Transcript Professor Julie Underwood

Ten Practices to Avoid Liability
PRESENTED BY:
Robert Rader, Executive Director
Patrice McCarthy, Deputy Director and General Counsel
Kelly B. Moyher, Senior Staff Attorney
Connecticut Association of
Boards of Education
The presenters gratefully
acknowledge the work of the
NSBA Council of School
Attorneys “A School Law Primer”
on which this presentation is
based.
1: Know the Boundaries of
Your Authority
Authority of boards derived
from state
 constitution
 statutes
 administrative provisions
State statutes delegate oversight
of public education to local and/or
regional boards
Local boards hold express and
implied powers
Courts reluctant to interfere with
board decisions, but will invalidate
any board action that is:
 arbitrary
 capricious or
 outside the board’s legal authority
2: Focus on the Board’s
Policy Making Role
• Boards are policy-making bodies
responsible for establishing rules and
procedures
• State and federal law mandate certain
policies and procedures
 generally allow the
school board to determine
the specific details
Board policy
• Guides day-to-day administrative
decisions
• May address issues of importance
not mandated by law
Distinction between the policy-making
role of the board and the administrative
role of the superintendent is not always
clear.
 some states clarify the
roles in statute
The board’s role concerning violence in
school and school security
•
•
•
•
Board responsible for ensuring schools are safe
for students, teachers and staff
Instructional programs to educate students about
alternate, non violent conflict resolution/change
in culture
Audit safety and discipline policies
Effective safety and crises response program
Addressing mental health issues in
the school environment
•
•
Coordinate with Department of Mental
Health and other local resources
With tight budgets, school psychologists,
social workers and other behavior experts
are often the first to be cut
•
•
Staff training to engage and work with
students and families affected by mental
illness
The summer conference has a “student
mental health” discussion
Working with the community to
ensure school security
-
-
A single policy is not the advocated
approach – one size doesn’t fit all
Align emergency management plan with
all hazards approach
-
District must collaborate with emergency
personnel community partners to establish
an all-hazard approach
-
Ensure policies and plans are well
publicized to parents, visitors and public
3: Adhere to Student
Discipline Policies
• Boards set codes of conduct and
sanctions
• Courts defer to school officials if rule
relates to legitimate school concerns
• Policies upheld by courts if
 clear and understandable
 fair notice to students
 rational relationship between rule
and educational purpose
Student discipline - decisions
• Board becomes involved when necessary
to expel a student
• Board acts as impartial decision-maker
4: Understand the Staff
Discipline Process
• Board or superintendent has authority
to suspend or terminate staff
• Usually terminated for
 budgetary reasons
 misconduct
 incompetence, or now
ineffectiveness
Suspension without pay
or termination
•Requires due process
•Amount of process depends on
 potential disciplinary sanction
 employment status or
classification of employee
 applicable law, regulations,
policies or employment contract
5: Review and Adhere to Policies
on Holiday Celebrations
•
•
•
•
•
Establishment Clause vs. Free Speech Rights
Holiday traditions are part of our culture;
however, proselytizing on behalf of any religion is
prohibited – A very fine line!
Secular symbols
Promote understanding of cultural and religions
differences
Make sure staff, students and the community are
familiar with school policies
6. Be Familiar with the Laws
Governing Board Meetings
Board must act as a body
• Individual members not
empowered to make policies
or perform official acts
•
What constitutes a meeting?
•
Quorum
Posted and open to the public
Official business
•
Electronic meetings?
•
•
Public notice
State statutes
generally require
that the public
receive advance
notice of the time,
place, and agenda
for board
meetings.
Executive session
Some issues may be discussed in
executive session
 personnel matters
 collective negotiations or bargaining
 purchase or lease of real property
 consultation with an attorney
about litigation
 business pertaining to lawful
privilege or confidentiality
Public participation
•
•
•
No absolute right to speak at public
meetings, unless provided by state law
As long as content neutral, reasonable
ground rules can be placed on public
comment period
In a designated public forum, no
content-based restrictions
7: Guard Against Nepotism and
Conflicts of Interest
•
•
•
•
Anti-nepotism policies may
prohibit hiring of immediate
or other relatives
Situations where recusal is
appropriate can also arise and
should be carefully considered
Public officials cannot hold incompatible offices
Some states prohibit employment of board
members by the board
8: Understand Ethical
Considerations for Board of
Education Members
•
Board should consider adopting a code
• CABE has several sample codes of ethics for
school board members
•
•
Boards may also look for guidance from
local or state ethics codes for assistance in
constructing an ethics code
State statutes and regulations may also
prescribe rules for implementation of a
code
• Check with your state ethics commission (if your
state has one) for guidance and/or requirements
9: Clarify the Roles of Board
Members and the Superintendent
•
•
•
•
•
Superintendent acts as “CEO” of the board and
school district.
Has the responsibility of day-to-day operations of
the school district.
The board will hire and evaluate the
superintendent
The board and superintendent should always
have open lines of communication, even in
negative circumstances.
The board and superintendent relationship is
often a reflection of the school district’s operation
as a whole.
10: Plan Your Superintendent
Search Process Carefully
•
•
•
•
Confidentiality is key
Consider a Search Consultant
Rules for hire and appropriate
certification are often prescribed
through state statutes
Boards may also need to follow FOI
rules