A major change to how school board directors are elected is being discussed by the Berkeley school board during a closed session at Wednesday night’s meeting. School board directors are considering legal advice on whether they should begin a process to change from at-large to district elections to avoid potential lawsuits.
The subject of the meeting came to light in a private memo, inadvertently posted on the school board’s public agenda this week.
The memo, dated March 5, 2020, reveals that the board first received guidance more than two years ago on the risks of maintaining its at-large election system from its attorneys. In the memo, the attorneys explain that school districts with district elections are less likely to be sued for violating the California Voting Rights Act (CVRA). The pandemic curtailed the discussion; now, the school board members will take up the issue again.
School board members are currently selected through at-large elections, which means voters from across the city elect them into office and they represent the entire city. In district elections — the method Berkeley voters use to elect the City Council — candidates would represent the district they live in.
“We do not know whether any change to School Board elections will be necessary until we consult with legal counsel,” Superintendent Brent Stephens said in a statement to Berkeleyside. “If any change is deemed necessary, we will of course embark on a robust public process.”
No change would take place before the November election, according to Stephens.
Stephens said the memo was posted due to “the use of new software for creating Board of Education meeting agendas.” The memo was deleted minutes after Berkeleyside sent questions about it to district leaders on Monday.
In the memo, attorneys for the district advise the board on the costly legal challenges faced by districts with at-large elections.
Cities and school districts have faced CVRA lawsuits for nearly two decades, on the grounds that at-large elections stifle the representation of a minority voting bloc, but the suits have been growing in numbers in recent years. In 2004, Modesto’s City Council switched to district elections after a group of Latino voters filed a lawsuit against the city for diluting their vote. The city settled for $3 million.
District elections are widely lauded for improving minority representation in local seats. But an LAist analysis of 79 California cities showed that switching to district elections brought little to no change in minority representation. Research suggests that a city’s particular context — for example, the size of its Black population or whether Black residents are concentrated in one part of a city or not — significantly impacts what kind of effect district elections will have.
The memo, written by attorneys from Fagen Friedman & Fulfrost, LLP, a law firm that represents the school district, outlines two potential avenues for changing the election system. Both would start with the school board writing a public resolution asking the city to amend its charter. The board could do this as soon as its next school board meeting on April 13, based on the timeline proposed in 2020.
Then, one path would be for the city to put an amendment to the charter up for a vote, in which case drafts of the district boundaries would be discussed during two public hearings.
Alternatively, the school board could introduce its resolution and ask the city for a waiver to bypass the election process altogether.
The vast majority of the school board’s discussions are held in public, during school board meetings that feature online agendas posted at least three days in advance. These rules are outlined in California’s Brown Act, which requires elected officials to do their business in public.
Some discussions are allowed to take place behind closed doors. Public officials can meet in closed session to discuss ongoing or pending litigation, negotiations with labor unions, and matters involving individual employees.
The district’s decision to have this discussion during closed session could be a violation of the Brown Act, according to a first amendment attorney contacted by Berkeleyside, though his interpretation of the Brown Act is contested.
“This is antithetical to the letter and spirit of the Brown Act, which is all about transparency and accountability in official decision making,” said David Loy, legal director at the First Amendment Coalition.
“What you don’t want to have happen is a superficially open session, which is simply choreographed and scripted beforehand in closed session,” he said. “The public has a right to know that that is even on the table for discussion, so that they can appear and comment and speak to their elected representatives and be part of that debate.”
Loy said that, for the most part, conversations on potential lawsuits should happen in open sessions. In his more narrow interpretation of the law, a closed session should be warranted if the “facts and circumstances” revealed during the discussion might result in a lawsuit.
But an attorney who has represented public agencies in Brown Act litigation said anything that has the potential to result in a lawsuit warrants a closed session discussion.
“I believe that a series of occurrences, for example, the passage of the CVRA along with changing demographics, would qualify as ‘facts and circumstances’ that would justify a closed session,” Jeff Ballinger, of the law firm Best Best & Krieger, wrote in an email to Berkeleyside.
Superintendent Stephens said the district is aware of and complies with Brown Act rules. “[W]e always follow counsel’s advice on such matters. We are confident that this particular item was appropriately agendized,” he said in the emailed statement.
In December, Berkeley’s Fair Elections public funding program was expanded to cover school board candidates, as well as candidates for city auditor and the Rent Stabilization Board. The change is intended to lower the financial barriers for individuals to run for elected office.
By the end of the closed session, the school board could recommend whether to move forward with the change and introduce the topic at an upcoming meeting, or decide to maintain at-large elections.
If the district decides to keep its at-large election system, there will be no public discussion on the matter.
Correction: A previous version of this story mischaracterized legal advice received by the Berkeley school board. The board was briefed on the legal risks of maintaining at-large elections, but its attorneys did not recommend a specific course of action.