Posts tagged with "experienced and knowledgeable school law practitioner"

What is “Gifted and Talented” and What If My Child Is Identified as Such?

While reading a parent’s education law guide written by attorneys here at Maya Murphy, I was initially surprised to read the following: “A child requiring special education in Connecticut includes not only children with disabilities but also those who are found to be especially gifted and talented.”[1] Indeed, “a child requiring special education” is not limited to those deemed eligible pursuant to the Individuals with Disabilities Education Act (IDEA; see my previous post), but a child that:

[H]as extraordinary learning ability or outstanding talent in the creative arts, the development of which requires programs or services beyond the level of those ordinarily provided in regular school programs but which may be provided through special education as part of the public school program.[2]

The Regulations Concerning State Agencies go into greater depth as to what constitutes “gifted and talented,” “extraordinary learning ability,” and “outstanding talent in the creative arts.”[3]

You may be asking yourself, “But how do I know my child is gifted and talented?” The State Department of Education produced a very informative list of FAQs, one of which directly addresses this question:

Some children are able to concentrate for long periods of time at a very young age or demonstrate their gifts and talents by using a large vocabulary, constant questioning, demonstrating unusual creativity, performing advanced math calculations, and/or exhibiting exceptional ability in specific subject areas.

Not all children, however, demonstrate their potential abilities and talents in the traditional manners mentioned above. Thus, concerned parents should consult with child development specialists, such as their local school officials, pediatricians, or higher education personnel for more information.[4]

Gifted and Talented (GaT) Programs

The rules governing gifted and talented (GaT) are somewhat similar to the mandates stemming from special education classifications under IDEA (and associated state law codifying its requirements). Schools districts must “provide identification, referral and evaluation for gifted and talented children.”[5] However, offering GaT programming is optional: “(c) Each local or regional board of education may provide special education for children requiring it who are described by subparagraph (B) of subdivision (5) of section 10-76a and for other exceptional children for whom special education is not required by law.[6] 

Thus, if you are the parent of a child identified as GaT and your school elects not to offer special programs or services, they are not denying your child the free appropriate public education, or FAPE, as is required under federal law.

Written by Lindsay E. Raber, Esq.

However, if your school district refuses to identify, refer, or evaluate your child for GaT status pursuant to Connecticut law, it is imperative that you seek the counsel of an experienced and knowledgeable school law practitioner. Should you have any questions regarding gifted education, special education, 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] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.10.

[2] Connecticut General Statutes § 10-76a(5)(B).

[3] Regulations of Connecticut State Agencies § 10-76a-2.

[4] “Gifted and Talented – QA,” by the State Department of Education. Accessed October 5, 2012: http://www.sde.ct.gov/sde/cwp/view.asp?a=2618&q=320948

[5] Id. at § 10-76d-1.

[6] Connecticut General Statutes § 10-76d(c).

How to File a Personal Injury Claim Against a School in Connecticut

If you have a personal injury claim against a school, a school employee, or a similar government entity or employee, you probably already know that it’s more complicated than just suing a private homeowner for a slip-and-fall. But what makes it so complicated, and what is the process?

Schools and their employees are often immune from liability for actions they undertake within the course and scope of their duties. That immunity is not unlimited, however, and particularly where a child’s injury is caused by gross negligence, malice, or wantonness, you can be compensated with monetary damages. CGS § 4-141, et seq. But, before you take your case to court, your case must be reviewed by the Commissioner of Claims.

Depending on the value of your case, the Commissioner of Claims will review your case, and may conduct a fact finding investigation, including witness interviews, document inspections, and other types of inquiries. The parties may engage in discovery in some cases, and the Attorney General may also be permitted to file a dispositive motion that asks the Commissioner to decide the issues in the case just on the known facts and law, but without a full hearing or trial. Once the Commissioner of Claims’ investigation (if applicable) is complete, s/he may issue a decision, or if there are unresolved legal issues, they may authorize you to file suit in
court.

Navigating an administrative process with an administrative authority requires expert guidance. Small mistakes such as misunderstanding a statute or missing a deadline can impact or even eliminate your ability to seek relief. If you have a personal injury claim against a school, school employee, or a similar government entity, the attorneys at Maya Murphy, P.C. can assist you. Managing Partner Joseph C. Maya may be reached directly by telephone at (203) 221-3100, ext. 110 or by email at JMaya@mayalaw.com.

