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SEE YOU IN COURT! - January 2020

CABE Journal

January 1, 2020

The Nutmeg Board of Education provides for public comment at the beginning of its regular meetings. The Board permits members of the public to address the Board for three minutes or less, but the Board members try not to get involved in a back-and-forth with the speaker. Last month’s meeting, however, was an exception.

Patty Parent addressed the Board that night, complaining that the high school principal had violated her rights by rejecting her request of excusal for her daughter. Specifically, she asked that her daughter be excused from the required reading in sophomore English, which includes a number of books that Patty described as vulgar and hostile to religion. Some of the Board members are not fans of the high school principal, and Patty’s complaints piqued their curiosity.

Veteran Board member Bob Bombast started the discussion, expressing sympathy for Patty and asking rhetorically why in God’s name wouldn’t the principal honor her wishes. Board member Mal Content joined in, stating flat out that the principal should have been more sensitive to Patty’s legitimate concerns as a parent.

At this point, Mr. Superintendent piped up, telling the Board that he would meet with the high school principal and that they would reconsider Patty Parent’s request. But the Board members wanted action now, and on Bob’s motion, the Nutmeg Board of Education promptly voted to grant Patty Parent’s request that her daughter be excused from books in the curriculum that she finds “offensive.”

After the Board voted to grant Patty’s request, Bob raised a larger question. “I think that the Board should review all of the books being used in our courses at Nutmeg Memorial High School. Excusing Patty’s daughter from having to read these books does nothing for the other families. I move that we establish a curriculum review committee to review all the books being used in the high school and get rid of those with vulgar and other inappropriate content.

Board member Penny Pincher expressed concern that such a review would be a lot of work, but other Board members said that they would gladly serve on such a committee, and Bob’s motion passed on a 5-0 vote. Despite her reservations, Ms. Chairperson then appointed Bob Bombast, Mal Content and Red Cent to serve on this curriculum review committee.

The new committee promptly got to work, and the committee members were shocked to find vulgarity in some of the books students read in AP English. At the Board meeting last evening, Bob Bombast reported that action is imperative, and he brought forward a proposal on behalf of the Curriculum Review Committee to remove three books from the AP English curriculum and to place four others on reserve so that students can take such books out of the library only with written parent permission.

Will there be problems in Nutmeg if the Board bans these books?

*  *  *

Such action by the Board raises serious questions under both state law and the United States Constitution. Moreover, the Nutmeg Board of Education is confused about the standards that apply in granting excusal from the curriculum.

Taking the second point first, under Connecticut law parents can require that their children be excused from instruction in five specific areas:

  • AIDS instruction;
  • Family life instruction (sex education);
  • Animal dissection;
  • Gun safety instruction;
  • Sexual abuse and assault awareness instruction.

As to these subjects, a parent simply needs to make a request in writing, and school officials must excuse the children from those areas of the curriculum.

As to other requests for excusal, the situation is very different, and school officials can consider, but need not grant, excusal in other areas of the curriculum. The leading case in Connecticut on this issue is Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003). There, a parent in Fairfield asked that his son be excused from health education, and his son stopped going to health class when school officials refused that request. When the student then received a failing grade for not attending, his father sued in federal court, claiming a violation of his First Amendment right of free exercise and of his Fourteenth Amendment right to due process. The Second Circuit, however, ruled that the school district could require that the student participate in the health curriculum because it was reasonably related to legitimate educational objectives.

The key holding here is that parents do not have the right to require that the curriculum be modified simply because the content of the curriculum conflicts with their views, religious or otherwise. Rather, if they wish, they may educate their children through private school or home instruction. By contrast, schools must make reasonable accommodation to religious obligations when the activities in question would cause a student to violate the tenets of his or her religion, such as participating in dancing or in dressing “immodestly” for physical education class.

As to the role of boards of education in curriculum matters more generally, the applicable statutes raise more questions than answers. Conn. Gen. Stat. § 10-220(e) provides 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.” One may reasonably ask how does the same committee should both recommend and approve curriculum, but the courts have never interpreted this statute. Given the need for professional expertise in curricular matters, however, it is advisable for boards of education to delegate such responsibility to a committee of district educators, either completely or to reserve to the board only the final authority to approve curriculum.

A related statute raises questions as well. Conn. Gen. Stat. § 10-229 provides:

No board of education shall change any textbooks used in the public schools except by a two-thirds vote of all the members of the board, notice of such intended change having been previously given at a meeting of such board held at least one week previous to the vote upon such change.

Given the need to update textbooks periodically, one may infer that this statute is applicable only when a board of education is acting out of the normal course, but the courts have never interpreted this statute either, and it should be clarified or repealed.

In sum, the Nutmeg Board of Education should leave such issues to educators, and it should not have granted Patty Parent’s request. Moreover, the Board violated the Freedom of Information Act when it got involved in the first instance. Patty raised her concern during public comment, but there was no related item on the Board agenda at that time that would have permitted it to take action.

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