See You In Court! - April 2017

by Shipman & Goodwin LLP

The Nutmeg Board of Education was frustrated and dismayed this budget season by the need to cut programs and reduce costs. However, given various warnings from Seymour Dollars, the irascible Chairperson of the Nutmeg Board of Finance, Board members felt that they had no choice but to cut the budget to the bone.

No one was more frustrated by the situation than veteran Board member Bob Bombast. As the longest-serving member of the Nutmeg Board of Education, Bob had voted to establish many worthwhile programs to improve education in Nutmeg, and it saddened Bob to watch the ax fall on these programs. Desperately, he considered whether and how the Board could reduce its costs in some other way.

Watching Fox News, Bob found inspiration. How many students in Nutmeg, he asked himself, shouldn’t be here at all? Are there students enrolled in Nutmeg who reside illegally in Nutmeg? By finding and removing those students from the rolls of the Nutmeg Public Schools, Bob mused, perhaps they can save significant money.

At the next meeting of the Board of Education, Bob raised this issue during New Business. As soon as Mr. Chairperson recognized him, Bob went on a rant about how Nutmeg may be squandering significant resources by educating children whose legal residence is outside the United States. Bob then explained that Nutmeg can save a lot of money by excluding those students from the Nutmeg Public Schools. To find and disenroll these children, Bob proposed that each of the schools in town be directed to require proof of legal residence in Nutmeg as a condition of enrollment by asking parents to present either a birth certificate or a passport to establish citizenship or to present a green card or valid visa. For children already enrolled, Bob suggested a more gradual approach. He divided the alphabet into four groups (A through F, G through L, M through R, and S through Z), and he proposed that families be required to reenroll their children in the Nutmeg Public Schools and establish legal residence in Nutmeg every four years, starting next year with the A through F group.

When Bob finished his speech, the other Board members were surprised and confused. This bold new scheme was not even on the agenda, but Bob was pushing hard for them to adopt it. Mr. Superintendent cautioned the Board against moving too quickly on a complicated matter, but the Board members didn’t want to come across as wasting scarce public funds on non-resident students. So, with little discussion, the Board voted unanimously to adopt Bob’s plan.

At the next Board meeting, Bob asked for an update, and Mr. Superintendent simply reported that the administration was still working on a new enrollment form to incorporate the new requirements. But Bob’s plan was a hot topic for discussion during Public Comment. Twenty-five people addressed the Board, one after the other, railing against Bob’s plan variously as “insensitive,” “illegal,” and “xenophobic.” Bob was offended by barrage, and he raised a point of order, claiming that the unrelenting criticism of his clever idea violated the Board’s civility policy. Ms. Chairperson agreed, and she declared Public Comment over, and moved on with the agenda.

Was the criticism of Bob’s plan warranted?

* * *

Bob’s plan deserved the criticism it received because its implementation would be illegal. There were other problems with how the Board adopted the plan as well.

Implementing Bob’s plan would violate both the statutory and constitutional rights of affected students because the immigration status of a child is irrelevant to that child’s eligibility for free school privileges. Students are eligible to attend school in a particular school district if they are of school age and reside in that town. When there is a question as to a student’s residence, the superintendent must determine in the first instance whether the student actually resides in the district. If the superintendent decides that the student does not, the parent may appeal that determination to the board of education (or a designated committee), which will hear that appeal and determine eligibility for school privileges based solely on residence. The board’s decision is then subject to further appeal at the state level (and even to court). However, eligibility for school privileges may not be based on immigration status.

The United States Supreme Court has ruled that denying children educational services on the basis of their immigration status violates the United States Constitution. Plyler v Doe (1982). In that case, Texas had enacted a law that denied school accommodations to students who resided illegally in the state. Concerned that such a rule could create a permanent underclass of uneducated persons, the Court ruled that excluding children from educational services on the basis of their immigration status violates their equal protection rights under the Fourteenth Amendment.

Even asking students about their immigration status could support a claim of discrimination. Citing the prohibition in Titles IV and VII against discrimination on the basis of race, color, or national origin, the Office of Civil Rights of the United States Department of Education has cautioned school officials not to ask such questions. There is no reason to do so, because such information is not related to eligibility for school privileges. Also, personally-identifiable information about enrolled students, irrespective of their immigration status, is protected under FERPA, and school officials may not release information about students to third parties, including officials of the Immigration and Customs Enforcement, except as provided under FERPA.

In any event, the Board should not have voted on Bob’s plan under these circumstances. Under the Freedom of Information Act, the agenda of meetings of public agencies (including boards of education) must fairly apprise the public of the business to be transacted. Bob made his motion under “New Business,” which does not provide adequate notice to the public of the proposed action.

Finally, after the Board adopted Bob’s proposal, the public took the opportunity at the next Board meeting roundly to criticize the plan, Bob and the Board. When boards of education create a public forum for public comment, they confer free speech rights on those who speak under the First Amendment. To be sure, reasonable regulation as to time and manner of such speech is permissible. Boards of education can limit how much time speakers are allowed (provided that the limitation is enforced uniformly without regard to the content of the speech). Boards of education may also prohibit personal attacks, vulgarity or rudeness by such speakers. However, there was no reasonable basis here for censoring the comments made, and Ms. Chairperson erred when she simply terminated Public Comment at Bob’s request.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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