The Legal Basis for School Board...

The Legal Basis for School Board Service

Chris ThomasASBA General Counsel/Associate Executive Director

What We Will Cover

•Legal Structures School Governing Boards Operate Under

–Governing Board Authority–Federal Law and Regulations, including U.S.

Constitution–Arizona Law and Regulations, including Arizona

Constitution–How Governing Boards Fit in Education

Governance Structure

American System of Education

•Unique compared to rest of world: school board made up of members that are not “experts” in education but that are there to represent the views of the community in setting policy

•Ensure that what makes that community unique is valued and protected

•An elected board that lives among and is elected by its fellow citizens ensures proper oversight and accountability

Thomas Jefferson

•Supporter of public education, believing that the earliest years should provide education for all at public expense.

•“If you expect to be a nation that is both ignorant and free, you expect something that never will be nor has been in the history of man.”

•Primary goal of public education historically has been to prepare students for citizenship in the United States of America

GOVERNING BOARDS

Definition: instruments through which the residents of a school district exercise democratic control over the public schools in their community

School districts are political subdivisions of the state, deriving their legitimacy from local control authority granted from the state

ASBA Membership

Members of ASBA are school districts and their boards (in a collective sense)

While ASBA is here as a resource to individual board members, the “member” is the board as a whole

(When dealing with your district’s legal counsel, you will encounter this concept again)

School District Governing Boards -Membership

•Registered voters; reside in district for at least one year prior to election

•Unpaid

•4 year term of office - can be recalled; appointments for vacancies (must run for 4 year term at next election or special election if called)

•Over 1,000 board members in state–230 districts, most have 5 members

•No authority as individual

Arizona Attorney General (AGO I81-054)

“The law does not contemplate that the members of a board of education shall supervise the professional work of teachers, principals and superintendents. They are not teachers, and ordinarily, not qualified to be such. Generally they do not possess qualifications to pass upon methods of instruction and discipline. The law clearly contemplates that professionally trained teachers, principals and superintendents shall have exclusive control of these matters. Further, a member of the board individually has no authority of any kind in connection with the schools... The board of education can only act as a board, and when the board is not in session the members, severally or jointly, have no more authority to interfere with schools or school matters than any other citizen...”

Title 15: Arizona’s Education Code

•Because governing boards are political subdivisions of the state, they only have powers that are granted to them by statute -expressed or implied

•Two Main Statutes for Governing Board Responsibilities: 15-341 and 15-342

–15-341-mandatory: a list of things governing boards MUST do–15-342-permissive: a list of things governing

boards CAN do

15-341: Governing Board Requirements (List of 42)

•Prescribe and enforce policies

•Provide a district budget

•Maintain the schools

•Manage and control school property

•Acquire school equipment, library books or supplies

•Prescribe curricula and criteria for promotion and graduation

•Purchase school sites

•Hold pupils to strict account for disorderly conduct

•Prescribe and enforce policies for discipline of teachers, admin.

15-342: Permissive Governing Board Authorities (List of 36)

Expel pupils

Enter into leases

Review the decision of a teacher to promote a pupil to a grade or retain a pupil in a grade

Enter into intergovernmental agreements/contracts

Suspend a teacher or administrator w/o pay for up to 10 days

Require students to wear uniforms

Receive reimbursement from the district for travel/board training

Most Duties in 15-341 and 15-342 are Delegable!!

While governing board has oversight function, day to day operations of the district and the requirements of statute are taken care of by district personnel

ONLY DUTIES THAT ARE CLEARLY NOT DELEGABLE ARE DUTIES OF HIRING AND FIRING PERSONNEL, PASSING A BUDGET AND EVALUATING THE SUPERINTENDENT

Liability of Governing Board Members (15-381)

Ultimately liable for almost all school district actions

indemnified by district insurance coverage

Governing board members immune from PERSONAL liability for acts taken

(1) in the scope of board member authority AND

(2) if that authority is acted upon in good faith AND

(3) “during duly constituted regular and special meetings”

Three Areas of Potential Personal Liability

1. Open Meeting Law Violations (38-431.07):$500 maximum fine per violation

No reimbursement for attorney costs, including no reimbursement of plaintiff’s costs

Possible removal from office


2. Conflicts of Interest (38-501 et. seq.)–Any public officer…who has, or whose relative has,

a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer …in such decision.• “Relative”= spouse, child, child's child, parent,

grandparent, brother or sister of the whole or half blood and their spouses and the parent, brother, sister or child of a spouse

• “Substantial interest”= any pecuniary or proprietary interest, either direct or indirect, other than a remote interest

• “Remote interest” includes “


2. Conflict of Interest (continued):–"Remote interest" means…:

• (e) The ownership of less than three per cent of the shares of a corporation for profit, provided the total annual income from (ownership)…do not exceed five per cent of his total annual income.

