October 27, 2020
Office of the Attorney General
Maryland State Department of Education
Attn: State Board Appeals
200 St. Paul Place
Baltimore, MD 21202
The below listed appellants are filing an official appeal to reverse the Anne Arundel County
Board of Education’s (the local board) October 7, 2020, decision to reopen schools.
Background
At the October 7, 2020 Anne Arundel County Board of Education General Meeting, two options
were introduced regarding the reopening of Anne Arundel County Public Schools (AACPS).
(Tab 1) The local board voted 5-3-11 to reopen schools per “Option One”, introduced by Melissa
Ellis (Tab 1), with planned start date for ECI/Pre-K to 2nd grade on November 16, 2020 and 3rd to
5th grade on November 30, 2020. On October 8, 2020, AACPS announced its October 2020
Reopening Plan on the AACPS website, including an online family registration form for families
to submit their choice of one of three learning modules2 for each child, along with meal and
transportation options. The original deadline for submitting the family registration form was
October 15, 2020 at midnight: AACPS subsequently moved the deadline to October 19, 2020, at
5:00pm. On October 12, 2020, one of the appellants sent an email to Superintendent Arlotto and
members of the local board, requesting a halt to the reopening plan and outlining many of the
legal infractions cited in this appeal. (Tab 2) On October 21, 2020, the local board held a general
meeting but did not vote to halt the reopening plan.
Standard of Review
13A.01.05.06.(A-E) Standard of Review. “A. General. Decisions of a local board involving a
local policy or a controversy and dispute regarding the rules and regulations of the local
board shall be considered prima facie correct, and the State Board may not substitute its
judgment for that of the local board unless the decision is arbitrary, unreasonable, or
illegal. B. A decision may be arbitrary or unreasonable if it is one or more of the following:
(1) It is contrary to sound educational policy; or (2) A reasoning mind could not have
reasonably reached the conclusion the local board or local superintendent reached. C. A
decision may be illegal if it is one or more of the following: (1) Unconstitutional; (2)
Exceeds the statutory authority or jurisdiction of the local board; (3) Misconstrues the law;
(4) Results from an unlawful procedure; (5) Is an abuse of discretionary powers; or (6) Is
affected by any other error of law. D. The appellant shall have the burden of proof by a
preponderance of the evidence. E. State School Laws and Regulations. The State Board
1

Five Board members voted for Option One, three Board members voted for Option Two and one Board member
abstained.
2
The three learning module options were Hybrid-Plus (i.e., 2 days in-person 3 days virtual), Virtual-Half Year (i.e.,
virtual learning for the rest of the 1st semester, or Virtual-Full Year (i.e., virtual learning for the rest of the 20202021 academic year).

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 shall exercise its independent judgment on the record before it in the explanation and
interpretation of the public school laws and State Board regulations.”
In accordance with 13A.01.05.06. and based upon the findings of actions of an arbitrary,
unreasonable, and illegal nature as set forth below, the appellants are appealing the local board’s
October 7, 2020, decision to reopen schools.
Specifically, per 13A.01.05.06.(A), the Maryland State Board of Education (the State Board) can
substitute its judgment for that of the local board if the local board’s decision (the decision) was
arbitrary, unreasonable, or illegal. The appellants of this appeal find that the local board’s
decision to reopen schools, and AACPS’s subsequent changes to the plan, to be arbitrary and
unreasonable as defined under 13A.01.05.06.(B)(1) (i.e., it is contrary to sound educational
policy) and that the decision was illegal as defined under 13A.01.05.06.(C)(3) and(6) (i.e.,
misconstrues the law and is affected by other errors of law).
Therefore, the appellants request that the State Board reverses the decision and order the local
board to halt the reopening plan until a new plan, to be implemented no earlier than the second
semester of the 2020-2021 school year, is finalized for review.
Findings of the Local Board’s decision based on acts or omissions of an arbitrary,
unreasonable, or illegal nature.
The appellants assert that the local board has violated the following local, state, and federal laws,
regulations, and policies:
Lack of Spanish translation
The appellants assert AACPS is violating federal law with a failure to translate into Spanish all
materials and communication connected to the reopening plan. Per federal law, schools must
communicate information to limited English proficient parents in a language they can understand
about any program, service, or activity that is called to the attention of parents who are proficient
in English. Specifically, in Lau v. Nichols (1974), the Supreme Court determined that in order
for public schools to comply with their legal obligations under Title VI of the Civil Rights Act of
1964, they must take affirmative steps to ensure that students with limited English proficiency
can meaningfully participate in their educational programs and services. That same year, the
Equal Educational Opportunities Act (EEOA) was passed, which confirmed that public schools
and state educational agencies must act to overcome language barriers that impede equal
participation by students in their instructional programs. Such requirements include providing
families with limited English all materials provided to families that are proficient in English.
All information on virtual learning and the reopening of schools must be relayed to all families,
and that includes families with limited English proficiency. This has not been the case, with
AACPS failing to provide translations of the weekly updates, Board meetings and workshops to
its large population of Hispanic families. Of equal importance a review of the AACPS found the
following information is not accessible in Spanish:

