FAIRFIELD — Three minority students at Fairfield High School – arrested after a brawl last February in the school’s parking lot –plan to sue the town, claiming they were singled out for arrest because of their race and ethnicity. Continue Reading
In a New York District decision earlier this year, a student’s cause of action under Title IX of the Civil Rights Act against the Monroe-Woodbury School District was denied because it did not show deliberate indifference in response to the student’s claim of student-to-student sexual harassment.
Parents on behalf of their fifteen year old daughter brought suit against Monroe–Woodbury Central School District pursuant to Title IX of the Civil Rights Act of 1964, alleging that she was deprived of an educational environment free from sexual harassment as required by federal law.
Beginning in January 2010, when she was in the eighth grade, the student was subjected to teasing, taunting, and physical bullying by other students, which she reported to her guidance counselor. She was sexually assaulted by a male classmate who requested a handjob and subsequently ran her hands over the genital area of his pants and attempted to shove her hands down his pants. As a result of the incident, the student alleges that she was subjected to more taunting and name-calling by other students and in response began to engage in self- injurious behavior by cutting herself. When she began attending Monroe–Woodbury High School in September, another student and friend of the first continued to harass her and in November sexually assaulted her by pinning her against a locker and pushing his hands down her pants and blouse, touching her genital area and breast. The student began missing school frequently to avoid continued harassment. At some point she confided in her guidance counselor that her absenteeism and self-injurious behavior was the result of the persistent teasing and the two incidents of sexual assault by her classmates.
The School District recommended that she attend the GO Program, an out-of-district academic program, to which her parents agreed. After her first day there, CF reported to her parents that she was uncomfortable with this placement because the students there were “in many cases, not attending their regular high schools due to serious disciplinary records and incidents.” When her parents again met with the principal, they requested that their daughter be transferred to another public school to continue her high school education. The principal refused saying there were no other options besides the GO program.
The parent brought suit alleging the school failed to: (1) initiate an investigation upon the parents’ verbal complaint; (2) conduct a prompt, equitable, and thorough investigation of the charges; (3) ensure that immediate corrective action be taken, including subjecting the offending individuals to appropriate disciplinary measures; and (4) inform CF of her right to pursue legal remedies.
Title IX of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX contains an implied private right of action for plaintiffs who bring suit against educational institutions that receive federal funding, and liability may be imposed upon a school district if it is found to be in violation of this law.
Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school. A showing of deliberate indifference requires that the school had actual knowledge of the sexual harassment and either responded in a “clearly unreasonable manner in light of the known circumstances,” or responded with remedial action only after a “lengthy and unjustified delay.”
The Court rejected the plaintiff’s assertions that the GO Program was an “inappropriate” placement for her because it did not provide her with a “regular high school environment.” Saying even if it was inappropriate, “Title IX simply does not require recipient school districts to provide students with a ‘regular high school environment.’ Title IX does not prescribe any particular educational experience at all. Rather, Title IX merely prohibits schools from excluding anyone, on the basis of sex, from participating in an educational program that receives federal assistance; or denying the benefits of such programs on the basis of sex; or subjecting anyone in such programs to discrimination on the basis of sex.” Finding that the school did not cause the discrimination and the School District took some remedial action (not clearly unreasonable under the circumstances) in response to the student’s complaints, the Court dismissed the action.
Bullying and harassment in school should never be tolerated. The lawyers at Maya Murphy, P.C., are experienced and knowledgeable education law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about bullying, student harassment, school liability or any other 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, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
 KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)
 Compl.¶¶ 10-11
 Compl.¶¶ 12-13
 Compl.¶¶ 14
 Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)
 Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)
 Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)
 KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.
Here in Connecticut and across the nation, employees from all walks of life routinely face unlawful discriminatory practices and treatment in the workplace. Depending on the nature of the claim, he or she may file civil lawsuits under Title VII (which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin) or the Connecticut Fair Employment Practices Act (CFEPA).
However, employees need to keep in mind that before they seek recourse with the courts, they must first exhaust all of their administrative remedies. “The exhaustion requirement exists to afford the administrative agency the opportunity to investigate, mediate, and take remedial action.” Failure to do so will result in dismissal of the case (see, for example, this previously-discussed case).
Furthermore, employees must pay attention to statutory time restrictions for filing administrative charges under Title VII and CFEPA:
To sustain a claim for unlawful discrimination under Title VII in a deferral state such as Connecticut, a plaintiff must file administrative charges with the EEOC [Equal Employment Opportunities Commission] within 300 days of the alleged discriminatory acts. … CFEPA requires that a complainant file the administrative charge with the CCHRO [Connecticut Commission on Human Rights and Opportunities] within 180 days of the alleged discriminatory act.
