PL23NOVFNL.pdf

Parent document: Regular Board Meeting-02-12-2024.pdf

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STRKANSLALE LAW INLO LUN

Board Member 7
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of Well-Developed, Up-to-date
Board Policy Manuals

Jurassic Parliament: Lost the
Vote? Don’t Sabotage the 7;
Council’s Action NOVEMBER 2023

WASHINGTON STATE SCHOOL
.. AND MORE DIRECTORS’ ASSOCIATION



FROM THE EDITOR

Policy Classifications

ESSENTIAL

* Policy is required by state or federal
law; or

¢ Aspecific program requires a policy
in order to receive special funding.

ENCOURAGED

¢ While not required by law, policy
is intended to reflect the spirit of
existing state or federal law thus
inuring districts to potential litigation;

¢ While not required by law, policy
has potential to benefit the health,
safety, and/or welfare of students,
employees, directors, and/or the
local community.

DISCRETIONARY

¢ Policy addresses an action likely
deemed important by the board; or

¢ Policy would likely be deemed
appropriate due to special
circumstances of the board; or

¢ Policy communicates district
philosophy that a board may want
to promote to employees and/or the
community.

Editor’s Note

Words can have not only multiple meanings, but also contradictory meanings. For
example, “reflexive” can mean unthinking or thoughtful, “nervy” can mean nervous or
brash, and “cleave” can mean to sever or to adhere. No wonder confusion abounds.

In Lewis Carroll’s Alice Through the Looking-Glass, Alice continually comes up against the
unpredictability of speech and text. She and Humpty Dumpty discuss the meaning of
words:

‘When | use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just
what | choose it to mean - neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different
things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master - that’s all.’

In addition to words being malleable, language can be crafted to be mirky, even deceiving.
We’re wise to be cautious about whether others actually hold the same understanding
that we do and think that they do.

Part of the ongoing mission of Policy & Legal News is to clarify legal issues and terms so
that you can be master of them. In this issue, we explore the contending legal tests for
“state action” (see Key First Amendment Test on page 8). We’ve also included some
guidance in response to frequent questions about maintaining your board’s policy manual
(see page 3). This task is both time-consuming and worth the effort because, as Alice and
Humpty discuss, words are consequential yet unstable. And as always, we strive to explain
why clarifying words matter. For example, revising policy language so that all parties can
distinguish the school board’s differing role in staff terminations (see Separation from
Employment on page 7).

Lewis Carrol is known for his imagination and clever play with words, but he had other
capacities too. He observed, “One of the deep secrets of life is that all that is really worth
the doing is what we do for others.” Thank you, school directors, for what you do to
advance the best educational interests of students. It is so worth the doing.

Best,
Abigail Westbrook, J.D., Editor

The editor (at right) is joined by the WSSDA Parliamentary Advisory
Committee (left to right: Rob Perkins, Mike Wiser, Bruce Drollinger).

POLICY AND LEGAL NEWS =» WSSDA


Policy & Legal News

HELPING SCHOOL DISTRICTS TRANSLATE LAW INTO ACTION

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w UPDATES TO MODEL POLICY

WSSDA has developed, revised, or retired the following model
policies and procedures. Subscribers can find marked-up and
clean versions of these documents (as applicable) in their
subscriber portal on the WSSDA website by visiting
wssda.org/login.

ESSENTIAL
2190/2190P - Highly Capable Programs

3205P - Procedure - Sexual Harassment of Students
Prohibited

ENCOURAGED

0000 - Table of Contents

1000 - Table of Contents

2000 - Table of Contents

2004 - Performance Improvement Goals
2090/2090P - Program Evaluation
3000 - Table of Contents

4000 - Table of Contents

5000 - Table of Contents

5280 - Separation from Employment
6000 - Table of Contents

LIST OF SERIES INCLUDED IN UPDATES
0000 Series - Planning
1000 Series - Board of Directors wWe

. . Jt
2000 Series - Instruction
3000 Series - Students WSSDA
5000 Series - Personnel

