Education Law

“Do Not Let Your Self-Worth Be Defined By Bullies”

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“Jumping off the gw bridge sorry.” This was the “farewell message” of Tyler Clementi, an eighteen-year-old Rutgers University student, posted on Facebook after he discovered his roommate was spying on his sexual encounters with another man.

The Prevalence of Bullying

It almost goes without saying that bullying (and its technological brother, cyberbullying) is one of the most important topics of school law today. National surveys and studies conducted over the past several decades, along with the high-profile suicides of Clementi, Phoebe Prince, and Megan Meier, have provided startling information on the prevalence of bullying tactics both in person and through Internet channels of communication.

Indeed, “70 percent of middle and high school students have experienced bullying at some point,” with approximately 5 to 15 percent described as “chronic victims.”[1] Unfortunately, less than half actually report such incidents, and the short- and long-term effects on victims can be particularly devastating, such as depression, anxiety, poor health, and decreased academic performance and school participation.

How the nation has reacted has been as diverse as its population.[2] Efforts in Connecticut have been particularly extensive and comprehensive (as discussed here), though many States still find themselves unwilling, for whatever reason, to extend protections to particularly vulnerable groups of students, such as LGBT. Particularly shocking is the prevalence of laws specifically written to stigmatize LGBT students, mandating negative portrayal by the very faculty and staff we’d expect would protect students regardless of their differences.[3]

Liability in Cases of Harassment and Bullying

Courts appear more and more willing to subject school administrators, Boards of Education, and even towns to liability for the harms brought upon students at the hands of their peers. In the case of Tyler Clementi, however, the parents elected not to pursue litigation against the school or Tyler’s roommate because “[t]he family got to a place where they really felt an obligation and desire to use the publicity for positive purposes.”[4] Tyler’s roommate, Dharun Ravi, was convicted earlier this year of crimes related to the spying incidents,[5] though the seemingly lenient sentence has been widely called into question.[6]

If you personally or, if a parent, your child has been subject to bullying in school or on the Internet, it is imperative that you take to heart the message of Jennifer Livingston, a TV journalist thrust into the spotlight this past week regarding a viewer’s bullying of her weight:

To all the children out there who feel lost, who are struggling with your weight, with the color of your skin, your sexual preference, your disability, even the acne on your face. Listen to me right now. Do not let your self-worth be defined by bullies. Learn from my experience that the cruel words of one are nothing compared to the shouts of many.[7]

Written by Lindsay E. Raber, Esq.

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Should you have any questions regarding school bullying or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

 

[1]“Bullying: A Module for Teachers,” by Sandra Graham, PhD, of the American Psychological Association. Accessed September 24, 2012: www.apa.org/education/k12/bullying.aspx

[2] See, for example, the following info-graphic: http://en.wikipedia.org/w/index.php?title=File:School_bullying_laws_in_the_United_States.svg&page=1

[3] See, for example, “States with Safe School Laws,” by GLSEN. Accessed October 8, 2012: http://www.glsen.org/cgi-bin/iowa/all/library/record/2344.html

[4] “Tyler Clementi’s family decides not to sue,” by Dominique Debucquoy-Dodley. Published October 6, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/10/05/justice/new-jersey-tyler-clementi-lawsuit/index.html

[5] “Dharun Ravi apologizes for ‘childish choices,’ plans to head to jail,” by Logan Burruss. Published May 30, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/05/29/justice/new-jersey-ravi-sentence/index.html

[6] See, for example, “Is 30-day sentence fair for student who bullied gay roommate?” by the CNN “This Just In” blog. Published May 21, 2012. Accessed October 8, 2012: http://news.blogs.cnn.com/2012/05/21/is-30-day-sentence-fair-for-student-who-bullied-gay-roommate/

[7] “Star brother Ron Livingston defends ‘fat’ anchor sister, Jennifer,” by News Limited Network. Published October 5, 2012. Accessed October 8, 2012: http://www.news.com.au/entertainment/celebrity/tv-anchor-jennifer-livingston-takes-on-bully-who-criticised-her-weight/story-e6frfmqi-1226488835303

Special Needs Trusts in Connecticut

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A special needs trust is set up for a person with special needs to supplement any benefits the person with special needs may receive from government programs. A properly drafted special needs trust will allow the beneficiary to receive government benefits while still receiving funds from the trust. There are three main types of special needs trusts, but first it is important to understand how a typical trust works.

