means we are required by law to follow it. If we wanted to revise it, that's another issue.

I can certainly see the Board's (whichever Board first wrote the policy) desire to support its staff and protect them from public attacks (in fact, legislation requires Board members to swear to "support and protect school personnel in proper performance of their duties")...I can see the district's desire to not provide a forum (and share any potential liability) for defamatory speech...but I too am put-off by the overly-protective tone. I'm curious as to why it exists. While I think there are more productive forums for criticism of staff, the American tradition of free and public discourse is important.

(School board trivia: did you know that public comments at Board of Ed meetings are not mandatory according to law? It's my understanding that there is no legal requirement that we allow public comment. I'm guessing -- and obviously I'm no lawyer -- that the Board's ability to regulate public comments is related to this fact.)

Update 3/25/11: I was told by a representative of the New Jersey School Boards Association, back in 2009 when this post first appeared, that public comment was not required by law at BOE meetings. I have since (yesterday) been informed by the Board's attorney that some form of public comment is required, although the amount of time given and the format are up to the Board.