Policy, the Law, and You
Edwin C. Darden
From a legal standpoint, school boards exist for one reason: to govern K–12 schools by exercising their power as a policymaking body.
This is no small point. Intellectually, it is easy to explain how a school board should function, but any given academic year brings 1,001 distractions from the main mission. You have budgets to pass, staff to hire, discipline cases to oversee, lawsuits to defend, constituents to answer, contracts to approve, construction and renovations to plan, and so on ad infinitum.
Yet policy is the tool that has been placed exclusively in the hands of school board members. It is the single, most effective way for the final decision makers to take an intimidating, complex, intensely scrutinized entity like a school district and steer it with authority.
This month I will explore legal considerations connected to the board’s policymaking role. Policy is widely misunderstood, even by some veteran board members. It is not an unlimited grant to run roughshod over the judgment of the superintendent and other professional educators. Nor does policy present an opportunity to engage in nepotism or to indulge personal whims by letting it be known that a board member is one of the few who hold the privilege of commanding millions of dollars.
Good policymaking produces a district that is focused in an educational sense and risk-free (at least as much as possible in this litigious environment) by legal standards. Bad policies, by contrast, can spark chaos, blur the board’s vision, and allow lawsuits to succeed even when a school district is in the right.
Why is policy so important?
It may seem at first like a boring task, but policy is truly the central nervous system of a school board’s power to craft change. It is generally meant to be the board’s statement of belief or procedure. Policy should squarely address the subject and clearly state board expectations.
Policy is the equivalent of local law, although the school board is a deliberative group, rather than a legislative/ political body like Congress or the county council.
Yet, board policy carries the force of law for public employees, students, or visitors on school property, all of whom are duty-bound to abide by it. And, violations of that duty could result in punishments -- in the extreme, dismissal of workers, discipline for students, or criminal prosecution of strangers.
Policy also serves to explain the school district’s official position on an issue. A couple of months ago this column referred to an anti-harassment policy as being both offense and defense. In other words, adopting policy is a way for the board to publicly make its views known. When the inevitable lawsuit is served, the district can point to policy as a reason why the court should rule in its favor.
Not all policy is momentous. In mundane instances, a board is passing policy to comply with a law, or to address a nonemergency need, or, quite frankly, just to have something to say because the policy meets “industry standards,” meaning other school boards have something on the books.
Despite occasional monotony, board members must carefully guard their policymaking domain. In 2007, the Texas state legislature passed the Religious Viewpoints Anti-Discrimination Act, which required schools to adopt a policy that lets students share religious views in a “limited open forum.” A model policy was even part of the legislation. The measure was attacked as an encroachment on local power. The policy is still on the books; the Texas Association of School Boards has put together an alternative policy.
Policies need to be realistic and in proportion. Board members in a tiny district, for example, should not expect the impossible and must align ambitious policies with available human and financial resources. Big districts might have more dollars and people, but size can make communication and implementation daunting.
Yet nothing is worse than making empty threats, rattling the policy saber, and having no way to back it up. If everything is a policy, then nothing has an impact.
Vincent A. Mustaro, senior staff associate for policy service at the Connecticut Association of Boards of Education (CABE), wrote a full-page article on policy basics in the January 2008 edition of the CABE Journal.
“Well-written policy helps ensure compliance with federal and state statutes and sets a foundation for fair, effective, and efficient school governance,” Mustaro says. “The purpose of most policies is to make three simple but powerful statements: What is to be done; why (or how much of it) must be done; and who is going to do it.”
In September 2007, more than 130 school board members, school employees, college students, and professors met in Des Moines, Iowa, to discuss school board research and the connection between actions and high student achievement. The National School Boards Association (NSBA), the organization that represents school board members nationwide, has the “Key Work of School Boards,” which stresses the paramount importance of policy, among other things.
Linda Bakst, deputy director of policy for the New York State School Boards Association and a former school board member for nine years, says boards should take a preventive approach and make proactive policies. “When you are in harm’s way, no one thinks clearly,” she says.
How does a good policy work?
A stellar policy regime is like a living organism that operates to benefit the whole. Thus, even as new policies come on line they are not written in isolation. Legally speaking, the strongest package is internally consistent from one policy to another.
It might seem obvious, but policymaking is a public exercise. While many subjects can be discussed behind closed doors in executive session, policies are meant to be out in the sunshine. Policy is deliberated in public, adopted by the board in public, and the overall manual that lists every policy is accessible to the public -- usually online.
A good policy is easy to understand, reasonable to comply with, and hard to misinterpret as school employees seek to comply with the will of the board.
There are four essential steps to policymaking:
• Adoption -- The board considers a potential policy, debates its merits, checks with the school attorney for validity and legal conflicts, and eventually votes to approve or reject it.
• Implementation -- This is the “meat and potatoes” of getting the word out to district employees about the policy’s meaning. Implementation usually is managed by the superintendent, who on major topics drafts administrative regulations that provide operational details.
• Enforcement -- These are steps that certify compliance. They could involve written reports to the board, specific consequences written into the policy, or compliance reviews to evaluate if rules are being followed.
• Periodic update -- Policies are not necessarily evergreens. Having a regular review cycle allows boards and their attorneys to examine policies in a concentrated way and determine what parts need to be freshened up.
Legal implications
A good policy can save a district’s hide. Strong internal procedures or strong statements of belief hold weight with courts as being the district’s official position. The challenge for boards and the administration is making sure no reality gap exists between what is explained on paper and daily practice. Officials can be vulnerable if actions carried out by official representatives do not jibe with policy.
Jay Worona, general counsel for the New York State School Boards Association and immediate-past chair of NSBA’s Council of School Attorneys, says if policy and practice are inconsistent, the district can “lose in a court of law before it starts.”
In short, policies explain what school employees should do, are duty-bound to do, or are forbidden from doing. Even a procedure on making policy is important, Worona says.
“You should have a policy on policies,” he says, noting that board members should agree on whether to have a policy committee or another systematic way of determining how policy matters reach the board table.
Smart boards manage the policy process, using it as both a bully pulpit and a teaching tool to transmit their vision of what the district will one day become. Policy manuals in paper version are often unwieldy and online, the sheer volume can be daunting. But from both a legal and an operational outlook, nothing is more crucial day-to-day.
Edwin C. Darden (edarden@appleseednetwork.org), an ASBJ contributing editor, is an attorney and the director of education policy for Appleseed, a national organization focusing on K–12 education law, education policy, and social justice.
Policy questions to consider
• Do you check with your school attorney periodically to ensure that policies are consistent?
• Does your board have a systematic way of investigating and presenting policies for board consideration?
• Have you clearly delegated authority to the superintendent to oversee enforcement of policy and to draft implementing regulations?
• Do clear pathways exist for communicating policies to employees, students, and the community, rather than just referring them to the massive policy manual?