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 •
•
•
•
•
•
•
•
•

Family Registration Form3
Sample Family Registration Form
October 5, 2020 Anne Arundel Health Office Presentation
All graphs posted on the Hybrid Plan page
Document descriptions on the Safety Protocols page
Hybrid Plan Parameters Chart
Learning Module at a Glance Chart
Fall 2020 Survey results
AACPS News Releases

Given the significance of the reopening plan for all 85,000+ families enrolled in AACPS, and the
numerous areas AACPS has failed to provide Spanish translation for information related to
reopening, the appellants assert AACPS is in violation of EEOA and Title VI. Furthermore, the
lack of Spanish translation has a direct negative impact on Hispanic families’ ability to determine
the best option for their child(ren), which is contrary to providing a sound educational policy for
all AACPS students. Therefore, the local board’s decision authorizing AACPS to proceed with
the reopening plan before everything is translated into Spanish was both arbitrary or
unreasonable and illegal, per §§ 13A.01.05.06.(B)(1) and 13A.01.05.06.(C)(6).
Student Privacy/Confidentiality
Individuals with Disabilities Education Act (IDEA) 34 CFR § 300.623(a). Safeguards.
“Each participating agency4 must protect the confidentiality of personally identifiable
information at collection, storage, disclosure, and destruction stages.”
COMAR 13A.08.02.04.B "Individual student records maintained by teachers or other
school personnel under the provision of this title are to be confidential in nature, and access
to these records may be granted only for the purpose of serving legitimate and recognized
educational ends."
Family Educational Rights and Privacy Act (FERPA) 20 U.S.C. § 1232g; 34 CFR Part 99
bars the disclosure of personally identifiable information (PII) in student education records
to third parties without parental consent.
American School Counselor Association (ASCA) Ethical Standards for School Counselors
A.2.m states school counselors should advocate for safeguards and protocols to protect
student confidentiality, and A.10.b states school counselors should advocate for student
safety at school.
On October 15, 2020, AACPS issued new guidance for the reopening plan stating that students
attending school in-person would get provided special services (e.g., special education,
3

While the appellants appreciate the notice at the top of the registration form to contact a bilingual facilitator if
needed, it is not sufficient to meet the needs of all Spanish-speaking families. As such the registration form should
be in Spanish too.
4 Per 34 CFR § 300.611(c), participating agency means any agency or institution that collects, maintains, or uses
personally identifiable information, or from which information is obtained, under Part B of the Act.