6000 Series - Management Support NOVEMBER 2023

WASHINGTON STATE SCHOOL
DIRECTORS’ ASSOCIATION

POLICY AND LEGAL NEWS = WSSDA 2


NOVEMBER 2023

The Benefits and
Importance of Well-
Developed, Up-to-date
Board Policy Manuals

oard policy is foundational to the school district’s problems. Because policy adoption
PR orcias Indeed, many board policies are occurs in open public meetings, MODEL POLICY

required by law. Additionally, your district’s there is no secrecy. By holding public 0000
policy manual is intended both as a tool for district comment period before adopting a ae: 00
management as well as an information source for policy, the board can more clearly Table il
staff, students, families, and community members. The understand the policy’s impact and 2000
problem is that maintaining your board's policy manual ensure that the policy is appropriate. Table of Contents
is at least time-consuming and oftentimes difficult. When adopted board policies are 3000
Nonetheless, it is worth the effort. published and disseminated, they 000
Benefits of Well-Developed Board Policy bemmowerarab icy ane Gonrusion in Table of Contents

the school community, which includes 5000

Board members come and go, staff leave, retire, or students, families, staff, and other Table of Contents
are separated, but board policy endures. Well-written community members. They also 6000
policies help provide for smooth transitions when promote fair and consistent treatment Table of Contents
changes take place. They foster stability, continuity, and of the different stakeholders across

guide the board and the whole district to function legally the school community.

and appropriately.
mre u Policies and procedures support the differing roles

Policies keep stakeholders informed about the of the board-superintendent team. The board does
board’s philosophy and position on its leadership and governance work so that the
- educational issues and superintendent has the necessary guiding direction
i p y guiding

_... operational to do the work of effectively administering the school
ae district. Policies save time and effort for the board and
the superintendent. For the board, having an adopted
policy can help steer the board away from rerunning
the same debate on an issue already settled by a
policy. “We enacted a policy on that question last year,”
can be sufficient to end protracted discussion and
move on to the next order of board business. In cases
where there is no disagreement, an adopted policy still
means that the board does not need to return to issues

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POLICY AND LEGAL NEWS # WSSDA_ 3



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repeatedly. Rather, when a recurring issue comes up,
such as private groups’ use of school buildings, the
superintendent can respond based on the policy and
procedure, rather than having to go to the board each
time for a decision, and without the risk of impermissibly
treating different groups differently.

Policies also form the basis for evaluating the board’s
work and administrative practices. Policies establish
direction, set goals, assign authority, and establish
controls. Procedures provide the process for appraisal
and accountability. The board should use these
mechanisms for accountability and expect reports on the
implementation of its policies.

Guidelines for Effective Board Policy

First, policies should seek to advance the best
educational interest of students. This might seem
obvious, but it can be easily overlooked in the heat

of debating specific issues. If the policy is directed at
students, be sure to have students review it before
you adopt it. Students are the key stakeholders in your
district, but they are not the only stakeholders. Your
board will need to balance student priorities and views
with those of the entire school community.

Policies should include a legal review to ensure they
comply with federal and state laws and regulations. You
will want to involve your school district’s attorney, who
can tell you, for example, whether a proposed policy on
drug testing of student-athletes will pass legal muster or
whether a financial policy meets Washington’s specific
requirements. Another source of information on policy
language and legal requirements is the Washington
State School Directors’ Association (WSSDA).

Policies should be cost-effective and based on research.
Think about the cost of a policy in financial, staffing, and
human terms. An expensive approach might be worth it
if it solves an important problem, but not all expensive
approaches are effective. For example, a policy calling
for metal detectors involves expensive purchasing,
installation, and ongoing monitoring of devices. It also
involves social and emotional issues for the whole
community. Additionally, the research raises several
questions about whether the metal detector approach
actually improves safety.

Policies should be based on sound judgement. Part
of using good judgement is to ask for and consider

NOVEMBER 2023

community input. Understanding how parents and

other members of the public feel about the schools

is important for deciding whether to pursue a policy.
Similarly, depending on the policy, cooperation from
other public agencies, i.e., the juvenile court or health
department, might be crucial. As soon as a policy
requires external support, your district’s control is
diminished. You can ask an outside agency or parents to
support a policy, but you cannot force them to do so.

Policies should be clear and understandable to all who
are expected to comply. This can be tricky because
some policies require specific legal terms that cannot be
revised to be more friendly or understandable. However,
many opportunities exist to remove or define technical
vocabulary, jargon, and acronyms. Obtaining community
feedback is an excellent way to improve policy clarity and
understandability.

Policies should promote compliance. High expectations
are an attribute of effective schools, and your
expectation of compliance with policy and other district/
school rules should be high. This can be a source of
pride and a positive attitude among the whole school
community. In contrast, if the board doesn’t expect
compliance with a policy, it should revise or retire the
policy. Don’t weaken your district with dead policies that
everyone ignores.

Related to compliance, policies should be practicably
enforceable. This means that staff have both the ability
to ensure compliance as well as the time and attention
to do so. Depending on the specific topic, a policy might
be unworthy of the administrative attention required. For
example, a dress code policy that requires the principal’s
daily inspections might be hypothetically doable (barely)
but not be time well spent.

