The OML Primer Series | The Unfortunate Case of Liberty25
The story of a school district captured by the cartel that is the Arizona School Board Association
In this post:
The OML Primer Series: The Unfortunate Case of Liberty25
Captured by the Cartel - Arizona School Board Association: a professional organization, lobbyist or law firm?
ASBA Policy development – Private Intellectual Property or Public Goods?
ASBA “Legislative Services” – Lobbyists for Whom?
On Open Meeting Law and Textbook Adoption – ASBA was “neutral”
ASBA Policy IJJ – Copyrighted Blind Spot for Actual Law on Textbook Adoption Committees
Okay, this post is definitely on the longer side of longer thoughts – if you have gmail, you’ll have to click through to the website to read the whole thing. But I just can’t talk about Liberty25 as a standalone case without also tackling what I believe cuts to the heart of the problem: the Arizona School Board Association’s hold over school districts across the state. And that requires laying a foundation.
1/ The OML Primer Series: The Unfortunate Case of Liberty25
The OML Primer series continues with a look at the unfortunate case of Liberty Elementary School District No. 25 (Liberty25) now under investigation for open meeting law violations related to a science curriculum that was breezing through a closed-door “superintendent committee” process before the AG stepped in.
Background Twitter posts below. Be sure to click through the threads, especially to hear how the AG’s OML enforcement team told a board member the district’s OML practices are “ridiculously absurd.”
TheLegalProcess @ALegalProcess
🚨Liberty Elem School District under AG investigation for approving new science curriculum in closed-door committee in violation of Open Meeting Laws. 1/2 https://t.co/2KC5pn6MdbHonest confession – after spending more time looking into Liberty25, I see now I was too hard on them. I was prepared to go full Hercule Poirot, line them up and summon the gendarme. On reflection there’s something about the earnestness of every one of these board members and superintendent that melts my instinctive urge to go scorched earth over OML – really, it’s just not their fault. They’re getting bad counsel - from the ASBA. And, from what I’ve seen, the district’s outside counsel’s advice isn’t exactly a model of clarity on this point either - which is strange, because he’s a smart and experienced attorney.
Every single one of these board members are sincere, civic minded, and earnest professionals. They really want to do the right thing. They volunteer long hours to make their district the best it can be with what little budget that have. The superintendent, too, is sharp; she is determined to get the job done. She cares, and you can feel it.
Maybe I’d change my mind if I knew the members better, but for now, I see them as the victim here – of an edu-cartel posing as a school board association.
Liberty25 needs help.
The law could not be clearer – ARS §15-721 requires that any committee formed to review and select textbooks must hold public meetings. This is true both under a strict ARS §38-431 OML statutory interpretation of what constitutes a “public body” (i.e., on an instrumentality theory) as well as a simple, plain reading of ARS 15-§721(F)(2).
If there is a group of living, breathing people reviewing and selecting textbooks, that’s an OML committee. The legislature has set the rules here. Districts really have no wiggle room here – but they may have an excuse.
Let me explain.
2/ Captured by the Cartel – Arizona School Board Association: a professional organization, lobbyists, or a law firm?
ASBA Policy development – Private Intellectual Property or Public Goods?
Liberty25 is a member district of the Arizona School Board Association. They rely on the ASBA for a number of resources, including policy advisories, board training, and legislative news. And here’s something that many don’t know - ASBA also provides computer hosting services for member districts – that’s right, online hosting of all their member district policies. Look up your district’s policies – if they are a member, you won’t find them at the district’s website on a government server.
ASBA claims copyright on these policies and I’ve heard (but not verified) that these policies are licensed to member districts – you presumably can’t use them if you leave the organization. That’s a barrier to leaving, especially for small districts like Liberty25. Kind of like:
Policies are a form of legal document, like contracts. And while elements that are original and creative expressions in contracts are, in theory, copyrightable, the notion that lawyers can or should copyright contracts is contested in legal circles. Most lawyers that make a living drafting contracts, including myself, believe finding ways to creatively express duties and obligations in a contract is just our job – and the clients who hired us by the hour will own that work. They can fire us, take all the contracts we created and reuse over and over – without paying us a thing again. Happens all the time. The documents we create for clients are quite literally “works for hire” – and no client expects we can’t create similar or the same documents for someone else so long as we act ethically and preserve client confidences.