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 counseling) while in the classroom during the two-hour mid-day break. (Tab 3) Additionally,
AACPS stated volunteers would be used to monitor the students during this two-hour break
(lunch, recess, and other time). (Tab 3)
The appellants assert that providing students with counseling in proximity of other students and
staff/volunteers is a violation of the student’s confidentiality/privacy. Whether the counseling is
part of an Individualized Education Plan (IEP) or a stand-alone service, it should never be done
in front of other students, staff, or volunteers. Not only will it violate the student’s privacy but
will force the counselor to violate ASCA ethical standards in maintaining confidentiality.
Additionally, providing certain push-in services, including counseling, in proximity of other
students and staff/volunteers has the potential to unnecessarily disclose a hidden disability and/or
violate confidentiality of a student’s education record. The appellants find when special services
are provided, it should be considered in the collection stage per IDEA 34 CFR § 300.623(a),
given most services will be recorded into a student’s education record. As such, services should
not be performed in front of people not privy to the student’s education record. This includes
volunteers. Given there would be a limited number of in-person days for the first semester, the
appellants do not find volunteers to qualify as school staff with a direct interest in students’
education, and thus will not be aware of the student’s needs. Any information from a student’s
IEP or 504 plan, that is shared with a third party (e.g., volunteer) without a parent’s written
consent, would be in violation of confidentiality laws under IDEA Parts B and C and FEPRA.
The appellants find that providing pull-in special services and or counseling services that
normally would not be conducted in the general classroom will both limit the student’s ability to
focus on the service and distract other students from their activities during that timeframe, thus
being contrary to providing a sound educational policy for all AACPS students. Given that any
content and/or updates to the content in the plan have a direct connection to the local board’s
decision, AACPS’s update to the plan to provide pull-in services is both arbitrary or
unreasonable and illegal, per §§ 13A.01.05.06.(B)(1) and 13A.01.05.06.(C)(3) and (6).
Equity and Masks
The appellants assert AACPS is discriminating against students by denying in-person learning to
students medically unable to wear a mask. On October 15, 2020, AACPS stated “There are no
exemptions for mask wearing for any student or teacher. It is important that each student and
their teacher wear masks for their own health and the health of all others in the classroom. If a
student cannot wear a mask for any reason, they should consider the Virtual-Half Year and
Virtual-Full Year models.” (Tab 4)
The Center for Disease Control and Prevention (CDC) states that a person who has trouble
breathing or otherwise unable to remove the face mask without assistance should not wear a face
mask or cloth face covering. The CDC also states certain people with disabilities might not be
able to wear a face mask, including individuals with asthma, autism who are sensitive to touch
and texture, cerebral palsy with limited mobility, or with post-traumatic stress disorder (PTSD),
severe anxiety, or claustrophobia who may feel afraid or terrified when wearing a mask 5
5

See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html

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 While the Americans With Disabilities Act (ADA) does not have rules specifically addressing
the required use of masks by state and local governments, a medically necessary exemption from
masking is considered a disability modification under the ADA. Title II of the ADA prohibits
disability discrimination in “programs and activities of state and local government entities.”
Additionally, state mandates requiring mask wearing do not override the consideration of
reasonable modifications required by the ADA. Of note, Governor Hogan’s executive order
provides the following exception “Paragraph IV.b.i .. does not require persons to wear Face
Coverings…if, due to a bona fide disability or medical condition, it would be unsafe for the
person to do so, [or] ii. to the extent wearing a Face Covering would impede communication by
or with persons who have a hearing impairment or other disability, where the ability to see the
mouth is essential for communication.” (Tab 5)
If a person with a disability is not able to wear a mask, state and local government entities must
consider reasonable modifications to a mask policy so that the person with the disability can
participate in, or benefit from, the programs offered or goods and services that are provided.
Public education is a service provided by a local government. Although the AACPS website
states students should “consider” virtual learning if they are unable to wear a mask, AACPS staff
have repeatedly stated no one will be allowed to participate in the hybrid model if they do not
have a mask. This denial of a student’s ability to participate in in-person learning is
discriminatory by nature, given students who cannot wear masks for medical reasons are not able
to have equal access to in-person learning that their peers can participate in. Virtual learning is
not the same as in-person learning and students who cannot wear masks may need in-person
learning for an appropriate education. Additionally, there was a court ruling in Maryland
confirming people with disabilities who cannot wear masks are protected under the ADA. In
KOA v. Hogan (May 20, 2020), the face-covering requirement included an exception based on
guidance from the Maryland Department of Health: “People with disabilities who are unable to
wear a mask are provided reasonable accommodations per the Americans with Disabilities Act.”6
The appellants find that the denial of in-person learning to anyone medically unable to wear a
mask to be contrary to providing a sound educational policy for all AACPS students. Given that
any content and/or updates to the content in the plan have a direct connection to the local board’s
decision, AACPS’s update to deny medical exemptions for mask wearing is both arbitrary or
unreasonable and illegal, per §§ 13A.01.05.06.(B)(1) and 13A.01.05.06.(C)(6).
Violating Contract Law
The appellants assert that the current family registration agreement (the registration agreement)
is in violation of basic contract law. As set forth under the law, a contract consists of a legally
binding agreement or promise between parties in either written or oral form. The agreement must
be voluntary and be made by competent parties. The promise or agreement must be supported
by an exchange of something of value; e.g. goods or services and this exchange must be legal.
Additionally, the contents within a contract must include 1) an offer by one party to perform an