What is a trust?

A trust is really a relationship between three parties — a donor, who supplies the funds for the trust; a trustee, who agrees to hold and administer the funds according to the donor’s wishes; and a beneficiary or beneficiaries who receive the benefit of the funds. Often, but not always, the donor’s wishes are spelled out in a document that gives the trustee instructions about how she should use the trust assets.

Trusts have been used for estate planning for a long time, and are highly useful tools for ensuring that a donor’s property is administered as he sees fit. One of the reasons trusts are so popular is that they usually survive the death of the donor, providing a low-cost way to manage the donor’s assets for others when the donor is gone.

What is a Special Needs Trust?

A special needs trust is a trust tailored to a person with special needs that is designed to manage assets for that person’s benefit while not compromising access to important government benefits. There are three main types of special needs trusts: the first-party trust, the third-party trust, and the pooled trust. All three name the person with special needs as the beneficiary.

A “first-party” special needs trust holds assets that belong to the person with special needs, such as an inheritance or an accident settlement. A “third-party” special needs trust holds funds belonging to other people who want to help the person with special needs. A pooled trust holds funds from many different beneficiaries with special needs.

What kinds of Special Needs Trusts are there?

The reason there are several different types of trusts has to do with regulations regarding Supplemental Security Income (SSI). SSI is a government program that assists people with low incomes who have special needs. In order to qualify for SSI, an applicant or beneficiary can have only $2,000 in his own name. If the person has more than $2,000 in his own name, (typically because of excess savings, an inheritance or an accident settlement), the government allows him to qualify for SSI so long as he places his assets into a first-party special needs trust.

The trust must be created by the beneficiary’s parent or grandparent, or by a court, but it cannot be created by the beneficiary, even though his assets are going to fund the trust. While the beneficiary is living, the funds in the trust are used for his benefit, and when he dies, any assets remaining in the trust are used to reimburse the government for the cost of his medical care. These trusts are especially useful for beneficiaries who are receiving SSI and come into large amounts of money, because the trust allows the beneficiary to retain his benefits while still being able to use his own funds when necessary.

Third-Party Special Needs Trusts

The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments.

The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect an SSI beneficiary’s access to benefits and the funds can be used to pay for the beneficiary’s supplemental needs beyond those covered by government benefits. But a third-party special needs trust does not contain the “payback” provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in her trust can pass to other family members, or to charity, without having to be used to reimburse the government.

Pooled Special Needs Trust

A pooled trust is an alternative to the first-party special needs trust. Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources for investment purposes, while still maintaining separate accounts for each beneficiary’s needs. When the beneficiary dies, the funds remaining in her account reimburse the government for her care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Anyone can establish a special needs trust and, if the trust is properly drafted to account for tax planning, in certain situations gifts into the trust could very well reduce the size of the donor’s taxable estate. As if these are not enough reasons to create a trust, elderly people who are attempting to qualify for long-term care coverage through Medicaid can transfer their assets into a properly drafted third-party special needs trust for the sole benefit of a person with disabilities without incurring a transfer-of-assets penalty, allowing the elder to qualify for Medicaid and making sure that the person with disabilities is taken care of in the future.

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Of course, every person with special needs is different, which means that every special needs trust is going to be different as well. The only way to determine which special needs trust is right for your family is to meet with a qualified special needs planner to discuss your needs. If you have any questions regarding this topic, or any special education law matter, please contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at 203-221-3100 or JMaya@Mayalaw.com.

Day Care’s License Revoked For Overcapacity and Disorderly Conduct

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Case Details

In the case of Elf v. Department of Public Health, a home daycare provider appealed a decision by the public health department to revoke her license. The daycare provider claimed that the department was absent of a legitimate legal basis and lacked substantial evidence. By law, a court cannot overturn an administrative decision, such as the one made by the department of health, if the record affords a basis of fact from which the department’s decision to revoke her license could be reasonably inferred.

The daycare provider had been a licensed operator for about fifteen years and operated a family daycare home in the basement of her home. Department investigators made a surprise inspection visit to the daycare provider’s home in response to an anonymous complaint alleging overcapacity. The inspectors found ten children present at a facility that could only accommodate six. The day care provider scrambled to have the additional children picked up. The inspectors also found the day care’s records incomplete. The day care provider was cited for overcapacity and incomplete records.