Courts are particularly cognizant of these requirements and endorse “strict adherence… [as] the best guarantee of the evenhanded administration of the law.” As a result, the time bar will begin running for each individual adverse employment action against the employee on the date it occurred. Failure to timely file a claim may prevent it from being reviewed by the EEOC or CCHRO.
However, employees often endure discriminatory practices over a prolonged period of time, so even if alleged conduct falls outside of the charging period, it may be reviewable. An important exception to strict adherence is the continuing violation exception, which involves incidents occurring both within and outside the time bar. A continuing violation occurs “where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.”
As an employee, it is imperative that you understand Connecticut’s statutory scheme surrounding hiring, evaluation, and termination processes, as well as the requirements for filing a lawsuit under State and federal anti-discrimination law. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. If you have any questions regarding any employment law matter, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
 Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d. Cir. 1985).
 Flaherty v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000).
 Connecticut General Statutes § 46a-82e.
 Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980).
 Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
Most people who have lived for some period of time here in Connecticut are amply familiar with the Lady Huskies and Lady Vols fierce decade-long rivalry. Before regular season matches discontinued five years ago, these games were the highlight of the season. Thus, fans have come to form a love-hate relationship with Pat Summitt, Head Coach of the Lady Vols who has the most wins of any (both male and female) NCAA basketball coach. It came as a shock to hear on April 18, 2012, after thirty-eight years of coaching, Summitt would be retiring from her post after being diagnosed with early-onset dementia-Alzheimer’s disease just before the start of the 2011-2012 season. “I’ve loved being the head coach at Tennessee for 38 years, but I recognize that the time has come to move into the future and to step into a new role,” explained Summitt.
As it turns out, the decision may not have been entirely that of Summitt.
In a recently released affidavit, Summitt revealed that on March 14, 2012, she met with the University of Tennessee (UT) Athletics Director David Hart, who informed her that she would no longer be the coaching the Lady Vols. Summitt further explained:
This was very surprising to me and very hurtful as that was a decision I would have liked to have made on my own at the end of the season after consulting with my family, doctors, colleagues, and friends and not be told this by Mr. Hart. I felt this was wrong.
UT spokeswoman Margie Nichols denied allegations that Summitt was forced out of her position. “It’s absolutely not true… It was Pat’s idea to become the head coach emeritus. I think she made that really clear at her press conference earlier this year.” Regardless, this leaves many asking: was Summitt forced to resign because of her disability?
Under Connecticut law, employees enjoy a very comprehensive statutory scheme (found here) prohibiting discriminatory practices in the workplace. Unless the employer and its agents (such as administration or management) have a “bona fide occupational qualification or need,” it is a violation of the General Statutes:
To refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.
In addition, employees enjoy federal protection of their rights through such legislation as the Americans with Disabilities Act, the Rehabilitation Act, and the Family Medical Leave Act, to name just a few.
Discrimination on the basis of disability or another protected class is unfortunately a common occurrence in the workplace, but its prevalence in no way makes it lawful. If you are a teacher, coach, or any employee and you find yourself being the target of adverse employment action on any of the above bases, it is imperative that you consult an experienced and knowledgeable school or employment law practitioner. Should you have any questions regarding employment discrimination or other education law or employment 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.
 “Pat Summitt’s Early-Onset Dementia: Lady Vols Coach Resigns Less Than A Year After Diagnosis.” Published April 18, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/04/18/pat-summitt-dementia-early-onset-alzheimers-memory_n_1435380.html
 “Affidavit of Coach Pat Head Summitt.” Accessed October 5, 2012: http://www.documentcloud.org/documents/452632-pat-summitts-affidavit.html
 “Pat Summitt Affidavit: Ex-Tennessee Coach Initially Felt Forced Out Of Job Over Early-Onset Dementia,” by Steve Megargee. Published October 3, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/10/04/pat-summitt-affidavit-tennessee-coach-job_n_1937730.html
 Connecticut General Statutes § 46a-60(a). Accessed October 5, 2012: http://www.cga.ct.gov/current/pub/chap814c.htm#Sec46a-60.htm
SEPTEMBER 20 @ 1:00 PM – 2:30 PM
Lauren A. Jacobson, Esq. and Robert G. Brody, Esq. will be presenting “New Laws Impacting Connecticut Employers – What you Need to Know” for the Fairfield County Bar Association.