Policies should harmonize with each other. The board
must guard against one policy contradicting another

and ensure that individual policies support each other.
Including accurate cross-references to related policies
and keeping them updated makes the entire policy
manual more coherent and useful and can also be a tool
for checking whether policies harmonize.

A board should take great pride in its policy manual. It
takes a good bit of effort. When a board has developed
an effective, working policy manual, it has achieved a

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POLICY AND LEGAL NEWS =» WSSDA 4


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significant portion of its governance responsibilities.
Revisions to Board Policy

Board policies cannot be static. Expect change. Each
year, there are numerous changes in statutory and
regulatory provisions as well as updates based on case
law. Circumstances also change, and whole new issues
arise that require a new or revised policy. If policies
and procedures are not updated, they can be legally
noncompliant and/or leave your district exposed and
vulnerable. They also become “dead” documents that
are not only unhelpful, but also lessen the board’s
credibility. All this means that board policy is subject to
needing ongoing revision.

Washinton law does not specify a timeline for a school
board’s full policy manual review, but some states do!
However, several issue-specific statutes and regulations
require school boards to periodically review and update
the associated adopted policy and/or procedure (i.e., the
student discipline policy).

Each board member should work to be aware of
problems, issues, and any district needs that might
involve board policies. Listening to community input is
key here. Community input may or may not be able to
provide a workable policy solution, but it will alert the
board to issues that need research. Another method is to
review board minutes for instances when the board has
had to act on the same issue several times. This can be
a sign that the district needs a new or revised policy so
that administrators can do their work without needing it
to be re-visited by the board.

Despite the board’s careful policy development, there
might be times when implementing an existing board
policy would be illegal, unworkable, or an injustice would
occur. If this should happen, the board should first
suspend and then amend that policy. The board should
never suspend or amend a policy for only an individual
case. Rather, the board should amend policies to apply
to all future cases with similar circumstances.

As you've likely gathered, keeping your policy manual
up-to-date involves continuously reviewing and revising
policies. This might feel overwhelming, but the board
can review a limited number of policies at every regular
meeting until the job is complete. Regularly reviewing
policies at your board meetings also serves as a

NOVEMBER 2023

MODEL POLICIES

View model policies by classification: Essential, Encouraged, and Discretionary

0000 - Planning

Number Title Classification
0100 Commitment to Planning re
Plant 8

The WSSDA Model Policy Library is a searchable database with policies
that reflect updates announced through Policy & Legal News.

reminder of the board’s central role as policy maker and
helps both veteran and new board members realize how
much thought has gone into each policy.

Support from WSSDA

We hope this article has inspired you to keep going

(or get started). If you need to develop new policies or
revise existing ones, WSSDA can support you through
the mode! policy library, which provides model

policies that you can adapt to your local circumstances.
Additionally, WSSDA has updated and expanded the
Table of Contents pages for each series of policies in its
model policy library. You can find these Table of Content
pages at the beginning of each series. As updated, these
Table of Content pages offer an increased ability to
search each series for needed model policies, including
searching by classification.

We've had many requests for associated spreadsheets,
and we’re excited to announce that each Table of
Contents page also has a spreadsheet with all policies
in aseries listed as an attachment. Your district can
download a Microsoft Word version for your policy
manual as well as download a workable spreadsheet.
These spreadsheets support your board’s ability to track
its progress in reviewing, revising, retiring, and adopting
your district’s policies as well as for the whole policy
manual. Many districts have a high need to track data in
a spread sheet, so they can prioritize their policy review
by classification. The spreadsheets also help districts
track the policies that need to be revisited annually.

WSSDA also provides policy manual! consulting
services. We’d love to help you!

POLICY AND LEGAL NEWS ® WSSDA


OTHER UPDATES

Policy 2004-Performance Improvement Goals
Category: ENCOURAGED

WSSDA reviewed and revised this model policy after
receiving questions about its current legal status and
relevance.

State laws, specifically RCW 28A.655.100 and
WAC 180-105-020, mandate that school districts
establish and report annual district-wide and school-
level performance improvement goals. The goals
encompass student performance relative to those
goals, plans to achieve them, and various other
related aspects. The revision of this policy involved
a shift in its name from “Accountability Goals” to
“Performance Improvement Goals” to align with
the legal requirements. Additionally, the policy now
consistently refers to “federal requirements” in line
with the regulation cited above.

