State v. Appleton Area Sch. Dist. Bd. of Educ.

• Decision Date: 29 June 2017
• Docket Number: No. 2015AP231,2015AP231
• Citation: 898 N.W.2d 35,376 Wis.2d 239,2017 WI 70
• Parties: STATE of Wisconsin EX REL. John KRUEGER, Plaintiff-Appellant-Petitioner, v. APPLETON AREA SCHOOL DISTRICT BOARD OF EDUCATION and Communication Arts 1 Materials Review Committee, Defendants-Respondents.
• Court: Wisconsin Supreme Court

376 Wis.2d 239
898 N.W.2d 35
2017 WI 70

STATE of Wisconsin EX REL. John KRUEGER, Plaintiff-Appellant-Petitioner,
v.
APPLETON AREA SCHOOL DISTRICT BOARD OF EDUCATION and Communication Arts 1 Materials Review Committee, Defendants-Respondents.

No. 2015AP231

Supreme Court of Wisconsin.

Oral Argument: February 15, 2017
Opinion Filed: June 29, 2017

For the plaintiff-appellant-petitioner, there were briefs filed by Richard M. Esenberg, Brian McGrath, Thomas C. Kamenick, and Wisconsin Institute for Law and Liberty, Milwaukee, and an oral argument by Richard M. Esenberg.

For the defendants-respondents, there was a brief by Andrew T. Phillips, Christine V. Hamiel, and von Briesen and Roper, S.C., Milwaukee, and oral argument by Christine V. Hamiel.

An amicus curiae brief was filed on behalf of The Wisconsin Department of Justice by Anne M. Bensky, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Anne M. Bensky.

An amicus curiae brief was filed on behalf of The Wisconsin Freedom of Information Counsel, Wisconsin Newspaper

898 N.W.2d 38

Association and Wisconsin Broadcasters Association by April Rockstead Barker and Schott, Bublitz and Engel, S.C.

An amicus curiae brief was filed on behalf of Wisconsin Counties Association, League of Wisconsin Municipalities, Wisconsin Association of School Business Officials, Wisconsin Association of School Personnel Administrators, Wisconsin Association of School Boards, Wisconsin Council for Administrative Services, Association of Wisconsin School Administrators, and Wisconsin Association of School District Administrators by Joseph L. Olson and Michael Best & Friedrich LLP, Milwaukee.

MICHAEL J. GABLEMAN, J.

376 Wis.2d 244

¶1 This case requires us to decide whether the Appleton Area School District's Communications Arts 1 Materials Review Committee ("CAMRC") was a governmental body subject to Wisconsin's open meetings law. John Krueger, the parent of a child who attended school in the District, sued CAMRC and the Appleton Area School District Board of Education (the "Board"), alleging that CAMRC failed to comply with the open

376 Wis.2d 245

meetings law. The Outagamie County circuit court¹ granted summary judgment in favor of the Board and CAMRC, concluding that CAMRC was not subject to the open meetings law. We now review the unpublished decision of the court of appeals² that affirmed the circuit court's grant of summary judgment.

¶2 We reverse the decision of the court of appeals and hold that CAMRC met the definition of "governmental body" under the open meetings law and therefore was subject to its terms. See Wis. Stat. § 19.82(1) (2011-12).³ Where a governmental entity adopts a rule authorizing the formation of committees and conferring on them the power to take collective action, such committees are "created by ... rule" under § 19.82(1) and the open meetings law applies to them. Here, the Board's Rule 361 provided that the review of educational materials should be done according to the Board-approved Assessment, Curriculum, & Instruction Handbook (the "Handbook"). The Handbook, in turn, authorized the formation of committees with a defined membership and the power to review educational materials and make formal recommendations for Board approval. Because CAMRC was formed as one of these committees, pursuant to authority delegated to it by the Board by means of Rule 361 and the Handbook, it was "created by ... rule" and therefore was a "governmental body" under § 19.82(1).

