Executive Session at the School Board -- Our Own Dang Fault?

The Madison Central School Board met last night to discuss, among other things, a "discipline issue" with a group of parents [2007.11.12, Agenda Item #11]. We may assume the "issue" at hand was the Bulldog hacker plague that broke out last month. A parent who was there tells the Madville Times the "discussion" was disappointing: "No answers or information, no presentation to the board by the staff." (I would direct you to the videotape to draw your own conclusion, but as of this morning, it appears the Madison Central tech dudes have been too busy with other matters to archive and post links to board meeting webcasts since September.) Evidently the staff presentations were reserved for (ominous musical cue, please) executive session.

One parent who knows his SDCL 1-25-2 reminded the board that "discussing a difficult issue is not legal reason for a closed session." Indeed, school boards like other governmental entities around our state seem very quick to shoo out the public and close the doors the moment any agenda item even hints at the topics statute lists as justification for executive or closed meetings.

A quick review of the executive/closed session law is in order:

1-25-2. Executive or closed meetings --Purposes--Authorization--Misdemeanor. Executive or closed meetings may be held for the sole purposes of:

(1) Discussing the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee. The term "employee" does not include any independent contractor;

(2) Discussing the expulsion, suspension, discipline, assignment of or the educational program of a student;

(3) Consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters;

(4) Preparing for contract negotiations or negotiating with employees or employee representatives;

(5) Discussing marketing or pricing strategies by a board or commission of a business owned by the state or any of its political subdivisions, when public discussion may be harmful to the competitive position of the business.

However, any official action concerning such matters shall be made at an open official meeting. An executive or closed meeting shall be held only upon a majority vote of the members of such body present and voting, and discussion during the closed meeting is restricted to the purpose specified in the closure motion. Nothing in § 1-25-1 or this section may be construed to prevent an executive or closed meeting if the federal or state Constitution or the federal or state statutes require or permit it. A violation of this section is a Class 2 misdemeanor.

As noted here previously, a perhaps pivotal word in this law is right at the top: "Executive or closed meetings may be held...." In my various dealings with school boards, I've heard them refer to executive session as something the law requires them to do. Normally may means an action is permitted yet optional, not obligatory. However, my lawyer friends may point out (and I welcome their enlightenment here) that in statutes and contracts, may and the seemingly stronger shall sometimes get mixed up and must always be read in context (generally good advice for any document).

Whether SDCL 1-25-2's may means may or shall, school boards may feel another reason to resort to executive session whenever possible: us. Sure, I've seen boards not want to face difficult issues or state their reasons for their actions on the record. But I've also seen boards dealing with out litigious society. Just like teachers and administrators, boards face perhaps more immediate public scrutiny than any other elected body. Sometimes parents have a legitimate beef, but sometimes they just have an axe to grind. For every parent who has a legitimate complaint about the board's unfair treatment of a student or teacher, there are others who just want their little all-stars to get more playing time or force mythology into the science curriculum. And all too many of those parents will use frivolous lawsuits to get what they want.

With respect to last night's Madison Central board meeting, the staff and board might well have been able to discuss certain aspects of the hacker case with the parents in open session. However, a sharp-eared parent could likely have found in such a discussion some specific detail that constituted a litigable violation of FERPA the professional code of ethics, which I've heard some parents try to interpret as grounds for firing a teacher who mentions his employment on a blog (uh oh...).

So rather than give motivated parties and their lawyers more material to work with, school boards generally keep and discussion of student or personnel affairs secret. Sure, they're covering their backsides, but our overly litigious society has a lot to do with it.

We still would prefer an open discussion of the hacker issue, the punishments issued, and the remedies undertaken by our public school system. (The Madville Times prefers open discussion of darn-near everything... which is why, contrary to previously stated desires, I'll likely never run for school board: I couldn't keep my mouth shut!) We would like to know just how fairly the punishments were dealt out and whether some students were given a free pass by the administration. But as long as SDCL 1-25-2 has that interpretable may in it, we can expect school boards and other public bodies to keep taking advantage of it to hide from difficult issues, difficult parents, and difficult bloggers.