Finally, this policy has been re-categorized from
Essential to Encouraged because school boards are
not explicitly required to adopt it based on the current
legal authority cited in the policy.

Policy and Procedure 2090/ 2090P-pProgram
Evaluation

Category: ENCOURAGED

WSSDA also reviewed and revised this policy after
receiving questions about its current legal status and
relevance.

While this policy was last revised in 2012, the core
legal foundation, RCW 28A.230.095, remains
relevant. This statute emphasizes the necessity for
school districts to ensure that students have the
opportunity to learn essential academic requirements
in social studies, the arts, and health and fitness.
It mandates submitting implementation verification
reports to the Office of Superintendent of Public
Instruction (OSPI). Revising this policy also involved
the removal of outdated language linked to former
OSPI programs and updating legal references.

Lastly, this policy has been re-categorized from
Essential to Encouraged, as school boards are not
explicitly required to adopt it based on the current
legal authority cited in the policy.

NOVEMBER 2023

Policy and Procedure 2190/2190P-highly
Capable Programs
Category: ESSENTIAL

WSSDA has revised this policy to correct
misinformation about the requirements outlined in
Senate Bill (SB) 5072 (2023). The revisions address
the fact that the law does not require all students

to be screened. Rather, as modified by SB 5072,
school districts must universally screen only for two
elementary grade levels. This is welcome news for
school districts, as it clarifies that school districts do
not need to screen all K-12 students each year.

Additionally, the requirement for multiple objective
criteria and multiple pathways remains both in statute
and in regulation.

Procedure 3205P-Sexual Harassment of
Students Prohibited
Category: ESSENTIAL

WSSDA has identified a phrase in this procedure that
is a relic of an older version and updated accordingly.

Previously, we revised the phrase, “Level Two - Appeal
to Board of Directors” to read, “Level Two - Appeal to
designate appropriate decision maker.” This revision
reflected that federal and state regulations provide
flexibility regarding whether the decision maker on
appeal was selected from an outside source, such as
a law firm, or the school board. The revisions removed
the specific language so that school districts can
make use of this flexibility.

This flexibility is important because the regulations
require that the decision-maker on appeal was not
involved in the initial complaint or investigation. In
some communities, school directors are likely to be
too close to the circumstances surrounding the initial
complaint to be sufficiently neutral to act as decision
makers on appeal. Additionally, the regulations
require that the decision-maker on appeal has
completed specific requisite training, which school
directors may not have time to complete, particularly
when school directors must complete training in other
areas.

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POLICY AND LEGAL NEWS =» WSSDA_ 6


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After finding another reference to the language

“Level Two - Appeal to the Board of Directors” in a
separate portion of the procedure, we have revised
those words to prompt districts to designate the
appropriate decision maker. If your board has already
considered this and has identified the decision maker,
administrative staff may modify this language to
match the decision maker already identified in the
other portion of the procedure, without requiring
board approval. However, if your board has not already
identified the appropriate decision maker, the board’s
input is needed.

Policy 5280-separation from Employment
Category: ENCOURAGED

WSSDA has revised this policy to clarify the school
board’s role in the process of terminating staff.

The board’s role differs depending on the type of
employee that’s being terminated. As described
below, with classified employees, the board plays one
role, but with certificated employees, the board plays
another.

Terminating Classified Employees

The school board, not district administrators, decides
whether to terminate classified employees. District
administrators recommend whether a classified
employee should be terminated, and the board makes
the final decision. Accordingly, under Policy 5280, the

NOVEMBER 2023

superintendent recommends to the board whether
a classified employee should be terminated, and the
board makes the decision.

Terminatin rtifi Empl

The law describes two ways to terminate a certificated
employee: discharge and nonrenewal. Discharge ends
an employee’s employment mid-contract. Nonrenewal
gives the employee advanced notice that they will

not receive another contract after their current

one expires. (The nonrenewal process is unique to
certificated employees because they are continuing-
contract employees. They will automatically receive
another contract for the following school year unless
they receive timely notice of nonrenewal.)

To discharge or non-renew a certificated employee,
the superintendent must issue a notice of probable
cause for discharge or nonrenewal. The school
board doesn’t issue a notice of probable cause.
The superintendent may review an employee’s
performance with the school board in executive
session before issuing a notice of probable cause.
But the board does not decide whether to issue the
notice.

When a certificated employee receives a notice

of probable cause, the employee has ten days to
request a hearing. If the employee fails to request a
hearing within that time, the discharge or nonrenewal
becomes final. If the employee requests a hearing,

a third-party hearing officer conducts a hearing

and decides whether sufficient cause exists for the
employee’s discharge or nonrenewal. The board does
not review the notice of probable cause. Nor does the
board decide whether sufficient cause exists for the
employee’s discharge or nonrenewal.

