Adopting Board Policies in the Wake of Deborah Lehman V. Fox C-6 School District
The Lehman v. Fox C-6 School District case has been hanging around for a few months now without a final resolution, but fortunately the Missouri Supreme Court effectively ended the case on January 29, 2019, and let the Court of Appeal’s decision stand. For more information about the background of this case and the Missouri Court of Appeals’ decision, you can review our previous blog post on this topic. While it is helpful to finally have an end to the matter, it does being up the question – how should districts proceed with adopting Board Policies in the wake of this case? Our recommendation remains the same – districts should adopt a resolution to attach to each policy current in place, and moving forward should sign each new or revised policy.
Under Missouri law, the school board of each school district is authorized to make rules and regulations for “the organization, grading and government in the school district.” These generally take the form of Board Policies. The law also requires that any such rules take effect when the rules are signed by the Board and a copy is deposited with the “district clerk.” The “district clerk” is then supposed to transmit a copy to the district’s teachers. In applying these requirements to the Lehman case, the Court of Appeals found that the school board had substantially complied with the requirement and that substantial compliance was enough.
This ruling presents a dilemma for school districts though. The statute requires that each Board Policy be signed by the Board and delivered to the “district clerk.” Most school districts though likely do not have a “district clerk” and most Board Policies have probably not been signed by the Board. The question then is what can be considered “substantial compliance” with the legal requirements. There are varying opinions on this, with some arguing that the current practice of simply having the Board approve and adopt a policy is enough. That would seem to make sense in light of the Court of Appeals’ decision in the Lehman case. However, there are other items that are not considered in taking this approach.
The method used to adopt a Board Policy in the Lehman case was able to be challenged all the way up to the Missouri Court of Appeals. While the court ultimately sided with the district, just imagine the amount of time and expense involved in the case – especially when it comes to legal fees. If a district were to maintain its current process then, it could find itself in a situation like what occurred in the Lehman case, and end up fighting a legal battle all the way up to the Missouri Court of Appeals. Additionally, if a district ended up in a lawsuit like this, it would not be able to point to anything it did in an attempt to comply with the law in the wake of the Lehman case, which likely would put the district in an unfavorable light.
Another aspect that is not taken into account is how easy it would be for a district to show that it made an effort to substantially comply with the statutory requirements. All that would be necessary is 3 simple steps. First, all Board Policies should be reviewed to see if they have the necessary signatures of the Board President and the Board Secretary. Second, for those policies that don’t, the Board should adopt and sign a resolution that will accompany each policy currently in place. The following language for the resolution can be used:
The Board acknowledges a review of all Board Policies currently in effect, as previously adopted by the Board. In light of the October 16, 2018 decision in Lehman v. Fox C-6 School District, Case No. WD-81432, which determined that substantial compliance with the requirements of Section 171.011 RSMo is all that is required for each policy of the Board of Education to be effective, this Board now adopts this resolution, which is signed by the Board president and attested by the Board secretary, upon authorization of the Board as a whole. This signed resolution shall accompany each policy currently in place, and shall function as signature by order of the Board for said policies. Policies that are amended or adopted after the date of this resolution shall be individually signed by the Board president and Board secretary by order of the Board.
This resolution will cover all policies that are currently adopted by the District. The final step is to simply ensure that policies adopted after passing this resolution are signed by the sitting Board President and Board Secretary.
These 3 simple steps will put a district in a much better position moving forward; and if a district ended up in a lawsuit like the Lehman case, it would be able to show that it made an effort to substantially comply with the law.
Should you have any questions about this topic or any other legal issues, please contact any one of our offices for specific legal guidance.