ETHS Board Adopts Controversial Confidentiality Policy

EVANSTON, IL — Limits on freedom of speech and state open records laws could be tested by a newly adopted confidentiality policy, which prompted talk of a lawsuit from civil libertarians even prior to its implementation following a contentious discussion Monday night. Under the new rules, members of the Evanston Township High School District 202 Board of Education must ask permission to share written communications between the board president, the superintendent and other board members.

Any emails from the superintendent or the board president could only be forwarded with explicit permission from their sender. The resolution includes an exception for "extraordinary" situations, but even in such circumstances, the board president, superintendent or attorney must be consulted, "unless legally prohibited."

The change requires board members to assume all communications are confidential "unless it states otherwise." It was proposed following a dispute within the board involving a memo from Superintendent Eric Witherspoon regarding a marijuana-related controversy over the school's seizure of already-printed student newspapers in apparent violation of state law.

Attorneys from the Illinois ACLU are exploring whether the resolution constitutes an illegal restriction on free speech or other laws, a spokesperson confirmed Tuesday.

Supporters of the new policy, including Board President Patricia Savage-Williams, said it was necessary for the board to communicate effectively.

"I'm disappointed that it has been blown up to a large degree, in my opinion," she said, characterizing the policy as being aligned with previous board agreements.

"This is reaffirming our work together as a board, which is very important for us to do, and reaffirming the oath that we took as a board," Savage-Williams said. "It's very consistent with the legal boundaries."

Only the board's two lawyers opposed the move, including Jonathan Baum – the member whose communication with the public purported provoked the drafting of the policy.

Baum called it a "gag-rule" and described it as an "unconstitutional prior restraint" on freedom of speech and a "repudiation of any commitment to transparency."

"Members of a public body cannot simple agree among themselves to conceal from members of the public communications the body has no legal right to withhold from them," he said.

As an recent example, Baum cited the board president's refusal to allow the disclosure of the reasoning for ETHS's decision to discontinue its Hebrew language problem.

"That's not transparency, and that's what I think is the spirit motivating this resolution that makes it so offensive to me as a representative of the public," he said.

"I think it's inappropriate for you to make decisions independently to release information to the public as we are – as the administration is – working through issues and how and what gets stated," Savage-Williams responded. "I think, as a board member, I don't think that's your role. So we can agree to disagree. That's fine."

"But we can't agree to disagree if you're going to pass a binding resolution that I have to adhere to as a board member." Baum said.

"There's nothing in this resolution, really, if you read this," Savage-Williams said. "This is from our code, this is from our oath."

"No, it's not," said Livingston, the other lawyer on the board. She said the board had no authority to create extralegal exceptions to the Freedom of Information Act. "And for board members to sit next to me and mutter 'ridiculous' under their breath is an embarrassment to me.

"I'm embarrassed to be a member of this board where all of you have undergone your mandatory FOIA and OMA training and you cannot appreciate the significance of this," she told her fellow board members.

Superintendent Eric Witherspoon said repeatedly at the meeting the resolution will not impact the district's processing of FOIA requests. He said Savage-Williams had asked him to seek a legal opinion from the district's lawyer, which he did. Patch has filed a FOIA request for this opinion, which is no longer exempt after being publicly cited at the meeting.

"There would be no FOIA violation and it would never exempt any of these emails from being FOIA'd," Witherspoon said, saying he was troubled by the suggestion his administration was trying to get around the law.

"We will be 100 percent faithful to that law," he said. "I personally do not interpret what you as a board are trying to do tonight as a way to circumvent or break the law. And we will not do that."

Supporters of the resolution disputed that the resolution reduced the board's transparency and agreed the significance of the policy was being overstated.

"Let's get real for a minute. We all know why we're here. We're here because there was a serious difference that came up with the disclosure of some emails and some intervention by a board member into a school problem," said Mark Metz, referring to Baum's involvement in September's controversial issue of the Evanstonian.

"We had some serious disagreements and many people on the board felt like the member had violated the code of conduct," said Metz, describing the resolution as an affirmation of reasonable and common-sense practices. "I don't see the danger in this."

Member Monique Parsons disputed that the policy change had anything to do with transparency said her mind was "blown" that its opponents were making such a big deal about it.

"This has absolutely nothing to do with transparency...This is about how we communicate as a board with integrity. It's that simple. It's not blown out. It's not anything other than that. It's how we communicate as a board with integrity," Parsons said. "This is about holding each other accountable for how we share information and when information should be shared or not...I think we just have to be very real about what this is."

And both board members elected in 2017 were in support of the policy.

"What we're talking about is not keeping information from the public but providing an opportunity to have discussions," Patricia Maunsell said. "Having the understanding, through our code of conduct, that these communications are going to be held in confidence allows for information and dialogue to happen."

Jude Laude said it was important to establish some kind of protocol for dealing with certain delicate information.

"All information is not the same. Some information, because of its sensitive nature, it could be very damaging letting that information out at certain points in the process," he said.

"Again, that's not to say that information shouldn't be FOIA'd and it doesn't really speak to a lack of intentionally not being transparent with the public, who put us here in the first place," said Laude. "But the public also put us here because they trust us."

» Watch the board's discussion:

» Read the policies: Resolution Regarding Superintendent and Board Communications & Code of Conduct and Board Agreements

Top photo: Board President Patricia Savage-Williams, Board Member Jonathan Baum | Evanston Township High School District 202