Arizona AG: Phoenix-area school district illegally developed equity goals behind closed doors

A committee of educators, a school board member and parents in the southwest Valley should have met publicly as it crafted equity recommendations for the Litchfield Elementary School District, according to the Arizona Attorney General's Office.

An  Aug. 13 letter from Deputy Solicitor General Michael Catlett chides the district for not acting openly on such an important issue as "how to educate children about discrimination and race."

The letter outlines that if school officials had acted more openly, they could have avoided controversies that enveloped the district, including the superintendent having to assure parents that schools were not adopting critical race theory or the 1619 project. 

Litchfield Elementary became among the first districts in the Valley to erupt over concerns about critical race theory, which largely involve debates about racial equity and systemic racism. 

The state AG's Office also found that school board member Kimberly Moran, who served on the equity committee, violated Arizona Open Meeting Law when she held up a sign reading "not true" as parents protested some of the committee's work during an April board meeting. 

And the AG's Office found that school board member Jeremy Hoenack did not violate the law despite accusations from district parents and warnings from fellow board members and school officials that he improperly sought to speak about items not on the agenda at a board meeting. 

The three findings come months after Hoenack and parents filed 10 open meeting complaints against the district in March and April. Hoenack, who took his elected seat on the board in January, quickly began raising concerns about the district's equity goals and what he called out as secrecy in developing them. 

The state Attorney General's Office will require Moran to re-take training on open meetings and will consider these violations if the district again runs afoul of the Open Meeting Law, Catlett wrote in a letter to the district.

Future violations could result in penalties of up to $500 for a second offense and $2,500 for subsequent instances, per state law.

AG: District can't evade public with board-authorized committee 

The state Attorney General's Office said LESD's Diversity Empowerment Committee constituted a "public body" subject to Open Meeting Law.

"Due to the district's level of control over the Diversity Empowerment Team ... its ultimate purpose of creating District policy recommendations, and that the nature of developing district policy is a power typically reserved to the Board, the Diversity Empowerment Team is ... thus a public body," Catlett wrote.   

The fact that the board authorized Superintendent Jodi Gunning to create the committee and that an elected official, Moran, sat on the committee, was all the more reason its meetings should have been conducted in public, the AG's letter said. 

Gunning has told The Arizona Republic that she created the committee last summer to review how school "policies and practices" affected student and staff "representation, engagement and interaction" in professional development, hiring and retention, and student discipline at its 16 schools. 

The committee recommended ways to improve equity among teachers and staff, which the administrators used to draft goals outlined in a document called "Transformational Equity Work" and the board used to craft its "Equity Statement" passed Dec. 8.

When parents, rallied by Hoenack, blasted district officials for not conducting its equity work publicly, those officials reasoned that the committee and associated documents, such as the "Transformational Equity Work" report, were "internal" and still in draft form, not ready for the public.

The AG's letter refutes that defense.

"The District and Board cannot avoid the requirements of Arizona's Open Meeting Law by authorizing its superintendent to form a committee to create district-wide policy that is later presented to the board in final form for adoption," the letter reads.  

The buildup to the district's equity statement and goals should have been handled publicly, "not conducted behind closed doors," according to the letter. 

Catlett's letter condemns the district for not adhering to Open Meeting Law on such "important" issues as discrimination and race, pointing out that the Arizona Legislature passed laws this past session related to such instruction. 

That's a reference to a law that some state leaders have described as keeping critical race theory out of schools but specifically says curriculum cannot cast "blame or judgment on the basis of race, ethnicity or sex," and cannot teach that an individual, by virtue of their race, ethnicity, or sex "is inherently racist, sexist or oppressive." 

Arizona Attorney General Mark Brnovich, a Republican running for U.S. Senate, posted on Twitter about what has become a partisan wedge issue.

"Defeat critical race theory. Hold tight to the Constitution," Brnovich tweeted on Aug. 14. 

District committee disbanded, Moran to undergo training

The superintendent said the district is reviewing the AG's Office findings with its attorney. 

Gunning, in a statement with The Republic, went on to say that the district "operates with transparency and will continue to do so."  

The diversity committee, which last met May 17, has since disbanded, Gunning said.

"Clearly, we have a diverse and passionate community that cares about the success of our students. We will continue to work with our governing board and community to fulfill our mission to connect, educate, and empower our LESD family and community," Gunning said.