The above is not intended to constitute legal advice, and you should consult with an attorney as soon as possible if you believe you have this, or any other type of claim.

School Liability in a Student Bullying Case: It’s Fact-Driven

It’s a new day, and [expectantly] the news brings us yet another bullying story. Brandon Myers was a 12-year-old student in the Blue Springs (Missouri) School District. He was born with a cleft palate, and for that he “faced constant bullying from his classmates. … [O]n one occasion at recess, several students threatened to ‘fill up the hole’ in Brandon’s face before shoving him to the ground. They then reportedly pushed grass and dirt in his nose and mouth.”[1] Brandon’s parents taught him to be the bigger person and ignore the teasing and bullying. They also “encouraged their son to tell a teacher about the bullying. When he did… he was [rebuked and] told to stop being a ‘tattletale.’”[2]

Between the “constant tormenting” and teachers who simply would not listen, Brandon was pushed to one conclusion: suicide by hanging was his only recourse. Brandon’s parents reached a settlement with the school district’s insurance company to the tune of $500,000. The agreement also included “making two administrators be retrained in bullying awareness” and the implementation of a bullying awareness day.[3]

School Liability in Bullying Cases

Connecticut law is presently unsettled with respect to whether school districts are liable for bullying in schools. Each case is typically very fact-driven: “whether a parent can prevail on [a negligence claim] is dependent on the unique facts and circumstances surrounding their child’s case.”[4] It also depends on whether the action on part of the school was governmental or ministerial.

Governmental acts are performed to benefit the public and involve discretion and supervision. For public policy reasons, the Connecticut legislature has elected to grant qualified immunity to school personnel who perform acts of this nature. Therefore, liability will not attach in a negligence action unless one of three exceptions applies: 1) the act involves malice or intent to injure; 2) there is a statutory cause of action against the municipal employee; or 3) the municipal employee’s failure to act directed at an identifiable person subject to an imminent harm.[5]

Establishing Negligence Against a School

On the other hand, ministerial acts do not allow the exercise of discretion or judgment. They are “usually secondary in nature and executed according to established policy, rule or practice,”[6] such as inspecting and keeping hallways clean or adult supervision at recess.[7] The failure to adequately perform a ministerial duty may result in liability of the school district. However, Connecticut courts are in disagreement as to whether or not “a school’s failure to take action against bullying when it knew or should have known about the misconduct constitutes a misperformance of a ministerial function.”[8]

The extent to which a school district details its anti-bullying policy appears to play a key role in the court’s decision, and “[a] parent will likely have a better chance to prevail on a negligence claim under a ‘ministerial action’ theory if the school fails to discharge a responsibility that was spelled out in the plan in such exquisite detail that it eliminated or marginalized a school employee’s judgment or discretion.”[9]

If you are the parent of a child who has been bullied or harassed at school, it is imperative that you consult with an experienced and knowledgeable school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport.

If you have any questions regarding school liability or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya. 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] “Blue Springs School District’s insurance company settled bullying lawsuit for $500,000,” by Melissa Yaeger. October 15, 2012: http://www.kshb.com/dpp/news/local_news/investigations/blue-springs-school-districts-insurance-company-settled-bullying-lawsuit-for-500000?hpt=ju_bn5

[2] Id.

[3] Id.

[4] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq. pp. 104-05.

[5] Esposito v. Town of Bethany, No. CV065002923, 2010 WL 2196910, at *4 (Conn. Super. Ct. May 3, 2010).

[6] Id. at *3.

[7] See Footnote 4 at pp.105.

[8] Compare Dornfried v. Berlin Board of Education, No. CV064011497S, 2008 WL 5220639, at *1 (Conn. Super. Ct. Sept. 26, 2008) with Esposito, supra, at *8.

[9] See Footnote 4 at pp.106.

