NEW ROCHELLE, NY — The New Rochelle Board of Education will hold a public discussion of recommendations by their law firm on fundraising in their schools at their October 7th meeting after Talk of the Sound raised concerns about an employee “inspired” fundraising drive ostensibly to “Support the Bahamas”.
The value of any recommendations by their law firm, Ingerman Smith LLP, are dubious given the deeply flawed legal analysis delivered to the Board yesterday, and provided to Talk of the Sound.
Ingerman has erroneously claimed the “Support the Bahamas” fundraising is permissible:
- The fundraising “appears to be an arms-length transaction (i.e. kids purchasing bracelets and candy)”.
- The fundraising is “not occurring during class time”.
- The fundraising is “occurring in a common area of the high school (a hallway) “.
- The fundraising is “passive in the sense that the table is set up in the common area and those students who wish to purchase the bracelets and candy can stop and purchase them in between classes or during free periods”.
- The fundraising is “not coercive in any way, especially because the students involved are high school aged students”.
The law prohibiting fundraising in public schools is simple, clear and brief – one sentence. New York State Regents Rule 19.6 states:
Direct solicitation of charitable donations from children in the public schools on school property during regular school hours shall not be permitted.
While there are exceptions to fundraising, none apply here.
There is so much wrong with this child-like “legal analysis” it is hard to know where to begin.
The criteria in Regents Rule 19.6 is not a prohibition of fundraising “during class time” but rather “during regular school hours”.
Regular school hours means continuously from the first bell of the day to the last.
The school day at the high school begins at 7:22 a.m and, four days a week, from Monday through Thursday, ends at 9:40 p.m. Class time occurs in 48 minute increments with 4 minutes between each class and a 53 minute gap between day school and night school. On Fridays there is no night school so the school day ends at 3:07 p.m.
Ingerman is erroneously claiming that fundraising is permitted between classes, 8 times during the school day, 7 times for 4 minutes plus 1 time for 53 minutes, for a total of 81 minutes a day.
Regents Rule 19.6 says fundraising can take place for zero minutes during regular school hours, between the start of the school day at 7:22 a.m. and the end of the school day at 9:40 p.m. except on Fridays when the school day ends at 3:07 p.m.
That an education lawyer would feign to not know this is troubling.
It gets worse.
Regents Rule 19.6 prohibits fundraising “on school property”.
Ingerman says fundraising is permissible because it is occurring in a “common area” (i.e., a hallway),
Hallways at the high school are, obviously, on school property; fundraising is prohibited anywhere in the high school and that includes hallways.
Ingerman says selling candy as a fundraiser is permissible. That would be news to New Rochelle High School cheerleaders who for years sold chocolate in the high school as their main fundraiser. They were prohibited from doing so.
New York State Education Law Article 19 – Section § 915. Prohibiting the sale of certain sweetened foods states:
From the beginning of the school day until the end of the last scheduled meal period, no sweetened soda water, no chewing gum, no candy including hard candy, jellies, gums, marshmallow candies, fondant, licorice, spun candy and candy coated popcorn, and no water ices except those which contain fruit or fruit juices, shall be sold in any public school within the state.
Board Policy 3740 – Selling of Competitive Foods states:
Organizations, students, faculty members, or other persons are not permitted to sell food or beverages of any type during the school day. This shall include but, not be limited to, vended sales, candy sales, ice cream sales.
The New Rochelle School Lunch Program reserves all rights regarding food and beverage sales. The School Food Service Director, alone will decide the best way suited to offer food for sale. This will include but not be limited to, over the counter, remote stations, vending, and catered sales.
The federal Healthy, Hunger-Free Kids Act of 2010 and policy recommendations from the School Wellness Committee also apply.
The tweet published by the City School District of New Rochelle says the students were “inspired” by an employee. This suggests that the fundraising has been orchestrated by an employee who put students to work collecting money for some vaguely defined purpose.
In 2010, another employee engaged in similar “for the people of Haiti” fundraising then pocketed the money to buy a plane ticket for herself to fly to Haiti and visit with her family.
Ingerman says the fundraising is “not coercive in any way, especially because the students involved are high school aged students”.
This is a double red-herring.
Regents Rule 19.6 does not say anything at all about the fundraising being coercive — the use of force or threats. So, this legal analysis applies a standard that does not exist in the law.
Likewise. 19.6 says nothing about the age of the students. That said, the vast majority of students at the high school are minors, under the age of 18, and many are as young as 13 or 14 years old. High school students are children. Ingerman itself describes the fundraising activity as “kids purchasing bracelets and candy”.
ARM’S LENGTH TRANSACTION
One of the most bizarre “legal arguments” offered by Ingerman is their rather unique understanding of “arm’s length transaction” which is commonly understood to be a business deal in which the buyers and sellers act independently and do not have any relationship to each other. Contradicting that, the tweet contains a photo of a student handing cash over to another student. This is the very opposite of an arm’s length transaction, a direct cash transaction from hand to hand.
The idea that the Bahamas fundraising is “passive” is ludicrous.
Passive fundraising refers to something like a food drive where a box is set up and canned foods can be left anonymously in the box, not that students (and adults) set up a table and solicit donations as students walk past as they move back and forth between classes during the school day.
The whole point of Regents Rule 19.6 is so that no student feels stigmatized because they cannot participate in the activity. In this case students contribute in full public view of other students in a hallway and are then given a wristband to wear. Those who do not participate go without.
The legal analysis by Ingerman should be an embarrassment both to the firm and their client.
But let’s just pretend for a moment this inane legal opinion makes sense.
What is the criteria to determine which causes merit the real estate that allows one group to set up a table in a hallway (while we are it, let’s pretend that blocking entry and egress is not an issue)? Why is “hurricane victims in the Bahamas” a more worthwhile cause than say breast cancer, domestic violence, ALS. autism, aids research, pediatric cancer and a million other charitable causes?
What protocol is used to vet applications to raise money? Where are the application forms? Who makes the decision to select one cause over another? Is there a committee? Is there a transparent process?
Who decides what is a legitimate charity? “support the Bahamas” is not a charitable organization. So who are they raising money for? There are laws about this in New York State so are these activities in compliance with state law regarding charitable fundraising?
What financial controls are in place? Who is documenting how many items are sold? Who is counting the cash? Who is auditing where the money goes?
What prevents anyone from deciding to set up shop and raise money for whatever they want so that students have to run a daily gauntlet of people at tables hawking trinkets?
New Rochelle is a school district with a long history of corruption, especially as regards handling cash. To not only allow but encourage and promote the sort of illegal fundraising put on display by the District’s public relations department is to invite further corruption.
The law is clear. The solution is simple. No fundraising during regular school hours on school property no matter the purported worthiness of the cause, no matter the age of the students, or that it occurs on a boat, with a goat, in the rain, in a tree, in a car, in a box, with a fox, in a house, with a mouse or here, there or anywhere else that is on school property.
The board would be better served by simply banning anything that even looks like illegal fundraising — not have their lawyers concoct inane leg theories to attempt to retroactively justify illegal fundraising.