Education Law

What is the evaluation process used to determine a child’s special education requirements?

What is an initial evaluation?

An initial evaluation is the first step in the evaluation process for special education. Following a referral, the state education agency or local education agency is obligated to conduct a full and individualized initial evaluation for each child in order to determine his or her eligibility under the IDEA. Prior to conducting an initial evaluation, the agency must obtain informed written parental consent.

Consent to this initial evaluation must be in writing and may only be given following full disclosure of all information needed for you to make a knowledgeable decision pertaining to your child’s educational needs. It bears repeating that parental consent to an initial evaluation may not be construed as consent for the placement of your child in special education or related services. However, failure of a parent to consent to an initial evaluation may allow the school district to initiate a due process hearing as a way to proceed with an initial evaluation.

Conducting the Evaluation

In conducting the evaluation, the local educational agency, “shall use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining – (i) whether the child is a child with a disability; and (ii) the content of the child’s individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum…”

An evaluation study will include a review of information collected by the school district through formal and informal observations, a review of schoolwork, standardized tests and other information provided by your child’s teachers and other school personnel.

Requirements Under IDEA

Additional requirements in the evaluation assessment under the IDEA provide that:

(A) assessments and other evaluation materials used to assess a child under this section-

(i) are selected and administered so as not to be discriminatory on a racial or cultural basis;
(ii) are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer;
(iii) are used for purposes for which the assessments or measures are valid and reliable;
(iv) are administered by trained and knowledgeable personnel; and
(v) are administered in accordance with any instructions provided by the producer of such assessments;

(B) the child is assessed in all areas of suspected disability;

(C) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided; and

(D) assessments of children with disabilities who transfer from one school district to another school district in the same academic year are coordinated with such children’s prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.

Parents During Evaluation

As a parent you will receive written notice of the particular tests and procedures that will be used in conducting your child’s evaluation. It is important as a parent to have an active voice in the initial evaluation process and you should share any and all relevant information you have regarding your child’s skills, abilities and needs.

The local educational agency conducting the initial evaluation is required to determine whether your child is one with a disability within sixty (60) days of receiving parental consent for the evaluation and to determine the special educational needs of your child if he or she is eligible. As a parent, if you fail or refuse to produce your child for an initial evaluation the sixty-day time constraint will not be applicable.

Following the initial evaluation, the child’s Planning and Placement Team will meet to evaluate the data and determine whether your child meets the necessary criteria to receive special education and related services. As a parent you will be provided with a written report of the evaluation that was conducted.
What is an Independent Educational Evaluation (IEE)?

Independent Educational Evaluation

If you disagree with the school district’s evaluation you may request an Independent Educational Evaluation, referred to as an IEE. Upon a request for an IEE, the local educational agency must provide information to parents as to where you may obtain an IEE and the criteria necessary in conducting an evaluation. An independent educational evaluation is one that is conducted by a qualified examiner, who is not an employee of the local educational agency, such as your child’s private therapist. Moreover, a parent is not required to inform the school district in advance of plans to obtain an IEE.

Evaluation Disagreements

Although parents should work alongside their local educational agency to resolve any disagreements pertaining to evaluations, there are times where an independent evaluation will be necessary to resolve such disagreements. Parents have the right to an IEE at the local educational agency’s expense unless the local educational agency challenges the need for an IEE. If the local educational agency challenges the IEE they must, “without unnecessary delay” file for a due process hearing to demonstrate that its evaluation was appropriate or that the evaluation obtained by you did not meet the requisite evaluation criteria.

If the local educational agency files for a due process hearing and its evaluation is found to be sufficient, you still have the right to obtain an IEE, but not at public expense. A parent is only entitled to one IEE at public expense each time the local educational agency conducts an evaluation with which the parent disagrees. If, however, a hearing officer requests an IEE during the course of a due process hearing, the evaluation shall be conducted at the expense of the agency.

If an IEE is conducted at public expense, the criteria under which the evaluation is obtained, including the location and qualifications of the examiner, must be the same as the criteria that the local educational agency uses when it conducts an evaluation. However, the results of an IEE, irrespective of who pays for it, must be considered by the school district when designing your child’s educational program.

What is a reevaluation? When and why will my child be reevaluated?

The IDEA mandates that a reevaluation must occur at least once every three (3) years, unless the parent and the local educational agency agree that a reevaluation is not necessary. Either parents or local educational agencies may request a reevaluation but the local educational agency must first obtain written parental consent before conducting a reevaluation. Failure to provide the consent needed for your child’s school district to conduct a reevaluation may lead to your local educational agency filing for a due process hearing or seeking other dispute resolution proceedings in order to conduct the reevaluation.

The purpose of conducting a reevaluation is to reassess the educational needs of your child and determine whether your child continues to have a disability, to evaluate the levels of academic achievement and developmental needs of your child, to determine whether special education and related services are still needed for your child, and whether your child’s Individual Education Plan requires modification.