We updated Policy 5280 to reflect the board’s role in
certificated employees’ terminations. The policy no
longer has the board considering notices of probable
cause and rendering decisions about discharges

or non-renewals. In making those changes, we

also clearly delineated the different processes for
terminating certificated employees and terminating
classified employees.


Board WV ember
Media Case—A
Amendment Test

any school directors, both in Washington and

across the nation, use social media to engage

with their constituents. Using social media
this way certainly has its benefits. It is timely, readily
available, and sometimes your community has come to
expect these types of communications. However, social
media seems to thrive on contentious, highly charged
stimuli, which greatly complicates its use. Responding
to social media commentators always requires care,
and sometimes takes precision. Perhaps even more
important than how to respond is understanding how
and when personal social media accounts can blur into
official accounts, which carry limitations that personal
accounts do not. Now, the U.S. Supreme Court has taken
up this timely and consequential legal issue.

On October 31, 2023, the U.S. Supreme Court held

oral argument for to
consider whether two school board members in
California engaged in “state action” when they blocked
individuals from their personal Facebook and Twitter
accounts. The board members had used those accounts

ey First

to communicate with the public about their role as board
members and district-related matters.

School Board Members’ Use of Social Media

The case involves two school board members from the
Poway Unified School District School Board in California.?
During their campaigns for election, both Michelle
O’Connor-Ratcliff and T.J. Zane? created public Facebook
accounts that they used for campaigning. After being
elected, both school board members converted their
Facebook accounts into platforms for information about
their school board service and school district matters
and business. O’Connor-Ratcliff also converted her
Twitter account to focus on school board/school district
matters.

On their respective platforms, both individuals identified
themselves as school board members and posted about
items such as upcoming board meetings, status reports
about an interim superintendent search, and video

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+The official issue before the U.S. Supreme Court is whether a public official engages in state action subject to the First Amendment by blocking an
individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related
matters with the public, but does not do so pursuant to any governmental authority or duty.

? The Poway School District is a large 35,000-student district, located north of San Diego California.

3Zane’s term expired in 2022. O’Connor-Ratcliff was re-elected to another four-year term in 2022.

POLICY AND LEGAL NEWS # WSSDA_ 8


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clips of student musical performances. Those are all
examples of using social media to convey information
about the school board and school district.

On her Facebook page, O’Connor-Ratcliff described
herself as a “government official.” Posts included photos
of visits to a district elementary school with verbiage
such as, “Hanging with Principal Halsey & the Canyon
View Coyotes on this hot, hot morning. Excited about
your students’ new flexible seating rollout.”

On his Facebook page, Zane referred to the page

as his “official” site “to promote public and political
information.” His Facebook page stated, “My interests
include being accessible and accountable; retaining
quality teachers; increasing transparency in decision
making; preserving local standards for education; and
ensuring our children’s campus safety.” In addition to
routine school district matters, Zane also posted about
school lockdowns after the district received threats, an
active shooter incident near one Poway district school,
and an ongoing brush fire that forced the evacuation of
another school.

Notably, there are no facts suggesting that the school
district was involved in the creation or operation of either

The argument for O’Connor-Ratcliff v. Garnier considers whether two
board members were engaged in “state action” when they blocked
individiuals on social media platforms.

NOVEMBER 2023

O’Connor-Ratcliff or Zane’s social media accounts.
Rather, the district had no control over the pages.
Additionally, neither O’Connor-Ratcliff nor Zane’s social
media pages included certain language and disclosures
that were found on district-sponsored social media
pages, as required by district policy.

Comments on the Board Members’ Social
Media Pages

Christopher and Kimberly Garnier are the parents of
three students who were attending Poway schools. Both
the Garniers had attended the Poway school district and
took an active interest in its affairs, including attending
school board meetings. In court testimony, Christopher
Garnier said he and his wife were frustrated by time
limits on public comments at school board meetings and
by the lack of response to their emails.

In their social media posts, both O’Connor-Ratcliff

and Zane solicited feedback from constituents and
responded to individuals who left comments or
reactions. The Garniers began posting comments to
the board members’ social media entries. According to
the Garniers, they expressed concerns about alleged
incidents of racist bullying in the school district and
mismanagement of financial matters.