• (f) Reimbursements for actual and necessary expenses incurred in the performance of official duty.

• (g) That of a recipient of public services generally…• (h) That of a public school board member when the

relative involved is not a dependent or a spouse.• (i) a direct economic benefit or detriment upon the

officer, class of persons consisting of at least ten members… (and is no greater than the interest of the other members of that class)


3. Using School Resources to Influence the Outcome of an Election (15-511) Pertains to all elections, including

overrides and bonds

Attorney General Guidelines on Do’s and Don’ts

$5000 fine per violation

Legal Structures Governing Boards Must Operate Under

Federal Law and Regulations

U.S. Constitution

•First Amendment: “Congress* shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

• *Also applies to state and local governments through judicial interpretation of substantive due process requirements of 14th Amendment (incorporation)

School Districts and the First Amendment -Religion

A school district may not inculcate nor inhibit individual religious expression (primarily students)

Establishment clause does not prohibit purely private religious speech by students (free exercise rights)

Schools cannot provide religious instruction but can teach about religion

Schools have wide discretion to excuse students from lessons for religious reasons and to grant students release time to obtain religious instruction off campus

School Districts and the First Amendment -Student Free Speech

•Students “do not shed their constitutional rights at the school-house door.” (Tinker v. Des Moines Ind. Comm. School Dist. - 1969)

•However, the First Amendment Rights of students in public schools “are not automatically coextensive with the rights of adults in other settings and must be applied in light of the special characteristics of the school environment.”

•Question is whether it is school-sponsored speech or student independent expression; even then the student expression can be limited if the expression results in “material and substantial interference with school operation of infringement of rights of others.”

School Districts and Fourth Amendment

•Freedom from unreasonable searches and seizures and warrants required after showing of probable cause

•Standard for school searches of students is “reasonable suspicion” that student violated the law or school rules (as opposed to probable cause which is general standard)

–schools have to show search was reasonable at its inception and

–was reasonable in its scope

Civil Liability

School district officials may be held civilly liable for infringing on protected individual constitutional rights

Section 1983 (Civil Rights Act of 1871)

Qualified immunity for acts taken in course and scope of job, using reasonable judgment in adherence to well-established law

Federal Law: IDEA

Individuals with Disabilities in Education Act (1975)

Funding statute requiring grantees to provide all children with disabilities a “free appropriate public education (FAPE)” and “related services” in the “least restrictive environment”

Requires Local Education Agency (LEA), usually the school district, to develop Individual Education Program (IEP) for each child with a disability

Federal Law -FERPA

•Federal Educational Rights and Privacy Act (1974)

–designed to protect the privacy of a student's education records (defined as all records that schools or education agencies maintain about students)–gives parents the right to review and

confirm the accuracy of education records –can be released only for specific and legally

defined purposes

Overall Federal Role in Education is Small

Only 12% of all funding comes from the federal government

Vast majority of legal and regulatory framework that governing boards need to be concerned with is provided by the state through its Constitution, Statutes, Rules, Regulations and Advisory Opinions.

Halftime!5 minutes for Questions on anything presented so far!


Arizona Law and Regulations

Arizona Constitution & Education

Requires the Legislature to “provide for the establishment and maintenance of a general and uniform public school system” (Art. XI, Sec. 1)

Education is established as a fundamental right of “all pupils between the ages of six and twenty-one.” (Art. XI, Sec. 6)

…”(T)he legislature shall make such appropriations, to be met by taxation, as shall insure the proper maintenance of all state educational institutions, and shall make such special appropriations as shall provide for their development and improvement.” (Art. X, Sec. 11)

State Academic Standards (15-701, A.A.C. R7-2-301)

•Since 1996, covers what students should be learning at a certain point in their educational paths;

•AZ Merit test is based on standards

•In 2002, schools had to sign affidavits that:–1) curriculum aligned–2) teachers evaluated based on teaching

stds.–3) principals evaluated based on evaluation

of teachers on stds.

Arizona College and Career Ready Standards have replaced

Standards (continued)

A-F Accountability System

Currently being revised and on hold but set to go back into effect in 2017

Certification & Continuing Status: 15-503, 15-531 et seq.