In conducting a reevaluation, your child’s PPT will review existing reports and data to decide if additional testing is needed to determine whether your child is still eligible and continues to need special education and related services.

If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to call our office at (203) 221-3100. We offer free consultations to all new clients.

Special Education Law – Relevant Terms

Within the realm of Special Education Law there are several relative terms one should be familiar with. Below are some of these key terms.

Applied Behavior Analysis (“ABA”):

An intensive, structured teaching program in which behaviors to be taught are broken down into simple elements. Each element is taught using repeated trials where the child is presented with a stimulus; correct responses and behaviors are rewarded with positive reinforcement, while when incorrect responses occur, they are ignored and appropriate responses are prompted and rewarded.

Alternative Assessment:

The use of assessment strategies, such as performance assessment and portfolios, to replace (or supplement) the assessment of a special education student by standard machine-scored multiple-choice tests.

Assistive Technology:

Refers to any piece of equipment, product, system, or other item that is used to increase, maintain or improve the functional capabilities of an individual with a disability.

Behavior Intervention Plan (“BIP”):

Refers to a plan, strategies, program or curricular modifications, and supplementary aids and supports, which are positive in nature (not punitive) and are developed by the PPT to teach a child appropriate behaviors and minimize behaviors that impede learning.

Extended School Year (“ESY”):

This refers to special education and related services that a school provides to a student beyond the normal school year and/or the normal school day, at no additional cost to parents, in accordance with the child’s IEP.

Free Appropriate Public Education (“FAPE”):

Each special education student is entitled to a free, appropriate public education. It is defined as special education and related services that are provided at public expense and under public supervision and direction, without charge to the student. “Related services” include, but are not limited to, transportation, physical therapy, occupational therapy, speech pathology, and psychological services, among others.

A special education student’s FAPE must meet state and federal requirements, and be provided in accordance with the child’s IEP. In Connecticut, children must be provided a FAPE from age three through the end of the school year in which the child reaches the age of twenty-one (or until the child has graduated from high school with a regular diploma, whichever is first to occur).

Functional Behavior Assessment (“FBA”):

Refers to an assessment of the reasons why a child behaves the way he or she does, given the nature of the child and what is happening in the environment. It describes a process for collecting data to determine the possible causes behind certain behaviors in order to identify strategies to address those behaviors.

Identification:

Refers to the decision that a child is eligible for special education services.

Independent Educational Evaluation (“IEE”):

Refers to an evaluation of a special education student performed by a professional who is not employed by the school district. If you disagree with the PPT’s evaluation of your child, you may request an independent educational evaluation. The school district must either pay for the cost of the IEE, or prove to a due process hearing officer that its own PPT evaluation is in fact appropriate. Of course, parents may obtain an IEE for their child at their own expense at any time. When presented with the results of the IEE, the PPT must consider the findings, but is not bound to adopt them.

Individualized Education Plan (“IEP”):

This refers to a written education program developed for an individual child with a disability. It is developed by a multi-disciplinary team of school professionals and the child’s parents and is reviewed and updated at least once per school year. The IEP describes the child’s present performance and learning needs, as well as detailing which services will be necessary at what time, for how long, and by whom those services will be provided.

Least Restrictive Environment (“LRE”):

A child with a disability must, to the maximum appropriate extent, be educated with children who are not disabled, in a general education class in the school that the child would attend if he or she did not have a disability requiring special education services. A child with a disability should not be removed from the general educational setting unless the nature and severity of that child’s disability is such that education in the general class with the use of supplemental aids and services cannot be satisfactorily achieved.

Manifestation Determination:

If a school seeks to change the placement of a child with a disability because that child behaved in a way that violated the school’s code of conduct, then a “manifest determination” must be made, to determine whether the behavior complained of is caused by the child’s disability.

Positive Behavior Supports (“PBS”):

Refers to an approach to addressing challenging behaviors, and includes: functional assessment of the behavior; organizing the environment; teaching skills; rewarding positive behaviors; anticipating situations; and redesigning interventions as necessary.

Planning and Placement Team (“PPT”):

Refers to a group of professionals who represent each of the teaching, administrative and pupil personnel staffs at a special education student’s school, and who, with the student’s parents, are equal participants in the decision-making process to determine the specific educational needs of the student. The PPT, along with the parents, develops, reviews and revises a student’s IEP; the PPT also reviews referrals to special education, determines if the child needs to be evaluated, decides what evaluations the child will have, and determines whether the child is eligible for special education services.

Stay Put:

Refers to the requirement that a special education student must stay in his or her current program or placement during the course of a due process hearing. This provision may be modified upon agreement by both the parent and the school district.