The facts do not suggest that the Garniers’ comments
used inappropriate language. However, the Garniers
posted repetitious comments to the school board
members’ posts and tweets. For example, Christopher
Garnier made the same comment on 42 different posts
by O’Connor-Ratcliff and the same reply on 226 of her
tweets. The board members described the comments
as disruptive to other constituents. O’Connor-Ratcliff
blocked both Garniers from her Facebook page and
Christopher Garnier from her Twitter page. Zane blocked
both Garniers from his Facebook page. There are no
facts to suggest that the school board prevented the
Garniers from speaking during public comment period at
school board meetings.

Lawsuit Commences

The Garniers sued O’Connor-Ratcliff and Zane in federal
district court, arguing that by blocking their comments
on social media, the school board members violated
their First Amendment rights to free speech and to

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POLICY AND LEGAL NEWS = WSSDA 9


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petition the government. On summary judgement, the
district court ruled for the Garniers. The court concluded
that the board members engaged in state action when
they blocked the Garniers, the social media pages

were “tools of governance,” and that the interactive
commenting features constituted a public forum.

On appeal in 2022, the Ninth Circuit Court of Appeals
unanimously affirmed the district court. The Ninth
Circuit held that under the facts of the case, the board
members acted “under color of law” when they blocked
the Garniers. The Ninth Circuit stated, “both through
appearance and content, the [board members] held
their social media pages out to be official channels of
communication with the public about the work of the”
Poway school district.

Earlier this year, the U.S. Supreme Court granted
O’Connor-Ratcliff and Zane’s petition for a writ of
certiorari, meaning that the U.S. Supreme Court would
consider this case. As noted above, oral argument just
occurred.

Related Cases

Legal issues surrounding public officials’ use of social
media have arisen from city halls and local school
boards to the White House. As you might recall, when
Donald Trump was president, he was sued over blocking
several people from his personal Twitter account

in 2017. The U.S. Court of Appeals for the Second
Circuit held that Trump’s use of his personal Twitter
account while in office was “governmental” rather than
“personal” and that his effort to block individuals was
government action. However, while the U.S. Supreme
Court was considering whether to grant review, Trump
lost his re-election, and the high court dismissed the
case as moot while vacating the Second Circuit decision.

Another comparable case is Lindke v. Freed, for which
the U.S. Supreme just heard oral argument. This case
involves the city manager of Port Huron, Michigan,

who used his longtime personal Facebook account to
discuss city business, including the city’s response to the
COVID-19 pandemic. In Lindke v. Freed, the city manager
blocked a frequent critic who had posted critical
comments about the city’s pandemic policies, and the

NOVEMBER 2023

lower courts held that the city manager’s Facebook page
was not state action. However, the lower court used

a different test for determining state action, which is
discussed more below.

Other cases involving a school board’s blocking of social
media include Scarborough v. Frederick County School
Board, in which the federal district court held that the
Frederick County school district engaged in viewpoint
discrimination when it deleted comments and blocked

a critic of its COVID-19 protocols and facemask policy.
You'll note, however, that in the Scarborough v Frederick
County School Board case, the social media accounts
were in fact official school district accounts, not the
personal accounts of school board members.

Amicus Briefs

As you might imagine, what and on what basis the U.S.
Supreme Court holds in O’Connor-Ratcliff v. Garnier has
collected significant interest on both sides. The basis for
the U.S. Supreme Court’s holding will likely set forth the
legal test going forward to determine whether a public
official’s social media activity constitutes state action.
Unsurprisingly, the different sides disagree on what that
test should be.

Writing in support of the Garniers, the American

Civil Liberties Union (ACLU) filed an amicus brief,
identifying the core issue as how to distinguish between
a government official’s private-capacity use of social
media, which is entitled to First Amendment protections,
and their public-capacity use of these tools, which is
subject to First Amendment prohibitions. The ACLU
argued that the Ninth Circuit used the appropriate test
for determining between a public official’s private and
state actions. The test that was used is (1) whether the
official was engaged in official duties and (2) whether a
reasonable observer would think the official was cloaked
in the authority of his office with respect to the action at
issue.

In contrast, an amicus brief filed by several groups
representing local government’ argues that the state-
action test used at the lower court was impracticable

CONTINUED on next page

4 The Local Government Legal Center (LGLC), National Association of Counties (NACO), National League of Cities (NLC), and International Municipal

Lawyers Association (IMLA).

POLICY AND LEGAL NEWS = WSSDA_ 10


CONTINUED from previous page

and potentially harmful. The local government amicus
argued that the better test to use is based on a public
official’s governmental authority to engage in social
media activity (the “authority test”). The authority test
recognizes three ways in which the government could
authorize the operation of a social media account: (1)
the government itself owns the social media account;
(2) the government expressly authorizes a public official
to create the social media account by law, regulation, or
policy; or (3) the government allows a public official to
utilize government resources to operate the social media
account.