6

See
https://scholar.google.com/scholar_case?case=612045170386328119&hl=en&as_sdt=6&as_vis=1&oi=scholarr

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 act or to refrain from performing the act; 2) an acceptance of the offer by the other party; and 3)
consideration, e.g., the value to each party by entering into the contract.
In this instance, the family registration agreement meets the standards of being a contract. As
cited earlier, it is offering families three choices of learning modules (i.e., hybrid, virtual for the
semester, or virtual for the school year), along with meal and transportation options.
Parents/guardians “accept” the offer by clicking the desired option and signing the registration
agreement. And there is consideration of the value of each party entering into the agreement,
both with the contents of the agreement and the fact the signature block has the following
language that the person signing must attest to: “I hereby declare and affirm under penalties of
perjury that the foregoing information is true and correct to the best of my knowledge,
information and belief.” The registration agreement includes the following statement “Take your
time to review the models on the October 2020 Reopening for Families website before making
your selection below.” (Tab 6)
However, since the family registration agreement was first announced on October 8, 2020,
AACPS has continued to update the contents on its website related to the reopening plan, which
changes protocols (e.g., no learning stations to some learning stations) or adds protocols that can
directly impact a family’s decision (e.g., no medical exceptions for mask wearing). As such,
AACPS is violating contract law by continuing to edit/update the plan after the registration
agreement is signed by families. The fact that families can change its decision up until the
deadline does not negate the fact that no contract should ever be updated after it is signed by a
party, and that is exactly what is happening whenever AACPS adds more information to the
reopening plan that it specifically told families to review prior to making a selection.
Furthermore, AACPS did not inform families every time information was updated on the
website, thus making it impossible for all families to know when certain protocols changed after
the family signed the registration agreement.
Additionally, the appellants assert that the registration agreement includes language that requires
families to make a commitment for the whole school year, while providing incomplete options to
choose from. Specifically, the registration agreement states:
“Bus Optional. If you intend for your student to ever use AACPS bus transportation, please tell
us now as we have to plan for the reduced number of students who can ride the bus at any one
time. It is important for us to know if you will ever ride the bus so we can allocate a seat for you
(Check all that apply).
• My student will be a hybrid learner and will use morning bus transportation from my
neighborhood to school on most days.
• My student will be a hybrid learner and will use afternoon bus transportation from the
school back to my neighborhood on most days.
• My student will be a hybrid learner and will use AACPS bus transportation occasionally.
• My student will be a hybrid learner and will not use AACPS bus transportation.” (Tab 6)
AACPS’s use of “ever” (i.e., If you intend for your student to ever use AACPS bus
transportation” and “It is important for us to know if you will ever ride the bus”) is misleading
since it implies committing to transportation at any point during the student’s time in AACPS, or
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 at least at any point during the 2020-2021 school year. However, the options given are only
indicative of hybrid learners and do not give families opting to do virtual for the first semester to
indicate if they might use transportation in the second semester. While the intention may have
been to only be committing to the first semester, this is a binding agreement and thus such
language makes a difference in requiring families to decide for the whole year.Given that any
content and/or updates to the content in the plan have a direct connection to the local board’s
decision, AACPS’s breach of contract when updating the plan after families signed it is illegal,
per § 13A.01.05.06.(C)(6).
Violating Public Comment Policy
The appellants assert that the local board is in violation of its own policy by failing to provide
opportunity for public comment after an agenda item is presented at a meeting. Board Policy
BCB(c)(3) specifically states “Public comments shall also be permitted after official presentation
of each item on the Board agenda. (Tab 7) Since the local board went to virtual meetings after
the closure of public schools was declared in Maryland on March 12, 2020, no live public
comment has been allowed: only advanced written public comment is accepted. Of note, the
October 5, 2020, and October 6, 2020 local board meetings, along with the October 7, 2020,
local board general meeting, did not include opportunities for the public to provide comment
after agenda items were presented during the meetings. The public had limited time to review
the proposed reopening plan prior to the meetings and additional information was shared at all
meetings, including on October 7, 2020, that would impact public comment prior to a vote.
Other government agencies, including the Anne Arundel County Council have established
methods to allow the public to provide comment in real time during virtual meetings. The local
board’s failure to develop appropriate mechanisms for public comment after the official
presentation of an item on the agenda is in noncompliance of Board Policy BCB. As such the
appellants assert no vote should be taken without proper access to public comment at the time the
agenda item is set forth for discussion. Given the magnitude of the decision on all of AACPS
families and staff and the local board’s failure to provide opportunity for public comment on
such vital agenda items after presented at the meeting(s), the local board’s noncompliance to
Board Policy BCB is illegal, per §§ 13A.01.05.06.(C)(3) and (6).
Inequities within the reopening plan
The appellants assert the current reopening plan will result in inequities with certain
demographics, as indicated below.
AACPS stated that “students whose registration forms have not been received by the deadline on
10/19/20 will default to the Virtual-Full Year model.” (Tab 8) The appellants find this automatic
default to virtual full year to be unacceptable and inequitable treatment of families unable to
access the registration agreement online. There are many reasons families may not submit the
registration agreement by the deadline (e.g., limited proficiency in English, no internet access,
parents sick or on travel the last two weeks) and AACPS should be contacting each family
directly if they fail to register. This is a binding agreement and AACPS has not made any