The attorneys of Maya Murphy P.C. are well practiced in the realm of Special Education Law. Should you have questions regarding Special Education Law matters, contact managing partner Joseph C. Maya at 203-221-3100 or at JMaya@Mayalaw.com for a free initial consultation.

In Educational Neglect Proceeding, Court Rules that “Detrimental Effect” is not Required

In Re Amurah B., Superior Court, Judicial District of Middlesex

In the case of In Re Amurah B., Superior Court, Judicial District of Middlesex, Docket No. M08CP09010939A (March 12, 2010, Rubinow, J.), the Court addressed whether the Department of Children and Families must demonstrate a “detrimental effect” before it can enter a finding of educational neglect.  In that particular case, DCF initially filed petitions alleging that the children were being subjected to educational neglect in that they were not being forced to attend school.  A trial ensued, and after DCF concluded its case-in-chief, the parents claimed it failed to make out a prima facie case with respect to any of the children.

DCF opposed the motion, contending that the evidence was sufficient to prove the children were denied proper educational care and attention in that they did not attend school regularly, and thus were deprived of educational opportunities.  The parents countered, arguing that the children received adequate educational attention, as evidenced by their grades and consistent promotions, and that the Department’s evidence of non-attendance alone could not be sufficient.  The parents contended that in order to satisfy its burden, the state must provide evidence of a detrimental effect on a child.

Connecticut’s Statutory and Common Law Expectations

In considering the parents’ motion, the Court reviewed Connecticut’s statutory and common law expectations for the education of children, noting that education has long been recognized as being fundamental to the well-being of a child. Indeed, education is so important that the state has made it compulsory through an attendance requirement. Pursuant to Connecticut General Statutes § 10-184, “All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including a study of the town, state and federal governments.”

To implement this policy, C.G.S.A. § 10-184 further establishes that “each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session, unless such child is a high school graduate or the parent or person having control of such child is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools.”  Pursuant to Connecticut General Statutes § 10-185, failure to do so is punishable by a fine.

Trial Court

The trial court acknowledged that the Connecticut Appellate Court has not yet ruled as to whether a neglect finding can enter in a case where the parents fail to cause their children to attend school, but the children are nevertheless performing on an average level.  However, it did point out that the Juvenile Courts of Connecticut and other states have granted neglect petitions under similar circumstances.  Ultimately denying the parents’ motion to dismiss, the Court held that in light of the clear and explicit mandate of C.G.S.A. §§ 10-184 and 10-185, the element of “detrimental effect” is not essential to a finding of neglect at the adjudicatory stage.


Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact Michael D. DeMeola.  He can be reached by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

Your Child’s Attendance Requirements

The following will provide you with the pertinent laws and procedures regarding your child’s attendance at school. The first part of this section will describe the mandatory attendance requirements that the State of Connecticut requires students to adhere to and potential penalties if your child fails to meet these requirements. The second part of this section will provide you with basic information regarding how your child’s residency plays a role in where they may attend school. This section will further describe available hearing procedures if your child is determined to be an ineligible resident.

If there are any issues that may arise between yourself and the school district regarding your child’s school attendance or a dispute pertaining to the residency status of your child, please contact one of our attorneys at Maya Murphy, P.C.

Attendance

As a parent, you are responsible for ensuring that your child is regularly attending school. Attendance is basic to your child’s ability to obtain a proper education. Much of what your child learns is presented to them in the classroom setting. Your child’s daily attendance will expose them to other learning processes that will help them in continuing to grow and learn. Connecticut law states, “parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including the study of the town, state and federal governments.”

If your child is over the age of five (5) and under the age of eighteen (18) you must ensure that he or she attends public school regularly during the normal operating hours of the school district in which your child resides. If your child is a high school graduate or as a parent you are able to demonstrate that your child is receiving instruction in the appropriate studies equivalent to that taught in public school (e.g. homeschooling, private school) then your child will be excused from this mandatory attendance requirement. Please note, that if your child attends private school there are certain attendance requirements that will be discussed in further detail below.

Is my child permitted to withdraw from attending school?

As of July 1, 2011, and each school year thereafter, a parent or other person having control of a child who is at least seventeen (17) years of age, may consent to their child’s withdrawal from attending school. As a parent you must personally appear at your child’s school district’s office and sign a withdrawal form. The withdrawal form must also be signed by a guidance counselor or school administrator who is employed by your child’s school district indicating that you, the parent, were provided with information regarding educational options available in your child’s school system and the community.

If your child has voluntarily terminated his or her enrollment in school with your consent and subsequently seeks readmission, the board of education of your child’s school district may deny school accommodations to your child for up to ninety (90) school days following your child’s withdrawal, unless, your child seeks to be readmitted within ten (10) school days after his or her withdrawal. In this case, the school board must readmit your child within three (3) school days.

What is the maximum age at which I must enroll my child in school?