In response, the day care provider called the police, who in turn arrested her for disorderly conduct. Subsequently, the day care provider’s license was suspended, and then permanently revoked.

The Court’s Decision

The court affirmed the judgment revoking the day care provider’s license. Although the parties’ accounts of the altercation varied greatly, the administrative law judge’s credibility determinations were entitled to deference, and there was no evidence indicating she was biased. Substantial evidence that the provider refused to permit an inspection was grounds enough in itself to warrant revocation. The provider’s due process rights were also not violated. There was no impropriety in allowing an agency to conduct its own adjudications, and she was clearly provided with notice and an opportunity to be heard.

Source:  Elf v. Dep’t of Pub. Health, 784 A.2d 979, 66 Conn. App. LEXIS 504 (Conn. App. June 12, 2001)

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This case was not handled by our firm. However, if you have any questions regarding this case, or any education matter, please contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at 203-221-3100 or by email at JMaya@Mayalaw.com to schedule a consultation today.

***All posts for the MayaLaw.com blog are created as a public service for the community. This case overview is intended for informational purposes only, and is not a solicitation of any client.***

Court Reversed Expulsion of Student, Finds Knife Allegations Unreliable

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Balbi v. Ridgefield Public Schools

In the case of Balbi v. Ridgefield Public Schools, a student and his parents appealed the decision of the Ridgefield Board of Education, which voted both to expel the student for allegedly threatening another student with a knife, and not to provide alternative education for the student. The expulsion was the result of an incident that took place on October 8, 1999, on Ridgefield High School grounds.

The principal claimed that the student had threatened another student with a knife. According to the responding officer, he witnessed the student reach into his boot, produce a knife, and hand the knife to the police officer. The officer claimed witnesses testified that the student, while holding a knife, asked another student for money, and told him to empty his pockets. The witnesses themselves were not named or identified. After due hearing, the Ridgefield Board of Education expelled the student from school for a period of one year. The board chose not to offer the student alternative education.

The court granted the student’s appeal. While the school gave the student adequate notice of the hearing, the extent of the findings made by the responding office could not be sustained. This was because the police officer refused to identify the or the victim, or to provide copies of the statement, even in an edited form. As a result, the student was not allowed the opportunity to cross-examine the witness or victim. Due to this absence, the accusations lacked reliability. The court ordered the school to remove all traces of the expulsion from the student’s record.

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This case was not handled by our firm. However, if you have any questions regarding this case, or any education matter, please contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at 203-221-3100 or by email at JMaya@Mayalaw.com.

Former Wife Found in Contempt For Refusing to Pay College Expenses

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A decision rendered in the Connecticut Superior Court illustrates the potential consequences of entering into an ambiguous agreement regarding the payment of college expenses.  In this particular case, the parties obtained an uncontested divorce on September 8, 2008.  Pursuant to the terms of their separation agreement, the parties were each responsible for paying 50% of their children’s “actual college education.”

Except for the designation “actual college education,” the language of the agreement tracked the language of C.G.S.A. §46b-56c in that educational costs were to include room, board, dues, tuition, books, fees, registration costs, and application costs up to the amount charged by the University of Connecticut for a full-time, in-state student.

When the parties’ older son attended technical school, both the mother and father contributed to the cost.  However, when the parties’ younger son enrolled in college, the mother refused to contribute, claiming she was entitled to a credit because the younger son’s technical school education was not “actual college” as set forth in the parties’ separation agreement.  The father filed a motion for contempt against the mother seeking an order of enforcement.

Relying, at least in part, on another Connecticut Superior Court decision which addressed a nearly identical issue, the Court found that the term “college” as used in the parties’ separation agreement did in fact include technical school.  Therefore, the mother was obligated to contribute toward both the older son’s vocational education and the younger son’s college education.  Since she failed to do so, the Court found the mother in contempt and ordered her to pay the husband the outstanding balance within thirty days.

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If you have questions regarding alimony and college expenses, or any family law matter, contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at 203-221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Lower Mortgage Rates, Without More, Do Not Constitute Substantial Change in Circumstances

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In a post-judgment divorce action, the Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford considered a defendant’s argument that the plaintiff had a substantial change in circumstances due to her new residence in a lower cost of living area.

