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SEE YOU IN COURT! - January 2017

CABE Journal

January 1, 2017

Authors: Thomas B. Mooney

For years, the Nutmeg Board of Education has invited members of the public to comment at the beginning of its meetings.  Last year, the Board adopted some new rules and even printed those rules on the bottom of the agenda:  “All speakers are limited to three minutes.  Comments must relate to the operation of the Nutmeg Public Schools.  No personal attacks!”  There was some grumbling when rules first went into effect, but Public Comment has been running smoothly ever since.

At the meeting last week, Pamela Parent spoke to the Board during Public Comment.  She complained about the “stupid” decision that Mr. Superintendent made in rejecting her request that her homeschooled son, who would otherwise be a sophomore in high school, be permitted to take chemistry at Nutmeg Memorial High School.  In a rather nasty tone, she intimated that Mr. Superintendent was biased against God-fearing folk who prefer to educate their children at home, away from the pernicious influences of public education.

Bob Bombast, veteran member of the Board, had been listening intently to her comments, and he couldn’t help but interrupt her with a question.  “If you are so worried about the bad influences in the public school,” Bob asked, “why are you asking to send your son to Nutmeg Memorial for chemistry class?”

“Have you taken chemistry?” Ms. Parent asked rhetorically.  “It’s not like he is going to have lunch or take gym with the other students.  It is all numbers and formulas, and I am sure he will be safe.  I want him to get into a good college, and some courses are just too hard to do at home.  Chemistry is one of them.”

Bob was intrigued.  “Mr. Superintendent, this request seems reasonable to me.  Why are you being such a pain about this?”

Now it was Pamela’s turn to interrupt.  “Besides, I pay taxes in Nutmeg!  Over the years, my family has saved Nutmeg a fortune by home-schooling our children.  Now I ask for just one little thing, and Mr. Superintendent says no.  It isn’t fair!”

Mr. Superintendent started to explain that there were logistical difficulties in permitting a non-enrolled student to participate in a single class, but Bob didn’t want to hear of it.  He waved Mr. Superintendent off dismissively, and addressed the Board.  “I move that the Board grant this reasonable request to permit Ms. Parent’s son to take Chemistry at Nutmeg Memorial High School.”

Board member Penny Pincher piped up.  “What is this going to cost us?  I don’t want the Board to be paying extra for children who are not students in Nutmeg.”

Board member Mal Content joined the debate.  “Can we even do this?  Aren’t we supposed to steer clear of religious types?”

Ms. Chairperson banged her gavel to regain control.  “Look,” she began.  “This isn’t even on our agenda this evening.  I move that we ask Mr. Superintendent to take a hard look at his previous decision, see what he can do for Ms. Parent, and report back to us.”  After a prompt second, the Board approved the motion and moved on. 

Do you see any problems if Mr. Superintendent changes his mind and permits the young man to take Chemistry at Nutmeg Memorial?

*      *      *

There is no legal prohibition against permitting home-schooled children to participate in the activities of the public schools.  However, such decisions have implications that boards members and superintendents must keep in mind.

We start by noting that home-schooled children have no legal right to participate in the courses and other activities of the public schools.  Children who reside in a school district have the right to enroll in school in that district.  However, parents (or guardians) who home-school their children have chosen not to enroll their children in school, but rather have agreed to assure that their “child is elsewhere receiving equivalent instruction in the studies taught in the public schools.”  Conn. Gen. Stat. Section 10-184 (emphasis added).

In 1994, the Commissioner of Education issued recommended procedures for school officials to follow with home-schooled children, which include a proposed form on which (1) the parent states that the parent assumes responsibility for education of the child, and (2) the superintendent “only acknowledge[s] receipt of this form and render[s] no opinion as to the appropriateness of the planned program.”  Given that the home-schooled child is not an enrolled student, the child has no legal right to participate in any of the programs or activities of the public schools.

To be sure, school officials may permit home-schooled children to participate in designated school activities.  In deciding whether or not to do so, however, school officials must keep in mind their obligations under the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.  As government agents, school officials are subject to this constitutional provision, which requires that the government treat similarly-situated people in the same way.  The problem is that parents and school officials can disagree on whether their children are similarly situated or whether they have been treated the same way.  If Mr. Superintendent eventually grants Ms. Parent’s request and her son is permitted to take Chemistry, he will set a precedent that other parents may rely on.  Will all home-schooled children now be able to take courses as they may choose?  Will they be able to participate in other school activities as well?  Will students in private schools be able to take courses in the same way home-schooled children can?  How will school officials exercise control and discipline, where necessary, over children who are not enrolled students?

By drawing a bright line against permitting non-enrolled children selectively to participate in public school courses and activities, some school districts avoid these questions.  Conversely, before permitting home-schooled children (or children attending private schools) to participate in any school activities, school officials must consider these questions and weigh the benefits and burdens of such a decision.

Finally, we note that the Nutmeg Board of Education has adopted appropriate rules for Public Comment, but violated protocol for Public Comment and may have violated the Freedom of Information Act as a result.  Public Comment is an opportunity for the public to speak, but board members should not engage in discussion with the speakers.  The board and superintendent can always add an item to a future agenda if further discussion is warranted.  However, by discussing Ms. Parent’s request and indeed taking action on it, the Board violated the FOIA by considering and acting on a matter that was not on the agenda.

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