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Copyright (c) 2009 Ginny Maziarka. All rights reserved.

Monday, September 15, 2008

West Bend School District DENIES Open Records Request concerning Gay club

Having learned of a "Rainbow Connection" group that fell under the auspices of the taxpayer-funded C.A.R.E. program(Chemical Abuse Resistance Education (CARE) is a confidential support program offered at the high schools that provides a way for students to deal with problems that affect learning.) at our high schools, I filed a request under Wisconsin's Open Records Law for information concerning the facilitator of this program, the credentials by which this facilitator counsels students, what materials he/she uses, who the co-facilitator is, and further requested all correspondence between this individual and school administration/school board officials for last school year.

The Rainbow Connection, according to the West Bend West High School web site, is:

For gay, lesbian, bisexual, and transgender (GLBT) teens or those of you who are confused/questioning your sexual identity. Relatives of GLBT are also welcome. Completely confidential. Meets entire school year for discussion and support.


This comes on the heels of being assured by the WB School Board that there are no taxpayer-funded or school-sponsored sex clubs in our district.

Below is the letter I received concerning my request. I have removed the teacher's name for confidentiality purposes. Since questioning this program, the District has "stated" they have "discontinued" the club for this year, though it continues to be advertised on the West Bend High School District website.

Education Service Center
735 South Main Street, West Bend, Wisconsin 53095-3962

Before responding to the specifics of your email, I want to share several concerns that have arisen as a result of the numerous requests you have made regarding XXXXXX. The District has been more than cooperative in providing information to you regarding his/her involvement with student groups, such as the GSA. However, in light of the prior questions you have asked, the questions posed here and your public records request directed at XXXXXX, the District questions what legitimate interest is being served by these inquiries. I am concerned that this situation is coming perilously close to being a case of harassing an employee because of his/her sexual orientation. The District will not be a party to any such harassment nor will it be responsible should legal action be initiated by the employee against you as a private citizen.

In addition, although you have the right to request public records under state law, the District is not obligated to create records, which is what you are asking us to do every time you request a response to another list of questions. Although I will answer the questions you have posed in this instance, it is time to close this matter and move on to the many important issues facing the District at this time --and which have not been given the time needed due to the amount of time that has been consumed with this one item.

1. There is not a CARE group around the issue of sexual orientation this year. There has been such a group in the past as research has shown that there is a correlation between chemical use and students struggling with issues of sexuality.

2. XXXXXX is an employee of the District. He/she is not a "direct representative" of the District or its high schools when he/she communicates with others via his/her personal blog, nor has he/she held himself/herself out as a representative of the District's high school on his/her personal blog. You are correct that XXXXXX is responsible for what he/she says on his/her personal blog, not the District, as he/she has used no District resources for his/her personal blog nor is she/he acting on behalf of the District. I do not know when the information you cite was posted on his website, and thus, cannot comment as to the accuracy of the information at the time it was posted.

3. As demonstrated by my emails that you have quoted, I have never said that XXXXXX "counseled" children.

4. There is no co-facilitator as there is no such group this year.

5. A list of the CARE groups for this year is not yet available for students.

6. I understand that you do not believe in any seXual orientation other than a heterosexual one; however, the fact of the matter is that there are others who do not share your view. The District is required by law to prevent an employee from being harassed in the workplace because of his/her sexual orientation. Our legal counsel has advised us that this obligation includes preventing an employee from being harassed not only by supervisors and co-workers, but also third parties. Thus, the District will not condone or participate in any action targeted at an employee because of his/her sexual oreintation or because he/she serves as an unpaid advisor to a group of students who have come together to support each other. The District has provided you with all relevant information on this matter and will not respond to any further inquiries regarding XXXXXX.


Kathryn L. Zarling, Ed.D
Administrator of Pupil Services
West Bend School District


1. The only information I requested concerning the GSA was quite some time ago and was simply a matter of how it was run and if it was funded by taxpayer money. Nothing more.

2. The District questions what legitimate interest is being served by these inquiries. This is an illegal question. According to Open Records Law, I do not need to GIVE A REASON for my inquiries. I do not even have to GIVE MY NAME when making such inquiries.

3. The District is saying that by having to answer taxpayer/parent questions via email and/or snail mail they are having to "create a record", and they are not obligated to so, therefore, they don't have to answer ANYONE'S questions if they choose not to.