The California School Boards Association (CSBA) also
filed an amicus brief, which similarly argued that the
test used by the Ninth Circuit was unclear, unworkable,
and created an undue burden on school boards and
their lay board members. However. the CSBA amicus
brief argued that the better test to use is the “state
official” test, which was used in Lindke v. Freed. This
test states that only time a public official’s social media
activity is “fairly attributable” to the state is when that
public official operates a social media account either (1)
pursuant to their actual or apparent duties or (2) using
their state authority. This second factor means that the
actor could not have behaved as they did without the

NOVEMBER 2023

authority of their office. The CSBA amicus brief argued
that this state-official test is superior because it focuses
on the bright lines of an actor's official duties and use of
government resources, rather than the appearance or
purpose of social media pages.

Importantly, the CSBA amicus brief also pointed out that
the lower court’s decision disregarded the laws limiting
an individual board member’s authority. The brief noted
that no law gives a school board member authority to
take official action in their individual capacity. Rather,
school board governance is deliberately collective.

Thus, the Ninth Circuit’s test creates considerable
confusion.

Now We Wait

The U.S. Supreme Court’s decision will come sometime
next summer. Meanwhile, there are several points to
ponder while we wait. How should board members
moderate disruptive posts on their personal social media
pages? Are incumbent school board members more
limited than their challengers in their use of personal
social media? If so, isn’t that an infringement on the
board members’ individual liberties? If this case stands,
won't that prompt increased litigation? This last question
is easy to answer - yes.

POLICY AND LEGAL NEWS ®)WSSDA 11


urassic
Parliament

Mastering meetings using Robert’s Rules

WSSDA is excited to support school board members in bolstering
their knowledge of parliamentary procedures by partnering with
Jurassic Parliament and sharing their informational posts. Jurassic
Parliament is dedicated to helping people understand and utilize
Robert’s Rules of Order so they can hold effective public and
nonprofit board meetings with minimal drama. You can learn more
about Jurassic Parliament at Jurassicparliament.com

Lost the vote? Don’t
Sabotage the Council's
Action

By Ann Macfarlane, PRP, CAE

Editor’s note: Although this article refers to “the Council,” the
principles are fully applicable and relevant to school boards.

e’ve had inquiries recently about elected
officials who lost a vote, and then actively
worked against the outcome. This amounts to

trying to sabotage the council. It is wrong, wrong, wrong.
The Majority Rules

General Henry Martyn Robert, the original author of
Robert’s Rules of Order, expresses it this way:

The great lesson for democracies to learn is for

the majority to give to the minority a full, free
opportunity to present their side of the case, and
then for the minority, having failed to win a majority
to their views, gracefully to submit and to recognize
the action as that of the entire organization, and
cheerfully to assist in carrying it out, until they can
secure its repeal. —-Quoted in Robert’s Rules of
Order Newly Revised, 12th edition, p. xlvii

This is a fundamental principle of our system of
government. It is embedded in our common law heritage,
and our entire society. Government and its administration
cannot function optimally, cannot best serve the citizens,
and cannot advance, if the very people who are elected
to serve choose to pursue their own private views against

the decision of the body they belong to. When elected
officials “go rogue” and work against their organization’s
action, they are violating their fiduciary duties of loyalty
and obedience. Even more, they are assaulting the
foundation of our democracy.

For these reasons, we consistently tell officials: If you
lost the vote, you have an obligation to accept the vote
as the decision of your body. Your agreement to serve
as a public official carries with it the duty to support the
fundamental principle of our system of government. You
may express your disagreement in public (see our article
Criticizing a board decision in public). However, you
should not take a single step to undermine the decision,
because that would harm the organization which you
have a duty to serve.

Is Somebody Trying to Sabotage Your Council?

If you are dealing with such a situation, we recommend
getting advice from your attorney about the law in your
state. Review your bylaws and this quotation from
Robert’s Rules of Order:

An organization or assembly has the ultimate right
to make and enforce its own rules, and to require
that its members refrain from conduct injurious to

CONTINUED on next page

POLICY AND LEGAL NEWS =» WSSDA_ 12



CONTINUED from previous page

the organization or its purposes. Robert’s Rules of
Order Newly Revised, 12th edition, 61:1

Once you are armed with the law and the rules, discuss
the matter with the independent-minded member in
private (if the sunshine laws in your state allow two
members to have a private conversation). They may need
help understanding the issue. Explain what is wrong with
their attempt at sabotage, and show the importance of
allowing the body’s action to stand. If that doesn’t work,
it may be necessary to bring it up at a public meeting of
your council or board. And if public shaming fails to have
any effect, you may have to sanction the member (see
our article, Sanctioning rogue board members).

