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Vol. 25, No. 4
April, 2021
View from the Capitol
Vaccination Webinar for Those Who Need More Information
Patrice McCarthy
Deputy Director and General Counsel, CABE
Robert Rader
Executive Directory, CABE
side is coming from. Thus critical issues are reduced to personal attacks which accomplish nothing. For many successful Connecticut boards, success has not involved much partisanship. After elections are over, we forget our party affiliations dedicating ourselves to cooperative efforts running and improving our schools. Unfortunately, this same approach to management and leadership in not practiced by all districts nor is it alive and well either at the state or federal levels. Our state and federal colleagues seem to have lost or discarded the concepts of listening, respecting the person across the table, or of a “loyal opposition”, ready to fill leadership positions with the inevitable changes come after each election. Wouldn't it be refreshing to hear, after lobbying in Hartford or D.C., a response of “I hear you. You have a point and I shall work to get changes made, and soon!” Perhaps, perish the thought, we might even be convinced to change our own individual support of a See DEBATES page 9
See VACCINATION WEBINAR page 9
Spring has sprung!
Cal Heminway
Past President, CABE
Remember in high school when you were faced with the prospect of participating in a “debate”? You would be required to stand up and defend a position, perhaps one you didn't personally endorse. You would be required to follow a set of personal conduct rules with prearranged time limits. At the end of the process, you were expected to continue to be on speaking terms with your opponent. Move to today's environment. With the advent of Zoom, issues, forums and debates have proliferated as organizations and advocacy groups have seized on the medium to get their word out. The problem often is that neither side of an argument follows the rules. Results are predictable; neither side listens or tries to understand where the other
inside
Let the Real Debates Begin!
81 Wolcott Hill Road Wethersfield, CT 06109-1242
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Public hearings have continued in a remote format for all of the legislative committees. The length of the Public Health Committee hearing on legislation to remove the religious exemption for student vaccinations was a record 24 hours in length. Education Committee hearings have gone as long as 12 hours. While the virtual format has increased the volume of testimony provided, in most cases there has been limited interaction between legislators and those providing testimony. The Legislature has used the “emergency certification” (e-cert) process to bring several issues to a vote in the full House and Senate. The Speaker of the House and the President Pro Tempore of the Senate can e-cert a bill that has not gone through all of the committee hearings and referrals. It is unclear to what extent that process will continue to be used. Input from school board members and superintendents remains a critical part of the process, whether through submission of testimony, emails or phone calls.
On Wednesday, March 10, CABE, in support of Health Equity Solutions (HES) and the State, hosted a webinar on Dispelling COVID-19 Vaccination Myths. We strongly recommend Board Members and Superintendents encourage anyone in your communities who need more information about the vaccination(s) to watch the recording of the webinar (https://www.youtube. com/watch?v=W5IYpwFT-Zo). They will learn about the virus, how the vaccines were developed and why it is critical for everyone to get their inoculations. They will also hear answers to many questions asked by Board Members. The webinar was led by Dr. Reginald Eadie, President and Chief Executive Officer, Trinity Health of New England, with Ayesha Clarke, Deputy Director, Health Equity Solutions (and Hartford Board of Education Chair). They provided a thoughtful, comprehensive look at the vaccine and the strategy to eliminate the disease. Helping disseminate factual information about the vaccines is especially important for Board Members, school staff, parents and members of the public in communities with high percentages of Black, Indigenous and People of Color. One of the effects of racial discrimination over many years has increased skepticism about vaccinations. Therefore, addressing these myths and informing individuals can increase the
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Bullying and First Amendment Rights
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Use of Body Book Review: Emerging Legal Cameras by March by Issues: Native School Resource Lewis, Aydin American Officers and Powell Mascots
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The Journal – Connecticut Association of Boards of Education | April, 2021 PRESIDENT COMMENTARY
COVID-19 and Anti-Asian Hostility Donald Harris President, CABE
We are living in some strange and scary times. This past year has been an extremely difficult one for educators and the children we are working to educate. We are dealing with the COVID-19 pandemic; educating children in a person-to-person, hybrid, or virtual mode; the aftermath of the killing of George Floyd; and, the January 6 tragic insurrection at the nation’s Capitol. In addition, in the middle of this COVID-19 crisis, we are also beginning to witness a spike in anti-Asian hostility. The racist attitude that has cropped up against Asians serves to remind me of the book written by Angie Thomas entitled, “The Hate U Give.” This book focused on the troubles of a 16-year-old young lady enrolled in a private school with all white students. The story centers around a party that Starr attends that is broken up by a shooting. Her friend and sometimes ‘crush’ Khalil is giving her a ride home when the car is stopped by a white police officer. The police officer takes Khalil out of the car and ends up shooting him three times and he dies. The story goes on to portray the story of an investigation, a grand jury hearing and a trial that acquits the police officer. We have heard this story repeatedly in real life. But this time it is with
another ethnic minority. COVID-19 showed its face in the United States a little over a year ago, and it was generally thought that it emanated from China. Asians and persons of Asian descent have been targets of derogatory language in media reports as well as statements by politicians who have used social media platforms to spread hate speech. This was evident with the former U.S. President 45 who repeatedly used the terms “kung flu” and “Chinese virus” or his secretary of state who often used the term “Wuhan virus.” In the months that have followed, violent attacks have been perpetrated on Asian-Americans just “because.” Examples of recent violence include: • In January, an 84-year-old Thai-American was violently shoved in San Francisco and later died. • In Oakland, California three elderly persons were shoved from behind in the Chinatown area of the city, knocking one out. • In New York, a 36-year-old was stabbed and taken to the hospital in critical condition. Many other Asian-Americans have reported being subjected to verbal attacks as well. History shows us that negative sentiment toward Asian-Americans, particularly those of Chinese descent, has existed in the United States for
Mission: To assist local and regional boards of education in providing high quality education for all Connecticut children through effective leadership. Vision: CABE is passionate about strengthening public education through high-performing, transformative local school board/ superintendent leadership teams that inspire success for each child.
