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SEE YOU IN COURT! - April 2009

March 20, 2009

Authors: Thomas B. Mooney

When Mr. Chairperson arrived for this month’s meeting of the Nutmeg Board of Education, he had trouble finding a space to park. “This is not good,” he thought to himself. His suspicions were confirmed when he entered the meeting room to find a packed house. “This is really not good,” he mused as he saw his fellow Board members cowering at the front of the room, uncertain whether to take their seats.

Mr. Chairperson exercised some leadership and bravely sat down and asked his colleagues and Ms. Superintendent to join him. When he then called the meeting to order, he quickly learned what had brought out the troops. Peter Pious was the first speaker during Public Comment, and he gestured toward the crowd as he began, “We are here to protest the Big Brother tactics of Ms. Superintendent and her henchmen.”

“What do you mean? Ms. Superintendent, what is going on here?” veteran Board member Bob Bombast jumped right in. But as Ms. Superintendent explained that she had no idea what Peter was talking about, the crowd grew hostile, with hisses and some boos. Mr. Chairperson gaveled the meeting to order and asked Peter to continue.

“We are God-fearing folk who are concerned that the health curriculum will give our children bad ideas. By telling our children about ‘bad choices,’ you Godless educators are leading our children astray.”

Bob Bombast couldn’t resist jumping in. “We want to make you and everyone welcome in our schools,” Bob said unctuously. “What would you like us to do?”

“Thank you, Mr. Bombast. It is nice finally to get some respect,” responded Peter. “We simply want to have the right to control the curriculum for our children. We want an alternative assignment for our children whenever we object to the curriculum. And we want to be able to observe the classes our children are in. Is that so much for us taxpayers to ask? We think not.” Peter sat down to the cheers of the audience. The group, however, was not done, and the Board sat through two more hours of parent complaints, as they repeated Peter’s message over and over.

Finally, Bob interrupted. “We get it. I move that we adopt a “Parent Choice” policy. I think we should permit parents to visit the classrooms of their children when they want and to opt out of instruction as they see fit. Who knows better than parents what their children need?” The room erupted with applause, but to the dismay of the assembled throng, Mr. Chairperson ruled Bob’s motion out of order, given that the matter was not on the agenda. However, he earnestly promised the crowd that the Board would act promptly on Bob’s motion. What should the Board do?

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The Board should tread carefully here. Parents have certain rights of excusal under Connecticut law, and accommodation of parent requests may be advisable in certain circumstances. However, the operation of the schools is left by statute to school officials, and control should not be abdicated to parents.

Connecticut law does identify three areas of the curriculum from which parents may unilaterally excuse their children by simply writing a note to the teacher. Those topics are HIV instruction, family life education, and, interestingly, firearm safety instruction (there must be a story there). Otherwise, students enrolled in the public schools may be required to participate in the curriculum.

This principle is illustrated by the case of Leebaert v. Harrington, which was decided in 2003 by the Second Circuit Court of Appeals. There, a parent in Fairfield, Connecticut, objected to the health curriculum. He demanded that his middle-school son be excused from the health curriculum completely, stating that he wished to home-school his son in “health, morals, ethical and personal behavior.” School officials denied his request, and the parent sued, claiming that school officials were violating his constitutional rights. However, the court held that school officials may establish the curriculum and require enrolled students to participate in it, except as the statutes otherwise provide. Religious concerns may be accommodated by permitting home-schooling or enrollment in private schools, but the curriculum need not be modified.

This case clarifies the right of school officials to maintain the curriculum, and to decide whether and how to accommodate parent requests. Some requests are reasonable, and they may be granted without interfering with the curriculum. Moreover, working with parents may be helpful in promoting collaboration and cooperation between school and home. But some requests are unreasonable, and the Leebaert case makes clear that such decisions are left to school officials.
The role of the board of education in curriculum decisions was recently clarified as well.

Historically, the statutes have provided that the board of education will establish curriculum in areas of instruction specified by statute. Given the voluntary nature of board service and the expertise of the superintendent and the certified staff, it has been presumed that boards of education fulfill this responsibility through agents. Now, a new statute makes that clear, and then some. In 2008, the General Assembly added Conn. Gen. Stat. § 10-220(e), which broadly states that “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.” The statute apparently leaves to boards of education decisions as to the composition of the committee, but it clearly charges the committee, not the board itself, with the authority to approve curriculum.

In considering the board of education role, we note that the General Assembly has let a curious statute stand, which has been around for over sixty years. It provides that a board of education may change a textbook in use in the public schools only with one week’s prior notice and a two-thirds vote of all members. Conn. Gen. Stat. § 10-229. It is not clear how this restrictive statute applies to curriculum decisions generally, but it may be reasonable to follow that extraordinary procedure only where there is a controversy before the board concerning a proposal to change a textbook.

Finally, we note that the parents also want to observe classroom instruction. While schools and classrooms are owned by the public, they are not open to the public. To be sure, school officials often permit parents to visit classrooms for a reasonably short period of observation. However, unreasonable parent demands are not uncommon, and school officials retain the right to decide whether and for how long parents may visit classrooms. In making any such decisions, however, consistency is important so that equal protection arguments by disappointed parents may be avoided.

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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