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PAC Issues Binding Decision Finding OMA Violation for Closed Session Discussions on Curriculum

Education K-12 Education

The Illinois Public Access Counselor (PAC) issued a binding opinion, finding a school board violated the Open Meetings Act (OMA) when it improperly discussed school curriculum during closed session.

At issue were two school board meetings, one in May 2023 and another in August 2023. Prior to the board meetings, a district parent raised an objection to the inclusion of the book Just Mercy in the district’s English curriculum. At the May 2023 meeting, the board discussed the parent’s objection in closed session. After reconvening in open session, the board voted to provide a second text as an alternative option to Just Mercy. Three months later, at the August 2023 board meeting, the board removed the option to read Just Mercy altogether, with no discussion occurring in open session. Following the board’s decision, a request for review was submitted to the PAC, requesting a determination whether the board improperly entered closed session to discuss Just Mercy’s inclusion in district’s curriculum. In October, the PAC determined that the request for review regarding the May 2023 meeting was untimely and, therefore, limited its review to the August 2023 meeting.

The board cited three exceptions under the OMA as justification for its closed session discussions. First, the board argued that Section 2(c)(1) of the OMA, which authorizes closed session discussion of the “[t]he appointment, employment, compensation, discipline, performance, and dismissal of specific employees,” applied. The PAC rejected this argument, finding it inapplicable since the board’s discussion of content for the district’s English curriculum did not pertain to specific employees’ job performance, but instead focused on curriculum. The board also asserted Section 2(c)(4) of the OMA, which authorizes closed session for discussion of “evidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law, to a quasi-adjudicative body.” The PAC found this argument unpersuasive as well, reasoning the closed session meetings involved minimal, if any, evaluation of evidence or testimony in a hearing format specifically authorized by law, as the 2(c)(4) exception requires. Finally, the PAC rejected the board’s assertion that Section 2(c)(10) of the OMA applied, which authorizes closed session discussion of “the placement of individual students in special education programs and other matters relating to individual students.” The PAC found the Section 2(c)(10) exception inapplicable because the board spent most of its closed session discussion on curriculum matters that impacted groups, rather than individual students.

Because the board failed to assert an applicable exception to the OMA’s open meetings requirement, the PAC determined the board’s closed session discussions regarding Just Mercy and related curriculum matters were in violation of the OMA. The PAC directed the Board to remedy the violation by disclosing to the complainant and making publicly available the August 7, 2023 closed session verbatim recording.

Closed session exceptions may prove nuanced. It is essential that districts reach out to legal counsel to discuss if a particular topic is appropriate for closed session. If you have any questions regarding this decision or the applicability of the OMA generally, please reach out to one of the authors of this post or any Franczek attorney.