The Commissioner of Education Authorizes Excluding Non-Residents From The Right To Speak During Public Comment At A Board of Education Meeting

In a recent decision, the Commissioner of Education reaffirmed that school districts have the right to exclude non-residents from being allowed to speak during the public comment portion of a Board meeting. In that case, the Commissioner reviewed and upheld a policy of a school district which permitted residents, parents, or employees of the school district to speak during the public comment period of the Board meeting. [1] The petitioner owned property and paid taxes within the district, but did not live within it, and was denied speaking at a Board meeting.

The Commissioner noted that the same argument that non-residents could not be excluded from public comment had been raised and rejected in a previous appeal to the Commissioner in 1992, Appeal of Martin. The Commissioner stated that property owners’ rights are not synonymous with those of residents, because, for example, Education Law §3202 does not give non-resident taxpayers’ children the right to attend the schools tuition free.

This case is significant because the new decision reaffirms the 1992 holding, which was called into question by a 1997 opinion from the Committee on Open Government (COOG). COOG opined that: “it is my view that any member of the public has an equal opportunity to partake in an open meeting, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the Open Meetings Law and, therefore, unreasonable.”

Therefore, if a Board of Education wishes to limit authorized speakers to residents, or to residents and one or more of the following categories: taxpayers, parents of current students, employees, and volunteers, the district may be authorized to do so. Other categories of exclusion and requirements in order to be permitted to speak during the public comment portion of a meeting may remain unreasonable, however. Additionally, constitutional free speech requirements control any district restrictions on viewpoints expressed during public comment. We recommend contacting your legal counsel to help you draft the appropriate policy.

[1] Appeal of Eric Berend from the Action of the Board of Education of the Newburgh Enlarged City School District, Decision No. 18,743