ACLUF-SDIC Letter to San Diego Unified School District Regarding Public Comment Policy

The following is a letter sent to San Diego Unified School District Superintendent Cindy Marten regarding public comment restrictions during school board meetings. A PDF copy of the letter can be found here.

September 18, 2020

Via E-Mail
Cindy Marten, Superintendent
San Diego Unified School District

Re: San Diego Unified School District Public Comment Policy

Dear Superintendent Marten:

On behalf of ACLU of San Diego & Imperial Counties, I write to ask that San Diego Unified School District (“SDUSD”) immediately amend its public comment policy to permit live comments by telephone or teleconference during all public meetings. We initially made this request to the district on September 3, 2020. I understand that the district has declined our request, apparently because it believes that limiting public comment to written submissions only satisfies the law. We believe that the district’s current public comment policy violates both the Brown Act and Executive Order N-29-20 (“EO N-29-20”) issued by Governor Newsom by improperly restricting the means by which community members may submit public comment during board meetings. It is our position that SDUSD’s current public comment procedure violates the law by prohibiting community members from providing live comment via telephone or teleconference and by accepting public input only through written statements submitted prior to the board meeting.

Additionally, based on our discussions with partners and community members, we understand that the opportunity to directly address district leadership is an important priority critical to building trust with the district during this challenging time. Given the need for clarity and transparency during the unprecedented school closures, and the potential legal violations of the district’s current restrictions to public comment, we ask that SDUSD reconsider its position and modify its public comment policy immediately.

SDUSD’s restrictions on public comment violate both the Brown Act (the “Act”) and Executive Order N-29-20. As you likely know, the Act requires government entities such as SDUSD to allow members of the public to comment on items on the Board’s agenda and on any subject within the Board’s jurisdiction. See Government Code § 54954.3. It is clear from the language and structure of the Act and the uniform practice of local government bodies throughout the state that government bodies must allow members of the public to address them orally during board meetings, not limited to submitting comments in writing or having someone else read their comments. Government Code section 54954.3 specifically requires government bodies to allow “the public to directly address the legislative body” and authorizes regulations limiting the time for public comment. Id. (emphasis added). For example, the Act requires government bodies to double the time allotted for speakers who utilize a translator. See id. These provisions would have no force if a government body may limit public comment solely to written submissions and afford no time for the public to address the board directly. Moreover, the California Court of Appeal has held that a local agency violates the Act by prohibiting a person from
speaking at the public comment period. Galbiso v. Orosi Pub. Util. Dist., 167 Cal. App. 4th 1063, 1079-80 (2008).

Under EO N-29-20, a government body that holds public meetings by teleconference satisfies the Brown Act’s public comment requirements only if it allows members of the public to “observe and to address the meeting telephonically or otherwise electronically…” EO N-29-20, ¶ 3. In order to read this language consistently with the Brown Act, government bodies must allow members of the public to address the Board directly through telephone or other electronic means during a board meeting. This is consistent with the instruction that “[a]ll state and local officials are urged to use sound discretion and make reasonable efforts to adhere as closely as reasonably possible to the provisions of the…Brown Act…in order to maximize transparency and provide the public access to their meetings.” Id.

To allow telephonic or teleconference comments during public school board meetings would be consistent with the current practices of other agencies in the region. Indeed, allowing live telephonic or Zoom comment has been common practice for many government entities, including other districts in our region, throughout the state during the COVID-19 pandemic. We further understand that the Board already participates in remote meetings using the Zoom teleconference platform. Accordingly, we ask that SDUSD reconsider this request and swiftly adopt a public comment policy that allows for live oral comments and gives students, stakeholders, and the public at-large the important opportunity to have their voices heard by school leadership.

Thank you for your consideration. Please contact me at or (619)398-4489 if you have any questions or would like to discuss.

Melissa J. Deleon
Equity Staff Attorney

John Lee Evans
Kevin Beiser
Michael McQuary
Richard Barrera
Sharon Whitehurst-Payne