The Oregonian
April 5, 2016
The Oregonian Editorial Board
These days, it seems, protest is less about debate and more about disruption. Citizens have yelled at Portland city commissioners, taken over a wildlife refuge and stormed through the state capitol building in Salem to make their positions known. And while shouting down others is hardly a winning strategy for changing minds, it has been effective in delaying action by public agencies.
So it's not surprising that Portland State University's trustees, whose December meeting was shut down by protesters, might look for other ways to accomplish their work if activists tried to block them again.
Their response last week, however, wasn't the solution. After protesters once again disrupted their meeting, trustees retreated to a basement conference room across campus, where they voted to approve a controversial 4 percent tuition increase outside of the view of the public, except for a few media members.
PSU did broadcast audio of the meeting on the internet as it took place, but that still falls short of what public meetings law requires, said Duane Bosworth, an attorney with First Amendment law expertise at Davis Wright Tremaine who has represented The Oregonian in various matters. The law, which calls for openness unless expressly stated otherwise, outlines a right of public attendance to allow Oregonians to visibly and audibly scrutinize the workings of government, he said, with few exceptions. PSU did not claim any, the university confirmed.
The meeting started off as expected with trustees listening to public comment, as The Oregonian/OregonLive's Andrew Theen reported. But when that period ended, protesters filed in front of the table, loudly announced that the public comment period was not over and took over the meeting.
At this point, trustees could have called on police to remove those who were impeding the progress of the meeting. While it would cause a scene, such a move would be appropriate, as the state attorney general's manual on public meetings suggests. Instead, they took a break and reconvened at a separate conference room that they had pre-selected as an alternative meeting space.
In an email to The Oregonian/OregonLive editorial board, trustee chairman Pete Nickerson said the board is trying to balance its need to get business done, meet public-meetings requirements and uphold its commitment to free expression. He said the board believes it acted within the public-meetings law, pointing to the attorney general's guidance. He wrote that the advice allows for a governing body to conduct a meeting in a room closed from the public "in the event of a threatened disturbance, as long as the public has access to the meeting through electronic means."
But the actual wording in the manual is a little more specific, noting that "in case of an announced threat to disrupt a controversial meeting, it would be permissible to hold the meeting in one room from which the public is excluded, and to allow the public to view and hear the meeting by television in another room."
"View and hear" – not just hear.
One example of the inadequacy of audio only: The trustees' crucial vote to approve the tuition hike was taken by voice and raising hands, Bosworth noted. That does not translate well on an audio-only broadcast. For instance, anyone listening would not know that two people raised their hands to abstain from voting, as was apparent from a short cell phone video taken by Theen.
It's hard to see any winners here. Protesters certainly did not get what they wanted – that's an inherent flaw with a strategy that seeks to drown out discussion by amping up volume and emotion. A show of force rarely succeeds in bringing others around to your viewpoint.
Trustees understandably wanted a way to get business done. They had provided many opportunities for students to share their objections to the tuition increase and said they want to offer more. But they flunked the test of advancing PSU's educational mission as an institution that fosters debate with their handling of the vote.
And as Bosworth noted, the transparency requirements in the public meetings law help build Oregonians' confidence in the workings of government. Unfortunately, by that measure, both PSU and the public have also come out losers.