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See You In Court - December 2020

December 1, 2020

The Nutmeg Public Schools had been doing well in the reopening this fall, even moving from a hybrid model to a full reopening model.  However, the cases started to rise in Nutmeg and elsewhere, putting that progress in jeopardy.  Then, two students from one family came to Nutmeg Memorial High School last week even though, as Mr. Principal learned after the fact, they had both posted positive for COVID-19.

In consultation with the Public Health Director in Nutmeg and Ms. Superintendent, Mr. Principal notified staff and students that the High School will be shut down for two weeks.  There was general consternation, and social media lit up with speculation as to why the district was forced to close the High School.  Teachers and students wondered aloud on social media whether they have been exposed, and several parents posted intemperate remarks about the lack of transparency of the High School, the Superintendent and even the Nutmeg Board of Education.

Bob Bombast, a veteran member of the Nutmeg Board of Education, shared the general frustration.  On his Facebook page, Bob decried the carelessness of parents who would send their children to school after a positive COVID test, stating that any such parents should be punished for such irresponsible behavior.

By email to Ms. Superintendent and the rest of the Board, Bob demanded that the Board convene an emergency meeting to discuss the next steps.  Mr. Chairperson responded that there was no emergency, but that he was calling a special meeting to discuss these matters further.  Bob wrote back to insist that the Board meet in person because an executive session would certainly be necessary to address his many concerns about the Board’s roles in these matters.

Mr. Chairperson agreed, and two days later the Board met in person, with the public and press participating remotely.  At his first opportunity, Bob vowed to hold the responsible parties accountable for endangering the health and safety of staff and students at Nutmeg High School.  However, none of the other Board members joined in his outrage, and Ms. Superintendent responded with conciliatory comments about the need to “get through this crisis together.”

Bob was not mollified, and he demanded that the Board convene in executive session “for the purpose of discussing the performance of the Superintendent.”  Mr. Chairperson shrugged a “whatever” and asked for a motion to go into executive session.  Once the Board was in executive session, Bob confronted Ms. Superintendent with his demand that the parents and students involved be punished.  Ms. Superintendent demurred, but Bob kept up the attack.  “Do you know who they are?” Bob demanded.  “Because if you know, we Board members should all know!

Ms. Superintendent pushed back.  “With all due respect, Bob, that is none of your business.  This is an administrative matter, and we are handling it, thank you very much!  I am sorry, but I cannot give you the names of parents and students involved!”

Is Ms. Superintendent correct in stating that Board members are not entitled to this information?

*         *         *

Ms. Superintendent is correct.  Given their oversight responsibilities, board of education members do have the right to receive confidential information under certain circumstances.  However, absent consent of the parent or eligible student, the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, generally requires that personally-identifiable information contained in student records be kept confidential, and such information includes the name of the parents. 

FERPA does set out several situations in which confidential student information may be shared without parent consent.  Most commonly, board of education members may receive confidential student information when they act as a “school official.”  FERPA provides that parent consent is not required when the “disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.”  Accordingly, board of education members are entitled to receive confidential student information, but only when they have a legitimate educational interest in the information.  Here, the matter is being handled administratively, and there is no action pending before the Nutmeg Board of Education.  Bob’s curiosity and desire to punish are not legitimate educational interests, and Ms. Superintendent properly withheld the information from Bob and the other members of the Board of Education.

FERPA also provides that school officials may release personally-identifiable student information to others in a “health or safety emergency,” subject to specified procedures.  Thus, if school officials learn that a student has tested positive for COVID-19, they may disclose that information to the appropriate public health officials, and in consultation with those officials, the school district can take appropriate remedial measures, such as the quarantining of those exposed and implementing additional cleaning measures.  While some people may try to guess the identity of the student(s) who test positive for coronavirus, generally an order of quarantine should simply inform the person that he or she was exposed, and it should not disclose the identity of the student or students who tested positive except to those who need to know.  Public health officials will provide the appropriate protocol for such situations.

Nutmeg also needs to get up to speed on Executive Order 9H, issued on October 20, 2020.  There, Governor Lamont codified rules for “hybrid” meetings, at which public agencies meet in person and otherwise permit the public and press to participate in the meeting remotely in accordance with Executive Order 7B (issued early in the pandemic on March 14, 2020).  However, Executive Order 9H includes a new requirement that public agencies that conduct hybrid meetings “shall make provisions to allow at least some members of the public and press to attend in the same location as the officials conducting the meeting in a manner consistent with public health guidance for limiting the transmission of COVID-19.”  In so doing, boards should consult with public health officials and publicize the number of spaces are available on a first-come/first-serve basis, possibly reserving some spaces for members of the press.

Finally, we note that Bob asked that the Board convene into executive session to “discuss the performance of the Superintendent.”  That was a stretch.  The discussion of the circumstances when Board members will receive confidential information about parents and students should have been held in open session.

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