Scenarios That Commonly Lead to School Residency Disputes

In a previous post, I discussed what takes place if a parent’s son or daughter has been deemed ineligible for free school accommodations because the school board has determined he or she did not reside in the district. Undoubtedly the headaches and stress that accompany the hearing and appellate processes are nothing to sneeze at, so it is important for parents to do what they can to understand ahead of time the [common] situations that may call into question their child’s residency.

Scenario #1: The child lives with both parents.

When a child lives with both parents, he or she will go to the school district in which the residence is located. Typically, a school district will request proof of residence, typically in the form of driver’s licenses or utility bills.

Scenario #2: You are a divorced parent.

If you are a divorced parent, your child is eligible to attend school in the district in which either you or your ex-spouse resides. It boils down to where your child in fact resides, which will not be defeated simply because the child divides his time between each parents’ location. Legal custody of the child is not a requirement for eligibility.

Scenario #3: Your child lives with another family member or a friend of the family.

Under Connecticut law, if a child resides with relatives or non-relatives, “when it is the intention of such relatives or non-relatives and the children or their parents or guardians that such residence is to be permanent, provided without pay and not for the sole purpose of obtaining school accommodations… shall be entitled to all free school privileges accorded to the resident children of the school district in which they reside.”[1] In this situation, the school district may ask for evidentiary documentation, or even a signed affidavit to pertinent facts, that attest to compliance with statutory requirements.

Permanent residence is established by considering numerous factors, including but not limited to: where most of your child’s possessions and clothing is located; where your child attends church or other religious services; where your child’s immediate family resides; and the town that issued your child’s library card.

You cannot pay a family member or friend in exchange for allowing your child to live with them (thus gaining access to free school accommodations in that district). However, according to guidelines promulgated by the State Department of Education, “pay” does not include support payments pursuant to a court order, claiming the child as an income tax deduction, or maintenance of the child’s health insurance coverage.

Scenario #4: Your house is located on a town boundary line.

In some situations, a family’s single piece of property may span two towns – this does not, however, automatically mean that their child is entitled to attend school in whichever district they choose. Courts will make this determination on the interaction between the house itself and the town line: 1) if the residence is entirely located in one town, this is the only school district for which the child is eligible; or 2) if the town line “cuts through” the residence, the child may attend school in either district.

Scenario #5: Your child is in this country illegally.

The issue of illegal immigration has become a common topic of sparring on the national political stage, but for school districts in Connecticut, a child’s visa status is irrelevant in determining eligibility to attend its schools. According to a longstanding Supreme Court of Connecticut decision, a child is entitled to attend school if he or she is “actually present,” or residing, in the district itself.[2]

Written by Lindsay E. Raber, Esq.

Ensuring free school accommodations for your child is important, but even more critical is making sure you do not run afoul of residency requirements. The situations in which confusion may occur are rather commonplace, and should you find your child being denied free school accommodations due to residency issues, it is imperative that you seek the counsel of an experienced and knowledgeable school law practitioner.

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 eligibility and residency or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya. 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] Connecticut General Statutes § 10-253(d).

[2] Yale v. West Middle School, 59 Conn. 489, 491 (1890).

What Happens If Your Child is Denied Free School Accommodations Due to Residency Issues?

Under Connecticut law, school districts must provide free school accommodations, including transportation, to every child from age three to twenty-one (who has not yet graduated from high school) within the district so as to facilitate public school attendance.[1] Typically, the school administration will determine your child’s residency status before he or she first enrolls; this does not always happen, however, because it is not statutorily required. As a result, it is not uncommon for residency issues to arise after your child has already been attending classes at a particular school, and the school district has the right to exclude if it determines that your child really resides in another district.

Denying a Child School Accommodations

If your child is denied school accommodations due to residency issues, the board of education must notify you of your statutory right to a formal hearing, as well as the reasons for concluding ineligibility.[2] If you submit a written request for this hearing, the school board must hold it within ten (10) days after receipt.[3] At this hearing, you will have the opportunity to present any evidence (including that which establishes your child’s residency), cross-examine any witnesses, and present arguments – however, you bear the burden of establishing residency by a preponderance of the evidence.[4] 

A stenographic record or audio recording must be made of this hearing, and the school board must produce its findings within ten (10) days after the hearing takes place. Have the right to request a copy, which must be provided within thirty (30) days.[5] During the duration of the hearing process, your child may still attend school in the district.

