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SEE YOU IN COURT! - October 2009

October 1, 2009

Authors: Thomas B. Mooney

Mr. Superintendent felt as though he had been beaten with a pipe.  As soon as it was announced that President Obama was going to speak to students, the complaints started.  So Mr. Superintendent directed that the speech be archived for later viewing at teacher request.  Then, other parents complained that he was censoring the President of the United States, and he found himself in a no-win situation.  At least it was over.

 

However, a group of parents decided that this situation underscored the need for greater parent oversight of the curriculum.  Acting through their informal leader, Vickie Vigilant, the parents demanded access to all district curriculum for their review.  Mr. Superintendent told them that copies of the curriculum would cost them a small fortune at $.50 per page, but as a special favor to them, he would let them look at his copy in the Board conference room.  They accepted this kind offer.

 

Soon, the conference room was swarming with curious parents, poring over the curriculum documents.  Mr. Superintendent tried to ignore the hubbub, but he could not help but overhear Vickie exclaiming and calling parents over to see particular sections.  Finally, Vickie knocked on his door with a raft of curriculum documents in her hand.  “You need to change this.  We demand that the Health curriculum be revised to delete the various provisions that intrude on parent rights.” 

 

He and Vickie then reviewed the curriculum documents, and she identified various provisions that she and other parents found objectionable, including information about dating, self-esteem and the dangers of drugs and alcohol.  Mr. Superintendent explained that the curriculum was carefully written and would not be revised on the basis of parent complaints.  However, Vickie was adamant that her child would not be exposed to such matters.  Mr. Superintendent expressed his regret, but told Vickie that her only recourse was to home-school or send her child to private school. 

 

Vickie quickly decided that she would have better luck with the Board, and she and her followers wrote to Mr. Chairperson.  With the election just weeks away, Mr. Chairperson figured he had better be nice to Vickie and her group, and he added an agenda item for the next Board meeting, “Parent Curriculum Concerns.”  That night, the Board room was packed with Vickie and her supporters, and to avoid a public spectacle, Mr. Chairperson asked for a vote to go into executive session. 

 

Once in executive session, Vickie and the other parents poured out their hearts about how the health curriculum exposed their children to inappropriate materials.  The Board members listened sympathetically, and Bob Bombast turned accusingly to Mr. Superintendent.  “What is so important that you cannot accommodate the legitimate concerns of these committed parents?”  But before Mr. Superintendent could respond, Bob turned to the other Board members.  “Clearly, we need to protect the rights of these parents.  I move that the health curriculum be revised to eliminate offensive material identified by these concerned parents.”  After a brief discussion, the motion was seconded and adopted unanimously.

 

Was the Board permitted to take such action, and how will it be implemented?

 

***

 

The Board was not permitted to modify the curriculum to meet the demands of these parents, and it created at least two problems when it took this action.

 

At the outset, we must distinguish excusal from modification of the curriculum.  In limited cases, parents have a right to insist that their children be excused from specific classroom activities.  Such excusal rights are created by statute, and in Connecticut, there are only three such topics: HIV instruction, “family life education” (aka sex ed), and gun safety instruction.  Other than for these three topics, school officials are not required to grant parent requests for excusal.  Thus, school officials need not accede to parent “demands” that their children not, e.g., hear a speech by the President of the United States.  To be sure, school officials may wish to accommodate legitimate parent objections, which may stem from various concerns, including matters of religion.  However, the decision on such matters remains with school officials.

 

The courts have also been clear that parents may not demand that the curriculum be modified.  If individual parents could impose their personal views to require revision of the curriculum, the result could be a curriculum reduced to inoffensive pap.  The fact that parents cannot insist on changes holds true even for sincere religious objections.  Accommodation of religious practices is required, but that can be done by permitting parents to send their children to private school or to home school them.

 

Here, the Nutmeg Board of Education made two mistakes.  First, it violated the Freedom of Information Act in several ways.  While parent discussion of their children can be privileged to executive session, discussion of the curriculum in executive session is not.  Voting in executive session was also inappropriate.  Finally, under the FOIA, the public has the right to have access to public documents, including the curriculum, and they cannot be required to request (and pay for) copies.

 

Second, the Board usurped the role of a new committee it should have created.  Last year, the General Assembly enacted Conn. Gen. Stat. § 10-220(e), which 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.”  Interestingly, this sweeping new law, which shifts the ultimate responsibility for the curriculum from boards of education to such committees, has received little attention.  In any event, that committee, not the Board should have approved any changes in the health curriculum.

 

This year, the General Assembly again took significant power away from boards of education with little discussion and no fanfare.  For many years, boards of education had the right to approve teacher professional development plans, which includes the local teacher evaluation plan.  In the June Special Session this year, however, the General Assembly amended Conn. Gen. Stat. § 10-220a(b) to take that responsibility away from boards of education and give it to “professional development committees” that school boards must now appoint.

 

In both cases, these committees wield significant power that was previously vested in the board of education, and the only authority of the board of education is to appoint members to these committees.  It is therefore imperative that boards of education carefully select the members for appointment.  Finally, the two statutes do not specify the term of any such appointments, and it may be advisable to specify that such members serve on such committees at the pleasure of the board of education.

 

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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