See You In Court - April 2023

The members of the Nutmeg Board of Education were used to an irascible public, but one parent whom they call “Angry Al” has them worried.  Al is always mad about something, and he stridently shares his displeasure with anyone who will listen.

Al is familiar to the Board members.  A regular at Board meetings, Al regularly speaks during public comment to express his displeasure with something that the Board, the Superintendent, or others have done.  The real problem, however, has been Al’s interactions with staff.  The parent of a high school freshman, Al argues frequently with the staff at Nutmeg Memorial High School, and Ms. Superintendent has been worried about their safety.  

Just last week, Al confronted Mr. Principal about a new rule requiring parents to park in designated areas if they come on to school property to pick up their children.  “Why do you get to have your convenient parking place near the entrance, but I have to park far away?” Al asked Mr. Principal.  Mr. Principal tried to deescalate the situation by explaining that there is only limited parking at the high school and that it is necessary to keep the front of the school clear for buses at dismissal.  But Al just got more elevated in tone and invaded Mr. Principal’s personal space, yelling that, since he is a taxpayer, Mr. Principal works for him and should listen to his “boss.”  Staff members and students in the area watched this conflict escalate, and the school resource officer stepped in.  However, that just set Al off further, and he continued to cause a disruption until the school resource officer arrested him for breach of the peace.

Unfortunately, that was not the first time that Al’s belligerent attitude got him arrested.  When his son was suspended for insubordination earlier in the year, Al demanded a meeting with the assistant principal, and the meeting did not go well.  Al angrily accused the assistant principal of targeting his son.  The conversation went downhill from there, and it ended when Al shoved the assistant principal and was arrested by the school resources officer for assault as well as breach of the peace.

Ms. Superintendent is so concerned that Al is a danger that she brought her concerns to the Nutmeg Board of Education last night in executive session under the agenda item, “Discussion concerning a parent matter.”  As usual, Al was in the audience, and during public comment at the beginning of the meeting, he loudly questioned whether this agenda item had to do with him.  “I know my rights,” Al told the Board members.  “If you are going to talk about me or my son, I demand that you hold the discussion in open session!”

Neither the Board members nor Ms. Superintendent responded to Al’s question, and at the end of the meeting the Board convened with Ms. Superintendent in executive session.  Ms. Superintendent explained that things were going from bad to worse with Al and that she was going to ban him from school property and all school activities.

Board member Mal Content asked Ms. Superintendent whether she needed a Board vote, and Ms. Superintendent said no.  She told the Board members that banning Al from school property is an operational concern within her jurisdiction, an action that she can take without Board action.  However, she explained that she didn’t want the Board members to be surprised if and when Al sues the district over the ban.

Is Ms. Superintendent within her rights to update the Board in executive session and to ban Al from school property?

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As the chief executive officer of the Board of Education, the Superintendent has operational control over the school district (subject to related Board policies), and that control includes the right to grant and deny access to school property.  By contrast, Al has no say over whether the Board discusses him or his son in executive session.  Here, Ms. Superintendent’s actions were appropriate, and she has the right to proceed with her plan.

Given that some parents are confrontational and disruptive, school officials have taken action on occasion to limit parent access to school property.  The courts have reviewed such actions, ruling that parent access to school property can be limited for legitimate reasons as long as such action is not in retaliation for the parent’s exercise of their free speech rights.

The leading case in Connecticut is Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017).  There, the Second Circuit Court of Appeals considered a motion for summary judgment by a high school principal seeking dismissal of a complaint by a parent that the principal had violated his rights by banning him from school property and all school activities.  The court found that a general ban from school property was within the principal’s authority.  However, the court held that further proceedings were necessary to determine whether the ban from school events was reasonable, and thus permissible, or whether it was improper retaliation for the parent’s complaints, which are protected by the First Amendment.

From this case, we understand that school officials have the general authority to ban parents from school property when they have a reasonable basis for doing so.  The question in Johnson v. Perry was whether the principal’s ban was based on the parent’s actions or whether it was in retaliation for protected speech.  Here, Al could make the same claim.  Al regularly criticizes the Board and Superintendent during public comment at Board meetings, and he could well argue that Ms. Superintendent’s actions were retaliation for such speech.  When parents have been physically aggressive, however, the courts have been willing to affirm actions banning them from school property.  Al’s actions here, including aggression and disruption to the point of arrest, would justify the action proposed by Ms. Superintendent and rebut any such claim of retaliation.  

This situation also raises two issues under the Freedom of Information Act.  The FOIA requires that the agenda for meetings of public agencies fairly apprise the public of the business to be transacted.  Here, one might reasonably ask whether “Discussion concerning a Parent Matter” meets this standard.  However, under the Family Educational Rights and Privacy Act (FERPA), personally-identifiable information concerning students may be kept confidential, and parent names are considered such confidential information under FERPA.  Given that the discussion related to Al’s actions as a parent, it was permissible for the Board not to include Al’s name of the public agenda.

Finally, Al claimed that he had the right to demand that any discussion of him as a parent be held in open session.  He is wrong, and he may be mistakenly applying another FOIA provision to this situation.  Under the FOIA, public agencies are permitted to discuss personnel matters in executive session, provided that the individual being discussed does not require that such discussion be held in open session.  Discussion of student matters contained in school records, including interactions with their parents, by contrast, is separately privileged to executive session as a discussion that would result in the disclosure of information in confidential records.  If concerns about Al’s actions and his potential ban from school property are included in school records, the Board’s discussion in executive session was proper.