Appealing the Board’s Residency Decision 

As a parent, you have the right to appeal to the Connecticut State Board of Education (SBE) the school board’s decision regarding your child’s residency. However, you must do so within twenty (20) days after the school board mails out their finding – failure to do so will make the decision of the initial hearing final.[6] If the SBE elects to consider your appeal, it must return a decision within forty-five (45) days. However, if the SBE determines that your child was not a resident and thus not entitled to free school accommodations your school district may assess and see tuition reimbursement from you.[7] After this avenue of recourse has been exhausted regardless of the outcome, either party may then appeal to the local Superior Court.

Written by Lindsay E. Raber, Esq.

Ensuring free school accommodations for your child is important, but even more critical is making sure you do not run afoul of residency requirements. The situations in which confusion may occur are rather commonplace, and will be discussed in an upcoming article. However, should you find your child being denied free school accommodations due to residency issues, it is imperative that you seek the counsel of an experienced and knowledgeable school law practitioner.

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 eligibility and residency or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya. 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] Connecticut General Statutes § 10-186(a).

[2] Id.

[3] Connecticut General Statutes § 10-186(b)(1).

[4] Id.

[5] Connecticut General Statutes § 10-186(b)(2).

[6] Id.

[7] Connecticut General Statutes § 10-186(b)(4).

In Negligence Suit, Superior Court Finds in Favor of Defendant School District, Citing Qualified Immunity

In a recent negligence action, the Superior Court of Connecticut in Litchfield granted a motion to strike filed by school officials and a town board of education (collectively the defendants) because no exception to qualified immunity for discretionary acts applied to the case.

Case Details

One day during recess, a parent’s daughter was kicked and injured by a classmate (defendant student). The defendants were aware that the daughter was frequently bullied and harassed by the defendant student. Therefore, the parent filed suit, alleging that the defendant “failed in its duty to protect [his daughter] against any future bullying.”  However, the defendants asserted that they were not subject to liability because of governmental immunity.

Generally, municipal employees enjoy “qualified immunity in the performance of a governmental duty,”[1] which involves the exercise of discretion. However, even this immunity may be surmounted by a plaintiff if he or she can establish the applicability of one of three exceptions.

Identifiable Person-Imminent Harm

One of these exceptions is the “identifiable person-imminent harm” exception, which requires: “(1) an identifiable victim; (2) an imminent harm; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”[2] This is a narrowly applied exception, however, because the harm itself must be “limited both in duration and in geography to make it apparent to the defendants that schoolchildren were subject to imminent harm.”[3] In other words:

Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future. In order to meet the imminent harm prong of this exception… the risk must be temporary and of short duration.[4]

In this case, the Court found that although the plaintiff satisfied the first prong, he failed to do so with the second two. He failed to “allege a temporary condition which placed [his daughter] in imminent harm;” rather, it could have happened anytime, anywhere during the school day.[5] The defendants’ knowledge of the previous bullying and harassment, without more, was insufficient to satisfy the remainder of the test. Therefore, the Court ruled that the defendants were entitled to qualified immunity and granted the motion to strike.

Written by Lindsay E. Raber, Esq.

If you are the parent of a child who has been bullied or harassed at school, it is imperative that you consult with an experienced and knowledgeable school law practitioner. 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 school liability or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya. 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] Burns v. Board of Education, 228 Conn. 640, 645 (1994).

[2] Violano v. Fernandez, 280 Conn. 310, 319-20 (2006).

[3] Doe v. Board of Education, 76 Conn. App. 296, 302-03 (2003).

[4] Cady v. Tolland, 2006 Conn. Super. LEXIS 3526.

[5] Antalik et al. v. Thomaston Board of Education, 2008 Conn. Super. LEXIS 2082.

Another Case Against the School District, Town Jumps Summary Judgment Hurdle

In a negligence action, the Superior Court of Connecticut at Danbury denied a motion for summary judgment filed by the Town of New Milford, the New Milford Board of Education, and several school employees (collectively the defendants). The Court was not persuaded that the defendants enjoyed governmental immunity from suit, or the claim that they did not owe a duty to a student-victim assaulted by another student on school grounds.

