Did the Indianapolis Public Schools board violate – or misapply — Indiana’s Open Door Law by meeting in closed-door executive sessions to discuss closing schools? I think there’s a good chance it did.
And that should matter. The Open Door Law is there for a reason: to ensure that government bodies do the public’s business in the daylight. As the preface to the law states, “It is the intent of this chapter that the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed.”
“Official action,” the law says, includes receiving information and deliberating, not just voting. There are exceptions that allow the public to be excluded from so-called executive sessions, but they are limited.
The IPS board met approximately two dozen times in executive session over the past year to discuss “school consolidation,” according to board minutes posted online. It seems likely that those discussions concerned developing the district’s Rebuilding Stronger plan.
The plan, unveiled Sept. 13, includes reconfiguring elementary and middle-school grade levels and attempting to provide more equity in academic and extracurricular offerings. Public-comment sessions are underway, and final approval is expected in November.
The Open Door Law’s list of allowable reasons for executive sessions does include discussion of strategy for school consolidation. And Rebuilding Stronger does involve closing or merging several schools; in some cases, consolidating two schools into one.
But the language allowing discussion of school consolidation says that “all such strategy discussions must be necessary for competitive or bargaining reasons and may not include competitive or bargaining adversaries.” How would that apply to IPS discussions of school closings?
I asked Steve Key, counsel emeritus with the Hoosier State Press Association and arguably the person most familiar with the meaning and history of the Open Door Law.
“To my mind, no, it’s not intended for internal school board discussion of whether or not to consolidate two elementary schools or build a middle school,” Key told me. “This is specifically for two separate school districts who are discussing consolidating into one district.”
In other words, “school consolidation” means what it’s always meant in Indiana: the merging of two or more school districts into one. It’s what Indiana did on a large scale in the 1960s, when the number of school districts was reduced by more than half.
The provision that says closed-door discussions of consolidation must be “necessary for competitive or bargaining reasons” shows that consolidation doesn’t mean internal district school closings, Key said. In those situations, there’s no competition and no bargaining taking place.
But if two school districts consolidate, there may be competition and bargaining. The districts would have to agree on which schools the new district would operate and where they would be located. They would have to settle how to allocate debt and how to share funding responsibilities.
“There are a lot of aspects that would be not adversarial, necessarily, but where the interests of both school districts could be different going into a possible consolidation,” Key said.
In other words, in Key’s opinion, the law wouldn’t apply to IPS Rebuilding Stronger planning.
To be clear, I don’t know the school board talked about Rebuilding Stronger behind closed doors. I emailed IPS spokesperson Marc Ransford three questions: First, did the board discuss closing or consolidating IPS schools in executive sessions? Second, if it did, why were those discussions necessary for competitive or bargaining reasons? Third, how did he respond to Key’s argument?
His response was this statement:
“All IPS Board meetings — including executive sessions — are noticed according to Indiana’s Open Door Law. The Board administrator is present during all executive sessions to ensure that the Board and IPS administration limit their discussion to only those topics that were appropriately noticed and permitted by the governing statute.”
The thing about the Open Door Law is that it’s not easy to enforce it. Governing bodies are expected to police themselves. If someone suspects a violation, they can file a complaint with the Office of the Public Access Counselor, which can issue an opinion. But those opinions don’t have the force of law.
A citizen can file a lawsuit and ask a judge to act. But in the IPS example, what would a judge do? Tell the board to hold those two dozen executive sessions again, but open them to the public? Not likely. Tell IPS to go back to the drawing board and create a new restructuring plan? That’s not likely either.
But the IPS Rebuilding Stronger plan is a big deal. It will have a real impact on students, families and staff. Its objectives – improving equity, providing more academic and extracurricular options and making effective use of resources – are important. The district needs support for whatever decision it ultimately makes. That’s less likely if people suspect the plan was created in secret and the public comment sessions are just window dressing.