4. The blog site referred to in this letter is one in which this co-facilitator actually states his/her involvement in the Rainbow Connection and GSA within our high schools. He/she makes such statements as:

"I hope we, as an entire community - L-G-B-T - can get back on track and fight together for equality in the workplace."

"Over the next week or so I'll be posting quite a bit about lots of different things - the annual Day of Silence, ENDA (Employment Non-Discrimination Act), some random musings, and the religious right and their activities in the district that I teach in."

"I WILL make sure that the LGBT youth I teach and encounter in the hallways of my high school are safe and valued for who they are. I WILL call into question and challenge policies made by my district and building administration that threaten the well-being of these students."

in addition to stating his/her involvement as a co-facilitator for the Rainbow Connection, which meets under the umbrella of the C.A.R.E. program.

My questions were simply "Is this TRUE?" and IF IT IS TRUE, then can you tell me the following.... (see questions in first paragraph of this post)

5. Though the Administrator of Pupil Services did not state that this person "counseled" children, neither did I. Since the Rainbow Connection and other C.A.R.E. clubs are to provide the children with support, one would naturally assume that meant counsel. That is a no-brainer.

6. This letter indicates what the District THNKS I believe about sexual orientation. I have never specifically stated my position publicly to the District. Though I obviously feel strongly about this subject, it is STILL an assumption on their part.

7. If I had asked these same questions about a facilitator for a Christian club or Jewish Club or Spanish Club, would I have received this same letter, claiming I am "harrassing" the individual? Guess we all know the answer to that one.

8. Since I asked about a GAY club sponsored with taxpayer money and the facilitator is GAY, the District states they cannot and WILL NOT provide answers to any questions whatsoever concerning him/her or their involvement in this program. Period. And by the way, I should watch out for a personal law suit, too.

This heavy-handed letter has every connotation of THREAT, INTIMIDATION AND HARASSMENT to a local citizen excercising their rights under the Wisconsin Open Records Law.

Trust me, J.B. already knows.


Emily said...

Yikes. Is there nothing better you could be spending your time on?

TomInGrandRapidsMI said...

Emily who are you to tell Ginny what she should be spending her time on? I find what she's doing to be valueable to the community and is acting in a way I think all Citizens should act.

Ginny let us know what the AG's office says I hope you can get some assistance.

West Bend Citizen Advocate said...

Thanks, Tom! I'll be posting when I hear more....

John Foust said...

There are many separate legal issues and questions you raise. Yes, they're supposed to respond to all requests, even anonymous ones. Yes, they can't and shouldn't be asking about your intent. On the other hand, it is also their responsibility as a records custodian to subject your requests to a "balancing test." The state, the public, students, citizens and district employees all have their own interests.

Yes, they only need to respond to records requests. Their explanation and excuse is not quite correct; but the general principle is correct. Asking questions that would require an explanation are indeed not required under the law. You can ask for records that might've existed before your request. They're not required to generate tallies, for example, of raw data. You can't demand an explanation. Completely different. Open records law doesn't save you here; you're forced to get in line with all the other citizens at the School Board meeting.

School clubs have some lines and gray areas, too. Supposedly they arise from student interest, but obviously staff are the ones that provide year-to-year continuity that usually stems from a personal interest in the subject matter. To show the other edge of the sword, some schools have "abstinence clubs" that are promoted by staff or community leaders who have religious motivations. There may be many cases of clubs fostered by someone's desire to start a club like that, or revive one, or keep one going. It can be difficult to determine if it actually arose from student interest. A citizen might begin to suspect that the club was driven by religious zeal.

Similarly, as their response points out, there's a point at which you could be perceived as probing into that teacher's beliefs and personal life, as opposed to what might be happening in the club. You aren't allowed to probe into the attendees and discussions that take place within the club meetings unless there's some evidence of other wrongdoing.

John Foust said...

After a bit more research, I'll add a few comments. One, it wasn't hard to find the blog you've excised. A simple Googling of the exact phrases leads right to it. With several of your quotes, I fail to see the connection to the school. Teachers get to have lives and opinions and blogs, too.

Second, can we see the exact text of your request(s)? Without that, others can't judge properly whether your requests were within the law or, in fact, denied legally or not.