Case Details

In this case, the plaintiff was the target of repeated bullying and harassment from a classmate, Kevin, during his freshman and sophomore years in high school. He endured pushing and shoving, being struck by a stack of school books, menacing stares, and even derogatory “gay” remarks from Kevin. The plaintiff constantly complained to various school administrators, though no meaningful action was ever taken. This culminated to a full-blown assault of the plaintiff at Kevin’s hands outside the school cafeteria.

The plaintiff sued the defendants, arguing that they had a duty to protect him from Kevin and failed to do so. “The plaintiff contends that [one individual defendant] had a duty to compel compliance with school rules and to prevent bullying and harassment… [as well as ] a legal duty to be alert to possible situations that might include bullying and to inform the administration immediately of such events.”[1] In addition, he claimed that governmental immunity was inapplicable, because he was an identifiable victim to an imminent harm. Finally, he asserted town liability because the Board of Education was an agent for the town in “mandating control” over the public high school.[2]

Municipal employees are “liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts…”[3] Basically, governmental acts are supervisory and discretionary, while ministerial acts must “be performed in a prescribed manner without the exercise of judgment or discretion.”[4] However, even if a defendant successfully claims that the acts in question were discretionary, thus invoking governmental immunity, a plaintiff may still defeat a motion for summary judgment by asserting one of three exceptions (discussed in greater detail here): in this case, the identifiable person-imminent harm exception.

Identifiable Person-Imminent Harm Exception

The identifiable person-imminent harm exception requires a showing of three things: “(1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”[5] A person will be deemed “identifiable… if the harm occurs within a limited temporal and geographical zone, involving a temporary condition;”[6] a harm is imminent if it is “ready to take place within the immediate future.”[7]

The Court sided with the plaintiff and denied summary judgment as to all defendants. It noted, “The [board of education’s] duty to supervise students is performed to the benefit of the municipality;”[8] in this case, the plaintiff’s claim didn’t involve his education, but rather “the inability of certain teachers and staff at New Milford High School to supervise and maintain control on its premises for the protection of its students.”[9] 

A duty to supervise students is not confined to just younger children, but also includes high school students because a gathering “in large numbers at lunch time or at sporting events would certainly seem to present a risk of incidents such as the one involved in this case occurring [an assault at school].”[10] Thus, on all grounds asserted by the defendants, the motion for summary judgment was denied.

This case, Straiton v. New Milford Board of Education, et al, appears to be continuing through the courts with a hearing scheduled for October 19, 2012. It may be found on the Judicial Branch website under DBD-CV10-6003255-S.

Written by Lindsay E. Raber, Esq.

Bullying in schools has become a serious problem, and increasingly courts are willing to permit the case to proceed beyond a motion for summary judgment, despite claims of governmental immunity or no duty owed to the students. If you are the parent of a child who has been bullied or assaulted, despite repeated unaddressed complaints to administration, it is imperative that you consult with an experienced and knowledgeable school law practitioner. Should you have any questions regarding bullying 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] Straiton v. New Milford Board of Education et al., 2012 Conn. Super. LEXIS 773 at 15.

[2] Id. at 11.

[3] Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010).

[4] Id.

[5] Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).

[6] Id. at 275-76.

[7] Stavrakis v. Price, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001285, 2010 Conn. Super. LEXIS 2257 (September 7, 2010, Roche, J.).

[8] Purzycki v. Fairfield, 244 Conn. 101, 112 (1998).

[9] Straiton, supra at 12-13.

[10] Maretz v. Huxley, Superior Court, judicial district of New Haven, Docket. No. CV 07 5011978 (January 12, 2009, Corradino, J.)

“Sniff Away Fido!” Assessing the Extent of Allowing Canine Searches of Students in Our Schools

The past few articles I’ve composed have highlighted various contexts in the realm of school searches of students and their possessions. Connecticut has codified the landmark decision of New Jersey v. T.L.O., incorporating the parameters of permissible school searches into § 54-33n: “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.”[1] Though it provides important definitions of terms in the applicable two-part reasonableness test, it does not specifically limit who or what may be searched and the manner of the search itself (thus the test).

