Students kept out of building where UNC System board voted on DEI changes. Is that legal?

Students from UNC-Chapel Hill say they were kept out of the building where the UNC System Board of Governors — a public body — met Wednesday, raising questions about whether the board potentially violated the state’s open meetings law.

The board’s University Governance committee unanimously voted Wednesday afternoon to approve a policy targeting diversity, equity and inclusion, or DEI, jobs and efforts at all public universities in North Carolina. That committee, along with several other board committees, met throughout the day in a theater at the Alex Ewing Performance Place on the UNC School of the Arts campus in Winston-Salem.

The UNC students who attempted to attend the governance committee’s meeting Wednesday afternoon said they were told by Ed Purchase, the UNC System’s director of university public safety operations, that the meeting room was full and all of the seats available to the public were filled. Purchase did not allow the students to enter any portion of the building where the meeting was held, they said.

North Carolina law states that “any person is entitled to attend” meetings of public bodies, including the Board of Governors and its committees.

UNC System spokesperson Andy Wallace told The N&O Wednesday that some members of the public were unable to enter the meeting room because of a lack of available seats and because the open-session portion of the meeting, in which the vote on the DEI policy took place, lasted for such a short time. By the time system staff could have made accommodations to let more people in, Wallace said, the meeting had gone into closed session, in which members of the public are not allowed.

Raleigh attorney Mike Tadych said the UNC System’s actions Wednesday in keeping the students out of the meeting seemed “dubious,” but said it was “not black and white” to him whether those actions violated state law. Tadych said public bodies, including the Board of Governors, are required “to take reasonable measures to provide access to public meetings.”

UNC student Samuel Scarborough said he and other members of the Southern Student Action Coalition (SSAC), a progressive student-activist group, and TransparUNCy, a group dedicated to shining a light on political influences on North Carolina higher education, wanted to attend the meeting “to make our voices heard” and “be present in the room” as the vote on the DEI policy took place.

“We were not given this opportunity,” Scarborough said.

Asked by The N&O via email Thursday if the UNC System believed it had followed state law on open meetings by keeping students from entering the building, Wallace replied Friday with this statement: “All UNC Board of Governors committee and full board meetings are livestreamed and available to the public via PBS NC. Chancellors, campus staff, UNC System staff, PBS NC technical staff and the Board itself are present in the room to attend the meetings. Seats are reserved for the media. Any open seats are available to the general public on a first-come, first-served basis.”

Students say they were kept out of meeting

Though the Board of Governors typically meets at the UNC System office in Raleigh, the board meets twice a year at one of the system’s 17 campuses. The board’s meetings are open to the public, though it can enter closed session and meet without the public present for reasons that are outlined in state law.

The board held its April meetings at the UNC School of the Arts, with the Catawba Theatre inside the Alex Ewing Performance Place functioning as its meeting room for all of its committee meetings on Wednesday and its full-board meeting on Thursday.

Scarborough was one of about 10 students from SSAC and TransparUNCy who attempted to attend the board’s University Governance committee meeting Wednesday, which began at 3:45 p.m.

Wallace described the following chain of events to The N&O Wednesday when a reporter asked why the students were kept out: Fred Sellers, the system’s vice president for safety and emergency operations, “was made aware there were four members of the public that wanted in,” Wallace said, but there were only three seats available. One of the four said they would watch the meeting via the live-stream made available by the system on its website, Wallace said, and the other three people were allowed inside. Sellers then heard that more people wanted to enter the meeting, Wallace said, but by that time, the board was entering closed session.

The open-session portion of the meeting, in which the vote on the DEI policy took place, lasted roughly five minutes.

Alexander Denza, another student with the groups, said students arrived to the doors of the Alex Ewing Performance Place before the committee meeting began. Denza provided to The N&O a video of the students’ encounter with Purchase, the UNC System public safety director, which Denza said was filmed beginning at 3:40 p.m. — five minutes before the meeting began, and 10 minutes before the meeting was closed to the public for the closed-session portion of the meeting.

In the video, Purchase is seen standing in front of the main doors to the building answering questions from the students. Purchase told the students that there were “three seats for the public” available at the meeting, noting that all of the other seats were all filled by university chancellors, their guests and other attendees. The three seats had been filled by faculty and staff of the School of the Arts, Purchase told the students.

Purchase told the students that the meeting was being streamed online and that they could watch it through that platform.

Asked by a student in the video how many people had been turned away, Purchase answered that he hadn’t “turned anybody away.”

“You guys are the first,” Purchase told the group.

Asked by another student if there was a larger space where the meeting could have been held to accommodate more people, Purchase said he did not know. Purchase also said that he did not know how many seats in the theater were occupied by university staff.

Toward the end of the roughly four-minute video, Purchase is seen telling the students: “If you guys are going to hang out, maybe you could hang out over there, if that’s alright.” It is unclear exactly where Purchase was gesturing, but he told students they were blocking the entry to the building “a little bit.” At separate points in the video, one person is seen being able to access the doors to leave the building, while two other people are seen entering the building.

Denza told The N&O that neither he, nor any of the other students he was with, was let inside the meeting room or the building by system staff at any time Wednesday afternoon.

Did the board violate open meetings law?

Both Wallace, speaking to The N&O, and Purchase, as seen speaking to the students on the video, said all of the seats available to the public were full, citing that as the reason that the students were not allowed inside the meeting room.

It is unclear whether exceptions to the state law on open meetings are made when a room reaches its capacity. The Catawba Theatre has signs posted outside of its doors stating that “occupancy by more than 210 persons is dangerous and unlawful.” It is also unclear whether that occupancy was met Wednesday.

At a morning committee meeting Wednesday, additional seats were added to accommodate meeting attendees after the seats that were initially available were all filled. Denza also noted that other public bodies have allowed attendees to stand in the meeting room when seats are not available, pointing to photos of attendees lining the walls of a June 2021 meeting of the UNC-Chapel Hill Board of Trustees that involved discussions of whether journalist Nikole Hannah-Jones would be offered tenure to teach at the university.

Asked by The N&O Wednesday whether the room was filled to a point at which a fire code or other regulations would make the room unsafe, Wallace said only that the room was full.

Tadych, the attorney, said that court rulings on a related issue indicates public bodies, such as the Board of Governors, must take “reasonable measures” to not completely exclude members of the public from the meeting. Such measures could include streaming the meeting through video or audio for attendees in an overflow meeting space, Tadych said.

In one court case Tadych cited, “the public was excluded only to overflow space and not permitted to enter the meeting room for the convenience of the body.” The body also instituted a ticketing policy for admission to the meeting, which was found to be “unreasonable as it was instituted without notice to the public.”

Two courts found “that the public body’s use of streaming and overflow rooms where the meeting could be viewed via audio/visual feeds were reasonable,” Tadych said.

While Board of Governors meetings are live-streamed, it does not appear that overflow space to view the stream was made available for the students Wednesday when the room became filled. Tadych said he was not sure whether only providing a live-stream of the meeting, but not a space to view it, would be considered an attempt to provide reasonable access to the meeting.

The state law on open meetings states that any person can seek a judgment from superior court on whether a public body violated the law. If the court were to find that the body did violate the law, the court could rule that actions taken during the body’s meeting are “null and void.”

Denza told The N&O that the students plan to file a complaint with the North Carolina attorney general’s office about not being let into the meeting. That office “issues opinions reminding government entities of their obligations under these laws and how to comply,” according to its website.

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