I've been banned from B&S, so I can't respond there. As Washburn correctly points out, they do have a general obligation to provide records. If they deny a specific request, they should provide chapter-and-verse as to which exemption qualifies, and in some cases, you could even request redacted records. Again, this is all about records - not explanations to questions, so I'd say Washburn isn't on-target on that aspect. I'm not defending bureaucractic obfuscation, but I'm afraid that's the way the law is. I'm not sure how you could phrase a law that says that every bureaucrat has to answer everyone's questions until they're happy and leave their office.

As for email search or lack thereof, that's a sad but true fact of many government entities. There's still a long way to go when it comes to compliance in many places. It is a monumental task for a school district to maintain archives of email for hundreds of employees. For example, I would estimate that their mail server is peppered with hundreds of spam per second.

BTW, I wrote "the Guide."

West Bend Citizen Advocate said...


Thanks for all of your comments and insight.

It's late and I can't take the time tonight to respond to all of it, but I'll start for now...

Hope you don't mind it in "sections"....

I did not think it would be hard to find the blog, as I use the cut and paste technique myself when searching. What you do not know is that some phrases and postings were removed since I exposed it. So you won't be able to see what I saw. You don't have to trust me on that, though.

I don't deny that this teacher has a right to a blog, a life, and his own opinions. I simply am saying that he stated on his blog some very direct things about his involvement with the C.A.R.E. program at the high school and his position as co-facilitator, and how he communicates with the kids regarding their "coming out." Again, these comments are gone. So you cannot see the connection.

I can most certainly post the exact text of my requests and will do so over the weekend. I agree that it will be easier for you to judge the legality of my inquiries for yourself. Just to be completely open, I did obtain legal counsel before sending my requests. I did not cross any lines.

Maybe the school district doesn't HAVE TO answer questions, and that is their perogative; however, in not doing so, they appear to be hiding something. Perhaps the fact that the taxpayers have been PAYING FOR A SEX CLUB for the past eight years has been a comfortable place and nobody wants the boat rocked.

Enough for now... I'll post more later.

West Bend Citizen Advocate said...

Continuing right along, but briefly...

In requesting emails, teaching/counseling materials, and resume, one can gain insight into the depth and perspective to which something is being taught, pushed, coerced and/or "used" to promote other agendas. Must I be supplied with every request? Certainly not. And I did not expect everything to be handed to me on a silver platter.

Without elaborating, there really is a method to my madness. It is not in my best interest to state that here.

John, realize this...

I began asking for simple email search requests quite a long time ago. I was not told I could not have them. In fact, I was told just the opposite! I was asked for dates and specific key word searches. What does that indicate to the requestor? As time went by, no requests were fulfilled. As you say, you wrote "the guide", and "believe you me", I experienced every aspect of that when making these requests.

I have now gotten to the point of being sick and tired of LIVING "the guide" and am not going to play the game any more. Thus, this post.

Hope that helps.

John Foust said...

You do have a right to every request that complies with the law. Yes, of course, asking for those records is way to build up a larger picture. In reality, the school may not have a search engine to query years of email with a full Boolean search. In reality, they may not have anything more than backup tapes. Asking to see all emails that mentioned a particular subject might be very difficult, as the computer wants exact specifics, not general subject matter. For example, you'd need to search for Crisco, Astro-Lube, Vaseline and coconut oil, and each one is a separate search. Backup tapes might take hours to restore. Searches may be more manual than automated.

All that being said, though, I've found that in general schools are far more in compliance with the retention requirements of the open records law than the Legislature itself.

I asked about the exact requests because it's possible that they were not properly formed. At the Guide points out, they can justifiably reject non-specific requests, as well as those that fall under exemptions. You can question their judgment, of course. I'm skeptical enough that I want to see the full request and the full response before I'll declare in a bold headline that a record has been illegally denied.

Do you have some evidence that backs your contention that an agenda is being pushed? Is this teacher somehow forcing kids to become gay? You're claiming much more than that, though. Claiming "the taxpayers have been PAYING FOR A SEX CLUB for the past eight years" is a rather strong assertion with clear criminal implications in one direction and libel in another.

If you do have phrases that you believe were edited from the blog, there's a slim chance they can still be found with the Wayback Machine or the Google cache. If you tell us what they were, we can try to find them. Or did you save copies of the web pages?

John Foust said...

Also - on B&S you mention "But this time, Miss Scarlet is in the Attorney General’s office with a writ of mandamus. And she DOES have CLUE."

