Clear backpacks, secret meetings. Did Broward School Board follow the law?

Experts say meetings may violate state’s open meetings law

South Florida Sun-Sentinel | By Scott travis | May 16, 2023

Broward School Board members met behind closed doors in recent months to decide whether to require all students to use clear backpacks and wear school uniforms, discussions that may have violated Florida laws on open meetings.

The district notified parents and students May 5 that the district was requiring all student backpacks, purses and lunch containers be see-through for the 2023-24 school year, a move that has received heavy backlash. On May 9, School Board members confirmed that they made the decision during a previous closed-door session on security.

On Friday, School Board member Brenda Fam confirmed on Facebook that the board was considering a mandatory dress code. She urged her constituents to share their opinions with School Board members.

Now, the School Board is facing questions about whether discussing these issues behind closed doors violated the state Sunshine Law, which requires most meetings to be open.

Unlike clear backpacks, Broward schools won’t consider students to wear uniforms during the 2023-24 school year, district spokesman John Sullivan said.

Sullivan wouldn’t say at which specific meetings the two ideas were discussed. The School Board held closed-door safety and security meetings this year on Feb. 7, March 28, April 11 and April 18, meeting minutes show, although there could be others since state law does not require the School Board to provide any public notice for these discussions.Skip Ad

“Following the horrific tragedy at Marjory Stoneman Douglas on February 14, 2018, the District is continuously looking at all options to keep our schools safe,” Sullivan said in an email.

“ALL closed-door sessions are held and conducted following state statutes,” Sullivan wrote. “If clear backpacks and school uniforms were discussed in a closed-door session, those topics would fall under security plans. Security plans … are allowable topics for a closed-door session.”

Sullivan’s email also cited a state statute on student attire, which encourages the use of uniforms and “specifically links school uniforms to school safety.”

Two Broward School Board members, Fam and Sarah Leonardi, questioned General Counsel Marylin Batista on Tuesday about whether it was legal to discuss backpacks and uniforms in closed session. Batista said yes, without acknowledging the topics were actually discussed.

“Assuming that such a discussion would have been had, it could potentially be part of the security plan,” Batista said. “The (statute) language is somewhat broad in the sense that it talks about security plans. And so it’s open to interpretation,” she said.

The district’s explanation is a stretch, several lawyers and open meetings experts told the South Florida Sun Sentinel. State statutes specifically define what issues related to a security plan can be discussed in closed-door meetings. Backpack and uniform requirements aren’t among them, they said.

Topics that can be discussed in private, according to statutes, are “records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations … relating directly to the physical security or fire safety of the facility or revealing security or fire-safety systems.”

The statute also allows for private discussions of threat assessments, threat response plans, emergency evacuation plans; sheltering arrangements and security and fire safety training manuals.

“A basic school board discussion about the pros and cons of requiring see-through backpacks or school uniforms are not discussions directly related to the schools’ physical ‘security or fire safety system.’ That argument would be absurd under the reading of the statutes,” said Anthony Conticello, a Tallahassee lawyer who represents clients that challenge government Sunshine Law violations.

He said the purpose of the security exemption “is not to shield the discussion, which should be open, but to shield a part that might compromise the School Board’s existing security plan related to the physical facilities.”

The law helps protect criminals from knowing the precise layout of a school and the location of surveillance cameras and emergency plans that could reveal where people on campus hide or evacuate, experts said.

“The whole point of that exemption is for them to be able to discuss sensitive security information behind closed doors,” said Barbara Peterson, a longtime open government expert who leads the Florida Center for Government Accountability.. “The fact that they want kids to start wearing a clear backpack or wear a uniform, how is that going to be sensitive?”

Bobby Block, executive director of the First Amendment Foundation, which advocates for open government, also questioned the district’s reasoning.

“I am not sure how security applies here if these are going to be visible, well-communicated measures to district staff and parents,” Block said. “Is it that they are looking to avoid public comment?”

After the district finally informed the public about the clear backpack plan, the reaction was largely negative. Parents flooded social media and sent board members emails complaining the backpacks invade students’ privacy, increase the likelihood of theft and don’t make schools safer. Parents on the District Advisory Council, which makes recommendations to School Board, voiced near-unanimous opposition at a May 10 meeting.

Parents have also been divided over the years about mandatory school uniforms, with the district traditionally leaving the decision up to individual schools.

Jacqui Luscombe, who serves on several parent advisory groups, said she is livid that the School Board was making decisions about clear backpacks and school uniforms in private.

“I can understand the need to take discussions about operational details relating to security behind closed doors, but a discussion of what materials student backpacks must be made of or what children should wear has no place being in the shadows,” she said. “They shouldn’t compromise proper safety and security, but it doesn’t mean you can just use security as a blanket term to avoid any awkward public discussions.”

Anyone who believes the school district’s meetings violated the Sunshine Law could file a challenge in circuit court. If successful, the School Board would have to redo the closed-door meetings in public for any action to be valid, Peterson said.

“They can protect their action by holding a meeting in compliance with the Sunshine Law, where they recreate to the best of their ability the conversation and the vote that they took in secret,” Peterson said. Even if a decision was made by consensus, it’s still considered a vote, Peterson said.

The School Board last held a do-over meeting in January 2022, after the Sun Sentinel questioned why candidates for superintendent were being ranked by secret ballot, a violation of the state Sunshine Law.

During the May 9 meeting, some board members expressed regrets about making the clear backpack decision behind closed doors.

“We never asked for public input on this, and that is part of the reason why we don’t have public buy-in,”  Leonardi said.

Board members agreed to hold a town hall on clear backpacks June 12 to answer the public’s questions and then vote on clear backpacks in public June 13. Those may cure the potential Sunshine violation related to the clear-backpack decision, Peterson said.

Batista told the board that those meetings should satisfy any Sunshine concerns about clear backpacks.

“Those items will be fully discussed and vetted by the board at that time,” Batista said. “So if in fact it would have been a violation, then it would be cured at those meetings.”

Some board members disagreed May 9 about whether to hold a workshop or public forum on clear backpacks, saying the board had made its decision and should stick with it. Board member Torey Alston said many like the plan and don’t want the board to keep debating it.

“You haven’t heard from thousands who say, ‘Thank goodness.’ You think those emails are going to come through? Those aren’t the emails you’re going to get,” Alston said. “The culture here is you’ve got to workshop things 20 times to make a decision.”