Case Details

In this case, the plaintiff wife and defendant husband were the parents of three minor children and divorced in May 1999. Over the course of the next seven years, the parties stipulated to various modification agreements and amendments, which included one provision that the husband would pay the wife $8,000 per month in unallocated alimony and child support. In August 2006, the wife wished to relocate to North Carolina with the children and the parties entered a stipulation agreement.

However, in October 2007, the husband sought a post-judgment motion to modify the unallocated alimony and child support by half. He argued that the wife had a substantial change in circumstances, since she had lower mortgage payments on her home in North Carolina. The husband further argued that one of their minor children had reached the age of majority, so the wife had one less child to support on a daily basis.

The Court’s Decision

The court considered the financial affidavits of both parties and declined to find any significant change in income or expenses. It noted that lower mortgage rates on their own are insufficient to support a finding of a substantial change in circumstances, but agreed that modification was warranted because their eldest son was now an adult attending college. Therefore, the court reduced the unallocated alimony and child support payment to $7,000 per month.

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Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

Whether advancing or defending a post-judgment motion regarding awards of alimony, assignment of property, and child support, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

What Is the Law Controlling Drug Testing in the Workplace or in Public Schools in Connecticut?

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Among employees, there are a variety of times in which they may legally be drug tested in the workplace.  Employees are often tested prior to being hired to prevent employers from hiring people who use illegal drugs.  After an employee is hired, if an employee’s supervisor has reasonable suspicion that the employee is under the influence of drugs or alcohol, they may test the employee for illegal drug use.  Employees in a workplace may also be tested post-accident to determine whether drugs or alcohol contributed to the event.

Lastly, employers may choose to conduct random testing to deter drug use.  However, Connecticut law prohibits private-sector employers from requiring employees to undergo random drug tests.  An employer must have a reasonable suspicion that the employee is under the influence of drugs or alcohol that is affecting or could affect, his/her job performance before he/she may require a test.

Who is Protected Against Drug Testing?

State and municipal employees are not covered by the state law that prohibits random drug testing, however they are protected by the Fourth Amendment which prohibits the government from carrying out unreasonable searches.  The Supreme Court has ruled that urine tests are searches and that the Fourth Amendment applies to governments acting as employers.

Federal law and regulations also require the operators of commercial vehicles over a certain size to undergo drug tests before they are hired, after serious incidents, and when there is a reasonable suspicion.  In the private sector, pre-employment drug testing is fairly common.

There are no federal or state statutes that cover drug testing of students in public schools.  Students do not have the same level of constitutional rights as adults.  A 2002 Supreme Court decision permits schools to conduct random drug testing of students who participate in extracurricular activities, but drug testing cannot be a condition for attending school.

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If you have any questions regarding employment law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Hurdles Employees Must Jump in Filing a Claim for Unlawful Discrimination

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Here in Connecticut and across the nation, employees from all walks of life routinely face unlawful discriminatory practices and treatment in the workplace. Depending on the nature of the claim, he or she may file civil lawsuits under Title VII (which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin) or the Connecticut Fair Employment Practices Act (CFEPA).

However, employees need to keep in mind that before they seek recourse with the courts, they must first exhaust all of their administrative remedies. “The exhaustion requirement exists to afford the administrative agency the opportunity to investigate, mediate, and take remedial action.”[1] Failure to do so will result in dismissal of the case.

CFEPA Title VII

Furthermore, employees must pay attention to statutory time restrictions for filing administrative charges under Title VII and CFEPA:

To sustain a claim for unlawful discrimination under Title VII in a deferral state such as Connecticut, a plaintiff must file administrative charges with the EEOC [Equal Employment Opportunities Commission] within 300 days of the alleged discriminatory acts.[2] … CFEPA requires that a complainant file the administrative charge with the CCHRO [Connecticut Commission on Human Rights and Opportunities] within 180 days of the alleged discriminatory act.[3]

Courts are particularly cognizant of these requirements and endorse “strict adherence… [as] the best guarantee of the evenhanded administration of the law.”[4] As a result, the time bar will begin running for each individual adverse employment action against the employee on the date it occurred. Failure to timely file a claim may prevent it from being reviewed by the EEOC or CCHRO.

However, employees often endure discriminatory practices over a prolonged period of time, so even if alleged conduct falls outside of the charging period, it may be reviewable. An important exception to strict adherence is the continuing violation exception, which involves incidents occurring both within and outside the time bar. A continuing violation occurs “where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.”[5]

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As an employee, it is imperative that you understand Connecticut’s statutory scheme surrounding hiring, evaluation, and termination processes, as well as the requirements for filing a lawsuit under State and federal anti-discrimination law. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport.

