Freedom of Speech is Violated
When attending the SDUHSD Board Meeting major issues arose …
Yesterday, on Thursday November 1st, I attended an SDUHSD board meeting. One item on the agenda was student status. Ms. Macdonald placed a speaking note for the agenda item. As she stood to talk about the recent events of suicide in the district she was interrupted saying she was violating the rules and was not allowed to speak any longer.
Four of the five current board members in attendance attempted to silence her. She refused and stated her rights. The board members to shut her down and proceeded to leave the room, thus violating her freedom of speech. This is a repeated behavior of this board.
It should be noted that in a board meeting in May, these board members attempted to pass a policy that community members should be prohibited to communicate directly with trustees. They wanted all communication to be redirected to the superintendent.
Read on below…
Email sent from a attendee to the board president:
Dear Board President Hergesheimer,
I appreciate your attempt to establish protocols at the school board meeting and working to establish a fair forum for the public to express their opinion in a neutral atmosphere.
However, I could not allow my views to go unvoiced as you owe Ms. MacDonald an apology. You did violate open meeting laws the way this district has established them in writing. Every board meeting you read the following:
PUBLIC COMMENTS If you wish to speak regarding an item on the agenda, please complete a speaker slip located at the sign-in desk and present it to the Secretary to the Board prior to the start of the meeting. When the Board President invites you to the podium, please state your name before making your presentation. Persons wishing to address the Board on any school-related issue not elsewhere on the agenda are invited to do so under the “Public Comments” item. If you wish to speak under Public Comments, please follow the same directions (above) for speaking to agenda items. In the interest of time and order, presentations from the public are limited to three (3) minutes per person, per topic. The total time for agenda and non-agenda items shall not exceed twenty (20) minutes. An individual speaker’s allotted time may not be increased by a donation of time from others in attendance. In accordance with the Brown Act, unless an item has been placed on the published agenda, there shall be no discussion or action taken. The Board may 1) acknowledge receipt of the information, 2) refer to staff for further study, or 3) refer the matter to the next agenda.
There is nothing in this statement that indicates you had the right to limit Ms. MacDonald’s right to address the Board on item 7 at the regular school board meeting. Her desire was to speak regarding an item on the agenda that related to the student updates. If you actually paid attention to what she spoke about later in her public comment she was on point to student issues. You are an elected body, doing the people’s business. You did violate her rights when you did not allow her to address the governing body on item number 7 as your board rules, as written allow her to do.
I would refer you to the website, the first amendment coalition FAQ about this topic. https://firstamendmentcoalition.org/2010/11/aa-public-right-to-to-speak-denied-at-school-board-meetings/
I understand where you were going — you tried to apply the special meeting protocols to the regularly scheduled board meeting. Now going forward if this is a protocol you want to establish, you should consult your legal council and determine if restricting speech to certain portions of your regular board agenda is actually legal under the Brown Act and then change your policies. Ms. MacDonald acted within the protocols prescribed by this board as it related to speaking during Item 7. This is where you violated her right to speak.
I would like to remind this Board of the September 2017 School Board Meeting. I suggest Dr. Haley and Bryan Marcus review that meeting audio un-scrubbed. The disrespectful and biased behavior allowed by the community and perpetrated by the governing body against those who do not agree with your governing style must stop.
Response from the board president:
As you know, the Brown Act requires that the agenda for local government bodies’ meetings provide an opportunity for members of the public to address a body on matters subject to its authority, and that regulations of the opportunity to speak be “reasonable.” Case law establishes that one need not be a resident of the agency’s territory to have standing to enforce the Brown Act against its bodies (McKee v. Orange Unified School District, 110 Cal.App.4th 1310 (4th Dist. 2003)). If one denied the right to speak to a body need not be a resident to sue the body for denial of that right, disclosure of one’s address cannot reasonably be made a mandatory precondition to one’s right to address the body.
Moreover, since the right to anonymous attendance at a meeting is so comprehensively and emphatically established in Government Code Section 54953.3, and since the right to anonymous political speech has been consistently affirmed in US Supreme Court decisions under the First Amendment (e.g. Talley v. California (1960) and McIntyre v. Ohio Elections Commission (1995)), making self-identification a mandatory precondition of speech in a public meeting is statutorily and constitutionally impermissible without a compelling state interest, which is absent here.
Speakers who want to get real (not just rhetorical) questions answered or problems solved by staff can and will provide contact information. Others may want to appear and simply place an issue on the public record that can be pursued without knowing who they are or having any further contact with them, or to comment on a matter already on the agenda. We can imagine no innocent and compelling reason why the agency must know who is speaking if that person prefers not to say. The anonymous speaker takes the risk that his or her comments will be given less persuasive weight than those of people willing to identify themselves, but that is a risk that the speaker has to decide.