Writs are filed in court. Your other two remedies under the law are filing a complaint with a local District Attorney or the Attorney General. Don't take your writ to the AG.

Emily said...

Tom - That's fair, and my wording was not the best. I've enjoyed reading John's responses to this, as they have been well-worded, thoughtful and knowledgeable, so I'll defer to him.

My original intent was to express my sneaking suspicion that this is, under all of the legal wrangling for open records, ultimately just a witch hunt because Ginny doesn't want any sort of gay-friendly club at the school. And that I think that's bunk. If I'm totally off-base, then I apologize.

West Bend Citizen Advocate said...

Emily, relax.

Unless you truly know what the road I have traveled on has entailed, please don't sit in the judgement seat.

This is not just an ORR for information on a "gay club", this goes back to other things, as well, and what I have experienced has been more than a lack of cooperation. This is just one branch of the inquisition.

As for "gay friendly clubs", I have no jurisdiction and no legal authority over what takes place in student-led (really adult-led, as we all know) clubs that take place outside of school hours. So why would I care? It would waste my time. Not interested.

I AM interested in taxpayer-funded clubs, curriculae, and the like. I was informed by the school district that we HAD NO sex-based clubs, yet we learn the Rainbow Connection has been floating around in our school for 8+ years. Unacceptable - I don't care WHAT "sexual orientation" you are/aren't.

John, as for who I take information to, or don't take information to, regardless of blogger advice, I continue to move forward with sound legal advice behind me. Just an FYI.

Emily said...

...please don't sit in the judgement seat.

I would ask the same from you, then.

West Bend Citizen Advocate said...

Emily, if you have something to contribute other than oddball comments that are trifling attempts at antagonism, please do.

There are other blogs you can do that with.

West Bend Citizen Advocate said...

"I asked about the exact requests because it's possible that they were not properly formed. At the Guide points out, they can justifiably reject non-specific requests, as well as those that fall under exemptions."

John - I redefined my requests over and over again as they kept asking for more "specifications." I complied each time. If it was not appropriate, they would not have kept asking, right? And they would have promised the records to me within 4 weeks, right? THAT is the issue. Not my wording, or my requests. Their RESPONSE and their PROMISES.

West Bend Citizen Advocate said...

Bottom line here is, the District has assured us that there is no sex-based club being run on taxpayer funds. NOT SO. As a matter of fact, NOT SO FOR THE PAST 8+ YEARS. This would be known as a, um, what do you call that??? Oh yea, a LIE.

John Foust said...

Again, without seeing your requests and their responses, I can't make a judgment about the situation.

You're hinting at larger contexts. Weren't you concerned about the school's harassment policy, where you said homosexuality was a behavior choice and shouldn't be lumped with other protected classes?

What exactly do you mean by a "sex-based club" and a "sex club"? My simple reading of that would be "a club based on having sex" and "a club that met to have sex."

West Bend Citizen Advocate said...

Questions I have concerning XXX:
1. What does his/her "counseling" entail?
2. Where is it done? On taxpayer-funded property?
3. Are parents informed prior to his/her "counseling" sessions? If not, WHY NOT?

When he/she talks about the "transitioning," does he make medical referrals? Does he drive kids?

(This was my original request. Of COURSE one would consider it counseling if the School District ITSELF has it listed under COUNSELING on their own website. Note, I did not, at that time, ask anything personal about this person.)

West Bend Citizen Advocate said...

In an email from Kathy Zarling to the School Board:

"Our CARE (Chemical Awareness Resistance Education) program has run a 'Rainbow Connection' for the last 8-9 years. The description for the Rainbow Connection is as follows: For gay, lesbian, bisexual, and transgender (GLBT) teens or those of you who are confused/questioning your sexual identity. Relatives of GLBT are alsao welcome. Completely confidential. Meets entire school year for discussion and support.... Maryjane and I will be meeting with Pat and Cassandra next week to discuss this group. It will no longer be held. The groups need to focus on various aspects of chemical awareness, as the ori ginal intent. I wanted you to be aware that this group had operated in the district, the verbage related to the group and that it would not continue to operate in the district."

John Foust said...

The dictionary says "counseling" is "guidance: something that provides direction or advice as to a decision or course of action."

You haven't mentioned "transitioning" before. In what context was that stated?

Again, are you suggesting that a teacher was having sex with students, or encouraging students to have sex with each other?

West Bend Citizen Advocate said...