Dog-Sniffing Tactics to Combat Drug Abuse

Switching gears without the clutch, in the United States, households nationwide own approximately 78.2 million pet dogs.[2] They have been near and dear to our hearts as “Man’s Best Friend,” and became increasingly loved every time Lassie saved Timmy – yet again – from that well. However… fast-forward to the twenty-first century, and they’ve become a vital tool utilized by local and federal law enforcement at shipping facilities, airports, security checkpoints, and… well, basically everywhere.

The use of dog-sniffing tactics is on the rise as schools attempt to combat drug abuse within its student body. “The National Center on Addiction and Substance Abuse at Columbia University completed a 2005 study concluding that [at that time] 2.4 million, or 28% of middle school students, and 10.6 million, or 62% of high school students, will attend schools where drugs are used, kept, or sold.”[3] These students are “three times likelier to have tried marijuana, three times likelier to get drunk in a typical month, and twice as likely to have tried alcohol, compared to teens who attend drug-free schools.”[4]

The Supreme Court in New Jersey v. T.L.O. clarified that teachers are subject to constitutional restrictions on their searches of students, though not as stringent as those applied to law enforcement (see above, as codified in § 54-33n). Thus, the use of canines in conducting drug searches hinges on the reasonableness of the search. In practice, however, federal jurisdictions are producing conflicting (and irreconcilable) results about whether dog-sniffing constitutes a search at all[5] – a conflict which inevitably will find its way once more in front of the Supreme Court.

Providing Safety to Students

Nonetheless, school districts are choosing to retain dogs in their arsenal of search weaponry to combat drug use and abuse – not without controversy amongst residents, either. Earlier this year, canine sweeps became routine at Simsbury High School: “the dogs will be brought through the hallways, bathrooms, common areas, lockers, locker rooms and parking lots while students remain in their classrooms,” according to Principal Neil Sullivan and Superintendent Diane Ullman.[6] 

This is but the latest measure employed by the school district as it faced increases in arrest rates related to marijuana possession and sales. However, it has received its seal of approval from the Connecticut Association of Boards of Education (CABE): “It’s a policy available because a prime mission of a school is to provide safety to its students. This is just one of a number of ways to [do so],” says CABE senior staff associate Vincent Mustaro.[7]

Metal Detectors or Dogs?

The Amity Regional Board of Education, however, has decided to up the ante. As of early summer, it was “considering approving a policy that would allow police canines to sniff an individual student in cases where there is reasonable suspicion that individual is in violation of the law or school rules.”[8] If passed, Amity would become the first school district to implement such measures, though it has already become the target of sharp criticism from parents, the ACLU of Connecticut, and even CABE itself.

“CABE’s position is not to sniff the person. I would not have a dog go up to a youngster. Our position is to use dogs to sniff inanimate objects, not persons,” explained Mustaro.[9] However, the State Department of Education declined to comment on the matter, noting it was a local issue. Some parents have supported the proposed action, with one notably writing on his Facebook wall, “Metal Detectors or Dogs. If they’re bringing in drugs into a school, it could be just as dangerous as a gun or a knife. Sniff away Fido!”[10]

Because the U.S. Supreme Court has yet to address the extent to which dog searches in schools are permissible, it is imperative, as a parent, that you understand your child’s rights by consulting an experienced and knowledgeable school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school 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] Connecticut General Statutes § 54-33n.

[2] “Pet Statistics,” by the American Society for the Prevention of Cruelty to Animals. Accessed October 4, 2012: http://www.aspca.org/about-us/faq/pet-statistics.aspx

[3] “Suspicionless Canine Sniffs: Does the Fourth Amendment Prohibit Public Schools From Using Dogs to Search Without Individualized Suspicion?” by Todd Feinberg, UC Davis Journal of Juvenile Law & Policy, Vol. 11:2, pp.273. Summer 2007. Accessed October 4, 2012: http://jjlp.law.ucdavis.edu/archives/vol-11-no-2/08%20Feinberg%2011.2.pdf

[4] The National Center on Addiction and Substance Abuse at Columbia University, National Survey of American Attitudes on Substance Abuse X: Teens and Parents (2005). Accessed October 4, 2012: http://www.casacolumbia.org/Absolutenm/articlefiles/Teen_Survey_Report_2005.pdf

[5] Compare Doe v. Renfrow, 631 F.2d 91, 92 (7th Cir. 1980) (per curiam) (holding that canine sniffing ordered by school officials does not constitute a search) with B.C. v. Plumas Unified School District, No. 97-17287, 1999 U.S. App. LEXIS 38863 (9th Cir. Sept. 20, 1999) and Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir. 1982) (holding that canine sniffing constitutes a search, thus implicating the Fourth Amendment).

