Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Curriculum and what students are instructed is a “hot topic” around the country right now. As local and regional boards of education approve curriculum for the district, what happens if one or more members disagree with a particular course or unit in the curriculum? Of course, a board of education can disapprove an entire curriculum or a course brought to them, but can the board vote to make changes to particular parts of the curriculum document to amend it?
Leave It To The Professionals
Dear Leave It:
To answer your question, Legal Mailbag concludes that boards of education can indeed make changes to proposed curriculum, but any such action will be subject to statutory and constitutional limitations. Whether and when to do so, however, is a different question, and Legal Mailbag is not aware of boards of education in Connecticut exercising this authority in a partisan or political way.
As to curriculum specifically, we are guided by two statutes. First, Conn. Gen. Stat. § 10-16b specifies the subjects to be taught in the public schools, and other statutes provide that the content of certain courses must meet specified requirements. See, e.g., Conn. Gen. Stat. § 10-18 (requirements for courses in United States history, Conn. Gen. Stat. §§ 10-16tt, 10-16uu (requirements for Black and Latino studies courses). In approving curriculum, boards of education must comply with the required course elements specified in statutes.
Second, Conn. Gen. Stat. § 10-220(e) requires that all boards of education create a “curriculum committee,” which per the statute has extensive authority. The statute provides:
(e) Each local and regional board of education shall establish a school district curriculum committee. The committee shall recommend, develop, review and approve all curriculum for the local or regional school district.
This statutory provision is problematic, because it contemplates that the same committee will perform multiple and potentially inconsistent responsibilities to “recommend, develop, review and approve” all curriculum, inviting the question how the same committee would both recommend (to whom?) and approve (for whom?) curriculum that it both developed and reviewed by the same committee.
Legal Mailbag has done its best to make sense of this statute and concludes that it should be interpreted in light of the standard function of a committee, which is to act on behalf of the board of education that created the committee, and not to assume the authority of the board of education itself. Viewed in that light, one can reasonably argue that boards of education retain their authority to approve the curriculum that the curriculum committee presents to it. Moreover, the authority to approve curriculum arguably includes the authority to revise the curriculum before it is approved.
There are both legal and practical concerns related to any action by a board of education to revise curriculum that the committee presents to it. As a legal matter, the curriculum must conform to statutory requirements, if any, as set forth above. Moreover, as a constitutional matter, boards of education cannot exercise their oversight over curriculum in a partisan way. In Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (U.S. 1982), a plurality of the United States Supreme Court overturned a board’s action in removing books from the school library, stating:
Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” West Virginia Board of Education v. Barnette, 319 U.S. 624.
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Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. . . . Our Constitution does not permit the official suppression of ideas. Thus whether petitioners’ removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. (Emphasis added to first sentence, emphasis in second sentence in original).
This concern for the First Amendment protection of ideas applies with equal force to the curriculum.
In a subsequent case, the Court gave us a workable test for determining whether board of education action is consistent with the First Amendment protection of ideas. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (U.S. 1988), the Court ruled that school officials may regulate the content of the school newspaper as follows:
[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns. (Emphasis added).
Legal Mailbag predicts that the courts would apply this test if action by a board of education to reject or modify recommended curriculum were challenged. In short, boards of education have broad discretion to approve, disapprove or revise the curriculum as a matter of constitutional law, but that discretion is not unlimited.
On a practical level, board of education members typically understand that curriculum is the responsibility of the educators, and they will typically “leave it to the professionals.” However, board members do have an important oversight role, and in the rare circumstance that proposed curriculum raises legitimate pedagogical concerns (including whether curriculum is developmentally appropriate for the intended student audience), they may take action, either to make changes or to refer the matter back to the committee for further study, as long as their actions are grounded in “legitimate pedagogical concerns.”