If you have any questions regarding any employment law matter, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C. in Westport, Connecticut (located in Fairfield County) by telephone at (203) 221-3100 or by email at JMaya@Mayalaw.com.

 

[1] Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d. Cir. 1985).

[2] Flaherty v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000).

[3] Connecticut General Statutes § 46a-82e.

[4] Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980).

[5] Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).

The Boundaries of a Child’s Constitutional Right to Education in Connecticut

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Under the Constitution of Connecticut, “There shall always be free public elementary and secondary schools in the state.”[1] However, to satisfy free appropriate public education, or FAPE, requirements of federal law, this doesn’t mean parents may engage in a sort of free-for-all in dictating the five W’s of their child’s educational opportunities at public expense. Rather, case precedent has established limitations that take into account the interests of the child balanced against governmental concerns of the school district.

The Right to Education in Connecticut

While the Supreme Court of Connecticut has stated that “the right to education is so basic and fundamental that any infringement of that right must be strictly scrutinized,” they did not intend this to extend to any specific sort of education.[2] In other words, just because a student is eligible to participate in specific courses or extracurricular activities does not automatically grant him or her the right to do so.[3] More specifically: “Absent a legislative mandate such as that in Conn. Gen. Stat. § 10-76a that requires a special education curriculum for children with disabilities, a student has no constitutional right to any particular program of instruction.”[4]

By way of examples, children who are classified as “gifted and talented” are not entitled to special classes.[5] Rather, a school district has the choice to provide special services, but is not required to do so. In a fairly recent case, the Superior Court ruled against plaintiffs who asserted they were denied their constitutional right to FAPE when the Milford Board of Education elected to change their primary vocational agriculture (VOAG) program due to financial considerations. The Court explained that the school district was complying with State mandates surrounding VOAG educational opportunities for its students, and that “plaintiffs have no constitutional right to the education of their choice; they merely have a right to a ‘free public secondary’ education.”[6]

Written by Lindsay E. Raber, Esq.

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Should you have any questions about any education law matter, it may prove beneficial to seek the counsel of an experienced school law practitioner. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy in Westport, Connecticut by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

Cyberbullying and the Fourth Amendment Right to Privacy

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The American Civil Liberties Union (ACLU) has swiftly responded to the Fairfield school board’s proposed amendments to its internet use policy, contending that the proposed policy amendments will run afoul of the Fourth Amendment’s prohibition against unreasonable searches and seizures.

Internet Use Policy in Fairfield

The Fairfield School Board, under the direction of Superintendent David Title, has outlined changes to the type of content that students can access while at school.  While bans on viewing pornography and other illegal or explicit content have always been enforceable, the ACLU has taken issue with the amendment’s policy that would allow school administrators to look through students’ personal computers and devices to ensure that not only are students not looking at illegal or explicit content, but that they are not harassing or bullying other students online.  Such a policy, of course, invokes the right to privacy guaranteed by the Fourth Amendment.

Specifically, the ACLU has taken issue with a particular provision of the policy that reads, “Digital storage and electronic devices used for school purposes, whether district or personally owned, will be treated as district technology resources.  Therefore, all students must be aware that they should not have any expectation of personal privacy in the use of these resources.”  The provision does not distinguish between personally owned computers or devices, and school-owned devices.  So long as the device is used for “school purposes,” it would fall under the umbrella of this policy.

The school board met again, and was tasked with striking a better balance between a student’s right to privacy under the Fourth Amendment and the need for schools to ensure that students are not viewing illegal content or harassing other students using devices meant for school purposes. The results of that meeting have yet to be released.

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If you have questions relating to your child’s rights in school settings, or about education or bullying law in general, contact Joseph C. Maya, Esq. in our Westport office at 203-221-3100 or at JMaya@Mayalaw.com.

Sources:

http://fairfield.patch.com/articles/school-board-rethinks-changes-to-student-internet-use-policy

www.fairfieldcitizenonline.com/news/article/ACLU-Schools-Internet-policy-changes-would-3893322.php

http://www.fairfieldcitizenonline.com/news/article/ACLU-asks-school-board-to-reject-amendment-to-3914671.php

http://fairfield.dailyvoice.com/schools/fairfield-schools-web-policy-faces-aclu-challenge