376 Wis.2d 246

¶3 We begin by setting forth the relevant factual background surrounding the District's rules governing curriculum review and the formation and operation of CAMRC.⁴ We next analyze the statutory criteria that an entity must meet in order to be a "governmental body" subject to the open meetings law. We then apply these criteria to CAMRC, and we conclude that it was a "governmental body" under Wis. Stat. § 19.82(1) and therefore was subject to the open meetings law.

898 N.W.2d 39

I. BACKGROUND

A. The District's Rules Governing Curriculum Review

¶4 Under the Wisconsin statutes, a school board is vested with the authority to "adopt all the textbooks necessary for use in the schools under its charge." Wis. Stat. § 118.03(1). In the Appleton Area School District, the Board adopted Rule 361,⁵ which recognized that the Board, "as the governing body of the School District, is legally responsible for all educational materials utilized within the instructional program of the [District]." Rule 361 further provided that "[t]he selection of educational materials is delegated to the professionally trained and certified personnel employed

376 Wis.2d 247

by the school system." In a section titled "Procedures for Selection of Educational Materials and Textbooks," Rule 361 provided that "[c]urriculum revision is an ongoing process as defined in the Board approved Appleton Area School District (AASD) Assessment, Curriculum, & Instruction Handbook. This Handbook delineates the processes leading to Board approval for curriculum revision, adoption of new courses, and implementation of curriculum materials." The Handbook had been developed by the District's Assessment, Curriculum, and Instruction Department (the "ACI Department") and presented to the Board for approval. The Board had voted to adopt the Handbook on January 13, 2003.

¶5 By providing in Rule 361 that the selection of educational materials was delegated to the ACI Department and by adopting the Handbook to govern the performance of those duties, the Board directed the ACI Department to follow the Handbook when recommending educational materials for Board approval. The head of the ACI Department, Kevin Steinhilber, acknowledged this in his deposition.⁶ Rule 361 did not prohibit the ACI Department from revising the Handbook or modifying Handbook procedures to fit different situations.⁷ But Rule 361 nevertheless represented the

376 Wis.2d 248

Board's formal authorization for the ACI Department to review and recommend educational materials for Board approval pursuant to the processes in the Handbook.

¶6 The Handbook provides that curriculum review is to be performed on a 6-year cycle, on a course-by-course basis, by committees formed for that purpose.⁸ As the

898 N.W.2d 40

Board and CAMRC explained in their responses to Krueger's discovery requests,

The curriculum cycle, as set forth in the ACI Handbook, contemplates the formation of committees for program and course review, including provisions for the committee makeup, application process for committee membership, information to be provided to committee members, the process for conducting committee meetings, and the expected outcomes to be achieved by review committees....

Review committees are tasked with duties such as reviewing existing curriculum, reviewing possible materials/resources to support the curriculum, and writing course and program curriculum....

[Ultimately,] the curriculum recommendations are presented to the Board of Education for approval.

Indeed, the Handbook provides that the first step when beginning a curriculum review cycle is to "[e]stablish a committee for program review." The Handbook further provides that review committees are to be composed of at least 17 individuals:

376 Wis.2d 249

ACI Director/Coordinator; Administrators from High School (1), Middle School (1) and Elementary School (3); Teachers – High School Curriculum Support Specialists (3), Middle School Curriculum Support Specialists (4), and Elementary School (3); Special Education representative; and as pertinent TAG, Title I and ELL.

The ACI Department is supposed to select the members of the review committee by soliciting and reviewing applications from interested persons and sending the selected members "letters of acceptance with information regarding [the] first meeting."

¶7 After a review committee is formed, the Handbook authorizes the committee to perform a number of functions, including "identify[ing] possible materials/resources." Ultimately, the "committee makes the selection" of which materials or resources to recommend to the Board. The process culminates in presenting these recommendations to the Board for its approval. The Board and CAMRC, in their discovery responses, provided the following summary of the duties and functions assigned by the Handbook to be performed by review committees:

It is not until a review committee has: (1) identified texts/materials costs; (2) revised curriculum with broad representation throughout the District; (3) identified essential learning objectives; (4) identified how standards will be addressed within a course; (5) identified/developed district-wide assessments to benchmark major standards; (6) provided curriculum to department, administrators, and ACI Department for feedback; (7) made

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