A parent has the option to exempt a child from attending school until the age of seven (7) provided the parent appears at the child’s school district’s office and sign an option to exempt form. The school district must provide you with information regarding the educational opportunities that would be available to your child if you were to enroll him or her in public school as early as the age of five (5). An option form must be signed for each year you decide not to enroll a child below the age of seven (7) in public school.

Is there a penalty for failing to comply with the mandatory attendance requirements?

Failure as a parent to comply with the requirement that your child attend public school (absent alternative means of instruction) is a violation of law. If your child fails to attend school as required you are subject to a fine not to exceed twenty-five (25) dollars per day. A penalty will not be imposed if it appears that your child is destitute of clothing suitable for attending school and as a parent you are unable to provide proper clothing for your child to attend school.

Am I responsible for the mandatory attendance requirements if my child attends private school?

As a parent you are still required to comply with the mandatory attendance laws set forth above if your child attends private school. Private schools must submit school attendance reports to the Commissioner of Education. The Commissioner of Education provides teachers and other school personnel at your child’s private school with the forms needed to establish compliance with the mandatory attendance provisions. If your child’s attendance reports are not satisfactory, a complaint may be filed in the Connecticut Superior Court by the superintendent of the school district in which you and your child reside.

What is a truant?

Your child may, on occasion, be excused from school for good reason, such as illness, where a written notice from your child’s doctor should be provided to the child’s school. Unexcused absences may violate the mandatory attendance laws.

Connecticut law defines a “truant” as a child age five (5) to eighteen (18) who is enrolled in public or private school and has four (4) unexcused absences from school in any one month or ten (10) unexcused absences from school in any one year. A “habitual truant” is a child between the ages of five (5) and eighteen (18) who is enrolled in private or public school and has twenty (20) unexcused absences within one school year. Cities and towns may adopt their own ordinances concerning children who are found on the streets or in other public places during school hours. The police may detain your child and return the child to school if he or she is found to be a habitual truant.

What are the policies and procedures my child’s school may adopt concerning truancy?

Your local board of education must adopt and implement policies and procedures concerning truants, which must include:

  • The holding of a meeting with you and your truant child and appropriate school personnel to review and evaluate the reasons for your child’s truancy, provided such meeting is held no later than ten (10) school days after your child’s fourth unexcused absence in any month or tenth unexcused absence in a school year.
  • Coordinating services with referrals of children to community agencies providing child and family services.
  • Notifying you annually at the beginning of the school year and upon any enrollment during the school year, as a parent having control of a child enrolled in a public school grade from kindergarten to eight, in writing of the obligations you have as a parent.
  • Obtaining from you annually at the beginning of the school year and upon any enrollment during the school year, as a parent of a child in a grade from kindergarten to eight, a telephone number or other means of contact.
  • A system of monitoring individual unexcused absences of children in grades kindergarten to eight, ensuring that whenever a child fails to report to school on a regularly scheduled school day and no indication has been received by school personnel that you, the parent, are aware of his or her absence, that a reasonable effort is made by school personnel or volunteers under the direction of school personnel to notify you, by telephone.
What if as a parent or guardian I fail to comply with the school policies and procedures regarding truancy?

If a parent fails to attend a truancy meeting regarding your child’s truant status or cooperate with the school to attempt to solve he truancy problem, then the superintendent of your school district must file a written complaint with the Connecticut Superior Court.

The board of education overseeing your child’s school may appoint an individual or group of individuals authorized to prosecute violations of school attendance laws. The appointee is authorized to investigate the absence or irregular attendance of your child, to cause your child to attend school regularly if they are absent or irregularly in attendance and prosecute cases for violation of the mandatory attendance laws. These appointees will report their findings to your child’s school principal or superintendent, who based on these findings, may be required to file a written complaint in Connecticut Superior Court.

Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education 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. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to call our office at (203) 221-3100. We offer free consultations to all new clients.

Student Discipline for Off-Campus Speech in the New Digital Era: What Parents Should Know

“Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting ‘send.’ A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse.”

What’s a parent to do?

Students today are equipped with electronic devices that keep them in immediate and continuous contact with fellow students. It is virtually impossible to control (or even monitor) the content of outgoing texts, tweets, IM’s, and emails, and absolutely impossible to censor the content of incoming messages. As a result, “the line between on-campus and off-campus speech is blurred” as are the “outer bounds of administrators’ authority to punish student speech . . . .”

While there are fewer “bright lines” there are things parents should know if their child’s off-campus use of social media (as is becoming increasingly frequent) forms the subject of student discipline. There is also judicial guidance available as to what to tell your child about potential school discipline related cyberspace pitfalls that must be avoided. The purpose of this article is to make parents at least as well-informed as school administrators in the area of permissible student discipline for off-campus, social-networking speech.

