The Oakland school board meets in an upstairs conference room, while public participates via remote microphones downstairs on Nov. 6. (Photo by Theresa Harrington/EdSource)

When the Oakland Unified school board meets Wednesday, it may again decide to ban the public from its meeting due to fears that protesters who have disrupted previous meetings will return.

But an expert warns that meeting in a room separated from the public may be legal, but does not appear to adhere to the spirit of the state’s Brown Act open public meeting law.

On Nov. 6, the Oakland school board closed its meeting to the public amid fears that opponents of the district’s plan to close schools would attend and disrupt it as occurred on Oct. 23. Officials said the board may similarly close its next meeting Nov. 13.

David Snyder, executive director of the nonprofit First Amendment Coalition, said the Brown Act allows school boards to hold public meetings via teleconference as long as the public has an opportunity to see and hear the board and to participate in the public comment section as they would in an ordinary meeting. But Snyder, who is a Brown Act expert, said he had never heard of any elected body using the teleconference rule to meet separately from the public.

“I don’t think this is what the Legislature had in mind,” he said, adding that the provision is usually used to allow some board members to participate in meetings remotely when they can’t attend in person. “The board would be ill-advised to continue to do this regularly, because it removes the public from the action in a way that’s probably technically permissible under the Brown Act, but at a minimum, it doesn’t look very good,” he said.

The board’s action was in response to the Oct. 23 meeting, when police used batons to keep protesters behind barricades, as well as previous meeting disruptions. Police claimed they were trying to protect board members from the protesters. But protesters said police used unnecessary force, adding that at least one protester was injured during her arrest.

On Nov. 6, the board took what some critics called an unprecedented step of holding its meeting in an upstairs conference room to conduct public hearings on charter school renewals. Only the charter petitioners and the media were allowed inside. Other members of the public watched the meeting in a downstairs room where they were able to use a microphone to comment.

Parents, teachers and other community members have been protesting the Sept. 11 vote by the school board to close Kaiser Elementary in the Oakland hills and mergeit with Sankofa Academy in an area of Oakland known as the flatlands. Kaiser’s diverse student body comes from throughout the city. The closing is part of the district’s multi-year plan to close, merge or expand up to 24 of its approximately 80 schools.

Zach Norris, a Kaiser Elementary parent who was arrested last month, said his group never intended to disrupt the Wednesday meeting. He called the board’s decision to meet separately from the public “unfortunate and anti-Democratic.”

“I think it shows that this board that is more focused on closing schools than keeping them open doesn’t have the confidence of the public,” he said. “Them feeling like they have to meet in secret is indicative of that.”

Acting board president Jody London said the board decided to meet upstairs based on its belief that the meeting would be disrupted. She told EdSource that the board may consider meeting upstairs again Nov. 13, in part due to concerns about disruptions, as well as perceived threats to her safety.

“News reports, online media posts, other documentation and statements made in public make it clear that there is a clear intent to fully and completely disrupt tonight’s board meeting,” London said at the start of the Nov. 6 meeting. “To be clear, we would much prefer to hold this meeting in the great room downstairs, but doing so in the face of certain disruptions is not fair to the public as it would delay the meeting and the important business of the board.”

Although the downstairs meeting room was filled with charter school supporters and a handful of other members of the public last Wednesday, no protesters showed up from a group called “Oakland is not for sale,” who have disrupted previous meetings to voice opposition to school closures and charter schools.

Charter school supporters and other members of the public pack the Oakland Unified school board meeting room, while the board meets in an upstairs conference room on Nov. 6.

District spokesman John Sasaki said the board was justified in meeting upstairs because of past disruptions and because the public was still allowed to participate in the meeting, with the press allowed inside the board room.

He said the meeting met the purpose of the Brown Act to ensure that board actions are “taken openly and that their deliberations be conducted openly.”

“Members of the public were able to observe the deliberations of the board and were able to make public comment just as if the board members were physically present in the same room,” he said in a written statement to EdSource. “The only difference was that it wasn’t possible to disrupt the meeting (either by physically disrupting it — as occurred on September 25 and October 23 — or by making too much noise — as occurred on October 10). ”

Sasaki said the meeting was “properly noticed and clearly described in the agenda as required by Government Code 54954.2.” He noted that protesters “had previously stated their intent to attempt to prohibit the school board from conducting any business. While this didn’t happen at the special board meeting on November 6, we fully believe this will occur at the next regular Board meeting on November 13.”

He said the district is still working to set up a meeting with protesters and that it is seeking an outside investigator to look into the use of force by district police. Video of the incident is expected to be released soon, he added.

Mike Hutchinson, who leads an Oakland activist group called the Oakland Public Education Network, which opposes district school closures and charter schools, decried the district’s decision not to allow the public into its meeting.

Oakland anti-school closure activist Mike Hutchinson is denied access to the Oakland Unified school board meeting in an upstairs conference room by security guards on Nov. 6.

“This is the first time ever that the Oakland school board has planned on denying the public access to a public meeting,” he said in a statement posted on the group’s Facebook page. “This is illegal, and even worse, the school board has betrayed the community that elected them. This is unacceptable and we can’t let this become the new normal.”

The “Oakland is not for sale” group is encouraging its supporters to wear black to the next meeting and to “stand up” and “fight back” against school closures. Norris said he does not know if protesters will disrupt the meeting, but he stressed that his group does not condone any kinds of threats or violence.

“The idea that we’re threatening is laughable to me,” he said, adding that his group is trying to educate the community about the negative impacts of school closures. “We’re going to take the opportunity to publicly demonstrate. If board members feel uncomfortable about what we’re saying, maybe they should reconsider closing schools.”

* Editor’s Note: As a special project, EdSource is tracking developments in the Oakland Unified and West Contra Costa Unified School Districts as a way to illustrate some of the challenges facing other urban districts in California. West Contra Costa Unified includes Richmond, El Cerrito and several other East Bay communities.

Story originally published by EdSource.