It was business as usual in school board chambers across the U.S. just a few weeks ago.
Board members would take their seats. Parents, students, teachers, and curious citizens would file in, sitting or standing shoulder-to-shoulder if the evening’s agenda was meaty. During time for public comment, speakers would line up and take turns at the same microphone.
That would be unthinkable now. The COVID-19 pandemic has upended most aspects of American life, including how the public’s business is conducted.
School boards and other governing bodies have moved to virtual meetings to maintain the social distancing considered crucial to slowing the virus’s spread — and, in some cases, are operating under looser rules made possible by hastily crafted executive orders and board motions.
The transition has been smoother for some school districts than others, and open government advocates say the vast majority have attempted to abide by state public records and open meetings laws. But a few situations have raised questions about transparency, including a closed school board meeting conducted by videoconference in Memphis, Tennessee, and a school board decision in Newark, New Jersey, granting the superintendent sweeping authority.
“Even a crisis as profound as this one cannot be an excuse to start doing business in the dark,” said David Snyder, executive director of the First Amendment Coalition, a California-based nonprofit. “Transparency is more essential now than it has been in a very long time.”
So-called “sunshine laws” vary by state, but they generally require public agencies to publicize board meetings in advance and make them accessible to the public. The COVID-19 crisis has forced many states, however, into the uncharted territory of trying to conduct business meetings virtually.
Before COVID-19, public board meetings in Tennessee essentially required a physical quorum — enough members had to attend in person for a meeting to proceed. As the virus’s spread limited public gatherings, Republican Gov. Bill Lee signed an executive order March 20 allowing public bodies to meet electronically through video or telephone conference call.
Agencies are supposed to make “reasonable efforts” to give the public live access to meetings and make recordings available within two days if that isn’t possible.
One week after Lee’s order, the Memphis school board met privately by Zoom video conference, its first gathering since the COVID-19 outbreak closed school buildings.
Contacted after a Chalkbeat reporter learned of the meeting, a Shelby County Schools spokesperson said the meeting involved an attorney-client matter related to adhering to federal laws on educating students with disabilities during the crisis. She later said that information was incomplete and did not include all of the meeting topics.
A lawyer for the Reporters Committee for the Freedom of the Press, representing Chalkbeat through a new legal initiative supporting local news organizations, wrote a letter to the school district Monday saying the private meeting appeared to have violated state statute.
The district rejected that claim in a response late Thursday, saying it did not need to notify the public of the meeting in advance and that it had legal grounds to keep it private.
Not referring specifically to the Memphis school board meeting, an open government advocate said school districts struggle more than other public entities in Tennessee with knowing the rules for going into a closed session. In normal times, school boards discuss sensitive matters involving the rights of minors and concerns of teachers and parents, and emotions can run high, said Deborah Fisher, executive director of the Tennessee Coalition for Open Government.
Fisher predicted difficulties for school boards as they carry out their duties during the epidemic, which is already wiping out in-person schooling at districts nationwide this year.
“It’s going to be a rough road ahead,” Fisher said. “It’s going to be a challenge culturally — in terms of a commitment to transparency — and technologically. Governing bodies already oriented to transparency are going to probably figure something out, as weird and as clumsy as it can be. Those who are not committed to transparency are going to get into problems.”
In Newark, school district leadership has a spotty track record communicating with the public and the press, and that has continued during the pandemic.
The school board voted unanimously March 27 to grant Superintendent Roger León power to take any actions he considers necessary to continue operating the district during the crisis. The board motion states that León’s actions are still subject to board approval, but it’s not clear how that has been or will be put into practice.
The school district has not provided a written copy of the motion or responded to questions from Chalkbeat about its implications.
Walter Luers, president of the New Jersey Foundation for Open Government, said school boards and other public agencies can’t take shortcuts and ignore open records and meetings laws even if they suspend certain policies during an emergency like COVID-19.
“We’ve yet to see how this plays out, but this board of education must not relieve itself from complying with the law,” Luers said. “It’s very concerning.”
The coronavirus crisis has raised other transparency issues in school districts across the country. Among them:
- With states giving public agencies more time to respond to open records requests because of the crisis, a number of school districts are taking longer to respond and fulfill requests, citing closures of schools and administrative buildings. Some are taking longer than others. The Denver school district’s open records officer responded to a Chalkbeat request saying it “may take up to the full 10 business days allowed under the statute.” The Memphis district responded to a request related to COVI19 by saying that “we hope to complete your request on or before June 5, 2020.”
- The crisis has prompted some districts to rein in meeting requirements. In New York City, the city Department of Education issued a waiver to a requirement that parent teacher associations in each school meet nine times per school year.
- In Indianapolis, criticism and threat of legal action over how the Indianapolis Public Schools board ran its first virtual meeting prompted the board to re-take some votes at another meeting this week.
School districts can take additional steps to adapt to the new virtual reality forced by the coronavirus outbreak, said Francisco M. Negrón Jr., chief legal officer of the National School Boards Association. School boards are considering budgets for the next school year and many are urging the public to send in questions ahead of meetings, he said.
Replicating public comment periods has proven more difficult, even for more technologically-savvy school districts that regularly stream public meetings. Some states recognize a public right to comment during open meetings, while others don’t require it.
In Colorado’s 21,000-student District 49, which spans 133 square miles including northeast Colorado Springs and the surrounding area, the board last month experimented with holding a work session via Google Hangouts.
No one took up the district’s offer to submit questions ahead of time, and the platform did not allow for the public to tune in live, said John Graham, the school board president. After resolving some audio glitches, the district publicly posted a recording of the session.
Graham said the District 49 school board has long been committed to transparency. Typically, its in-person meetings are streamed on Facebook Live. Next week, the district plans to conduct its regularly scheduled board meeting on Zoom, which will allow the public to watch.
“At this time and place, with what is going on in our communities and the nation as a whole, the more transparent you can be … it’s very, very important,” Graham said. “The more we can make families feel secure and reassured about their students’ education, and how important and valuable their children are, the better they feel about things.”