In July 2011, as John Krueger’s son prepared to enter ninth grade in the Appleton Area School District, Krueger became concerned about the curriculum for the ninth-grade Communication Arts course. He requested the District offer an alternative curriculum for that course. The Superintendent asked members of the District’s Assessment, Curriculum, and Instruction Department to address Krueger’s concerns. Department staff, on their own initiative, decided to conduct a full review of the existing course materials and formed the Communication Arts 1 Review Committee for that purpose.

The Committee—comprised of seventeen district administrators, teachers, and staff—read approximately 93 fiction books, assessed their suitability to meet various curricular needs, and forwarded a recommended list of 23 books to the Appleton Area School District Board of Education. In the course of assessing the books it considered and developing its list of recommended texts, the Committee held nine meetings between October 2011 and March 2012. Each of those meetings was held without notice to the public and was closed to the public. When Krueger asked to attend the meetings, he was told that the meetings were not open to the public.

On Krueger’s behalf, the Wisconsin Institute for Law and Liberty then filed suit, alleging the School Board violated Wisconsin’s Open Meetings Law, Wis. Stat. §19.83(1), by failing to give notice of and excluding the public from the Committee’s meetings. The circuit court granted summary judgment to the District. It reasoned that, because the Committee was not created by a directive of the School Board, the Committee was not a “governmental body” within the scope of the Open Meetings Law. Under the statute, such a body is “a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order.” Wis. Stat. §19.82(1).

Krueger appealed. In an unpublished opinion, the Wisconsin Court of Appeals affirmed the circuit court’s decision. See State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., No. 2015AP231, 2016 WL 3510300 (Wis. Ct. App. June 28, 2016). Krueger was unable to direct the appellate court to any rule or order under which the District created the Committee. Id. at *4 (¶ 18). The court found that there was no established District procedure for requesting an alternative course or responding to such a request. Id. at *5 (¶ 20). As a result, when the members of the District’s Assessment, Curriculum, and Instruction Department addressed Krueger’s concerns, they did so by creating the Committee “[o]n their own initiative.” Id. (¶ 21). These facts, the court held, do not constitute the creation of a committee by “rule or order” under Open Meetings Law; thus, the Committee was not subject to the Law. Id.

On July 27, 2016, Krueger asked the Wisconsin Supreme Court to review the case. The court granted his petition last month. The parties are currently briefing the issues, and the supreme court will likely hear oral argument early next year. The decision in this case could have a significant impact on what kinds of governmental bodies are required to conduct meetings in open session. Continue to watch Stafford’s blogs for updates on this case.

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