Thursday, June 20, 2013
The Berkeley County School Board made a change to restrict certain public comments at its last meeting, and some experts are calling this change unconstitutional.
Taking effect at the June 11 meeting, school board chairperson Kent Murray changed the citizen public comment card to restrict comments on the district’s involvement with the $198 million school improvement referendum the public voted for in November.
The district referred all questions to Childs and Halligan, the law firm that represents it. John Reagle, of that firm, said the change is a clarification of an existing policy and not an amendment to the policy.
“The current policy or procedures are the public comment period already provides there should not be discussion of personnel matters or students matters,” Reagle said. “This relates to personnel matters. This is an investigation into district personnel.”
The change surprised South Carolina Press Association Attorney Jay Bender.
“It would be astonishing to me that the chairperson would have the authority to change the policy unilaterally,” Bender told The Independent.
Bender is an expert on the state’s Freedom of Information Act. “If all the members of the board were not polled to change it, that’s a violation of FOIA,” he said.
The card stated that comments are restricted because the investigation by state agencies is ongoing and confidential, and because matters connected to the investigation may come before the board for action.
The S.C. Law Enforcement Division (SLED) is investigating the “Yes 4 Schools” campaign after a request from the South Carolina Attorney General’s Office.
Murray stopped former school board member and current Berkeley County Republican Party Chairman Terry Hardesty from speaking during public comments at the June 11 board meeting when he said his comments went off topic regarding the new limitations.
“Policies are written by the board,” Hardesty said. “They are passed after two readings. I don’t think there’s been any action on the policy since July of 2010. I was on the board then.
“That’s when they started assigning the comment card. I think there were one or two people coming to the board criticizing the board on a regular basis.”
According to the district’s online policy book, the board last amended the policy (AR BCBI-R, Public Participation in Board Meetings) in July 2010 when it began requiring citizens to fill out a card asking for their name, address, phone number and nature of their question or comment.
The additional restriction appearing June 11 on the back of the “Request to Speak Before the Board” card is not reflected in this policy, according to the district’s online handbook as of Monday morning.
“I question the legality of them requesting to know what you say beforehand,” Bender said.
“From last Tuesday, the board chair added that language to the back of that card,” Hardesty said. “I think that was a unilateral decision . . . . I don’t know what they’re doing behind closed doors anymore.
“They wouldn’t let me talk about what I wanted to talk about. It seems like censorship to me.”
“The policy itself is unconstitutional,” Bender said. “The part that determines that subject matter that can be addressed – prior restraint – prohibits in advance the speech on certain subjects. The constitution does not allow that.”
“I wouldn’t characterize it as a prior restraint,” Reagle said. “It falls under limited public forum analysis. The public body can create a limited public forum so only certain things could be discussed.
“The board should not be hearing public comments that could be prejudicial either way and unduly influence the board to ensure facts and matters are brought to the board in an appropriate matter in due process.
“We think it is reasonable in light of all the circumstances and it is viewpoint-neutral. It excludes both positive and negative comments about personnel that may be effected by the investigation.”
“Just because the board doesn’t like that speech doesn’t mean they can prohibit it,” Bender said. “It’s a classic example of school districts teaching children in the view of the school board the constitution doesn’t mean anything.
“I get students in my undergraduate classes at the University (of South Carolina, where Bender teaches journalism) that don’t seem to have ever had any exposure to the constitution and I now understand why.”
“Are the lawyers running the school district?” Hardesty asked. “They’re elected officials. This is nothing but the attorneys trying to keep this out of the press as much as possible.
“They don’t want anybody talking about it. They don't want to hear it because they’re wrong. They’re just flat wrong. That whole campaign was wrong.”
As of press time Murray had not returned calls for comment.