Board of Directors hundreds of years. The Chinese Exclusion Act in 1882 banned Chinese immigrants from entering the country. In the early 1800s a white supremacist group called the Order of Caucasians tied up four Chinese men, doused them with kerosene and burned them to death. During World War II, the federal government imprisoned more than 120,000 American citizens of Japanese descent simply because of their race. This feeling of hate, which is becoming all too common here in the United States, was directed toward Asians in many other countries including Italy, Brazil, Kenya, Ethiopia, and South Africa. As we move toward a sense of normalcy in this country, it is important that we continue to focus on treating people equally without being judgmental. In President Biden’s recent speech on the day he signed the American Rescue Plan, he spoke about the hate that has been directed toward Asian-Americans. We all need to heed his words as we live our daily lives: “IT’S WRONG, IT’S UN-AMERICAN, IT MUST STOP!”
EXECUTIVE COMMITTEE Donald Harris | President, Bloomfield Elizabeth Brown | First Vice President, Waterbury Michael Purcaro | V ice President for Government Relations, Ellington Bryan Hall | V ice President for Professional Development, East Hartford John Prins | Secretary/Treasurer, Branford Robert Mitchell | I mmediate Past President, Montville Christopher Wilson | Member at Large, Bristol Lydia Tedone | NSBA Director, Simsbury AREA DIRECTORS Bryan Hall | Area 2 Co-Director, East Hartford Leonard Lockhart | Area 2 Co-Director, Windsor Joan Trivella | Area 4 Director, Brooklyn Michelle Embree Ku | A rea 5 Director, Newtown Karen Kleine | Area 6 Director, Westport George Kurtyka | Area 7 Co-Director, Derby Robert Guthrie | Area 7 Co-Director, West Haven Lon Seidman | Area 8 Director, Essex Sean Nugent | Area 9 Director, Preston ASSOCIATES Julie Auseré | Associate, Canton Eileen Baker | Associate, Old Saybrook Ethel Grant | Associate, Naugatuck Ann Gruenberg | Associate, Hampton Robert Trefry | A ssociate, CT Technical High School System Elaine Whitney | Associate, Westport COMMITTEE CHAIRS Leonard Lockhart | Chair, Resolutions, Windsor Becky Tyrrell | Chair, Federal Relations, Plainville Michelle Embree Ku | Chair, State Relations, Newtown CITY REPRESENTATIVES John Weldon | City Representative, Bridgeport Ayesha Clarke | City Representative, Hartford Andy George | City Representative, Stamford Yesenia Rivera | City Representative, New Haven Charles Stango | City Representative, Waterbury STAFF
Robert Rader | Executive Director Patrice McCarthy | Deputy Director and General Counsel Nicholas Caruso | Senior Staff Associate for Field Services and Coordinator of Technology Sheila McKay | Senior Staff Associate for Government Relations Vincent Mustaro | Senior Staff Associate for Policy Service Lisa Steimer | Senior Staff Associate for Professional Development and Communications Teresa Costa | Coordinator of Finance and Administration Pamela Brooks | S enior Administrative Associate for Policy Service and Search Services Terry DeMars | Administrative Associate for Policy Service Gail Heath | Administrative Associate for Government Relations Wilmarie Newton | Administrative Associate for Labor Relations Nancy Propfe | Administrative Assistant for Membership Services Corliss Ucci | Receptionist and Assistant to Executive Director
CABE Journal (ISSN 1092-1818) is published bi-monthly by Connecticut Association of Boards of Education, 81Wolcott Hill Road, Wethersfield, CT 06109. Periodicals postage Paid at Hartford, CT.” POSTMASTER: Send address changes to The CABE Journal, CABE, 81 Wolcott Hill Road, Wethersfield, CT 06109-1242. CABE membership dues include $30 per person for each individual who receives The CABE Journal. The subscription rate for nonmembers is $75. Association members dues include a subscription for each Board Member, Superintendent, Assistant Superintendent and Business Manager. The companies and advertisements found in The CABE Journal are not necessarily endorsed by CABE.
Vice President Kamala Harris, on right, swears in Connecticut’s Dr. Miguel Cardona as United States Secretary of Education recently.
The Journal – Connecticut Association of Boards of Education | April, 2021
CABE Affiliate Members BUSINESS AFFILIATES VALEDICTORIAN Connecticut Business Systems – A Xerox Company Finalsite SALUTATORIAN
Berchem Moses PC Shipman & Goodwin HIGH HONORS
Pullman & Comley HONOR ROLL Anthem Blue Cross and Blue Shield ESS JCJ Architecture SCHOLAR Brown & Brown Chinni & Meuser LLC Coordinated Transportation Solutions Dattco, Inc. Goldstein & Peck, P.C. Kainen, Escalera & McHale, P.C. The Lexington Group Network Support Co. OneDigital Health and Benefits Perkins Eastman T-Mobile The S/L/A/M Collaborative Zangari Cohn Cuthbertson Duhl & Grello, P.C.
EDUCATIONAL AFFILIATES American School for the Deaf Area Cooperative Educational Services (ACES) Capitol Region Education Council (CREC) The College Board Communities in Schools Connecticut Arts Administrators Association Connecticut Association of School Business Officials Connecticut School Buildings and Grounds Association Connecticut School Counselor Association Connecticut Technical High Schools Cooperative Educational Services (C.E.S.) EASTCONN EdAdvance Exploratioins Charter School Integrated Day Charter School ISAAC LEARN
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EXECUTIVE DIRECTOR COMMENTARY
Our Commitment to Our Members Robert Rader
Executive Director, CABE
On February 12th last year, just before the COVID-19 crisis hit, the CABE Board of Directors and Senior Staff met for our annual retreat in New Haven. As a part of the agenda, the Board approved a Three-to-Five Year Plan. It was not that we hadn’t had plans before. We had our positions as adopted by our Delegate Assembly, the policies developed by our Board and every year we develop a budget plan that represents what we hoped to accomplish. However, working with a consultant from the Hartford Foundation for Public Giving, we undertook a lengthy Organizational Assessment, surveyed board members, discussed issues with superintendents across the State and tracked our services for use in developing our goals. It was a long trek to get to the Plan. Just five weeks later, the Plan would be short-circuited by the COVID-19 virus. CABE, the State and our schools went into remote working. I think the appropriate saying is “Man plans and God laughs.”