Where We Came From

Prior law with respect to students’ First Amendment rights used to be relatively well-settled and fairly predictable. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The constitutional rights of public school students, however, “are not automatically coextensive with the rights of adults in other settings.” In Tinker, the United States Supreme Court said that student rights must be applied in a manner consistent with the “special characteristics of the school environment,” and that school administrators may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.”

Because schools are responsible for “teaching students the boundaries of socially appropriate behavior,” otherwise constitutionally protected but offensive speech by an adult may when uttered by a student, give rise to disciplinary action by a school. Educators are also permitted to exercise editorial control over “school-sponsored expressive activities such as school publications or theatrical productions.” The Supreme Court has allowed public school administrators to “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”

The Tinker, Fraser, Hazelwood trilogy of cases was once thought to provide parents and teachers with a viable and stable framework for reconciling student rights of free speech with educators’ rights to maintain good order and discipline. Maybe in 1988, but no more.

Where We Are Now

A Federal Court case from Connecticut has shone a spotlight on the difficulty of trying to extrapolate existing law onto the realities of student access to and use of social media. This case began as Doninger v. Niehoff, 514 F. Supp. 2d 199 (D. Conn. 2007) (“Doninger I”) and has a torturous procedural and checkered appellate history. Doninger I was affirmed by Doninger v. Niehoff, 527 F. 3d 41 (2d Cir. 2008) (“Doninger II”). The case was continued, seeking monetary relief, Doninger v. Niehoff, 594 F. Supp 2d 211 (D. Conn. 2009) (“Doninger III”). On appeal, Doninger III was affirmed in part and reversed in part by Doninger v. Niehoff, 2011 U.S. App. LEXIS 8441 (2d Cir. Apr. 25, 2011)(“Doninger IV”).

The most important aspect of this serpentine procedural and appellate route is that Doninger arose out of the United States District Court for the District of Connecticut and has made two trips to the United States Court of Appeals for the Second Circuit. Thus, to the extent the Second Circuit has ruled on issues of law in Doninger II and IV, such precedent is binding on the Connecticut Federal Court and likely to receive highly deferential treatment from the Connecticut State Courts. It also illustrates how the availability and use of social media can cause a simmering dispute between students and educators to rapidly metastasize into an all-out war.

What the Future Holds

“[W]hen it comes to student cyber-speech, the lower courts are in complete disarray, handing down ad hoc decisions that, even when they reach an instinctively correct conclusion, lack consistent, controlling legal principles.” The disjointed state of education law as it pertains to student discipline for off-campus speech was highlighted by two cases that arose in Pennsylvania. In each case, high school students were suspended after posting MySpace profiles of their respective principals, mocking them in lewd and salacious terms. Each of the student’s cases was heard by a different Federal District Judge sitting in different courthouses.

In one case, the student’s suspension was upheld; in the other case, the Judge ruled in favor of the student. Each of the cases was independently appealed to the United States Court of Appeals for the Third Circuit, that hears appeals from Federal trial courts in Pennsylvania. The two separate three-judge panels (from within the same Circuit and applying the same law) issued conflicting decisions. That prompted the entire Third Circuit (consisting of 14 Federal appellate judges) to hear the cases anew, and in both cases find for the students. The focus of the Court’s decision appeared to be on the fact that one student’s speech, in particular, “did not cause a substantial disruption in the school.”

This test differs from the Second Circuit test that requires only a “reasonable foreseeability of disruption in the school.” This sets the stage for the United States Supreme Court to hear a case that will allow it to resolve an apparent conflict between the Circuits. Until the Supreme Court speaks to the issue, parents and students will have to glean guidance from what the courts have said about imposing school discipline for off-campus speech.

Technology: A Two-Edged Sword

Parents and students should be aware that at least one company now exists that is capable of scouring the Internet for everything a person may have said or done online in the course of the last seven years. Despite initial concerns, the Federal Trade Commission has determined that the company’s activities are in compliance with the Federal Fair Credit Reporting Act. Less than a third of the data developed by the company comes from major social platforms such as Facebook, Twitter, and MySpace.

Much of the information comes from deep web searches that find comments on blogs and posts on smaller social sites, like Tumblr and even Craigslist. Photos posted to sharing sites such as Flickr, Picasa, Yfrog, and Photobucket are also easily discoverable. The “terms of service” agreements on most sites make all comments and content publicly available.

While such company presently researches candidates for employment, rather than students, its import for the future is clear: nothing said or done on the Internet is private.

The Takeaway for Parents or Students
  • Students retain their constitutional rights of freedom of speech or expression while in or out of school.