Being Elected Limits Actions You May Take

American individualism is a great thing, but when you
accept election to a local governmental body, you give
up some of your First Amendment rights and some of
your freedom of action. You agree to put the welfare of
the organization above your own interest. You agree to
compromise. You agree to follow the rules your body has
adopted. And you agree that the entire body chooses its
course of action, not any one self-interested individual. It
ain’t easy! But it’s the American way.

Examples of Attempts to Sabotage

Here are instances | have encountered of attempted
sabotage when someone lost the vote:

¢ A planning commissioner publishes letters opposing
the decisions of the commission and complaining
about the members.

¢ A city council takes a position on the status of the

NOVEMBER 2023

wetlands in response to a request from the state
department of ecology. Three minority members
send a letter to the department saying that they

disagree with the city’s position.

¢ The school board has approved a large bond issue.
A member who disagrees publishes an Op-Ed in the
local newspaper urging citizens to vote against the
bond.

Have you had to deal with attempted sabotage? Let us
know!

Ann Macfarlane is the principal trainer for Jurassic Parliament.
After many years of holding the credential of Professional
Registered Parliamentarian, she now advises public and non-
profit boards.



Policy « Legal News

Policy & Legal News is published quarterly by the Washington
State School Directors’ Association to provide information of
interest to school directors and the education community. The
views expressed in opinion articles appearing in Policy & Legal
News are those of the writers and do not necessarily represent
WSSDA policies or positions. © 2020-2025 Washington State
School Directors’ Association. All rights reserved.

WSSDA Officers

Ron Mabry, President

Sandy Hayes, President-Elect

Derek Sarley, Vice President

Danny Edwards, Immediate Past President
Editor-in-Chief

Abigail Westbrook, J.D., Director, Policy and Legal Services
Policy Specialist

Kelsey Winters, Policy and Legal Specialist

Assistant Editor
Sean Duke, Communications Officer

Design & Layout
Robby McClellan, Communications Specialist

WSSDA DIRECTORY

General Information....................4-5 360-252-3000
Leadership Development .................- 360-890-5868
Strategic Advocacy ................e-ee eee 360-481-5842
Communications ...............0.+0eeeeee 360-252-3013
Policy and Legal Services .................. 360-252-3018
Email........... ccc ccc e cece e cece eeenes mail@wssda.org
VISION

All Washington School Directors effectively govern to ensure
each and every student has what they need to be successful
within our state’s public education system.

MISSION

WSSDA builds leaders by empowering its members with tools,
knowledge and skills to govern with excellence and advocate
for public education.

BELIEFS
WSSDA believes:

¢ Public education is the foundation to the creation of
our citizenry, and locally elected school boards are the
foundation to the success of public education.

¢ High-functioning, locally elected school boards are essential
to create the foundation for successfully impacting the
learning, development and achievement of each and every
student.

* Ethical, effective and knowledgeable school directors are
essential for quality public schools.

¢ Focusing on and addressing educational equity is
paramount to assure the achievement of each and every
student.

¢ Public school directors are best served trough an innovative,
responsive, and flexible organization that provides
exceptional leadership, professional learning, and services
in governance, policy, and advocacy.

AWE WASHINGTON STATE SCHOOL
See DIRECTORS’ ASSOCIATION

WSSDA P.O, Box 5248, Lacey, WA 98509 USA

100 Years of Leadership + WSSda.org

w SPECIAL THANKS NOVEMBER 2023

The Editor would like to thank the following people for

their contributions to this issue: Anthony Anselmo, J.D., Stevens
Clay, P.S.; Jody Hess, the Office of the Superintendent for Public Instruction;
and Kelsey Winters, WSSDA.

Keeping your board’s
policies current
can be challenging

Reduce your legal vulnerabilities and save
your district staff time by contacting
WSSDA for help!

Changes in the law and recommended practices occur
frequently, so policy-making should be an ongoing task
for school boards.

WSSDA’s policy review services are tailored to your
district’s needs. Our review will occur in installments
to make it easier for your board to consider

revisions on an ongoing basis.

Visit wssda.org/policyreview
for more information.

POLICY AND LEGAL NEWS =» WSSDA 14