Each year the Nutmeg Board of Education fields dozens of requests to permit children to attend school in another attendance zone because of day care or other concerns. Nonetheless, Mr. Chairperson was surprised and distracted when Pamela Parent approached him in the Stop & Shop to harangue him about her "out-of-attendance-zone" request. With his ice cream melting in the cart, Mr. Chairperson told her to put it in writing and that she would be OK.
Pamela came to the next Board meeting to make her request. Board Policy 1234 in Nutmeg gives parents the right to a hearing before the Board of Education on any request for out-of-attendance zone enrollment, and it provides that the Board will grant such requests except in case of hardship. The Board convened into executive session to discuss the request. However, before Pamela could make her pitch, Mr. Superintendent advised the Board against granting the request. He explained that the Board had denied two requests last year because of overcrowding at the same school, and he opined that granting the request now would be foolish since the school is still crowded.
Mr. Chairperson started to sweat, and he asked Mr. Superintendent how much trouble one more student could possibly be. Mr. Superintendent told the Board that it must be consistent, and that he was not aware of any special circumstances that would justify an exception for Pamela Parent. Pamela piped up at this point. She said that she was led to believe that her request would be granted, and that in reliance on her conversation with Mr. Chairperson, she had already plopped down her payment for the year to a nearby day care center.
Mr. Chairperson sank down in his chair, and in a quiet voice he asked if there was any more discussion. The other Board members were curious as to what Mr. Chairperson had told Pamela, and Bob Bombast asked Pamela to leave the executive session so that they could find out. Pamela saw trouble ahead, and she told the Board that she objected to any further executive session discussion of this matter. "If you have something to say," she told the Board members, "you'd better say it in open session."
"Yeah, yeah," responded Bob impatiently, and there was an awkward wait for Pamela to gather her papers and leave. When they were alone, the Board members demanded that Mr. Chairperson come clean. Mr. Chairperson explained the brief conversation he'd had with Pamela. After hearing him, the other Board members saw no need to grant the request, figuring that Mr. Chairperson's comments were his problem.
The Board reconvened in open session. Penny Pincher moved to deny Pam's request for a hearing, with Bob Bombast seconding the motion. With no further discussion, the Board voted eight-zero to deny the request. Mr. Chairperson decided not to vote because the result would not be affected. Pamela was outraged at this turn of events. She told the Board that she would be appealing this matter to the State Department of Education and to the courts if need be. She had relied on Mr. Chairperson's word, she said, and she was not going to eat the payment she had made to the daycare center.
Should the Board pay Pamela off?
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For the Board, the lesson here is to be careful in writing policies. For Mr. Chairperson, the lesson is to be careful about making commitments. After granting Pamela a hearing, however, the Board remains free to deny the request.
In writing policies, boards of education must be careful not to make promises they may not always wish to keep. The Board had no legal obligation to give Pamela a hearing in this situation, and the Board had no business imposing that requirement on itself through policy. When a student is denied school accommodations, parents have a right to a hearing before the board of education, a committee of the board or a hearing officer. If the request is denied at that level, they can even appeal to the State Department of Education for a further hearing. However, when boards of education assign students to attendance zones, they are providing school accommodations (albeit not in the school parents prefer), and parents have no right by statute to have a hearing or otherwise challenge assignment to a particular school.
The problem is that the Board violated its own policy by not even hearing from Pamela. Here, the Board could have denied Pamela's request because of overcrowding. However, by not giving her the hearing it promised by policy, the Board violated Pamela's rights. In various situations, the courts have held a failure to follow established policies is a denial of due process. In one case, an Illinois court held that a board violated a student's right to due process when it did not follow its own policy that provided him the option of drug counseling instead of expulsion. Similarly, in August the Connecticut Supreme Court reversed a decision reported here last December, finding that the Winchester Board of Education acted improperly when it removed its chairperson because the Board did not follow a bylaw requirement to give him prior notice.
When boards of education adopt policies, they not only bind themselves; they establish standards of conduct. If school personnel then fail to meet such standards, courts can find that such failure is unreasonable per se, with the result that the board can then be liable for any damages. It is thus very important to be careful in drafting board policies. CABE's policy service can be of great assistance in this regard, and information on this service is available from CABE directly or at www.cabe.org.
Three other points bear brief mention. First, we may hope that Mr. Chairperson has learned a lesson here about how careful board members must be to avoid making commitments on matters that may come before them. Second, members of the public do not have the right to sue because of disappointed expectations, even if reasonable (which was not the case here). The courts recognize that public agencies must be free to make decisions to serve the larger good, even if they disappoint individuals. Moreover, had the Board acquiesced to Pamela's request here, other parents would then have been able to demand equal treatment under the Equal Protection clause of the United States Constitution. The result would have been even greater crowding at that school.
Finally, the Board did not violate Pamela's rights when it discussed her request in executive session. Public agencies may convene in executive session to discuss matters that would result in the disclosure of personally identifiable student information. Unlike the "personnel" reason for executive session, however, the student/family being discussed does not have the right to demand that the discussion be held in open session.
Thomas Mooney is a partner in the School Law practice.