BUT:

  • School administrators may prohibit student expression that will materially and substantially disrupt the work and discipline of the school.
  • Educators are permitted to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions.
  • Public school administrators may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use.
  • A student may be disciplined for expressive conduct occurring off school grounds when such conduct would foreseeably create a risk of substantial disruption within the school environment, at least to the extent that it was similarly foreseeable that such off-campus expression might also reach campus.
  • A school may regulate in the classroom “plainly offensive” speech, i.e., speech that is offensively lewd and indecent.
  • Off-campus, the risk from student speech of substantial disruption within the school environment depends on a number of factors including the language used, the truth or falsity of the communication, and whether the student serves as a student government leader.
  • Participation in extracurricular activities is a privilege and not a right.
Students Should Presume:
  • That any electronic communication (e.g., text, tweet, email) or creation (e.g., MySpace profile) that can be forwarded beyond its initial addressee may be forwarded to parties unknown, or may be seen by teachers or school administrators. Electronic communication (i.e., one relating or referring to students, teachers, administrators, or school activities) can be expected to find its way “on-campus.” Going forward, with respect to electronic communications, students should presume no practical or legal difference between on and off-campus.
  • What constitutes “substantial disruption within the school environment” depends entirely on the circumstances. Virtually any deviation from the daily routine resulting from a student communication can be described as “disruption” sufficient to support student discipline.
The Bottom Line

Any off-campus electronic communication relating or referring to students, teachers, administrators, or school activities has the potential to result in student discipline. As of now, the unsettled status of the law affords school administrators wide latitude in deciding when a student communication can be reasonably seen to create a foreseeable risk of academic disruption. Exclusion from extracurricular activities is now a judicially accepted punishment. Other types of student discipline may in the future also be countenanced by the courts. In the meantime, to be forewarned is to be forearmed.

Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education 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. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to call our office at (203) 221-3100. We offer free consultations to all new clients.

Searches by School Resource Officers

On Searches by School Resource Officers: Are They School Officials or Police Officers?
It Depends.

In light of school safety concerns that have plagued the nation since the 1990s, resource officers have become commonplace our public schools. They are the collaborative effort of local police departments and boards of education, serving a myriad of roles as educator, investigator, advisor, and a source of interaction and resource for students. However, what are the constitutional burdens imposed on a resource officer when he or she conducts a search of a student or the student’s property?

Limitations of the Fourth Amendment

First, let’s rewind to 1985, when the U.S. Supreme Court held that while the Fourth Amendment in general applies to searches conducted by teachers or school officials, they are not held to the stringent warrant requirements that constrain police action. As further elaborated:

[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teacher and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.

Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the … action was justified at its inception, second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.[1]

Cases of School Searches by Resource Officers

In other words, school personnel are permitted to search student property (which includes purses, backpacks, and automobiles on school property) so long as the search is “justified at its inception” and permissible in scope. The search cannot be excessively intrusive. However, what the Court in T.L.O. declined to produce was “the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.”[2]

Thus, we return to our original inquiry: because a resource officer serves functions both on behalf of the school and of the local police agency, what is the standard that applies? It does not appear that this question has been put to the test here in Connecticut, though other jurisdictions have progressively contemplated this scenario, and it boils down to three hypotheticals:

  1. School official initiates search/police involvement is minimal: reasonableness test applies.
  2. School resource officer initiates search on own initiative or at direction of a school official so as to “further educationally related goals”: reasonableness test applies.
  3. “Outside” police officer initiates search: warrant and probable cause requirements implicated.[3]
How to Determine the Level of Police Involvement

In determining the level of police involvement, various factors are considered:

[W]hether the officer was in uniform, whether the officer has an office on the school campus, how much time the officer is at the school each day, whether the officer is employed by the school system or an independent law enforcement agency, what the officer’s duties are at the school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer’s purpose in conducting the search.[4]

Because of the lack of a uniform standard as promulgated by a Supreme Court decision, different courts have come to wholly divergent conclusions purely based on application of the above factors. In Alaniz, the North Dakota Supreme Court determined that the school resource officer involved was “more like a school official,” thus implicating the less stringent reasonableness standard.[5] Conversely, this past August the Washington Supreme Court ruled that “the school resource officer was not a school official and thus the more lenient standard of ‘reasonable suspicion’ applied to searches by school personnel did not apply.”[6]

Every instance of school searches conducted by resource officers is unique, and as such determining whether it was reasonable or implicated greater Fourth Amendment protections may be difficult without the assistance of an experienced school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school discipline, searches, 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] New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

[2] Id. at 342 n.7.

[3] State v. Alaniz, 2012 N.D. 76, ¶ 10. See, e.g., T.S. v. State, 863 N.E.2d 362, 367-68 (Ind. Ct. App. 2007); Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005); State v. Burdette, 225 P.3d 736, 750 (Kan. Ct. App. 2010); In re D.L.D., 694 S.E.2d 395, 400 (N.C. Ct. App. 2010); State v. J.M., 255 P.3d 828, 832 (Wash. Ct. App. 2011). Accessed October 4, 2012: http://www.ndcourts.gov/_court/opinions/20110259.htm

[4] Id. at ¶ 11. See T.S., at 369-71; Burdette, at 740; R.D.S. v. State, 245 S.W.3d 356, 368 (Tenn. 2008).