Board President Danielle Clymer said the district would "follow all directions and guidance from the Attorney General's Office." 

Moran should have waited to respond

Moran said she was "happy to complete" additional Open Meeting Law training and wrote in a statement, "I welcome every opportunity to expand my knowledge and understanding as a Governing Board Member."

The violation involving Moran stemmed from a heated board meeting in April when parents on both sides of the equity debate spoke during the public comment period. Moran twice held up a sign that said: "not true."

State law allows elected officials to respond to public comments at "the conclusion of an open call to the public."  

"Ms. Moran clearly did not wait until the conclusion of the open call to respond to criticism," the AG's Office said, adding that Moran's actions were "inappropriate."

The letter said Moran's violation was "extremely concerning" since the board had just undergone voluntary training on the Open Meeting Law.

Hoenack did not violate Open Meeting Law 

The accusations that Hoenack violated the Open Meeting Law, which were dismissed, centered around a March 3 board meeting in which teacher employment contracts were up for discussion. 

Hoenack proposed wording changes to the contracts that addressed "issues he perceived with student performance and an equity statement that the Board had previously adopted," Catlett wrote. 

Board members and a district attorney interrupted Hoenack at the meeting, telling him his comments were unrelated to matters on the agenda and therefore shouldn't be discussed. 

The AG's Office reviewed video of the meeting and found that Hoenack's comments were "sufficiently related to his proposed contract language and the listed agenda item. No violation of the Open Meeting Law occurred." 

What's next for Litchfield Elementary? 

Gunning updated district parents on revised equity goals in August, which eliminated references to disparities based on race or ethnicity. 

The goals previously included teacher training on diversity and inclusion, reducing disproportionately higher suspension rates among Black students and improving test scores among Black and Hispanic students, who were testing substantially lower, according to state data. 

The new goals, according to Gunning, include: 

• "Increase the social emotional skills of our students by committing to the advancement of social emotional learning and effective behavioral supports to foster success in all students." 
• "Increase academic achievement by committing to the advancement of current programming (Kagan, Conscious Discipline & Professional Learning Communities) to foster the success of all students."
• "Attract and recruit a robust and diverse pool of candidates. Retain a diverse, talented and effective staff."
• "Review our current curriculum to ensure it is rigorous, relevant and representative of our current student population."

Gunning told parents the district understands "representation matters. Representation means teachers, principals, and other leaders reflect the demographics of the student body," and that students see themselves in their school materials. 

The district will not conduct previously considered teacher training and still must determine how it will measure success and deadlines to meet the revised goals. 

The board adopted a revised equity statement in August after an uproar over its previous version passed in December.

The revised statement, which has not yet been posted to the district website, remains largely unchanged from December but eliminates a few keywords, like "critical," and adds the phrase:

"We will not endorse, support, nor tolerate any discrimination, racism, harassment, slander or retaliation toward any member of our LESD Family and Community, including ... vendors, partnerships, and individuals utilizing our facilities whether verbally or written."

The Attorney General's Office did not respond to The Republic's questions about the status of other Open Meeting Law complaints lodged against the district. Among the other complaints, Hoenack filed two against board colleagues in March and April. 

Both complaints dealt with his inability to discuss the district's Transformational Equity Work, the document that established the district's equity goals. 

Hoenack claimed his fellow board members improperly prevented him from talking about the document during a meeting in which the board was slated to discuss the board's equity statement. 

Hoenack argued the documents were inextricably linked, as the board's equity statement paved the way for the creation of the district's equity goals. 

"My right to explain to the public and the board about why the Equity Statement needed to be rescinded was quashed ... I could not explain that it needed to be rescinded because it allowed the secret Transformational Equity Work manual, which would give control of the district to a mysterious committee" that sought to implement critical race theory, Hoenack wrote in his complaint. 

Clymer, the board president, acknowledged to The Republic in August "the equity statement was the framework for anything (the district) would do operationally," which included the Transformational Equity Work document, but she maintained that discussing the document was irrelevant to the board's equity statement because "it's not the board's job to operate and to manage the district."

Other complaints against the district accuse Clymer of giving certain parents more time to speak than others during public comment, and of opening meeting doors 45 minutes earlier than the public notice indicated. 

Reach reporter Taylor Seely at tseely@arizonarepublic.com or 480-476-6116. Follow her on Twitter @taylorseely95 or Instagram @taylor.azc.

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