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SEE YOU IN COURT! - September 2012

CABE Journal

September 2012

The new school year started smoothly in Nutmeg, with one exception – the burgeoning enrollment. The Nutmeg Board of Education had played it close in its staffing decisions for the coming school year, because funds were so tight. However, as the beginning of the year approached, enrollments at every level exceeded the predictions. What to do?

Ms. Superintendent came to the first September Board meeting with her plan. She explained to the Board that, given class size guidelines, it would be necessary to hire another six teachers to cover the increased enrollment. “But don’t worry,” she explained. “We will be able to find the money by tightening our belts.”

“Are you kidding?” veteran Board member Bob Bombast asked. “We didn’t hide that kind of money in our budget . . . . I mean if we hid any money, which of course we didn’t, it wouldn’t be that much. Besides, the class size limits are just guidelines. Don’t worry about them.”

Penny Pincher, the Board’s austerity queen, put in her two cents. “I have a better idea. My neighbors are constantly telling me about the hoards of kids who are attending our schools illegally. God knows why they want to go to school in Nutmeg, but they do. If our custodians do surveillance duty, I am sure that we can exclude those lawbreakers and cut our enrollment down.”

Ms. Superintendent quickly saw that she wasn’t getting anywhere with her request for more teaching positions. “OK, then,” she responded. “I think the custodians will enjoy the fresh air. I will get them right on this.”

Ms. Superintendent was surprised at how easy it was. After school one day, a custodian followed one student, who got on a city bus and apparently went home to a neighboring community. He waited at the bus stop the next morning, and sure enough the student got off the bus and walked to the school bus stop. As soon as he shared this information with her, Ms. Superintendent promptly told the Board all about it.

Ms. Superintendent notified the student and his family that he was not eligible for free school privileges in Nutmeg, and, as provided by statute, she notified the family of its right to appeal. She was shocked when the family actually appealed her decision to the Board, but she was confident that the Board would support her.

That support was evident from the beginning of the hearing. Bill Alot, local legal scourge, represented the family. When he heard about the custodian’s observations, he scoffed and told the Board that they meant nothing. He was surprised, however, when Bob Bombast got into it with him. “Don’t give me that!” Bob thundered. “Once I heard about your client sneaking into town, I did a little ‘research’ myself. I saw your client take the bus out of town four days in a row.”

The Board was surprised at Bob’s initiative, but figured that it was reliable evidence. Despite the testimony of the student and his mother that the student was simply helping his grandmother out of town, the Board voted unanimously to reject the appeal. Bill Alot vowed to appeal to the state.

Does Nutmeg have a problem? 

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As usual, Bob Bombast overstepped his limited authority as a board member. In residency matters, board members sit as judges to hear the evidence from both sides and decide the matter impartially. Ms. Superintendent’s communications with the Board and Bob’s intervention were inconsistent with that responsibility and raised due process concerns. To start, however, a more general review is warranted.

School accommodation hearings address two very different situations. Since school accommodations include reasonable transportation, parents have the right to challenge transportation decisions, such as bus stop location or whether bus transportation will be provided at all. The board’s decision in such cases is very important, because if the parents appeal to the State Department of Education, the board’s decision will be affirmed unless it is arbitrary, capricious or unreasonable.

School accommodations hearings more often deal with the basic question of residence and whether a student is entitled to attend school in that town. The school accommodations statute provides that the burden of proving residency for school purposes is on the party making the claim. However, there is a strong public policy in favor of education, and, if a student claiming to be eligible is denied school accommodations, as a practical matter the administration should generally be able to show that the student is in fact living elsewhere.

Sadly, the statute provides no definition of “residence.” When students spend time in another town with divorced parents or other family members, there can be serious question as to where the student actually lives. Given the complexity of modern living arrangements, school districts cannot use rigid formulas to determine school eligibility, such as requiring that the student spend a majority of nights in town. Rather, board members must consider all the facts and circumstances (e.g., living arrangements, location of possessions, history, relative frequency of nights in and out of town, what happens on school vacations) to decide whether the student has a bona fide residence for school purposes. Indeed, a student may have two such residences.

Given the statutory procedures, the aforementioned due process concerns are less important than they might otherwise be. In contrast to student expulsion decisions, which are final, board-level school accommodation decisions are not. Once the board of education has ruled, the family may appeal to a hearing officer appointed by the State Department of Education. Moreover, in residency hearings, there is no deference to the decision of the local or regional board, and the state hearing officer decides the matter de novo. Thus, the state-level hearing will obviate the due process concerns.

Finally, there are two labor relations issues here. First, class size is a negotiable subject. Given that enrollment can be unpredictable, flexibility in such matters is crucially important. Here, Nutmeg is fortunate simply to have guidelines.

Also, in her eagerness to find ineligible students, Ms. Superintendent may have invited a labor relations complaint. For union employees, working conditions are negotiable, and school officials may not make significant changes in existing working conditions without prior negotiation. To be sure, school custodians perform a variety of important tasks. However, being a private investigator is not typically one of them, and their assignment to such duty likely triggered a duty to bargain.

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