Huntsville School District Board members violated the open-meetings law by holding an expulsion hearing during the 2020-2021 school year without notifying the media and not recording the hearing, according to a lawsuit.

The Freedom of Information Act requires the board to give notice of special or emergency meetings to media organizations so that the public can have representatives at the meetings. It also requires the board to record meetings.

The Record has also obtained documentation in which the board has potentially violated the Freedom of Information Act in other ways over the last six months.

Last week, Benjamin Rightsell of Witter sued the district and board members in Madison County Circuit Court for violating FOIA by failing to notify the media of a May 3 expulsion hearing and for not recording the hearing. Rightsell also claims a board member has a conflict of interest in the Title IX proceedings. 

“There’s no more serious matter than when our children are being sexually abused,” said Rightsell’s attorney, Joey McCutchen of Fort Smith. “It’s unfathomable in a case involving child sexual abuse and conflicts of interest, the school leadership would not provide full and complete transparency,” he said.

The May 3 expulsion hearing stems from a Title IX investigation in which the Huntsville boys basketball team allegedly sexually assaulted teammates by “baptizing” them. “Baptizing” occurred as players physically restrained non-consenting teammates while other players undressed and placed their bare genitals on or in the restrained players’ faces. “Baptizing” took place during at least the past two seasons. Multiple players were baptized several times. One player was baptized at least 10 times.

During Title IX investigations, two players admitted to “baptizing” teammates. 

Decision makers recommended a yearlong expulsion for the two players who admitted to baptizing and five days out-of-school suspensions for three players. 

During the May 3 hearing, the majority of the board concurred, expelling two students for one year.  The board ended up reversing its decision at a May 19 appeals hearing by lessening the punishment to a semester and throwing out completely the punishment for three students. Those students who had their punishment thrown out are continuing to practice basketball and have volunteered at peewee sports camps this summer.

Board member Janeal Yancey said she had received a copy of the lawsuit but had not read it. She said she couldn’t comment on specificities of expulsion hearings.

“When we have those expulsion hearings, parents can choose to have them closed. And if the media was there, nine times out of 10, really 99 out of 100, they’re going to close those meetings and the media is going to be excused anyway. So, I mean, I just don’t need to be commenting on anything specific about an expulsion hearing,” Yancey said.

Board member Terry Forsyth said he had read through the lawsuit. “I know as you’re aware, myself and [Board Member] Mr. [Kevin] Wilson weren’t at the [May 3] meeting that night. So really I don’t have a comment to make about it,” he said. 

After hearing about the other potential FOIA violations, McCutchen said he intended to amend his complaint to include the new information.

“I think they’re violating FOIA. It’s obviously reached a new level,” McCutchen said. 

“Not only are we looking at the civil aspects of this but we’re also going to explore the criminal aspects,” McCutchen said.

Board members who negligently violate FOIA may face Class C misdemeanor charges.


Previous Expulsion
Hearings


Other expulsion hearings were held during the school year in which the press was not notified. 

During a Sept. 8, 2020, hearing, a student was expelled for one year. According to school disciplinary records, a student made a social media post containing a threatening statement – “pull [sic] up with your bulls**t” – and brought a BB gun, tobacco, two beer bottle caps to school. According to minutes from that hearing, a parent requested a closed meeting after the hearing was called to order. 

Under Arkansas law, the board must call the meeting to order in public. A parent then may request a closed meeting, but the board must convene again in public to vote. 

No appeal was filed and no recording of the open part of the meeting exists.

The school did not notify the media of an expulsion hearing on Feb. 8, in which another student was also expelled for one year for “multiple offenses including setting fire to paper towels in the
restroom and can.” According to the minutes, even though no parent was present, the school board deemed the meeting closed. According to Arkansas law, a parent must request a closed meeting. The board accepted the recommendation of a yearlong expulsion. No appeal was filed and no recording exists. 

Appeals hearings were held on May 19 and The Record was contacted by Huntsville School Superintendent Audra Kimball and a recording was made. However, the reporter was not allowed into the building when she showed up to cover the open portion of the meeting and was told to remain outside the building.

At the last regularly scheduled school board meeting on July 12, the doors of the building remained locked until 7 p.m. with school board members entering a side door beginning around 6:30 p.m. The public was allowed in at 7 p.m. The board members regularly gather at least 30 minutes prior to the meeting in a conference room behind the board room when the district provides dinner for them.

“It doesn’t look good that they’re all meeting prior to the meeting,” according to Robert Steinbuch, a law professor at Bowen School of Law and a co-author of a treatise on Arkansas FOIA. “If they discussed anything likely to be at the board meeting then they violated the FOIA. We don’t know the answer to that question, but it looks terrible,” he said.

Kimball said she was unaware that the press could attend disciplinary hearings. She said she was made aware of the requirement prior to the appeals hearings and notified the press at that time. She said she would notify the press of “all meetings and training regardless of the situation.”

In 2018, a student in the district was expelled over concerns involving an Instagram post that officials stated led to widespread panic. Before the expulsion hearing, the district notified the media of the expulsion hearing, which was open to the public as requested by the student and his parents. The student was expelled for a year, as was another student involved. 


Text Discussions


As the school year was drawing to a close and Gov. Asa Hutchinson was considering lifting a mask mandate that had been imposed due to Covid-19, the board also discussed how it felt about continuing to require students to wear mask over text messages. 

Arkansas law states a meeting also occurs when board members discuss possible solutions to problems on text message, as the school board did in its discussion over text regarding whether or not they believe the mask mandate should continue.