Helping Our Members
There was no blueprint for how an association should deal with a pandemic. However, our Board and Staff knew that the beneficial services, programs and activities that supported our members were even more important in this difficult and chaotic moment. We also quickly realized that everything would be remote. We worked at ensuring our Board Chairs had the guidance, analysis and opportunities to network and discuss what they were experiencing with other board chairs. We started weekly (now biweekly) Board Chair webinars with then-Commissioner Cardona, CAPSS Executive Director Fran Rabinowitz, now Acting Commissioner Charlene Russell-Tucker, Dr. Lynne Sosa from the Department of Health and others.
Topics included reports from SDE and DPH, technology for our students, school-based health centers, social-emotional learning and other “hot” issues. We always left time for our “Chair Share” with Patrice McCarthy leading and helping focus not just on challenges, but, what good things were also happening. We provided Diversity, Equity and Inclusion webinars with CABE Diversity Consultant Martha Brackeen-Harris in addition to workshops focused on civility, relationships, roles and responsibilities, legal issues and other pressing concerns. Information was sent out to boards, especially directives from the Governor and SDE. The work we did was based on our experience, willingness to engage with our members and provide them with the best of our thinking. We attended and hosted more remote meetings than ever before. The office was closed for months, but, we communicated more than we ever had. We opened up our programs, services and activities to nonmembers as we felt this was part of shoring up public education. We spoke to the Commissioner, the other “Partners” (CABE, CAPSS, CAS, CEA and AFT-CT) on at least a weekly basis and sometimes even more often. Your Association was flexible and addressed the issues facing our members. We continued our “usual” work as well-policy information was provided, advocacy continued and we did individual board workshops, both in person and remotely for our members.
CABE Strategic Plan
So, as I hope we can soon go back to our more regular work, I think that now may be a good time to remind our members what we stand for and what is included in our Strategic Plan: I. Strengthen the Governance of the Association CABE will: • S upport the Boards of Directors so that it provides strong, proactive, effective, professional
leadership of the Association; •E nsure that members of the Board of Directors understand their roles and responsibilities; •H elp Directors communicate with their constituencies and provide helpful information to Staff and other members of the Board; •W ork to strengthen Directors to better serve as advocates for the Association and represent CABE as appropriate; •E nsure diversity on our Board. II. Strengthen Board Member Involvement and Engagement CABE will: •P rovide the best advocacy, professional development and policy services in Connecticut; • S erve as the leading institution in helping Boards of Education with internal issues, diversity and inclusion, social-emotional learning and providing best practices in relevant areas; • S upport strong Board/Superintendent Governance Teams; • S trive for continuous improvement in all CABE services, activities and programs. III. Reinforce CABE Human Resources CABE will: •M aintain a high-quality, experienced, diverse and knowledgeable Staff; •P rovide for attendance at outside professional development activities; •D evelop a Succession Plan for members of Senior Staff; •E nsure that any vacant staff position be filled by a highly qualified candidate; •A s positions are vacated, any subsequent search must include consideration of diversity goals.
See COMMITMENT page 9
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The Journal – Connecticut Association of Boards of Education | April, 2021 See You in Court – The Nutmeg Board of Education
Bullying and First Amendment Rights Thomas B. Mooney, Esq. Shipman & Goodwin The Nutmeg Board of Education makes many mistakes. The latest imbroglio created by the board will be reported here each issue, followed by an explanation of what the board should have done. Though not intended as legal advice, these situations may help board members avoid common problems. On a good day, the members of the Nutmeg Board of Education do not like expulsion hearings. However, the hearing the Board held last week was particularly painful. That expulsion hearing was to consider the recommendation of Mr. Superintendent that Joe Blow, a sophomore at Nutmeg Memorial High School, be expelled for his persistent bullying of Sally Student in violation of the Board’s safe school climate policy. Joe and Sally had been more than friends for about six months. However, Sally decided that Joe was not the one for her and she dumped him. Joe did not take it well. At the expulsion hearing, Mr. Superintendent presented evidence that Joe had been bullying Sally ever since they split up. He called Sally to testify, and she tearfully explained that her social life at school had been a nightmare ever since she broke up with Joe. She presented screenshots of Joe’s posts on Instagram where Joe had posted pictures of her with nasty captions. She explained that she shared those pictures with Joe privately, and she was mortified that he was now posting them online. Every day at school, she wept when other students make snide remarks to her about how mean she had been to Joe. Citing the Board’s safe school climate policy, Mr. Superintendent explained that Joe’s posts are classic examples of bullying behavior that have caused emotional harm to Sally and created a hostile environment at school for her. “Joe’s Instagram posts were cyberbullying pure and simple!” he exclaimed. With that, Mr. Superintendent rested his case. Joe and his family had lawyered up, and local legal scourge Bill Alot was at the hearing to speak in Joe’s defense. Attorney Alot did not dispute that Joe had hurt Sally’s feeling and that his posts about her were mean. However, citing the First Amendment, he claimed that his client had every right to say hurtful things about Sally, given how she had broken his heart. “We don’t need the First Amendment to play nice,” he thundered dramatically. “We need the First Amendment to protect unpopular speech, including Joe’s unpleasant posts about Sally.” Attorney Alot then went on to attack the very premise of the expulsion hearing, claiming that school officials have no jurisdiction over posts on Instagram. “Joe’s actions here were all off-campus, and this Board of Education has no business telling Joe what he can and cannot say outside of school. It is