From the blog:

"I co-facilitate a support group for students at my high school who are gay, lesbian, and bisexual. Currently, we have no transgendered students participating in the group - there is one student at the school who is transitioning from male-to-female. The students in the group are intrigued by the presence of this student at school and they ask questions trying to understand the journey this student is on."

and this:

"As an advisor to our local Gay-Straight Alliance and a co-facilitator of a CARE(Chemical and Alcohol Resistance Education) group for LGTBQ teens at the high school, a fine line is tread in helping students come to grips with their sexuality and coming out. I always caution, "Coming out is your journey and as a teenager, you need to examine the implications of coming out at school and at home."

MY QUESTIONS (Note, I ask no personal information. Only confirmation concerning the club.):

This is a school-sponsored club, so I am wondering if you can confirm his/her statements?

I was not aware of any taxpayer-supported sex clubs?

West Bend Citizen Advocate said...

Sex-based club = club that is based on who a person has sex with.

West Bend Citizen Advocate said...
This comment has been removed by the author.
West Bend Citizen Advocate said...

West Bend Citizen Advocate said...
MY REQUEST, in entirety:

XXX's website claims heshe is the co-facilitator of a GLBT CARE support group for gay students. I asked because I would like to know if what he is CLAIMING IS TRUE. Is it?

3. If the answer is YES to the above question, I would like the following answers:

a. What are his/her credentials to "counsel" children?
b. How often is he/she "counseling" children in this group?
c. Is this INDIVIDUAL or GROUP counseling?
d. Are parents notified of their children's participation in this club and their counseling with XXXXX?
e. Are parents allowed to be present during these "counseling" sessions?

4. Who is the other co-facilitator of this group, as XXXXX states he/she "co-facilitates."

5. Since you are saying there are a number of other groups that exist, could you please give me a list of the other groups as well as their advisors?

6. As a matter of an Open Records Request, I would like you to supply me with the following:

a. XXX's resume.
b. The resume of the co-facilitator.
c. A copy of all teaching/counseling materials XXXXXXXX uses as a co-facilitator for the CARE group.

(Sorry to post this redundantly, but I found the original, among many emails, and wanted to give the full ORR request here. Remember, I did refine the ORR to include key search words, as requested.)

West Bend Citizen Advocate said...

That's it. Just an FYI, I am not seeking anyone's approval. Keep in mind, I represent over 500 people who do not want this harassment policy and are not happy with the school board's representation on that issue, and do not appreciate the district's response in this matter, either.

John Foust said...

If the 3:28 post is your entire request, in my opinion, points 1 and 2 are missing although there is a question ahead of point 3. Points 3 and 4 are questions, not open record requests. Point 5 could be answered with a record if they had a pre-existing record list that fulfills your request, otherwise it's a question and arguably a request for them to create a record, so they can deny that. Point 6 gets closer to an open record request, although they wouldn't be required to give you copies of books, etc. although they could provide them for your inspection. Of course, if they asked the teacher and he said "I don't have any" then they haven't denied your request.

West Bend Citizen Advocate said...

Sorry - that was my fault as I was in a hurry and had to leave.
Here is question #1 that I missed when copying and pasting. Question #2 is there. It is the first statement; I just missed the number.

1. Am I to understand that the Administration has approved a LGBT CARE group?

Also, my second records request that follows this one asks for communications between this teacher and the district with key word searchs of harassment, policy, rainbow club, C.A.R.E.

This was refused in the letter.

West Bend Citizen Advocate said...

I understand they do not have to answer a single question. And they haven't. That, in and of itself, speaks volumes.

West Bend Citizen Advocate said...

I defined my request to read:

School year 2007/2008 to present - all correspondence between XXXXXX and Supt. Herdrich as well as any school board members and Kathy Zarling.

And further defined a word search:
Subject material includes the following:

harassment policy
CARE program
Day of Silence
Safe Zone posters

(I am interested in knowing if the nontaxpayer-funded programs are being promoted within the taxpayer-funded programs. Interesting.)

ALSO, this request has been unfulfilled and was sent long before the request above:

I would like to file an Open Records Request for any correspondence the board and/or staff have had with:

1. each other
2. any individual
3. or any organization

that is related to the district's harassment policy.

This is all I will post regarding this subject. I feel like I am going backwards and need to move on. I'll be posting new material that you can look for over the weekend, if you like.