Mal Content has been a member of the Nutmeg Board of Education for three years. For most of that time, Mal was the outsider looking in. That all changed this year, however, when Mr. Chairperson appointed Mal to serve as Chairperson of the Board Policy Committee. Suddenly, Mal saw himself as a player, and he embraced his new responsibilities enthusiastically, perhaps too much so.
Mal promptly got on the telephone with Mr. Board Attorney and asked him to review and revise all Board policies to “make them perfect.” Moreover, Mal quickly decided on his own that the Board needs new policies on student safety, religious celebrations in the schools, and the assignment and return of homework. Mal sent a courtesy email to the other members of the Policy Committee, informing them that he was writing some new policies, and then Mal got to work.
For the student safety policy he was drafting, Mal followed his heart. He recalled how he had been bullied in middle school, and so he included in the draft policy he was writing that students would never be permitted to be in the school setting without adult supervision. His draft policy also provided that the Board “directs the Administration to take all possible measures to assure student safety.”
On religious celebrations in the school, Mal’s draft policy provided that teachers are prohibited from mentioning in class any holiday with religious significance, including Easter and Christmas. Indeed, to make sure that students were comfortable in school, Mal’s draft policy also prohibited students from talking amongst themselves in school about religious holidays.
Finally, Mal’s draft policy on homework was quite simple: Teachers will be required to return homework assignments to students within twenty-four hours. Period.
Mal sent his draft policies to the other members of the Policy Committee by email, asking for their input. At the Board meeting last week, Mal proudly described his efforts to the full Board in public session, and he explained that he was simply waiting for the other Committee members to respond before presenting the new policies to the Board for adoption.
Veteran reporter Nancy Newshound of the Nutmeg Bugle, the local newspaper, was in the audience, and she asked Mal to send her copies of the draft policies. Mal chided Nancy, asking rhetorically if she knows what the word “draft” means. “When we are done with the policies and present them to the full Board, Nancy, you will be one of the first to know,” Mal assured her.
Meanwhile, Mr. Board Attorney was busy at work, and a few days later, he sent Mal thirty pages of recommendations on the policies on students. “Personnel is next,” he wrote in his cover memorandum. “By the end of the year, we should have recommendations on how the Board can make all of its policies perfect, as you requested,” concluded Mr. Board Attorney.
Did Mal get carried away here? If so, how?
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Policies regulate the affairs of a school district, and writing and adopting policies is one of the key responsibilities of boards of education. In writing policies, however, boards of education must keep in mind that the drafting and adoption of board policies can raise significant legal issues. Here, there are problems with what Mal wrote and how he did so.
Policies create legally-binding commitments, and therefore it is important that board policies be realistic in establishing rules to govern district affairs. The policy on student safety, for example, provides that students will never be left without adult supervision. Moreover, what does it mean to take “all possible measures to assure student safety”?
Such grandiose language may well invite liability claims. School districts can be liable for harm that comes to students if (1) school officials have a duty of care, (2) they breach that duty by acting unreasonably, (3) the unreasonable action causes an injury (4) that was foreseeable. When boards of education adopt policies, they define reasonable action, and a failure to follow board policy will be deemed unreasonable per se. Thus, if and when a board of education adopts a policy that includes an unrealistic expectation that school officials may not always be able to meet, it may be setting the district up for exposure to liability.
In addition, policies can raise other legal issues. The draft policy on religious celebrations in the schools, for example, purports to prohibit students from discussing their own religious celebrations, a clear violation of their First Amendment rights. Similarly, the draft policy on homework may result in an unfair labor practice charge. While boards of education have the right to adopt policies governing district practices, any significant changes in expectations (such as the requirement here that homework always be returned within twenty-four hours) may trigger a duty to negotiate over changes in working conditions.
Given the legal implications, it is often advisable to seek legal review before adopting a significant new policy. However, it is important to be clear on who has the authority to assign legal work to counsel. Here, Mal’s request to Mr. Board Attorney that the board policies be made “perfect” involves an extensive legal review, a potential expense that the Board as a whole would appropriately consider and decide upon.
There are of course other problems with how Mal went about fulfilling his new responsibilities. The draft policies that Mal prepared would not be considered “drafts” exempt from disclosure under the Freedom of Information Act. “Preliminary drafts and notes” are indeed generally exempt from disclosure under the FOIA. However, when a draft is circulated as “part of the process by which governmental decisions and policies are formulated,” it is no longer considered “preliminary,” and it is subject to public disclosure. Thus, Nancy Newshound had a right to see the drafts that Mal circulated.
Finally, Mal’s email asking for comments from the other members of the Policy Committee may have violated the FOIA. The Policy Committee is itself a public agency, and its meetings must be posted. By asking for comments before submitting the policies to the Board of Education for adoption, Mal was essentially conducting Committee business without posting the “meeting.” Any substantive discussion about Committee responsibilities should occur only at a posted meeting.