time for Mr. Superintendent and this Board to butt out of Joe’s life.” The Board members were stunned by this wholesale attack on its safe school climate policy, and after a brief recess, they told both parties that they would need some time to think this through. Attorney Alot told the Board members to take all the time they needed, but he warned them that, in accordance with the Freedom of Information Act and basic fairness, Joe, his parents, and his legal counsel must be present during any deliberations. Does Joe have a free speech right to continue to bully Sally and hurt her feelings? Do the Board members have the right to discuss this case privately before making a decision? • • • • • • • • • • • • • • • In 1969, the United States Supreme Court handed down its seminal decision in Tinker v. Des Moines Independent Community School District. There, the Court acknowledged that students retain their First Amendment rights when they go to school, holding famously that “It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” In that case, the Court announced the well-known Tinker test for determining whether student speech is protected: school administrators may regulate student speech if they reasonably forecast that such speech will cause material disruption or substantial interference with the educational process or violate the rights of others. Fifty-plus years later, however, we are wrestling with the question in reverse: do school administrators retain their right to impose discipline on students for their speech off campus (outside the “schoolhouse gate”)? Connecticut is under the jurisdiction of the Second Circuit Court of Appeals, which has long applied the Tinker test to confer authority on school officials to regulate student speech that has a nexus to the school, even when it occurs off campus. Over forty years ago, the court relied on Tinker in a case involving an underground student newspaper. Thomas v. Board of Education, Granville Central School District, 607 F.2d 1043 (2d Cir. 1979). In a concurring opinion that has turned out to be more influential than the majority decision, Judge Jon O. Newman stated, “School authorities ought to be accorded some latitude to regulate student activity that affects matter of legitimate concern to the school community, and territoriality is not necessarily a useful concept in determining the limit of their authority.” (Emphasis added). Since then, the Second Circuit has applied the Tinker rule to rule that school officials may discipline students when their threatening or vulgar offline statements are disruptive to school operation. Wisniewski v. Bd. of Educ., 494 F.3d 34 (2d Cir. 2007); Donniger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).
By contrast, the Third Circuit recently took a different tack, holding last year that Tinker does not give school officials authority over student online speech. In that case, the student was disappointed to learn that she had not made the varsity cheerleading team for a second year in a row, and she vented her frustration by posting a picture on Snapchat of herself and a friend with middle fingers raised, adding a vulgar caption. When she was suspended from the cheerleading team for the remainder of the season for the Instagram post, she brought suit, and the court ruled that school officials had violated her First Amendment rights. Given the split in the circuits, the United States Supreme Court has agreed to hear the appeal of the school district, and we eagerly await the Court’s decision in that case. Mahanoy Area School District v. B.L., No. 20-255, 2021 WL 77251 (U.S. Jan. 8, 2021). The B.L. case dealt with some harmless vulgarity on Instagram that was of little consequence, and it is understandable that the court would hold that school administrators should stay out of such matters. However, if the Supreme Court agrees that school officials cannot rely on the Tinker test to regulate online speech, the B.L. case could be a big problem for school officials in combatting bullying behavior, which of course now largely occurs online and thus off-campus. In this regard, we note that the
General Assembly amended the definition of “bullying” in 2018, effective this July 1, 2021 in relevant part to read: (1) “Bullying” means an act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in reasonable fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.” Boards of education must now amend their safe school climate plans and related policies the law changes on July 1, and the CABE Policy Service can be of great assistance in that regard. Finally, Bill Alot conflated two provisions of the FOIA in demanding that the Board permit the student, parents and counsel to observe the deliberations. Under the FOIA, an employee whom a board of education is discussing can require that the discussion be held in open session. However, here Bill was wrong, because with student expulsion matters, boards of education retain their right to deliberate privately before issuing their decision. Attorney Thomas B. Mooney is a partner in the Hartford law firm of Shipman & Goodwin who works frequently with boards of education. Mooney is a regular contributor to the CABE Journal. Shipman & Goodwin is a CABE Business Affiliate.
The Ninth Edition – Now Available!
A Practical Guide to Connecticut School Law by Thomas B. Mooney, Esq. Shipman & Goodwin
CABE is delighted to announce that the Ninth Edition of Tom Mooney’s Practical Guide to Connecticut School Law is now available. PRICING: CABE Members: $54.99; CABE Non-Members: $79.99; Students: $44.99 There have been many changes in school law in the last few years, and the Ninth Edition has been extensively revised to provide updated guidance on the legal issues that govern our schools. Changes include descriptions and commentary on:
• Changes in teacher evaluation and teacher tenure. • New rules regarding employee background checks. • New requirements concerning student data privacy. • New rules for suspension, expulsion and alternative educational opportunities. • Revised requirements governing seclusion and restraint. • The new “Every Student Succeeds Act” and how it has changed “No Child Left Behind Act” requirements. • The CCJEF case and ongoing litigation over equal educational opportunities. • The Minimum Budget Requirement and new duties to collaborate with town officials. • A host of other changes in the rules that boards of education and school administrators must follow.
The Journal – Connecticut Association of Boards of Education | April, 2021
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Aim Higher
Creative legal solutions for Connecticut’s public schools – because sometimes it is rocket science.
Shipman & Goodwin’s school law attorneys have more than 40 years of experience, and represent over 100 public school districts, as well as public school member organizations and associations, on a full range of legal issues that they confront, from general education law to special education matters.
Our school law site, www.ctschoollaw.com is devoted entirely to emerging school law issues. Attorneys counsel clients, monitor legislation and provide periodic alerts and updates. We regularly present seminars, quarterly workshops, webinars and professional development workshops for schools on current topics of interest. Our Practice Group Co-Chair, Tom Mooney, has written A Practical Guide to Connecticut School Law, a comprehensive treatise on Connecticut school law, published by CABE and used by teachers, administrators and board of education members throughout the state.
