Talk of school employees should not be limited to closed session, AG says

By Matt Leonard

Staff Writer

Virginia Attorney General Mark Herring has rendered an opinion that school boards are violating citizens’ First Amendment right to free speech by not allowing them to speak about school employees in open session.

Delegate Rick Morris requested the opinion in reference to the Franklin City School Board, but the Isle of Wight County School Board has similar language in its rules for speaking at meetings.

“Any matter relating to specific personnel or students will be heard by the School Board only in a closed meeting,” Isle of Wight’s rules state.

Both Franklin and Isle of Wight have refused to allow these matters to be addressed except in closed session.

The attorney general cited several court cases that set the precedent for its conclusion, among them Baca v. Moreno Valley Unified School District.

In Baca, the judge said when school boards are having an open session, they are not then acting as employers, but as a governmental entity.

“One aspect of the legislative body’s function is to listen to public testimony, including public criticism of those persons implementing the policies,” Baca reads.

“The maintenance of the opportunity for free political discussion to the end that the government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system,” the Baca decision found.

Herring wrote that based on the Baca ruling, “I conclude that allowing discussion of individual school employees only during closed session does not meet the constitutional standard of ‘leaving open channels of communication.’”

“I conclude that the School Board may not constitutionally bar speakers from discussing personnel issues or identifying individual school employees or officials during public session.”

Herring was less certain about school boards’ ability to ban the mention of a specific student in public, saying the circumstances surrounding a specific instance would be the deciding factor.

Herring noted that there is a “significant government interest in protecting the privacy of individual students in certain circumstances, as evidenced by state and federal student privacy laws.”

In addition, some comments about students might not fall within the proper context of a school board meeting.

“Because there is such a wide range of possible comments about individual students, I can express no overall opinion on the constitutionality of such a restriction. The constitutionality of barring speakers from identifying individual students would be governed by the specific facts of the situation.”

“I think the law is pretty clear as far as what is allowed to be brought up at these board meeting,” Delegate Rick Morris, R-64th, said in an interview this week.

Morris said he will be bringing several items to Virginia’s FOIA (Freedom of Information Act) Council this summer, and among those items will be language clarifying what is acceptable for government to bar from an open meeting.

Morris said the restrictions on talking about school employees could have stemmed from a misinterpretation of Virginia’s FOIA law.

“I don’t think there will be any ill intentions, just a misunderstanding of the law,” he said.

Virginia law allows public bodies to talk about personnel issues in closed session rather than in public, but does not require that they do so.

The rules for speaking in open session were passed by the Isle of Wight School Board in 2008 following recommendations by the Virginia School Board Association.

The VSBA did not respond to a request for comment. A spokesperson for the Isle of Wight county schools, Lynn Briggs, said she had not heard any mention of the attorney general’s opinion.

“(This opinion) lays a foundation for freedom of speech,” Morris said. “We should foster as much communication as possible, not look for ways of inhibiting it.”

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