[5] Id. at ¶ 12.

[6] “Court Invalidates Backpack Search by School Resource Officer,” by Mark Walsh. Accessed October 4, 2012: http://blogs.edweek.org/edweek/school_law/2012/08/court_invalidates_backpack_sea.html

Navigating the Channels of School Suspension Protocol

Hot off the press: “A new state law has significantly reduced the number of students being suspended from school…”[1] This is in large part due to the passage of Public Act No. 08-160, “An Act Concerning School Learning Environment,” which modified the circumstances which schools under State law could suspend its students, instead showing a preference for in-school suspensions.[2] Thus, during the 2010-2011 academic school year, “when the law went into effect… the number of out-of-school suspensions dropped statewide by 19 percent, or 9,835 incidents.”[3]

While “some incidents will still warrant suspensions,” [Waterbury Superintendent of Schools Kathleen Ouellette explained that] she’s deployed several initiatives to ensure that students are not being sent home for minor infractions like dress code violations, talking back to their teachers or skipping class. “We are trying to reach them and intervene before it escalates to that point.”

The Connecticut legislature has enumerated the circumstances under which a student may be suspended: if on school grounds or at a school-sponsored activity, the conduct violates an established, publicized school board policy, seriously disrupts the educational process, or endangers persons or property.[4] If the conduct took place off school grounds, the school board may only entertain a suspension if both the first two circumstances are met.

What does the school board consider when a student is facing a suspension?

Say your child has committed an act off school grounds, and the school is contemplating a suspension. What must it consider? Under Connecticut law, to determine if the conduct will seriously disrupt the educational process, your local school board must consider at least the following, though they are not limited to these four factors: Whether…

  1. The incident occurred within close proximity of a school
  2. Other students from the school were involved or whether there was any gang involvement
  3. The conduct involved violence, threats of violence or the unlawful use of a weapon… and whether any injuries occurred
  4. The conduct involved the use of alcohol

As a parent, it is vital to realize that your child cannot be automatically suspended without an informal administrative hearing. This is because in Goss v. Lopez, the U.S. Supreme Court explained the import of due process in a suspension scenario:

Among other things, the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by [the Due Process] Clause. [5]

Suspension Hearings

Thus, barring emergency circumstances, students facing a suspension (thus temporarily losing their property interest) “must be given some kind of notice and afforded some kind of hearing”[6] so they know why they are being suspended and given the chance to tell their side of the story. The hearing is the best place for a student to convince school officials that an out-of-school suspension is not warranted for any given number of reasons, such as the behavior not qualifying as prohibited conduct, the lack of disciplinary history,[7] or the use of an in-school suspension as a viable and reasonable alternative.

Written by Lindsay E. Raber, Esq.

The intricacies involved regarding in- and out-of-school suspensions can be difficult to comprehend, and could potentially result in the deprivation of a student’s protected rights. As such, if your child faces a suspension, it is imperative that you know all of these rights and consult with an experienced school law practitioner. Should you have any questions regarding school discipline or other education law matters, 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] “School suspension rates drop, but minority students still over-represented,” by Jacqueline Rabe Thomas. October 2, 2012: http://www.ctmirror.org/story/17615/school-suspension-rates-plummet-minority-students-still-overrepresented

[2] Connecticut General Statutes § 10-223c(g).

[3] See Footnote 1.

[4] Connecticut General Statutes § 10-223c(a)

[5] Goss v. Lopez, 419 U.S. 565, 574 (1975).

[6] Id. at 580.

[7] Connecticut General Statutes § 10-223c(e)

Educational Expenses in Divorce

Educational expenses in divorce include expenses associated with higher education. Pursuant to Connecticut General Statutes § 46b-56c, an educational support order is defined as an order requiring a parent to provide support for a child or children to attend, for up to four full academic years, an institution of higher education or a private occupational school for the purpose of attaining a bachelor’s or other undergraduate degree, or other appropriate vocational instruction.

Parties may request an “educational support order” either at the time of the divorce or at some point afterward.  If the Court does not enter an educational support order at the time of the divorce, however, the parties must specifically request that it retain jurisdiction over the matter, otherwise they will be precluded from seeking such an order at a later date.

Additionally, although C.G.S. §46b-56c defines “necessary educational expenses,” parties should cite the statute or define the phrase themselves if they enter into a separation agreement.  Indeed, if they fail to do so, the meaning may be left open to interpretation.