Education is a core focus of our law firm. www.ctschoollaw.com
Contact: Thomas B. Mooney or Linda L. Yoder | 860.251.5000 | www.shipmangoodwin.com CONNECTICUT
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The Journal – Connecticut Association of Boards of Education | April, 2021
THE POLICY CORNER Vincent A. Mustaro
Senior Staff Associate for Policy Service, CABE
Use of Body Cameras by School Resource Officers (SROs) The use of body cameras by law-enforcement agencies to monitor police interactions with the public has increased nationwide. The devices have been a centerpiece of police reform movements, in efforts to achieve greater accountability regarding police actions. These devices are now present in schools using school resource officers (SROs). Some districts across the country allow police officers in the schools, usually SROs, to wear body cameras and use them when determined necessary. Such districts believe this contributes to a safer school environment. However, the wording regarding camera activation is often vague. It is difficult to explicitly state the circumstances addressing their potential use. The camera’s activation may depend on the SRO’s perception of what is a hostile or criminal situation. SRO use of body cameras, while welcomed by some, has raised privacy concerns by school districts and civil rights groups. In addition, police actions which sparked protests has exacerbated the issue. Some school systems have decided to remove police presence in schools. This article will address the use of body cameras by the SROs in schools. The presence of SROs in district schools is a matter to be determined locally by those boards presently using or considering such personnel. Civil rights groups that supported the use of body cameras by law-enforcement officers as a means to build police accountability also argue that police officers in schools should not be wearing or using them. Chad Marlow, of the American Civil Liberties Union, indicated that in schools where extreme instances of inappropriate use of physical force by police are far less common than they are on the street, concerns about student privacy outweigh any potential benefits from camera use. Evie Band, in Education Week, stated that “body cameras in a general setting allow the public to monitor police and hold law enforcement officers accountable by obtaining and sharing footage through open-records laws, but in schools, where students are the stakeholders, the ACLU believes that is less likely to happen.” A concern expressed is that footage of students getting into difficulty could become a part of their reputations and digital footprints. Privacy and unintended consequences resulting from police ownership of the recording of students in schools and with whom they would be shared is an issue for some. Also, having officers with cameras in the school can lead to some student discomfort. Others counter that body cameras, while not telling the whole story of an occurrence, can provide better transparency among officers and stu-
dents. Officers can be held accountable, especially in situations where people may be targeted due to discriminatory biases. Further, others state that the body cameras are similar to surveillance cameras already in schools and should not impact student privacy. Surveillance camera use is governed by policy language covering the storage and access of the footage. Student wide use of social media may also lessen concerns of student privacy. Records kept by school police are not subject to the federal Family Educational Rights and Privacy Act (FERPA). A balance must be maintained to keep students and police accountable while also protecting students’ right to privacy. Matt Simpson of the Texas American Civil Liberties Union stated “It is a delicate balance. The body cameras are good tools, but you don’t want to violate everyone’s privacy. In cases, involving juveniles, it is how (the video footage) is stored and who gets to see it. Policies will be key to handling who sees the videos, who has access to the footage and how they are stored.” Footage obtained by SRO use of a body camera is usually stored by the local police department because SROs are police department employees. Such storage should be internal storage, not cloud-based. Such material can be seen by department staff and made available to court administrators if the recorded incident turns into a court case. The images of students captured on security videotapes from a school’s video surveillance cameras may contain personally identifiable student information and be considered confidential in accordance with FERPA. Court rulings exist in which videotape access of an incident was denied because other students were personally identifiable. However, boards of education may be required, according to another court decision, to release such records after redacting personally-identifiable student information and other information that would make the student’s identity easily traceable. The status of school videotape footage under FERPA is a subject of considerable uncertainty. Some courts have maintained that the videotape developed as a result of a surveillance system is significantly different from the type of records schools maintain in student’s personal files. The U.S. Department of Education’s position is that “images of students captured on security videotapes that are maintained by the school’s law enforcement unit are not considered records under FERPA. (This appears to apply to SROs on school campuses utilizing body cameras.) Accordingly, these videotapes may be shared with parents of students whose images are on the video and with
outside law enforcement authorities, as appropriate. Schools that do not have a designated law enforcement unit might consider designating an employee to serve as the ‘law enforcement unit’ in order to maintain the security cameras and determine the appropriate circumstances in which the school should disclose recorded images.” Federal guidance also provides that K-12 educators may disclose any educational records, including personally identifiable information, to protect the health or safety of a student or other individuals. However, until new guidance or legislation is provided, it is probably best that district policy indicates that the recordings retain their status as educational records, even if in the possession of a law enforcement unit; and thus remain subject to FERPA’s release restrictions. In guidance issued by the U.S. Department of Education in a hazing incident involving numerous perpetrators, victims and bystanders captured in a video surveillance taping indicated that the district had to provide the parents of the disciplined student the opportunity to inspect and review the entire video “if the video cannot be segregated or redacted without destroying its meaning.” The FERPA Compliance Office has provided “informal advice” that in the case of a video or other picture image of one or more students and where there are students in the background, the video is “directly related” to, and thus the educational record of the student or students who are the subject of the video and not the students merely in the background. Focus is defined to mean a student or students who are involved in an altercation or some other disturbance that causes them to be the focal point of the video. With regard to parents of those students that are the focal point of the video being permitted to view the video, a school would not need to obtain the consent of the parents of the two students involved and may show both sets of parents the video, because this would typically be the education record of both students, especially in situations involving altercation. In this case however, where there is more than one student that is the focus of the video, the school may provide a parent with access to the video without the prior consent of the other parent but the school may not give a copy of the video to any of the parents without the consent of the other students’ parents. Therefore, it is extremely important and it makes a significant difference, regarding student privacy and FERPA, as to who maintains possession of the video recording and where it is to be stored. In the case of SROs, it must be clarified in the required memorandum of understanding (MOU) between the board of education and the local law enforcement
unit providing the SROs. Concerns must be addressed through clear MOUs between schools and police agencies that set limits on officer interaction with students. Police agencies need to communicate with schools they protect about how and when cameras will be used to avoid miscommunication or disagreements.
