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SEE YOU IN COURT - May 2020

CABE Journal

May 1, 2020

The Nutmeg Board of Education has done its best to adjust to the new “normal” during the COVID-19 health emergency, and its virtual meetings were only Zoom-bombed once so far.  In fact, after a period of adjustment, the various Board committee are stirring to life.

Veteran Board member Bob Bombast is the Chairperson of the Policy Committee, and he recently called a meeting of the Committee to discuss whether and how the Board should revise its policies in light of the health emergency to make sure that seniors at Nutmeg Memorial High School graduate on time through the Nutmeg Distance Learning Plan.  After careful reflection, he had the following agenda posted for a virtual meeting last week: “Discussion and possible action on Board policies.”

Given the importance of policies to the operation of the district, several Board members were curious and not a little worried about what Bob had up his sleeve.  Accordingly, they emailed Bob to find out, with copies to Penny Pincher and Mal Content, the other members of the Policy Committee.  Bob promptly explained by return email to all Board members that he will be recommending to the Committee that it revise its policies to assure that high school students will get full credit for their online learning this semester, and he invited everyone to attend the meeting.

The Policy Committee went ahead with its meeting last week as posted, which it held virtually on Zoom.  Bob started the meeting by noting that he would not be entertaining public comment this meeting, given the exigencies of the situation.  He proceeded to complain that he didn’t think that Nutmeg’s distance learning plan required adequate synchronous instruction, and he asked Mr. Superintendent to explain.

Mr. Superintendent said that he thought that the distance-learning plan was coming along nicely.  The only rub was that the Nutmeg Union of Teachers had insisted that the extent of synchronous learning be left to the individual teacher.  Happily, he continued, most teachers were willing to do some live instruction.

Bob was not pleased with Mr. Superintendent’s answer, and he stated “That is ridiculous!  We need to require that all teachers in Nutmeg provide live instruction.”

 Before Bob could go on with his rant, Nancy Newshound, ace reporter for the Nutmeg Now!, the online newspaper, interrupted Bob.  “Point of order!  This is a meeting of the Policy Committee.  But I see that the entire membership of the Board is attending this virtual meeting, making it an illegal Board meeting.  You have to end this meeting immediately or make the Board members not on the Committee leave!”

Bob responded quickly.  “This is a public meeting, and the other Board members have the same right to attend this meeting as you do!”

Did the attendance of the Board members make this a Board meeting?

*         *         *

Under these circumstances, Nancy was wrong in her assertion.  That said, Bob and the Policy Committee has raised two important issues that require discussion.

To take the Freedom of Information Act (FOIA) issues first, it is clear that the meeting was properly considered a meeting of the Policy Committee.  The FOIA anticipates such situations, and it expressly provides that “A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency . . . shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.”  It is important, however, that other Board members in attendance be treated as other members of the public so that the meeting does not morph into a meeting of the Board.

There were, however, two FOIA violations before the meeting even started.  The agenda for meetings of public agencies should fairly apprise the public of the business to be conducted, and “Discussion and possible action on Board policies” was inadequate.  In addition, Bob’s email communications would likely be considered an illegal meeting.

As to the merits, Bob has raised two very important points.  First, the district should not subject implementation of its distance-learning plan to individual teacher choice.  The Nutmeg Union of Teachers have every right to demand bargaining over the implementation of the distance-learning plan because it represents a significant change in working conditions.  But boards of education have the right and responsibility to make basic policy decisions as to the modality of instruction during this health emergency.  Any negotiations should be limited to the impact of the changed working conditions, not about the basic elements of the distance-learning plan.  While some teacher discretion is appropriate, basic expectations should be uniformly established so that all students receive appropriate instruction.

Second, the Policy Committee should make sure that the Board has an appropriate policy in place regarding distance learning.  Conn. Gen. Stat. § 10-221a(f) provides that boards of education may give credit for online learning, but only in accordance with a board policy that complies with the criteria in Section 10-221a(g):

(A) the workload required by the on-line course is equivalent to that of a similar course taught in a traditional classroom setting, (B) the content is rigorous and aligned with curriculum guidelines approved by the State Board of Education, where appropriate, (C) the course engages students and has interactive components, which may include, but are not limited to, required interactions between students and their teachers, participation in on-line demonstrations, discussion boards or virtual labs, (D) the program of instruction for such on-line coursework is planned, ongoing and systematic, and (E) the courses are (i) taught by teachers who are certified in the state or another state and have received training on teaching in an on-line environment.

As school districts implement instruction through remote learning, boards of education must assure that they have policies in place that conform to these requirements for granting credits for high school graduation. 

Finally, grading practices during this health emergency presents another policy question for boards of education to consider.  Grading practices are left largely to local and regional school districts.  Conn. Gen. Stat. § 10-220g is the only statute governing grading, and it simply deals with weighted grades in honors and AP classes.  However, on April 7, 2020, the Commissioner of Education issued guidance related to the special challenges presented by the COVID-19 health emergency.  The Guidance states in part: “We suggest that schools adopt a locally guided Pass/Fail protocol for grading while providing continued educational opportunities.”  This guidance is not binding, and it provides options for school districts to consider.  With the end of the 2019-2020 school year approaching, however, it will be important for board members and superintendents promptly to decide whether and how to change their grading policies and practices in light of the health emergency this year.

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