There are legitimate public interest concerns around policies that are adopted by public school boards, implemented in public schools, that govern conduct of public employees and students alike. They should be owned by the public. The policies ASBA develops, and public school boards pay for and adopt, should be public property not the private intellectual property of the ASBA.
Fortunately, there are emerging competitors – such as the Arizona Coalition of School Board Members. But I don’t think I am overstating the issue to say that the ASBA, by its sheer size and reach, sets policy statewide in Arizona. And if they don’t like legislation, they have the power – and financing, apparently – to lobby or litigate to change the law.
Or maybe just ignore it when that doesn’t work?
ASBA “Legislative Services” – Lobbyists for Whom?
I’ve posted on Twitter extensively about the ASBA. It’s no secret I believe they are essentially a political agenda-driven activist organization. They routinely take positions on legislative matters that tend to support the objectives of school administrators and the political left – and diminish the power of parents. From mask mandates to controversial curricula - whether you like the ASBA is a pretty much a political Rorschach test. You can read a few of my ASBA threads here:
On the ASBA’s client relationship with the ACLU:
on the ASBA’s policy drive to enable easier expulsion of parents at board meetings:
Wendy Rogers @WendyRogersAZ
This is the garbage letter we got back from the Arizona School Board Association telling us they want to lick the boot of the tyrannical National School Board Association after we called for them to withdraw their membership. I call on Dr. Sheila Harrison-Williams to resign ASAP! https://t.co/CG48u55Mgeand on paying for bogus studies to support mask mandates where over 71% of respondents do not even have kids in school:
3/ On Open Meeting Law and Textbook Adoption – ASBA was “neutral”
In 2017 when Senator Gail Griffin proposed SB1204 to extend the OML to the high school textbook adoption statutes, ASBA was “neutral” on the bill. (So was the AZ Department of Education, BTW). One would think that if an organization is really pro-parent, who after all elect your membership and pay your dues, you would wholeheartedly support more, not less, public involvement in schools, right?
Here’s where I speculate, but it’s important to explore: ASBA’s lack of endorsement for SB1204 may have contributed to an institutional decision by ASBA to not support the policies of the bill in practice.
To my knowledge, the ASBA has never published and circulated an advisory opinion to its membership on SB1204. I could be wrong but look for yourself here . If anyone has an advisory opinion on SB1204 or the amendments to ARS §15-722 - please let me know. Shoot, if you have anything that shows ASBA advises their members on textbook adoptions on the basis of the statutes, please share.
In fact, I’ve reviewed videotaped OML training sessions given by ASBA representatives – including this one to Liberty25:
The ASBA slide deck doesn’t even address textbook adoption committees. And it’s not just Liberty25 - I’ve seen practically the same deck used at Scottsdale Unified School District (SUSD). It is a glaring, mind-blowing omission.1
<<Once you see it, you can’t unsee it.>>
The only place I’ve ever seen ASBA mention that textbook adoption committees are subject to the OML is in the OML Q&A section of their website, but even here the reasoning is only half-right:
It's only half-right because this Q&A only refers to the “instrumentality” basis for interpreting the OML to apply committees – something I’ve written about before in a prior Stack. There is no mention of ARS §§15-721, and -722 – the actual statutes that explicitly require ALL textbook committees to hold open meetings.
As I said, <<once you see it, you can’t unsee it.>>
Which leads to my next exhibit of ASBA’s total “blind spot” – or intentional omission? – of the actual law.
4/ ASBA Policy IJJ – Copyrighted Blind Spot for Actual Law on Textbook Adoption Committees
Like most ASBA schools, including SUSD, Liberty25 has adopted ASBA policy IJJ Textbook/Supplementary Materials Selection and Adoption.