Policy Implications
Many school districts utilize school resource officers to enhance school security and student safety. A “school resource officer” is defined legally as a sworn police officer of a local law enforcement agency who has been assigned to a school pursuant to an agreement between the board of education and the chief of police of a local law enforcement agency. The board of education’s MOU with the police department must define the officer’s role and responsibilities, address daily interactions among students, school personnel, and police officers, and include a graduated response model for student discipline. The MOU allows for clear communications of each party’s expectations and responsibilities. The MOU can also include the knowledge needed by the SROs. Such knowledge includes, but is not limited to, the confidentiality of student records, search and seizure standards on school campus, state and federal laws relating to special education students, child abuse reporting and school discipline procedures. SROs wearing body cameras create a complex situation for students and staff. Be careful of blurring the line between law enforcement, the SROs’ responsibilities, and school discipline, the responsibility of the district’s staff. If SROs are allowed to use body cameras, such use should be allowed only when the SRO is administering some sort of law enforcement authority. The specific duties of the SROs should be included in the MOU. Such duties include SRO responsibilities to serve as a role model, support safety plans, investigate criminal activity, interview students, conduct searches, counseling and educating students on law-related matters such as the use of drugs and alcohol, and issues pertaining to school security and student safety. The MOU must specify the structure of supervision while the police officer is in the school setting. Policy #5142.4, “School Resource Officer,” does not need to be revised to address the issue of the use of body cameras by SROs. The wearing of these devices is a decision made by the local law enforcement unit. The use of the device must be addressed in the required MOU and in also be the administrative regulation pertaining to the policy. A sample MOU and administrative regulation are available from CABE.
The Journal – Connecticut Association of Boards of Education | April, 2021
7
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The Journal – Connecticut Association of Boards of Education | April, 2021
BOOK REVIEW
March
by Lewis, Aydin and Powell work cut out for me when it arrived. The volumes telling Lewis’s story are written in graphic novel style – comic book style! The pages of all three volumes provide information from Lewis’ viewpoint with his early civil rights work juxtaposed with the inauguration of Barack Obama as president in 2008. The early battles for civil rights are laid bare, including the assassinations; church bombings; the Ku Klux Klan; the March to Selma, when Lewis and others were beaten by police as they tried to cross the Edmond Pettus Bridge; the meetings of the Student Non-violent Coordi-
Robert Rader
Executive Director, CABE
There have been many articles written over the last few months about John Lewis, congressman from Georgia, who passed away on July 20th. He was known as “the conscious of the Congress.” He was a civil rights pioneer, who had a large role, especially in getting the Voting Rights Act in 1965. As a person interested in history and civil rights, I bought March, after it had been suggested to me by a friend. Lewis had authored it with a writer and a graphic artist. It came in three volumes and I figured I had my
nating Committee (SNCC), which he chaired; working with Martin Luther King, Jr. and Presidents Kennedy and Johnson; the March on Washington; and battles for the Civil Rights and Voting Rights Acts. When I opened the volumes and saw the “comic book” style, I did not know if it would be conducive to learning about these important issues and people. However, I found it fascinating and hard to put down. What a great way for adults and students to learn about history! Lewis, the writer Andrew Aydin, who, at one time worked as District
Aide to Rep. John Larson, and Nate Powell made the story come alive. Even the many meetings to develop strategy and the “jockeying” for position, fame and legacy were narrated by Lewis, giving the reader many valuable insights. It may not be a comic book about a superhero, but, for me, it came close-both in illuminating Lewis life and this period of American history. At a time when Connecticut districts are bringing more of the history of diversity to their students, “March” is a valuable addition to any library or reading list.
The Media Message by Hannah Borowiec, Project Manager, Baldwin Media Marketing, LLC
They Thought the Mic Was Off! Last month, an entire California school board resigned after disparaging parents on an accidental Zoom broadcast. Members of the Oakley Elementary School District used profanity to refer to parents and the private Zoom meeting was accidentally broadcast to the public, causing outrage among the Oakley community. The resignations followed after a petition received over 7,000 signatures for the removal of all members. The COVID-19 pandemic has forced millions to adapt to online learning and working, while technology has seemingly boomed and continues to take over the world. A January Forbes article emphasized the
impact of technology in the future stating: “Work from home for knowledge workers seems to have been rather successful, with some productivity gains. According to a Gartner survey, 82% of employers will allow employees to work remotely some of the time, and 47% say that they will do it all the time. The future of work, or at least where it will be done, will be highly virtual.” For the Oakley board members and all education leaders, the lesson learned is NOT to make sure your mic is off. You should never make inappropriate comments during a private or public meeting (broadcast or not) or conversation that you would
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Principal COLUMBIA PUBLIC SCHOOLS HORACE W. PORTER SCHOOL
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later be embarrassed to see quoted in a breaking news story or local paper. Off color jokes or comments making fun of ethnicity, color, religion, sexual preference, etc., should always be strictly prohibited. In order to make sure such misconduct never occurs in your district, the practices below offer clear communication and appropriate behavior for all settings. 1. Identify Roles – Prior to any meeting an individual should be identified to proctor or take charge. Like in a political debate, this allows for someone to handle the direction of the meeting and move things along.
For Board meetings, this is the Board Chair. 2. Focus on the meeting agenda – this helps avoid tangents. 3. Debrief – This could include meeting minutes, action steps, areas for improvement, etc. Just be certain to not hold an inadvertent meeting in any of your debriefing efforts! As board members, you are representing your community. All comments made in any meeting, broadcast, presentation or speech should be in alignment with your district’s vision and building trust with your community.
