Despite mounting legal pressure from outside groups like the American Civil Liberties Union of Oregon and the district's own teacher's union, the Newberg school board did not back off its ban on Black Lives Matter and LGBTQ Pride displays at a special board meeting held online Wednesday evening.
Instead, the board voted 4-3 to table a motion that would have rescinded the ban while it waited for the district's policy committee to draft official language. As a result, the board is sticking with its directive that Superintendent Joe Morelock immediately enact the ban on those specific political symbols while the policy committee works to craft official language banning all other perceived political symbols.
This sets up a scenario where Morelock must decide whether to enact a ban on BLM/Pride displays that district lawyers have advised him is illegal. Morelock was asked by a board member at the meeting Wednesday if district lawyers have advised him that the directive would be illegal if enacted. Morelock responded in the affirmative.
The Newberg Education Association (NEA) filed a tort claim notice Aug. 23, indicating it intended to sue the school board if the directive to Morelock and overall ban on BLM/Pride symbols was not rescinded within 14 days of its filing. That deadline date is Monday. The ACLU has also threatened significant legal action and may move forward with a lawsuit on a similar timeline, citing the First Amendment to the U.S. Constitution and state free speech statutes.
Despite the continued potential for legal turmoil, the board's policy committee, now comprised of vice-chairman Brian Shannon and directors Trevor DeHart and Rebecca Piros, will now work to craft policy language for the official ban on all political symbols in school buildings, including BLM and Pride, with the exception of the American Flag and Oregon State Flag. In the interim, the board has directed Morelock to immediately remove and ban BLM/Pride displays in all district buildings. Whether he complies with that directive remains to be seen.
The board's decision didn't come without some discussion and consternation among its members.
"My concerns are around the legal ramifications," director Brandy Penner, who voted along with Rebecca Piros and Ines Peña against tabling the issue, said. "Our policies are based on law and this (directive) will be, to my current understanding, illegal."
Vice-chairman Brian Shannon, who introduced the motion, countered Penner's assertions: "I think we should table this so we can time the recension of the motion with the adoption of the policy we are going to form. I do not believe there are any additional legal ramifications for us."
Prior to Wednesday's special meeting, Shannon appeared on Portland conservative radio host Lars Larson's talk show to discuss the ban. After Larson heaped praise on Shannon and other board members for their "courageous" act of banning BLM/Pride displays, Shannon was asked if the board planned to back off the ban at its Wednesday meeting due to public and legal pressure the district faced.
"No," Shannon said.
When pressed later by Larson on whether he expected the board would stick with the ban, Shannon chose his words carefully while also offering a prediction on a motion the board had yet to discuss or vote on. If Shannon knew of board members' intent or how they planned to vote on the motion prior to the meeting, it would be a possible violation of public meeting laws in that a quorum is not allowed to discuss school district matters outside of a board meeting.
"I think you can count on the school board to stick with this position," Shannon told Larson.
That phrasing also matters because the specific directive to immediately take down BLM/Pride displays and ban them in schools now lies with Morelock, who has previously said he would not implement this directive if district lawyers advised it was illegal.
Shannon and the board's typical voting majority previously took the extraordinary step of breaking with protocol before a meeting last week. The goal of their motion, which passed 4-3, was to bring in supplementary legal counsel on the BLM/Pride matter: attorney Ty Smith of Canby, who has longstanding ties to conservative political causes throughout the state. Smith sent an email to board members in the past week supporting the board in its move to ban these symbols, but he is an attorney specifically retained by the board itself and not the district, and therefore has not been advising Morelock or other district administrators.
Mask mandate confusion arises
Later in the Wednesday meeting, the board also considered rescinding a previous motion that made masks optional for Newberg students. This motion â€“ made prior to the Gov. Kate Brown's edict that all Oregon students wear masks â€“ runs counter to the governor's mandate for K-12 schools. Although Shannon said Wednesday that district students will still have to comply with the state order, the previous motion making masks optional was not rescinded.
The vote was three board members in favor of rescinding, two opposed and two abstained. With the old resolution still in place due to the attempt to rescind failing, a potential loophole has been created for Newberg students not to comply with the mask mandate despite state directives. This could prove costly to the school district, which can be fined $500 per day per incident if it doesn't comply with the mask mandate.
Whether the district's language on masks will be clarified with school slated to start on Sept. 8 remains to be seen. For now, the governor's mask mandate remains in place and students in Newberg and everywhere else in the state are legally required to wear masks in schools. However, the school board still has a motion it adopted and did not rescind that makes the masks optional, which appears contradictory to the governor's order.
The next school board meeting is scheduled for Sept. 14.
Following the meeting, the NEA announced it would continue moving forward with its lawsuit against the school board.
"After watching the Newberg School District board meeting tonight, Newberg Education Association will continue moving forward with the lawsuit that was presented as a tort claims notice to the school board on Aug. 23," NEA official said in a prepared statement. "The conversation around tabling the discussion for a later date did nothing permanent to address the illegality of the directive regarding the removal of political symbols from classrooms, specifically mentioned as the Pride Flag and the Black Lives Matters sign, as well as any other flag, poster or sign deemed political by a third party. Deciding which posters and flags are political, as well as specifically banning pride flags and signs that signify black lives mattering is illegal in a variety of ways. We will advocate for our schools and fight to keep a rogue board policy in check when it violates the law and continue to hold the board accountable to the community of Newberg."
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