Zoom in, look closely:
So, what’s missing in this policy?
First, Policy must conform with law, so they generally track the language of the governing statutes – what statutory provision is missing here from the K-8 textbook adoption statute in ARS §15-721? Here’s a hint.
I think most schools (including Liberty25 and SUSD) get the 60-day public inspection period in #3, but I have yet to see or hear of a school following #2.
It’s the ginormous blind spot the size of the Eye of Sauron over Arizona skies. No one follows it. It doesn’t exist. ASBA perpetuates its non-existence.
Secondly, did you notice that Policy IJJ is structured to create a “superintendent committee” that reports - not to the governing board - but to the superintendent:
“The superintendent shall establish textbook adoption procedures that…may provide for the creation of textbook selection committees. Recommendations from the superintendent shall be forwarded to the superintendent.” (Emphasis added).
Not to the governing board, the elected officials with sole authority to approve textbooks. The superintendent. If he forms one.
So, no public meetings. No posted meeting notice, no instructions on how to attend and listen, no detailed agenda, no call to the public, no minutes reflecting the agenda items, deliberations and other details.
That’s pretty much how it’s done across the state now - certainly among ASBA membership. But ask yourself - do teachers really work months, after-hours, shifting through competing publishers, soliciting bids, reviewing content, forming opinions - only to leave it up to the superintendent to determine, in his or her own discretion, whether to bring your recommendations to the board? That’s not reality - and besides, the superintendent does not have authority to screen out your recommendations - only the board does.
Is it intentional?
Remember that screenshot above of ASBA’s “OML Q&A” regarding board committees subject to OML? Look at the 4th and 5th sentences:
“Contrast that with an administrative committee - say a committee of school principles appointed by the superintendent to give him or her recommendations on a given topic. That committee would not have to follow the OML because they are not an instrumentality of the board, but instead are tasked by the superintendent, who will in turn, upon his or her own discretion, provide those recommendations to the board.” (Emphasis added).
You see it now? You cannot reconcile Policy IJJ and ARS §15-721.
The statute does not distinguish between a “board committee” or a “superintendent committee” - it says “any committee.” ASBA knows that textbook committees “created by the board” are subject to OML. ASBA knows that only a governing board can approve textbooks. So why are the advising member districts to set up these “discretionary” type superintendent committees?
How can we not conclude that the ASBA’s purpose is to intentionally avoid the OML - itself a violation of the OML that triggers sanctions. Not wrist slaps. Actual fines and removal from office-level sanctions.
The ASBA policy is wrong, the only question in my mind is whether it’s willful. Sincere, hard-working volunteer board members like those at Liberty25 deserve to know - and so do parents.
Wrapping it up…
If the ASBA wanted their membership to follow ARS §§15-721 and 722, they would update Policy IJJ. They would incorporate it into their OML training. They would publish advisory opinions.
But they don’t. And they won’t.
So, tell me – honest mistake or intentional omission?
Without a doubt there are those in public education that do not want parents to see the instructional materials used in classrooms. This is not a controversial statement any longer – for whatever reason, whether its academic hubris, credentialism, or some kind of ideological possession, there are those in public education who perceive greater parental involvement as encroachment. And they don’t like it. They don’t like it enough that they’re willing to conceal, deceive and even litigate with parents about disclosing what is taught in their classrooms.
The COVID lockdowns has had a profound effect on American society – and matters of education, parental rights, and the future of public schooling, have all emerged front and center. Many people got a glimpse at what’s been going in their schools when they weren’t looking, and they don’t like what they see. If you don’t see that now for the powerful seismic force it is, your head is in the sand. The Parent Uprising of 2021 is just getting started.
The fact is the ASBA has an agenda. And it’s time they are exposed for it. Until then, schools across Arizona won’t change – and parents will continue to be excluded from the textbook adoption process – unlawfully.
Be sure to check out the “nuanced” discussion by two ASBA representatives on the difference between a “board committee” and “superintendent committee” at 15:45~18:00. Apparently, its all in how you ask the superintendent. Please, please seek better counsel.