The Journal – Connecticut Association of Boards of Education | April, 2021 DEBATES
(continued from page 1)
strongly held opinion! Board members and superintendents have something to share! Individuals and leaders across Connecticut and the nation have an urgent need to change their ways. Connecticut's school boards need to blow their own horns a bit more and trumpet what works for them. Members respect each other and differing opinions. Members listen to each other and to their superintendent. Members are willing to compromise. Members are honest brokers for their students and endeavor to provide
VACCINATION WEBINAR
(continued from page 1)
number of people vaccinated. It is critical to have as many people vaccinated as possible to, as the webinar discusses, help drive down the number of infections and help establish herd immunity. Dr. Eadie and Chair Clarke have stated that they would be glad to provide a similar webinar to individual school districts across the State. [Editor’s note: CABE has taken the
the best education for them. You have a governing process that works! Our society as a whole should consider and practice some rules of debate. Consider the divides and issues that our nation faces in today. Given the reality of an almost even political divide, perhaps true progress requires a foundation of honest and impartial discussion among equally patriotic Americans. We all have experienced board reality from binding arbitration that if neither side is happy the settlement must be a good one! How good or long standing can a proposal be if it cannot withstand the arguments of its opponents? Go forth and blow that horn! unusual step of making this webinar available to non-members and members of the public because of its importance. No password is necessary to access the webinar.]
CABE hosted a webinar on Dispelling COVID-19 Vaccination Myths.
COMMITMENT
(continued from page 3)
IV. Strengthen the Finances of the Association CABE will: •C ontinue to examine financial resources with focused effort; •F und ongoing and, if appropriate, expanded operations; •M aintain reserves sufficient to protect the Association from any downturn in the economy and/ or in the financial situation of our members. V. Strengthen CABE communications and public relations CABE will: •P romote the work and priorities of Boards of Education; • S trengthen a positive perspective of the public, the media and legislators on the essential nature and work of School Boards; •B roaden the knowledge of the responsibilities of Boards of Education across the State; •B uild awareness, understanding and support for CABE’s mission, work and impact among member districts, prospective member districts, other K-12 educa-
9 tion leaders, elected officials, and others. V. Strengthen CABE communications and public relations CABE will: •P romote the work and priorities of Boards of Education; • S trengthen a positive perspective of the public, the media and legislators on the essential nature and work of School Boards; •B roaden the knowledge of the responsibilities of Boards of Education across the State; •B uild awareness, understanding and support for CABE’s mission, work and impact among member districts, prospective member districts, other K-12 education leaders, elected officials, and others. I know that the CABE Board of Directors and Staff hope to get back to more in-person workshops and meetings that took place over the internet during the crisis. We, like all other associations, are still trying to figure out the best way to do this. But, of one thing you can be sure, CABE is here for our members and will continue to provide the help and support that you need.
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The Journal – Connecticut Association of Boards of Education | April, 2021
CABE: Working for YOU
Individualized Workshops | Professional Development Opportunities Legal Services | Policy Services | Representing You Statewide and Nationally Below are the highlights of activities that the CABE staff has undertaken on your behalf over the last month. We did this:
zP osted some revised policies in CABE’s online Core Policy Manual.
B y providing opportunities for members to learn how to better govern their districts:
zE ntered into a new contract to host Danbury’s policy manual online utilizing the C.O.P.S. program.
zF acilitated CABE Equity Workshop with Dr. Martha Brackeen-Harris. zM et with representative of Scholastic Education on working together. zM et with CABE Diversity, Equity and Inclusion Committee. zR esponded to 59 requests for policy information from 28 districts, providing sample materials on 51 topics. Further, districts continue to access CABE’s online Core Policy Reference Manual and/or online manuals posted by CABE for policy samples. The topics of greatest interest were those pertaining to personnel issues, transgender youth, public participation at board meetings and telecommuting. zF acilitated Roles and Responsibilities workshop for the Region #10 Board of Education. zF acilitated workshop on effective board leadership for the Thomaston Board of Education.
B y helping school boards to increase student achievement: z S ent two issues of “Policy Highlights” via e-mail listserv covering topics that affect student achievement. Included topics pertained to staff sick leave, diversity of the teaching force, special education funding, the teaching of controversial content, tutoring, and student free speech rights.
B y providing services to meet member needs:
Griswold, Region #16, Sherman, Somers, Voluntown, Westport, and Windham.
zE ntered into an agreement to perform an audit of the policy manual for Sterling. zR evised policies for Ellington, New Hartford, North Stonington, Sterling, and Windham as part of the Custom Update Service. zP articipated in a virtual meeting with Danbury to discuss their policy needs.
B y ensuring members receive the most up-to-date communications: zM et with the Nebraska School Boards Association’s executive director on Nebraska’s database. zH osted Health Equity Solutions webinar on Dispelling COVID-19 Vaccination Myths. zP repared materials, as part of the Custom Policy Service, for Ansonia, Danbury, New Haven, Sharon and Region #15. zR evised policies in the master resource file of policies and in the online Core Manual. zC ompleted a draft of the next issue of the Policy Update Service quarterly publication. zP articipated in several webinars regarding communications hosted by NSPRA and finalsite.
B y representing Connecticut school boards on the state or national level:
z S poke with the REL (Regional Educational Laboratory) Northeast and Islands about facilitating an equity survey of our members.
z Assisted in hosting CREC/CABE/ HASA legislative breakfast.
zF acilitated legislative breakfast for CABE Area 2.
zM et with the Hartford Courant editorial board and reporters on CABE legislative priorities.
zP rovided webinar on the Governor’s proposed budget. zP osted policies online for districts utilizing the Connecticut Online Policy Service (COPS) for Derby,
zA ttended meeting of SDE’s Educators Rising Advisory Committee.
zA ttended municipal and SDE/DPH webinars on the COVID-19 crisis. zA ttended #PhilanthropySoWhite
on the Role of White Leaders in Philanthropy in Dismantling White Supremacy. zA ttended meeting of the Anti-Defamation League Education Committee and its Connecticut Region Board of Directors. zR ecorded “Ten Best Practices to Avoid Liability” for the 2021 Annual NSBA Convention. zM et with representatives of Everyday Democracy on how we might work together. zP articipated in meeting of NSBA’s Executive Directors’ Nominating Committee for Chair of the Liaison Committee. zM et with representatives of the Nellie Mae Foundation on working together. zM et with SDE Partners (CABE, CAPSS, CASCEA, and AFT-CT). zR ecorded interview for Doug Eadie, educational consultant, on CABE during the pandemic. zA ttended NSBA workshop on strategic learning process and NSBA update.
zP articipated in interviews on return to classrooms, vaccines and the state budget on Channel 3 and FOX61. zP articipated in CREC Council meeting. zA ttended Southeastern Connecticut Superintendents Area meeting to discuss legislative issues. zC haired Executive Search Committee for Discovering Amistad. zP articipated in Lighthouse multistate program to work on future Lighthouse projects. zz P articipated in meeting of the Connecticut Commission for Educational Technology.
y promoting public B education: zA ttended CABE/CAPSS Convention Committee meeting. z Hosted bi-weekly Board Chairperson teleconferences. zA ttended CABE Webinars pertaining to diversity issues and the Governor’s proposed budget.
zA ttended State Board of Education meeting. zP resented a webinar for the American Society of Association Executives on reopening offices. zA ttended CCM meeting of advocacy groups. zP repared testimony on numerous bills in multiple legislative committees.
