Less Is More: An Approach To Board Policies

Board policy manuals can become labyrinthine, running to dozens or over a hundred individual policies. Policy services provide sample policies on a broad array of subjects. Does that mean a school district or BOCES has to have a policy on each available subject, or are there reasons to use a more restrained approach?

Potential policies can generally be divided into four groups. First, some policies are directly required by law, such that every school district or BOCES must have them in place. A well-known example is the policy required by the Dignity for All Students Act, by which the school district or BOCES seeks to create a school environment free from harassment, bullying, and discrimination.

The second category concerns policies fundamental to the operation of a school district or BOCES, such as those establishing the number, qualifications, and terms of office of members of the board of education. Of course, every school district or BOCES should have such policies.

The third category is relatively small, consisting of policies that are not strictly speaking required by law, but the existence of which confers such potentially significant benefits as to make their inclusion practically indispensable. Again in the harassment realm, a good example is a policy prohibiting discrimination on the basis of the various characteristics protected by law (sex, race, religion, and disability, among others) and providing a means for an employee to report and seek correction of discriminatory or harassing behavior. The existence of such a policy can provide a defense in a discrimination lawsuit, particularly if the employee unreasonably failed to avail himself or herself of the opportunity to report the alleged offending conduct.

The last category is everything else – policies that are not required, not fundamental to the operation of an organization, and not so beneficial as to make their inclusion obviously appropriate. Institutions may employ such policies to address recurring issues or situations, or to ensure consistency in the future once an approach to a complex question has been settled upon.

Our firm has suggested that school districts and BOCES turn a skeptical eye toward addressing such matters as policies. While there may well be good reasons for adopting a policy on a particular “nonmandatory” topic, it should be considered that policies assume a uniquely significant position in the environment of rules and procedures of a school district or BOCES. They are generally treated by the courts and government agencies as local “laws,” and their violation can lead to liability where it otherwise might not have existed. For example, if a lawsuit is brought for alleged negligence of a school district or BOCES, and the plaintiff can show his or her injury was due to a situation that was inconsistent with an existing policy, he or she may prevail where the outcome might have been different if the policy did not exist.

Further, while such discretionary policies may provide helpful guidance and facilitate consistency, they may also serve to limit a district’s flexibility to respond to a given situation in the most efficient and effective manner. Again, once a policy exists, it is binding on the organization, and can only be revised by the board of education, which may not be able to meet in time to address an urgent need to change the approach on an issue.

Another difficulty posed by extensive policy manuals is that it may be difficult to remember what issues are covered. In the heat of an emerging situation, it can be missed that an applicable policy exists, and the necessity of making quick decisions may lead to actions inconsistent with the forgotten policy. To the extent a policy is being considered to provide clarity if a situation arises in the future, or to ensure consistency in future similar situations, consider whether a written procedure or strong recordkeeping would suffice in place of a policy.

Another issue that may arise a result of extensive discretionary policies is the failure to update them to reflect changes in the law. Reliance on an outdated/unlawful policy can lead to potential legal liability and unwanted and unintended consequences.

We generally advise favoring streamlined policy manuals over manuals that attempt to address every situation or issue with its own policy. Review of policy manuals on a regular basis is always recommended. Some of that review may include culling those policies that are not necessary and/or that impose obligations on a school district greater than those required by law. Legal counsel can assist in identifying policies that threaten to create more issues than they may solve.