Open Meeting Law Meets University Encampment Policies

From a June 27 Massachusetts AG opinion:

We find the facts as follows. Like many college campuses, UMass Amherst was the site of demonstrations during the 2023-2024 academic year, stemming from events in the Middle East. On April 29, demonstrators established an encampment, including tents, on campus property and made certain demands of the University. Construction of the encampment violated UMass Amherst Regulations for Use of Property, Trustee Doc. T90-079 (the "Land Use Policy"), which required pre-authorization of any structures.

Chancellor Reyes decided on April 29 that the encampment would not be allowed to remain on University property; protesters who refused to remove encampment structures after several explicit warnings would be subject to arrest for criminal trespass. Among the reasons for Chancellor Reyes's decision was his concern that tolerance of an encampment established in violation of the Land Use Policy would set an undesirable precedent in the event of future protests. Following discussions with University administration, demonstrators voluntarily removed the encampment on April 30.

At noon on May 7, demonstrators were observed unloading pallets onto the South Lawn of the UMass Amherst campus, again in violation of the University's Land Use Policy, to construct a second encampment. After the demonstrators ignored a notification that structures and tents were not allowed on the South Lawn, staff of the Demonstration Response and Safety Team ("DRST") entered the newly established encampment and asked them to disassemble a wooden barrier being constructed. DRST issued two additional warnings that day. As part of the third warning, demonstrators were advised of steps the University was taking in response to their demands and were further told that although they had the right to express their views, "you do not have a right to place structures outside the limits of the Land Use Policy. You can demonstrate in this space but you must dismantle and remove your tents and structures now."

The demonstrators, which included individuals who were not students or staff of UMass, did not remove the tents and structures following this third and final warning. That night, and into the early morning hours of May 8, the UMass Police Department, assisted by the Massachusetts State Police and other agencies, cleared the encampment and arrested 132 people, including 70 UMass Amherst students and six members of the UMass Amherst faculty.

In the weeks that followed, Chancellor Reyes met with representatives of the Student Government Association ("SGA"), the Graduate Student Senate ("GSS"), and the Faculty Senate Rules Committee ("FSRC"). According to Chancellor Reyes, the meetings "focused on the need for the university to review campus policies that intersect with student activism and make recommendations for potential improvements to those policies."

On June 17, Chancellor Reyes announced the establishment of the Task Force. It was his decision to create the group, which was formed to review UMass policies and procedures and to "make recommendations to the appropriate university governing bodies." The Task Force was composed of 17 members, six of whom were staff members appointed by the Chancellor. The remaining members were appointed by the SGA, GSS and FSRC. The Task Force was charged with, among other things:

• reviewing demonstration-related policies and guidelines, including the Land Use Policy and making recommendations to the appropriate University governing bodies;
• making recommendations regarding methods of demonstration-related intervention, including the composition and deployment of the DRST; and
• making recommendations on how to increase awareness of University policies and First Amendment protections as they apply to on-campus demonstrations.

The Task Force met on six occasions. At its first meeting, it created two subcommittees, one focusing on policy review and the other focusing on the DRST. The subcommittees met ten times. Additionally, according to the Task Force, "[s]ignificant asynchronous discussion and document review was also completed via a shared Teams channel." On August 30, the Task Force issued a report to the Student Affairs and University Life Council ("SAUL"). The report made multiple recommendations, including but not limited to:

• removing ambiguities in the Land Use Policy, by defining structures with reference to existing language from state law;
• creating an advisory council to strengthen the work of the DRST; and
• building up a mediation infrastructure to aid in the de-escalation of potential conflict.

In his message to the UMass community announcing the release of the Task Force's report, Chancellor Reyes stated that "[o]ver the next several weeks, these recommendations, which I fully endorse, will move through the governing bodies of the university." [Details omitted. -EV] …. The Board of Trustees [eventually] approved the amendments to the Land Use Policy on December 18….

The AG concluded that the Open Meeting Law didn't apply to the Task Force, because it fit within "a judicially created exception" "established in Connelly v. School Committee of Hanover (Mass. 1991):

Under the Connelly exception, where an individual public official, who themself is not subject to the Open Meeting Law, creates a committee to advise them on a decision that they have the sole authority to make, that committee is not subject to the Open Meeting Law…. Chancellor Reyes created the Task Force to review, and recommend changes to, UMass policies and procedures. Although the Task Force submitted its report and recommended policy revisions to SAUL, a Faculty Senate council, SAUL then submitted them to the UMass Amherst administration. Upon receipt, Chancellor Reyes requested, through the Committee on Administration and Finance, that the Board of Trustees adopt the recommended amendments, which it did.

The University has explained in response to the complaint that the Land Use Policy is specific to the Amherst campus and that, as a result, it was the Chancellor who had the authority to recommend changes to that policy. Rules of University governance, as interpreted by the University, require that any campus request to amend policy necessarily flows through the Chancellor as the chief academic and executive officer of the campus. Chancellor Reyes recommended changes to the Land Use Policy, as he had the authority to do, based on the recommendations of the Task Force. Because the Task Force and its subcommittees fall within the Connelly exception, they were not public bodies.