B y attending Professional Development to strengthen staff knowledge and skills. zA ttended National School Boards Association’s Equity Symposium. zA ttended SEL webinar with Robin Stern, Yale Center for Emotional Intelligence. zA ttended NSBA Council of School Attorneys webinar.
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The Journal – Connecticut Association of Boards of Education | April, 2021
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Native American Mascots: An Emerging Legal Landscape Zachary D. Schurin
Attorney, Pullman & Comley
In recent years school team names and mascots, particularly mascots that use Native American imagery, have come under heavy scrutiny in school districts across the country. Opponents of the continued use of such mascots argue that Native American team names and logos perpetuate negative stereotypes, are unnecessarily offensive and undermine student self-esteem. On the other hand, supporters of the continued use of such mascots point to tradition and community pride in the face of “cancel culture.” Efforts to retire Native American mascots have clearly been gaining ground. According to the website FiveThirtyEight.com, in 2014 there were 2,128 high schools in the United States with native mascots. As of October 2020 that number was down to 1,232. In professional sports, this past July the NFL’s Washington franchise officially dropped its former name and is now simply the “Washington Football Team,” while in December Major League Baseball’s Cleveland Indians announced they would be
dropping the “Indians” name after the 2021 season. Not surprisingly the debate over this issue has spilled over into the legislative arena. California, Maine, Oregon and Wisconsin have severely restricted the use of native mascot names and images through legislation or state department of education policy, while Tennessee went the other way and passed a 2017 law expressly prohibiting school districts from banning mascots “that honor persons or cultures.” Here in Connecticut in January 2020, former Speaker of the Connecticut House of Representatives Joseph Aresimowicz discussed the possibility of state legislation restricting the use of native mascots in schools although no such legislation was proposed. While outside of these legislative enactments there is little if any socalled “blackletter law” regarding the use of Native American mascots by public school districts, certain themes emerge from the handful of decisions that courts and administrative agencies from around the country have issued on this controversial subject. Opponents of the continued use of Native American mascots are increasingly relying on evidence of adverse
psychological impacts on students of both Native American and non-Native American ancestry to support legal challenges. Most of these cases however have proven unsuccessful since, both Title VI of the Civil Rights Act of 1964 and most state civil rights laws require evidence of demonstrable harm to specific students as opposed to generalized complaints about offensive stereotypes.
Practical Takeaways
The debate over the use of Native American mascots is not going away any time soon. As the legal landscape continues to evolve it is becoming increasingly clear that school districts that both maintain a Native American mascot or team name and fail to take aggressive and proactive steps to address any incidents of bullying or harassment based on a student – or staff member’s – Native American ancestry are on shaky legal footing. In this regard, school districts that are committed to maintaining a mascot or team name over community member objections are well-served taking actions that demonstrate their commitment to maintaining a school environment free from discrimination.
Among other actions such districts should consider the following: •R etiring outdated logos based on inappropriate or historically inaccurate caricatures in favor of logos that accurately depict any local tribe that the team name/ mascot is intended to celebrate; • I ncluding instruction on native cultures in the curriculum; •V igilantly enforcing district non-discrimination policies and documenting district efforts to uphold such policies. While these actions may be helpful in avoiding liability they are not a cure-all. As the debate over this topic continues, school board members and administrators in districts with Native American mascots and/or team names should closely monitor legal developments in this area and do everything in their power to ensure that their district is a safe and welcoming place for all students. To read this full article, please go to https://www.cabe.org/uploaded/Twitter/CABE_Article_--_Native_American_Mascots_--_3.3.2021_for_web.doc. pdf. Pullman & Comley is a CABE Business Affiliate.
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The Journal – Connecticut Association of Boards of Education | April, 2021
Trusted Legal Counsel in Extraordinary Times Now more than ever, school districts, their boards of education and their administrators are turning to Pullman & Comley’s School Law practice for informed, accurate and timely information on the unprecedented legal issues they face in the age of COVID-19, including those surrounding the safe reopening of schools, remote learning, PPE protocols, and labor and employment matters. At the same time, our attorneys are counseling clients on new laws affecting school districts, including the Title IX regulations effective in August 2020, transgender athlete policies and the sexual harassment training obligations mandated by October 2020.
Please visit our Education Law Notes blog for up-to-the-minute alerts, commentary and insights on critical legal issues affecting educational institutions. Schoollaw.pullcomblog.com And, for critical information on the legal implications as a result of the COVID-19 pandemic, please visit our COVID-19 Focus page at pullcom.com to view recent publications, receive alerts, and to register for and view our webinar series related to the pandemic.
Our attorneys are accessible to their clients, responsive to concerns and always available to answer questions on these issues as well as on the challenges schools face on a routine basis in their daily operations.
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William R. Connon 860.424.4385 wconnon@pullcom.com
Zachary D. Schurin 860.424.4389 zschurin@pullcom.com
Melinda B. Kaufmann 860.424.4390 mkaufmann@pullcom.com
Stephen M. Sedor 203.330.2137 ssedor@pullcom.com
Michael P. McKeon 860.424.4386 mmckeon@pullcom.com
Mark J. Sommaruga 860.424.4388 msommaruga@pullcom.com
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