[6] “Drug-Sniffing Dogs To Be Used In Drug Sweeps At Simsbury High School,” by Hillary Federico. Published February 16, 2012. Accessed October 4, 2012: http://articles.courant.com/2012-02-16/community/hc-simsbury-drug-dogs-20120214_1_dog-searches-drugs-on-school-grounds-illegal-drug

[7] Id.

[8] “Amity considers allowing drug-sniffing dogs to check students,” by Bridget Albert. Published June 2, 2012. Accessed October 4, 2012: http://nhregister.com/articles/2012/06/02/news/metro/doc4fcadb8e5d32f364581634.txt

[9] Id.

[10] Id.

Extremely Intrusive Strip Searches of Students Are Unconstitutional…Mostly?

On December 2, 2008, a teacher at Pine Academy in Shelton discovered that $70 was taken from her pocketbook. Upon this finding, the school principal “ordered [two teachers] to bring [four male] teens… accused of stealing [the money] individually into a room to be strip-searched. The teens were reported being told to remove their shirts and pull their pants down.”[1] This was in direct contravention of publicized district policy explicitly prohibiting strip searches.[2]

After the teens sued the school district, the U.S. Supreme Court rendered its decision in the case of a thirteen-year-old girl who, following unsubstantiated claims that she was dealing drugs, was “pulled out of class, ordered to strip to her underwear [and bra] and further expose herself as school officials searched for prescription-strength ibuprofen. No drugs were found.”[3] 

Suspicision vs. Degree of Intrusion

This case, Safford Unified School District v. Redding, 557 U.S. (2009), first summarized Fourth Amendment jurisprudence relating to searches conducted by police officers and the relaxed standards applied to those conducted by teachers and school administrators. Applying these principles, the Court explained that “the content of the suspicion failed to match the degree of intrusion” because of “the categorically extreme intrusiveness of a search down to the body of an adolescent [for] non-dangerous school contraband.”[4] Justice Souter concluded in his majority opinion:

[T]he T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.[5]

After the Pine Academy incident, administration placed the principal and one of the teachers involved on administrative leave for the remainder of the school year, at which point they resigned from their positions.[6] In early August 2010, the four teens each received $27,500 as part of their settlement of the lawsuit.[7]

Written by Lindsay E. Raber, Esq.

The language used by Justice Souter leaves open the ability of school officials, should they so choose, to strip search a student if they possess an equally compelling reasonable suspicion to do so, such as to locate dangerous contraband. Therefore, if your child is subject to a strip search at his or her school, it is imperative that you contact an experienced and knowledgeable school law practitioner to understand your rights and courses of action.

Should you have any questions regarding strip 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] “2 lose jobs in Ansonia strip-search incident,” by Lauren Garrison. Published February 12, 2009. Accessed October 4, 2012: http://www.nhregister.com/articles/2009/02/12/news/valley/a1-anpineacademy.txt

[2] “Supreme Court Decision Could Affect Ansonia Strip Search Case,” by Diane Orson. Published July 7, 2009. Accessed October 4, 2012: http://www.cpbn.org/article/ansonia-school-strip-search-case

[3] Id.

[4] Safford Unified School District v. Redding, 557 U.S. ___, 8-9 (2009). Accessed October 4, 2012: http://www.law.cornell.edu/supct/pdf/08-479P.ZO

[5] Id. at 11.

[6] See Footnote 1.

[7] “Ex-students settle Ansonia strip search lawsuit,” by the Associated Press. Published August 12, 2010. Accessed October 4, 2012: http://www.wtnh.com/dpp/news/education/ex-students-settle-ansonia-strip-search-lawsuit