United States: SEE YOU IN COURT! - September 2019

Last Updated: September 16 2019
Article by Thomas B. Mooney

Bob Bombast has long served as the Chairperson of the Policy Committee of the Nutmeg Board of Education. Over the last two years, the Committee has laboriously gone through the Board’s Policy Book, revising policy after policy to bring them into the 21st Century. With some pride, Bob convened the Policy Committee’s first meeting of the 2019-2020 school year, announcing “After all our hard work, I am pleased to say that we are finally all caught up. This should be the first and last meeting of the Policy Committee this year. Thank you all, and drive safely home.”

Ned Newbie is the most junior member of the Policy Committee, having served just since he was elected to the Nutmeg Board of Education last November. Though new, Ned is not shy, and he interrupted Bob. “Wait a minute! I just got through reading a legislative update. The General Assembly passed a bunch of new laws this year, and they call for a number of new policies for boards of education. We shouldn’t be resting on our laurels, and we should get busy.”

Bob’s annoyance was visible, but he maintained his exposure and asked Ned pointedly what he would suggest from his perspective “as a new Board member.” With only a hint of condescension, Ned told Bob that the General Assembly had invited boards of education to revise their policies in various ways. “For example,” Ned explained, “we should start with our student discipline policy. It needs extensive revision because of Public Act 19-91. Wait, you haven’t read that yet?”

Now Penny Pincher, the other member of the Policy Committee, was also annoyed. “Ned, we just revised that policy last year, albeit late, to take into account the new requirements for alternative educational opportunities. Why would we want to amend it again already?”

Ned was quite the know-it-all, and he was only too happy to explain. “With the change of just one word, the General Assembly has fundamentally changed the expulsion statute. As you all surely know, boards of education have long been authorized to expel students in grades three through twelve if their conduct (1) violates a publicized policy of the Board, OR (2) is seriously disruptive of the educational process, OR (3) endangers persons or property, which reasons were each separate. But as of last July 1, expulsion is now authorized only if student conduct either (1) endangers persons or property or (2) violates a publicized policy of the Board AND is seriously disruptive of the educational process. Given this change, we should list all possible disciplinary offenses in our policy, don’t you think?”

Now Bob was embarrassed that Ned Newbie knew so much more than he did about the need to revise Board policy. “That is important information,” said Bob stiffly. “Why don’t you draft a policy for us to consider at our next meeting?”

Ned was delighted to get this assignment, and he prepared a draft new policy for the next meeting of the Policy Committee. Bob called that meeting to order, and he then promptly asked for a motion to go into executive session, explaining that draft documents are confidential and can and should be discussed and revised in executive session before they are disclosed to the public.

Draft documents can indeed sometimes be maintained as confidential. Was Bob right to have the Committee go into executive session to discuss Ned’s draft?

No, Bob was wrong. Executive session is indeed permitted for discussion of information contained in confidential documents. Moreover, the list of confidential documents set forth in Connecticut General Statutes § 1-210(b) includes “(1) [p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” However, when a draft is shared among the members of a multi-member public agency (here, the Policy Committee), it becomes a public document. Conn. Gen. Stat. § 1-210(e) provides that disclosure is required of “. . . any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.” Once a draft policy is circulated among members of a committee or the board itself, it is no longer confidential, and discussion of the draft in executive session is improper.

As to Public Act 19-91 regarding expulsions, Ned has a good point. As Ned described, the change of one word – “and” instead of “or” – is significant. Now, except for situations in which a student’s misconduct endangers persons or property, expulsion of a student in grades three through twelve is authorized only if the student’s misconduct is both violative of a publicized policy of the board of education and is seriously disruptive of the educational process. School boards can no longer simply rely on the catch-all reason “seriously disruptive of the educational process” for an expulsion to be authorized. Rather, boards of education must now also find that the conduct in question also violated publicized policies of the board. Accordingly, it will be important for boards of education to review their disciplinary policies to assure that they are framed broadly so as to include student misconduct in all its variations.

Similarly, prior law prohibited smoking “within a school building while school is in session or student activities are being conducted.” However, Public Act 19-13 amends Conn. Gen. Stat. § 19a-342(b)(1) to impose a blanket prohibition of smoking “within a school building or on the grounds of such school.” It may be necessary for boards of education to revise their related policy as a result.

Public Act 19-173 provides that boards of education must now amend the policy required by Conn. Gen. Stat. § 10-221o concerning school employees preventing a student from participating in the mandated twenty minutes devoted to physical exercise regular school day as a form of discipline to address “undirected play” as well.

Public Act 19-60 even provides that students six and older must now be permitted to self-apply sunscreen before engaging in outdoor activities at school if their parent or guardian submits a signed authorization to the school nurse. This new law provides that boards of education “may adopt policies and procedures determined to be necessary by such board to carry out” its provisions, an interesting task to be sure.

Other revisions to the laws governing public education in Connecticut may require other changes in board policy as well. In this regard, CABE’s Policy Service, described at http://www.cabe.org/page.cfm?p=1161, is a helpful resource to provide guidance and assistance making sure that board policies are appropriate and up-to-date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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