I appreciate your attempt to establish protocols at the school board meeting and working to establish a fair forum for the public to express their opinion in a neutral atmosphere.
However, I could not allow my views to go unvoiced as you owe Ms. MacDonald an apology. You did violate open meeting laws the way this district has established them in writing. Every board meeting you read the following:
PUBLIC COMMENTS If you wish to speak regarding an item on the agenda, please complete a speaker slip located at the sign-in desk and present it to the Secretary to the Board prior to the start of the meeting. When the Board President invites you to the podium, please state your name before making your presentation. Persons wishing to address the Board on any school-related issue not elsewhere on the agenda are invited to do so under the “Public Comments” item. If you wish to speak under Public Comments, please follow the same directions (above) for speaking to agenda items. In the interest of time and order, presentations from the public are limited to three (3) minutes per person, per topic. The total time for agenda and non-agenda items shall not exceed twenty (20) minutes. An individual speaker’s allotted time may not be increased by a donation of time from others in attendance. In accordance with the Brown Act, unless an item has been placed on the published agenda, there shall be no discussion or action taken. The Board may 1) acknowledge receipt of the information, 2) refer to staff for further study, or 3) refer the matter to the next agenda.
There is nothing in this statement that indicates you had the right to limit Ms. MacDonald’s right to address the Board on item 7 at the regular school board meeting. Her desire was to speak regarding an item on the agenda that related to the student updates. If you actually paid attention to what she spoke about later in her public comment she was on point to student issues. You are an elected body, doing the people’s business. You did violate her rights when you did not allow her to address the governing body on item number 7 as your board rules, as written allow her to do.
I would refer you to the website, the first amendment coalition FAQ about this topic. https://firstamendmentcoalition.org/2010/11/aa-public-right-to-to-speak-denied-at-school-board-meetings/
I understand where you were going — you tried to apply the special meeting protocols to the regularly scheduled board meeting. Now going forward if this is a protocol you want to establish, you should consult your legal council and determine if restricting speech to certain portions of your regular board agenda is actually legal under the Brown Act and then change your policies. Ms. MacDonald acted within the protocols prescribed by this board as it related to speaking during Item 7. This is where you violated her right to speak.
I would like to remind this Board of the September 2017 School Board Meeting. I suggest Dr. Haley and Bryan Marcus review that meeting audio un-scrubbed. The disrespectful and biased behavior allowed by the community and perpetrated by the governing body against those who do not agree with your governing style must stop.
As you know, the Brown Act requires that the agenda for local government bodies’ meetings provide an opportunity for members of the public to address a body on matters subject to its authority, and that regulations of the opportunity to speak be “reasonable.” Case law establishes that one need not be a resident of the agency’s territory to have standing to enforce the Brown Act against its bodies (McKee v. Orange Unified School District, 110 Cal.App.4th 1310 (4th Dist. 2003)). If one denied the right to speak to a body need not be a resident to sue the body for denial of that right, disclosure of one’s address cannot reasonably be made a mandatory precondition to one’s right to address the body.
Moreover, since the right to anonymous attendance at a meeting is so comprehensively and emphatically established in Government Code Section 54953.3, and since the right to anonymous political speech has been consistently affirmed in US Supreme Court decisions under the First Amendment (e.g. Talley v. California (1960) and McIntyre v. Ohio Elections Commission (1995)), making self-identification a mandatory precondition of speech in a public meeting is statutorily and constitutionally impermissible without a compelling state interest, which is absent here.
Speakers who want to get real (not just rhetorical) questions answered or problems solved by staff can and will provide contact information. Others may want to appear and simply place an issue on the public record that can be pursued without knowing who they are or having any further contact with them, or to comment on a matter already on the agenda. We can imagine no innocent and compelling reason why the agency must know who is speaking if that person prefers not to say. The anonymous speaker takes the risk that his or her comments will be given less persuasive weight than those of people willing to identify themselves, but that is a risk that the speaker has to decide.
“ Taxpayers and students need an independent representative who will look out for their interests…
a parent of a district student…with fresh ideas.
Lea is an outspoken voice for students and their parents… one of the few that dares to speak out.
Lea has the courage, commitment, and integrity to be a student-centered trustee.”
a parent of a district student…with fresh ideas.
Lea is an outspoken voice for students and their parents… one of the few that dares to speak out.
Lea has the courage, commitment, and integrity to be a student-centered trustee.”