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 statements that changes can be made if committing to virtual full year. No family should be
automatically placed in a module that will last for the rest of the school year.
AACPS stated that “temperatures must be checked at home before coming to school every day.”
(Tab 9) However, not every family has thermometers to take temperatures at home, and there
are no stated support mechanisms to ensure those families will be able to check their child(ren)’s
temperature every day. The appellants find it inequitable to require families to do safety checks
if they are unable to have the resources to do so.
Given any content and/or updates to the content in the plan have a direct connection to the local
board’s decision, AACPS’s requirements to automatically place students in the Virtual-Full Year
module if they didn’t respond to the registration agreement, along with requiring all families to
do safety checks at home with no extra support or resources are discriminatory and inequitable in
nature and thus contrary to providing a sound educational policy to all students. Thereby, the
local board’s decision by way of AACPS’s actions is arbitrary or unreasonable per §§
13A.01.05.06.(B)(1).
Inaccurate and confusing information on AACPS’s website
The appellants assert AACPS’s website includes the following inaccurate information regarding
the reopening plan:
In the Hybrid section it states “Hybrid Learning - (in-person and virtual) for the First Semester
Through the End of January 2021” but then states “Students will consume lunch at their desks.
Food and Nutrition Services will deliver meals (breakfast, lunch, snack, and dinner) to the
classroom for students through December 31 (see details under “Meals” section below). Students
may choose to bring their own lunch, if they wish.” (Tab 10) The last day of the first semester is
January 29, 2021. Stating meals will be delivered until December 31, 2020, implies no meals
will be offered during the month of January. This is not only confusing to families but raises
additional concerns for students who rely on the free and reduced meal plan.
Given any content and/or updates to the content in the plan have a direct connection to the local
board’s decision, the above language is misleading at best and discriminatory if meals are not
provided in January, thus being contrary to providing a sound educational policy to all students.
Thereby, the local board’s decision by way of AACPS’s actions is arbitrary or unreasonable per
§§ 13A.01.05.06.(B)(1), with the potential to be illegal per § 13A.01.05.06.(C)(6).
Not adhering to Parliamentary Procedure
The appellants assert the local board and AACPS are not adhering to the actual wording in the
October 1, 2020, decision. Specifically, the current reopening plan is not in accordance with the
actual motion passed on October 7, 2020. The motion passed with five votes stated:
“I move that the Board accept the Superintendent’s recommendation to moving forward
slowly & incrementally as he has outlined, recognizing that the Board will expect the
Superintendent to continue to improve the plan with consideration to concerns expressed
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 by parents and classroom teachers, and will expect to receive regular reports on progress
and any new developments at each of our future meetings, and that we would reserve the
