N.C. Court of Appeals hears Wake school lawsuit

Staff writerFebruary 24, 2011 

— The N.C. Court of Appeals heard arguments today on whether to reinstate a lawsuit that accuses the Wake County school board of having violated the state’s open meetings law during its efforts to eliminate the use of diversity in student assignments.

Supporters of the old diversity policy argued that Wake Superior Court Judge Bill Pittman incorrectly dismissed their lawsuit, which claims the school board tried to stifle public participation by not moving meetings that it knew would draw large crowds.

Pittman found that Wake had acted unreasonably during March board meetings but dismissed the lawsuit in May after saying the district had taken reasonable measures since then to accommodate crowds.

“They have failed to comply with the open meeting law to make these meetings accessible to the public.” said Mark Dorosin, a senior attorney for the UNC School of Law’s Center for Civil Rights, who made the legal arguments for the group who filed the lawsuit.

Dorosin asked for the case to be reinstated and for a preliminary injunction to be issued that declares the school board violated the open meetings law and is ordered not to do so again.

But attorneys representing the school system argued that Wake has taken reasonable steps for the public to attend the meetings in person and for people to watch the meetings online.

“The open public meetings law doesn’t give each and every member of the public an unfettered right to attend every meeting,” said Kieran Shanahan, an attorney representing the school system.

In addition to contesting the reinstatement of the lawsuit, Shanahan asked the appellate panel to throw out sections in Pittman's ruling that found that the school system had acted unreasonably.

A decision isn’t expected for several months. Judges Sam Ervin IV, Robert C. Hunter and Donna Stroud heard the case.

The lawsuit largely centers around the March 23 meeting in which the school board passed a resolution calling for students to be assigned to community-based schools.

With large numbers expected, school officials announced the day before that the public would not be allowed into the small conference room where the school board holds its committee of the whole meetings. School officials announced that the public could watch the meeting in the main board room via live video, which wound up breaking down during the meeting. A few seats were later opened up in the conference room for the public.

School officials also announced that tickets would be required for seats in the main board room. School officials had cited concerns raised by the fire marshal about crowding at prior meetings.

School officials initially told people who arrived as early as five hours before the meeting that they couldn't leave the building if they wanted to keep their tickets. After complaints, school officials relaxed the policy about leaving the building. Tickets are still required for board meetings.

School leaders also turned down a last-minute request from news organizations including The News & Observer to pay for the costs of relocating that meeting to a larger location.

The crowd overflowed into the hallway and outside the building. Angry high school students and other protesters began chanting, leading to the arrest of three people. In the lawsuit, lawyers for the plaintiffs argue that the school board's actions were designed to have a chilling effect on public participation.

School officials argued that they had made reasonable accommodations in March to handle the crowd. But they've also taken additional steps since then such as setting up overflow rooms for people to watch the meetings.

Since March 23, attendance has sharply dropped off at board meetings.

As part of the injunction, Dorosin said they want the court to order the school board to take steps such as moving the committee of the whole meetings to a larger location and to move the regular meetings to a larger location when they can reasonably expect large crowds.

Dorosin argued that allowing the ruling to stand could allow other public bodies to totally exclude the public from meetings if they also provide video coverage. The groups supporting the lawsuit are still asking for the original request in the lawsuit - that the March 23 vote on the community schools directive be declared void.

A successful ruling could require the board to revote on all student assignment votes since then. But school officials could also argue that those later votes superseded the March 23 resolution so no revotes are needed.

keung.hui@newsobserver.com or 919-829-4534

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