New Jersey State Bar Association (NJSBA) School Law Committee Chair Arsen Zartarian serves as deputy general counsel of the Newark Public Schools, the largest school district in New Jersey, with approximately 35,000 students. In addition to his litigation responsibilities, Zartarian provides daily legal advice to school administrators who supervise a workforce of more than 7,000 employees. With the pandemic affecting so much of society, including the schools, the Bar Report asked Zartarian about its legal ramifications in school law. This interview was lightly edited for space and clarity
What is the NJSBA School Law Committee working on?
The NJSBA School Law Committee is comprised of lawyers representing diverse points of view—those of us who represent boards of education, union counsel who represent teachers/administrators, practitioners who primarily represent parents/students. Though the committee is relatively small, most of us have been active for years, and although we zealously represent our clients, we share mutual respect.
Our last meeting was perhaps the most fruitful one in a long time. Rather than having a speaker or focus on one topic, we held an open forum to discuss how the pandemic has affected our practice. Everyone shared the common goal in trying to get the system back on track. Two of the more significant outcomes of that meeting were recommended letters to the Office of Administrative Law, which the NJSBA Board of Trustees supported, regarding transitioning from virtual back to in-person hearings, and the Department of Education, requesting clarity on the propriety of the use of virtual instruction on an individual basis for students in special circumstances.
What kind of legal issues has COVID presented to schools and school boards?
When the governor issued Executive Order 104, suspending in-person instruction, schools had to pivot and determine how to deliver remote and hybrid instruction. Many districts expedited contracts with online platform providers and had to provide training to staff, students and parents on the use of videoconferencing technology. Certain districts had to distribute Chromebooks to students, buy accessories for staff laptops, and have information technology staff available at all hours. Districts also had to ensure that food service employees were still working to provide breakfast/lunch to eligible households, and make arrangements for custodial staff to work safely and maintain a clean and sanitary environment. Households with multiple children and not enough laptops presented a challenge, as did parents who were essential workers and not available to assist school staff in facilitating delivery of remote services or meet-ups.
Virtual instruction then presented its own issues. For example, besides coordination of times and technology, we had questions regarding the conduct of staff or parents on video, political signs in the classroom, and privacy concerns. Observations/evaluations of staff became a statewide issue, as did the manner to appropriately use supplementary staff such as one-on-one aides, and standardized testing and attendance. Besides procurement issues in purchasing items needed on an expedited basis to provide virtual instruction, conversely, boards had to deal with the contracts of vendors who suddenly were not needed, such as transportation companies, which later spawned action from Trenton. Board meetings were switched to virtual platforms and policies were revised to ensure public participation and other logistics.
Once schools were preparing to reopen, districts had tremendous obligations regarding facilities maintenance, along with procurement of items such as air filters, thermometers, new desks, dividers, sanitizer and cleaning products, masks and signage. Districts were required to establish a screening mechanism and finalize safe return plans. We were flooded with employees requesting accommodations and medical exceptions. Districts had to restrict visitors and vendors and establish procedures on notices, quarantine, closures, and expedited cleaning when positive cases materialized.
Currently, we are trying our best to return to normalcy, but schools are struggling with staffing shortages, particularly as we confront a new variant, similar to other industries. In addition to educators, tutors and service providers, districts nationwide have had significant issues retaining bus drivers and per diem aides, all of whom provide essential functions. Screening of students and other mitigation measures remain in place, despite “COVID fatigue” or resistance. We are still dealing with requests for accommodations, medical and religious exceptions, and positive cases and quarantines. We are partnering with health agencies and arranging for vaccinations in our schools. Special education service providers are having meetings to determine the best way to assist classified students who may have missed services or regressed. Students may have more discipline issues on resuming school after being home for extended periods of time. Schools are enhancing programs to address all students’ social and emotional needs. More employees have health needs or, at a minimum, are taking advantage of employee assistance programs.
As districts grapple with the pandemic, the tenor and tone has changed at some school board meetings in New Jersey and across the country. What kind of legal concerns, such as public participation, are school law attorneys handling?
Many districts around the country have struggled with appropriately responding to a rising temperature of public comments addressing everything from school curriculums to pandemic restrictions, with accompanying threats of violence against administrators and board of education members. In fact, on Oct. 4, United States Attorney General Merrick Garland even issued a memorandum recognizing “a disturbing spike in harassment intimidation and threats of violence against educators and school board members,” and ordered federal law enforcement authorities to consult with local officials.
In New Jersey, we had an executive order that mandated statewide mitigation measures, and boards of education and school officials were in a position where they had to explain that to the public speakers, mainly because there was no option for individual districts to determine their own mask policy. Regardless, some meetings became unruly or overtaken by demonstrations.
Case law allows a public body to take certain actions in response to tangible disruption to the meeting and interference with the conducting of business. Boards have to consider what’s preferable: the undesirable optic of ushering people out of meetings and suspending speaking privileges, or news reports of an out-of-control, circus atmosphere. Enforcement of reasonable content-neutral restrictions, such as limiting a total number of speakers or the total time for public participation, as well as a limitation of the time allotted for each speaker, is usually the best way to manage the situation. Obviously, security measures should also be considered.