right to request or approve adjustments to the reopening plans as circumstances in the
schools may warrant.” (Tab 1)
The Superintendent stated at the October 7, 2020, meeting that his recommendation was to stay
in virtual learning while bringing in certain students (e.g., selected special education students,
English Language Learner students, students attending CAT centers). This can be verified on the
video recording of the meeting. The local board is responsible for adhering to Robert’s Rules of
Order unless otherwise stated in local board policy. As such, both the local board and AACPS
are obligated to follow exactly what is stated within motions voted upon. Judges rule in
accordance to the “letter of the law”, not the “spirit of the law”, hence if this was brought before
a court of law, the ruling would be to halt the hybrid plan and follow Dr. Arlotto’s
recommendation to stay virtual. Therefore, given the specific wording in the motion passed, the
appellants seek that the local board implements the superintendent’s recommendation to stay
virtual for the time being while bringing in certain student groups.
Additional Concerns
Students’ Health, Safety, and Welfare
The appellants assert that the use of volunteers to monitor students during the two-hour break
will put the health, safety, and welfare of students with special needs at risk given the volunteers
will not be trained to interact on a physical and emotional basis with students with certain
disabilities or needs. Moreover, as cited on page 4, volunteers will not be aware of the student’s
needs given it would be a violation of IDEA and FEPRA to share any information from a
student’s IEP or 504 plan without a parent’s/guardian’s written consent.
PII of Free or Reduced Lunch
The National School Lunch Act (NSLA) of 1946 (79 P.L. 396, 60 Stat. 230) applies to all
schools receiving federal education funds, and protects confidential eligibility and income
information collected by schools to determine whether a child may receive free or reduced priced
lunch (FRL) or free milk under the National School Lunch Program. Overt identification of FRL
students is prohibited by NSLA. The appellants are concerned that if free meals are not provided
to all students at any point during the hybrid module, FRL students may be unnecessarily
identifiable when receiving meals in the classroom.
Title I School support
If students attend a Title 1 school and are placed with teachers from a non-Title I school, there is
nothing in the plan that guarantees the students will have access to the Title I supports they are
entitled to per federal law.

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 IEP and 504 pIu/lx.

Similnr lo Tille 1 resources, lhe ourrenr plan has In plnce ro ensure IEPs 504 
nre fully reenforcedr us required under federal law

Conclusion
Bused on Ihe numerous findings of nn mbilrary' unrensonnble Illegal nnrure us cued Above
Ihe nre requesling lhe Slnre Bonrd reverses lhe decision order lhe locnl boaId
Io linlr the reopening unul new plans lo be implemenled no enrlier rlinn Ihe second

semesler of Ihe 202072021 school yeaL IS finalized for review.

you for your hill nuenrion lo lnese nmllers permimng ro Ihe decision oi our locnl bonrd ro
reopen AACPS schools



India Ochs

JESSICA Pachler

Smcey Godfrey

Currie Kennedy

Chelsea Treadwell

Enclosures

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