A Relevant Case

In Bollinger v. Feldman, Superior Court, Judicial District of Hartford, Docket No. FA020731923 (Nov. 18, 2010, Adelman, J.), the parties obtained a divorce by way of an agreement containing a provision titled “College Education of the Children.”  When one of the children took a college-level summer course for credit (while still a high school student), the father refused to contribute toward the tuition fee, claiming that it did not fall within the meaning of “college expenses” as set forth in the parties’ agreement.

The Court noted that the parties did not reference C.G.S. §46b-56c in their agreement; rather they used the phrase “all college expenses.”  However, the parties did not define the phrase, include qualifying language such as “reasonable and necessary,” or specify that such expenses would include only post-secondary education.  On that basis the Court held that since the course was given at a college, and the child earned college credits for her work, the expense must be covered under the parties’ agreement.

Given the vast array of expenses associated with sending a child to college, it is important to pay close attention to the language used in a separation agreement.  Indeed, as the case above illustrates, if parties fail to do so, they could find themselves litigating an otherwise avoidable issue.


If you have questions regarding educational expenses in divorce, or any family law matter contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Lower Court Erred in Denying Defendant’s Motion to Vacate Enhanced Sentence Because the Persistent Offender Provision Was Inapplicable

In a criminal law matter, the Appellate Court of Connecticut agreed with a defendant that he was improperly sentenced as a repeat offender under General Statutes § 14-227a(g) and that the trial court erred in denying his motion to vacate.

Case Details

In this case, the defendant was arrested on three separate occasions over the span of approximately three weeks. He was charged with three counts of operating a motor vehicle while under the influence (OMVUI) in violation of § 14-227a, and each case was docketed in a different jurisdiction: Waterbury, Meriden, and Bristol. The defense counsel and Waterbury prosecutor reached a plea agreement, under which the defendant would be sentenced as a first-time offender twice and a second-time offender once.

However, the Meriden prosecutor would not transfer his case unless the defendant first pled guilty. On December 15, 2008, the defendant entered a guilty plea in the Meriden case, which was then transferred to Waterbury for purposes of sentencing. The Bristol case was transferred as well.

The Court’s Decision

On December 22, 2008, counsel submitted a new plea agreement to the court. Under its terms, the defendant would be sentenced as a first-time offender once (in the Meriden case) and a second-time offender on the other two counts. The defendant entered guilty pleas on January 12, 2009. The defendant, with support from the State, filed a motion to vacate the pleas and sentences, arguing that the pleas were improperly and illegally entered.

The court denied this motion, and the defendant sought remedy with the Appellate Court, arguing that he should have been sentenced as a first-time offender for all three cases. He noted that “he cannot be subjected to the enhanced penalty… because his conviction in the Meriden case occurred after the conduct underlying the violations of § 14-227a in the Waterbury and Bristol cases.”

General Statutes § 14-227a(g) allows for enhanced penalties for repeat offenders in OMVUI cases. In State v. Burns, the Supreme Court of Connecticut determined that for this section to be applicable, a defendant “must [first] have been convicted under § 14-227a and later must have violated the statute.”

In this case, the defendant was not convicted of OMVUI in the Meriden case “at the time of the commission of the second and third violations in the Waterbury and Bristol cases.” Instead, the defendant was sentenced in all three matters on the same date. As such, the Appellate Court found that the persistent offender provision did not apply, and the trial court erred when it did not grant the defendant’s motion to vacate.

Written by Lindsay E. Raber, Esq.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, 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.

How NCLB Implements its Goals

NCLB Goals

One of the stated goals of NCLB is that every child is able to read by the end of third grade. To this end, the Federal government invested in scientifically based reading instruction programs to be implemented in the early grades. An expected collateral benefit of this initiative is reduced identification of children requiring special education services resulting from a lack of appropriate reading instruction.

NCLB funds screening and diagnostic assessments to identify K-3 students who are at risk of reading failure, and to better equip K-3 teachers in the essential components of reading instruction. Funds are also available to support early language, literacy, and pre-reading development of pre-school-age children.

In keeping with its major themes of accountability, choice, and flexibility, NCLB also emphasizes the use of practices grounded in scientifically based research to prepare, train, and recruit high-quality teachers. Once again, local school administrators are afforded significant flexibility in teacher staffing, provided they can demonstrate annual progress in maintaining and enhancing the high quality of their teachers.

Finally, in an effort to ensure safe and drug-free schools, NCLB, as proposed, requires states to allow students who attend a persistently dangerous school, or who have been victims of violent crime at school, to transfer to a safe school. To facilitate characterizing schools as “safe” or “not safe,” NCLB requires public disclosure of school safety statistics on a school-by-school basis. In addition, school administrators must use federal funding to implement demonstrably effective drug and violence prevention programs.

It is within this overarching educational framework of NCLB that the State of Connecticut oversees and administers its constitutional and statutory obligations to educate your children.

Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education 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. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to call our office at (203) 221-3100. We offer free consultations to all new clients.