All teachers must be certified to teach

Principals and superintendents must also have proper administrative certificates

Districts can choose qualifications for superintendent

Teachers treated differently depending on status as continuing (more than three years experience w/ district) or non-continuing (less than three years w/ district)

continuing teachers - strong due process rights

Student Discipline

•Governed by Title 15 (15-840 et. seq.)

•Student privacy is high concern–hearing for suspension or expulsion is in

Executive Session unless parent wants it in open; many boards appoint hearing officers – can be done as matter of policy

•Distinction between gravity of action;–Expulsion or suspension of longer than 10

days warrants automatic hearing -suspensions of less than 10 days do not (Goss v. Lopez)

Board Members Must Stay Objective!

IMPORTANT: Especially in the area of student discipline or employee matters, it is important that board members stay objective and not be involved in matters before it comes to them

If complaint comes in directly, try to refer complaint into the chain of command

Avoidance of actual and perceived conflicts of interest


Who Does What and How Governing Boards Fit in Arizona’s Education Governance Structure

Arizona Legislature –

Large role in regulation of schools

Funding: responsible for all state funding both in terms of weight of items funded and the amount of funding for those weights (around 40% of general fund goes to K-12 education)

Policy: can enact laws that govern curriculum, administration and local governance of schools

school districts: like cities or counties are political subdivisions of the state

Can delegate to State Board of Education power to draft rules

State Legislature -Oversight

Special committees that oversee expenditure and operations of schools

Auditor GeneralDollars in Classroom Report; Performance

and Financial Audits

Headlines and anecdotes drive law makingEducation Committee chairpersons

Arizona School Boards Association: seek adequate funding and preserve local

control within cooperative framework

Governor’s Role in Education

Can set the agendaAll Day Kindergarten, Prop. 100, Prop. 123

First draft budget

Sign and veto legislation

Bully pulpit (Classrooms FIRST)

Assistance with Federal Government and Congressional Delegation

Appointments: SFB, SBOE

State Superintendent of Public Instruction

Statewide elected official (many states this is an appointed position)

Responsible for all executive and administrative functions of the ADE

Executes policies of the State Board of EDEx-officio member of SBOE

Correcting school budgets that do not conform to state law

Arizona Department of Education

Led by State Superintendent of Public Instruction

Responsible for: administration of school finance

disbursements and accounting

state reporting requirements

teacher certification

publish annual report

dissemination of information about districts

State Board of Education

11 members appointed by Governor to staggered 4-year terms

“Exercise general supervision over and regulate the conduct of the public education system”

Minimum course of study for elementary grades and requirements for high school graduation

State Board of Education

Responsible for adopting rules pursuant to statutory and legislative authority regarding school districts, teacher certification

General supervision of the public school system

Prescribe minimum course of study and competency requirements for the graduation from high school

Require testing by districts

State School Facilities Board

Since 1997, responsible for the construction and maintenance of school facilities based on state standards for construction

School districts can build beyond state standards but must pick up the cost through district resources or Class B bonds approved by district voters

County School Superintendent

Authority over education of students in circumstances outside normal operation of school districts

unorganized territory

long distances

Operates accommodation schools located on military bases, unorganized

territory, detention facilities, homeless students

County School Superintendent

Handles accounting responsibilities for some districts

Has election responsibilities: fills governing board vacancies and

conducts regular and special school district elections

Parents of home school students required to file affidavit with county supt., showing intent to educate at home

County Attorney and AG

Important roles in representing and assisting school districts

County attorney: primary counsel for many school districts - also have authority for contract counsel or in-house counsel

Also enforcement agency

Can be immune from liability if relying on an opinion from them

Site Councils

Advisory to governing boardgoverning board can delegate curriculum

development or other powers

Made up of a principal (serve as chairman), teachers, parents, students, representative from classified employees, community members

Charter Schools

Must follow financial reporting and health/safety laws

Exempt from almost all other laws in Title 15

Must be sponsored by State Board of Education, State Board for Charter Schools or School District (last year)

Charter must set forth terms and conditions of operation

Last words of advice

Remember that your job is to support the teaching and learning that happens in the classroom

Embrace your role as advocate for public education in your district and beyond

Get trained!BOLTS in January; Summer Leadership

Institute in June, County Meetings in Sept/October, Legislative Workshop in Nov., Annual Conference in Dec.

Law Conference in September!

ASBA is YOUR organization!

[email protected]

The Legal Basis for School Board...

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