The board discussed the mask mandate in board meetings during the year. After the governor lifted the mandate, the board voted on it during its April meeting.

Board member Wilson moved to approve that masks stay in place until April 30, through testing and that if numbers are the same or better, the school would lift the mandate beginning May 1. Yancey seconded the motion and it passed.

Before that meeting, Board President Danny Thomas sent a group text message and queried board members on how long they thought masks should be required. 

Yancey stated, “I’m a scientist and I believe in masks. I think we stick with mask through the end of the year.” 

Thomas said he favored sending a survey to teachers for their thoughts concerning the mandate.

Forsyth stated, “I personally feel it may be constitutional issue also. Could the teachers that want to wear a mask keep doing it and the ones that don’t they could stop,” he texted. 

“I think letting them choose would be pointless. Based on the new guidance on quarantine, I feel even stronger about masks,” Yancey responded in a text. 

Kimball also weighed in on the group text, stating that the “governor is covering us by giving or putting it off on districts to make the decision.” 

“The purpose of the open meetings provision of the FOIA is for the public to be able to see the decision-making process, not simply a vote but the decision-making process,” Steinbuch said.  “And when members of a governing body meet privately, in secret, and discuss matters that are then voted on in public at a governing body meeting, those members have cheated the public of the transparency to which they’re entitled,” Steinbuch said.

“I think it’s a violation of our open meetings provision when they’re having these secret text message discussions. It’s discussing our public business that is likely to come before the governing body,” McCutchen said. 

Forsyth said he didn’t remember the text exchange. “It’s been so long ago I don’t remember that. I guess at this time I don’t have a comment about that.”

“I mean I’m not a lawyer and what you’re saying I’m not going to comment on,” Yancey said. 


Training Sessions


During the last six months, the board has held numerous training sessions that have impacted board decisions. 

The law requires the press to be notified for all meetings, formal or informal, special or regular, of governing bodies on any matter in which foreseeable action will be taken by the governing body. The Arkansas Supreme Court has stated that working sessions or informal meetings are covered by FOIA because those meetings can result in a consensus being reached on a given issue that renders the formal, public meeting a mere charade. 

On April 1, the board had a training session to discuss the current millage revenue. The district is building a new activity center and due to higher costs than anticipated, the money raised by the recent millage increase will not cover the current construction costs. The board had to seek revenue from issuing bonds. Kimball sent an email to the board about the training stating, “We are on the brink of having to make some decisions regarding the remaining millage budget and options we have. I feel this training will help upcoming decisions,” she wrote. 

On April 14, the board voted to issue new bonds to pay for the activity center. 

“If they voted on using bonds at the meeting after the training session, it does seem likely that they discussed the issue of using bonds during the training session. We don’t know for sure but it seems a logical conclusion,” Steinbuch said.

“If they discussed those matters that were on the next session to vote on then they would have violated the FOIA,” he said.  

Prior to the May 3 hearing, another training session was held in which the board, for the first time, had Title IX training conducted by Title IX coordinator Tonja McCone. The training was scheduled to last an hour. 

In a text message sent to board members, Thomas stated, “We have been advised the board should have a Title IX training prior to making decisions.” 

“If what they did was make a decision about the application of Title IX at this hearing of the governing body, it seems likely that they discussed the application of Title IX at that special called training session,” according to Steinbuch. “One thing that is clear is how you label a meeting doesn’t determine whether or not it’s supposed to be a public meeting. Just because you call it a training session, doesn’t exempt you from the open-meetings portion of the FOIA,” he said. 

Kimball said that she was not aware of the requirement that the press needed to be notified of training sessions but that she would notify the press of any trainings in the future. 


Unintentional
Mistakes


McCutchen said he wants the board to understand the seriousness of violating FOIA and be trained in the law. 

“I want the judge to say in very specific terms that the Huntsville Board of Education and the Huntsville School District violated FOIA with regard to specifically not notifying the media,” he said.  

“Number two, recording all public board meetings as is required by the rule of law under our FOIA. I want a provision that says they will not let this happen again.” 

“And number three, I want the board members to be trained in open records and open-meeting provisions of our FOIA law,” McCutchen said. “Because you have a school board president [Danny Thomas] making irresponsible statements that he didn’t know how this violated FOIA – that’s a real problem,” McCutchen said.

“I definitely do not know where or how we did anything wrong at the moment,” Thomas has stated after he was asked about the FOIA violation. 

“If we did, it was completely an oversight or accidental,” he said. “You know we wouldn’t do that on purpose.”

“We want the questions answered. We’re going to take depositions and we’re going to see what happened in these situations where you have a board president acting like he doesn’t know that this is a violation of FOIA,” McCutchen said last week.

“And those expulsion hearings, you know, we’ve addressed the fact that the media is supposed to be notified,” Yancey said. “And Audra has said exactly what happened with that.” 

Kimball admitted she failed to notify the media and record the meeting, but she said it was unintentional and an “honest mistake.” 

“I can tell you it’s all been a very stressful situation. I have to own my mistake because I can’t find proof of it. I have to own the recording too,” Kimball said.

“I say that ignorance is no excuse for violating a rule of law,” McCutchen said. 

“What if we have a bank robber who says, ‘Oh, I didn’t know we couldn’t rob banks’ and claims ignorance. Ignorance is no excuse, and I use that term ‘excuse’ because that’s what this is,” McCutchen said. 

The Record did not receive a response after reaching out to Thomas and to board members Duane Glenn, Kyle Taylor, Wilson and Lenora Riedel.