Just when we thought we had reported on all of the 2023 PAC binding opinions, the PAC issued one more opinion in late December.

After a parent filed an objection to a
book’s inclusion in a school district’s curriculum, the school superintendent determined that using the book did not
violate board policy. The parent subsequently appealed the superintendent’s
decision to the full school board, which discussed the matter in closed session
at its May 22, 2023 meeting, and then voted in open session to add a second
book as an alternative option to the controversial book in question.
At a later meeting, the board decided to pull the book from its curriculum altogether
after returning from closed session at its August 7, 2023 meeting. In response
to a request for review challenging the board’s basis for entering closed
session to discuss the book at its August 7, 2023 meeting, the PAC concluded
that the board violated the OMA by holding an improper closed session
discussion regarding removing the book from its curriculum. PAC
Op. 23-016

Specifically, the PAC rejected
the board’s arguments that it properly entered closed session at its August 7,
2023 meeting to discuss issues involving the book pursuant to OMA exceptions
2(c)(1), 2(c)(4), 2(c)(10), and 2(c)(11).

The PAC rejected the
board’s argument that it properly cited OMA exception 2(c)(1) to discuss a
grievance against specific employees in connection with teaching the book,
finding that the board’s argument did not align with the substance of its
closed session discussion, which centered on the merits of having the book as
part of its curriculum. Although the board briefly alluded to the parent who filed
the grievance, the parent’s child, and certain school employees, the board
never deliberated about performance issues or relative merits of specific
employees. Nor did the board demonstrate that its discussion about the
appropriateness of the book was inextricably intertwined with its overarching
discussion about employment-related topics about specific employees.

The PAC also determined that the
board’s discussion during its closed session meeting fell outside the scope of
OMA exception 2(c)(4), because the board’s discussion focused on the
appropriateness of the book as part of its curriculum and did not constitute evidence
or testimony in an open hearing or a closed hearing specifically authorized
by law. Indeed, the PAC noted that the board was not specifically authorized by
law to act as a quasi-adjudicatory body with respect to deciding whether to
remove a book from its curriculum.

The PAC also determined that the
board’s discussion during closed session fell outside the scope of OMA
exception 2(c)(10), which narrowly pertains to individual student matters.
While the board momentarily alluded to an individual student, its discussion
generally focused on the appropriateness of the book and broader curriculum
issues impacting many students.

Finally, the board acknowledged it did not actually utilize the OMA’s “pending or imminent” litigation exception in section
2(c)(11) during its closed session meeting.

Post Authored by Eugene Bolotnikov, Ancel Glink