Doing the Public's Business in the Dark
A Louisiana judge allows a school board to hold secret sessions. An appeals court overrules him.
By Jane Kirtley
Jane Kirtley (email@example.com) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
*Stop us before we speak again." That was the East Baton Rouge, Louisiana, Parish School Board's request to U.S. District Judge John Parker.
The board was poised to begin drafting changes to a 1981 court order issued in a 40-year-old lawsuit to desegregate the local school system. The new plan will address issues such as pupil assignment, busing and funding for specific schools and programs.
But the board didn't want the public kibitzing as it embarked on its deliberations. So its lawyer telephoned the judge and asked him to issue a confidentiality order prohibiting board members, as well as all "officers, employees, staff, agents, attorneys and all others acting or purporting to act" for them, from speaking or writing about draft versions of the plan. The judge did so the next day, without conducting a hearing or notifying anyone other than the parties in the suit.
Capitol City Press, which publishes the Baton Rouge Advocate, an Advocate education reporter and television station WBRZ challenged the order. They argued that it had been improperly issued without giving dissenters a chance to weigh in, that it was too broad, and that it unconstitutionally prevented the press from reporting on the process.
In response to their objections, the judge amended the order, limiting it to the school board, the superintendent, 23 staff members, the board's attorneys, consultants and experts. But while acknowledging that his order would prevent the press from obtaining information of "significant public interest," Parker ruled that the news media had no right to be notified before he issued it. He also found that the board's concern that public involvement might impede the drafting process outweighed the interests of the public and news media in finding out how it was done.
A few days later, again acting at the request of the school board and without conducting a hearing, the judge issued another order permitting the board to meet in secret and to keep the draft plans confidential, in direct opposition to provisions in the Louisiana Public Records Act.
The media argued to the U.S. Court of Appeals in New Orleans that the secrecy order was calculated to "freeze the parents, students, taxpayers and voters of the East Baton Rouge Parish out of any meaningful scrutiny" of the drafting.
Although the parties could make public a "final proposed desegregation plan" before they filed it with the district court, the secrecy provisions of the order were of unlimited duration and could prevent the public from ever learning the specific positions taken during the negotiation stages by the elected school board members.
The appeals court vacated the orders in mid-March.
Unfortunately, the district judge's actions are symptomatic of a much larger problem that afflicts the nation's judges. Increasingly, jurists are cutting off access to civil proceedings in the name of encouraging settlements. They often do so in response to the most minimal claims that public scrutiny will pose problems. This is bad enough when the parties are private citizens. It is unconscionable when government agencies are involved.
The Freedom of Information Act and the open records and meetings statutes of all 50 states recognize that public oversight is essential to democratic government. Yet in the Louisiana case, the district judge allowed the board's self-serving statements to trump the state's open government laws, as well as the First Amendment. He even equated the board members with the delegates at the 1787 Constitutional Convention "who nailed up the windows to assure their privacy."
Presumably, Parker believed that whatever plan is proposed will be controversial, and that the board will produce a better document if it is permitted to do its work without scrutiny. That age-old argument is constantly invoked by agencies seeking to shut out the public. It doesn't wash. Public input might complicate the process, but that is the price we pay for participatory democracy.
Historically, the media and the public have relied on the judiciary to serve as a check on the executive branch's penchant for secrecy by enforcing open government laws. But Parker was all too willing to accede to the board's request to jettison these important principles in the name of expediency.
If the judge were really so concerned with how the public would react to whatever plan is cobbled together behind closed doors, he might have reflected on the U.S. Supreme Court's observation in the Richmond Newspapers case: "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." l ###