About the Program
The Connecticut General Assembly recently enacted a number of significant employment laws at the end of its recent regular and special sessions that will dramatically affect our state. This program will highlight the most prominent legislation passed, and provide important updates on what employers need to know. Topics will include, among others:
- Mandatory Salary Range Disclosure for Applicants and Employees
- New Sex Wage Discrimination Standard: Moving from “Equal” to “Comparable” Work
- Covid Recall-by-Seniority Law for Certain Employees Laid Off in the Hotel, Food Service and Building Service Industries
- New Workplace Rules for Regulating Recreational Marijuana
- New Breastfeeding Guidelines
- The CROWN ACT- “Creating A Respectful And Open World For Natural Hair” – Protection Again Discrimination Based on Race-Based Hair Styles
Click here to register.
Lawsuits against the State of Connecticut or its local municipalities are notoriously difficult to pursue from a legal perspective, in large part due to various statutory protections and administrative hurdles put in place by the legislature. For example, a plaintiff seeking to initiate a personal injury case against her own town must adhere to strict time limitations and procedural requirements in order to have her case successfully get into court and survive the scrutiny of a judge, well before she ever comes close to having a “day in court” before a jury of her peers.
Unless the site of a plaintiff’s injury falls within one of a few narrow exceptions (such as an injury on a “public highway,” which would invoke the protections and mechanisms of Connecticut’s “highway defect statute,” or Connecticut General Statutes Section 13a-149), a plaintiff is entitled only to proceed against a state or municipality under the Political Subdivision Liability Statute (Connecticut General Statutes Section 52-557n).
Section 52-557n, however, contains its own pitfalls for prospective plaintiffs. The statute provides that a town or political subdivision may be liable for negligent acts of its employees, officers, or agents except if such actions or omissions constitute criminal conduct or willful misconduct, or, significantly, if such negligent acts or omissions require the exercise of judgment or discretion as an official function of the job responsibility.
The latter part of this test is key – and is a gold mine for municipalities (and their lawyers) seeking to invoke the governmental immunity doctrine and escape liability for the negligence of its employees, even if such negligence is established by an injured person. What the provision states, in plain language, is that a town may well be free and clear from liability if the task that was performed negligently was a task that required an exercise of judgment on the part of the town employee.
Take the hypothetical example of a plaintiff who was injured when she slipped on ice on the front steps of City Hall. The evidence suggests that the maintenance workers either knew or should have known that ice had built up on the steps, that they were expecting the public to be walking in and out of the building, and that someone clearly “dropped the ball” in making sure that the ice was scraped off and that salt or sand was applied generously to the area. Instead, nothing was done, nothing was scraped, no sand or salt was used, no warning signs were posted, and the ice remained for several business days before this plaintiff came along and fell on her very first visit to City Hall.
Even with these simplified facts (which appear at first blush to be quite damaging to the City), the City will surely investigate the existence of any policy, procedure, and practice of those maintenance workers who were assigned to the front steps of the building. In this case, the City will attempt to prove by a preponderance of the evidence that “judgment” and “discretion” of the City employees were required to be exercised to keep those steps free of snow and ice. On the contrary, a plaintiff will seek to demonstrate that the actions (or omissions) of the City workers were “ministerial” – that is, the workers had a clear directive to do something (e.g. to clear the ice at certain times, in a certain manner, with no exercise of judgment) and yet they failed to carry out that task, resulting in the plaintiff’s injury.
When the proverbial dust settles, if no clear, articulated policy existed to clear the steps, to inspect the steps on a scheduled basis, or to take preventative measures against ice buildup, a municipal defendant in this instance would likely argue (perhaps successfully) that the maintenance workers were required not to follow any protocol, but only to “use their judgment and discretion” in determining what needed to be kept safe and clear for pedestrian traffic.
An unknowing plaintiff (or perhaps an inexperienced attorney) who advances her case against a town believing that a jury would be shocked if there is no snow removal policy might find herself equally shocked when or if it is determined that any negligence was of a “discretionary” nature and governmental immunity therefore applies, subject to other very narrow legal exceptions not discussed here.
A savvy plaintiff, in discovery and at the very outset of the lawsuit, might request that the town admit, under oath and in writing, to the existence of a clear and articulated policy (even if it is unwritten) with regard to the safety issue which resulted in her injury. While towns (and their attorneys) are often eager to show that preventative measures are and were in place, in this instance, they may well eliminate – as a matter of law – their own sacred protection of governmental immunity at trial. With a valid legal admission of a clear and articulated policy, a municipal defendant is effectively hamstrung – it cannot simultaneously admit to the existence of a policy and directive while claiming that its employees were simply exercising their own judgment. Dramatically and emphatically, the curtain of governmental immunity draws away, paving the way for a plaintiff to reach the eyes and ears of a jury.
An injured person seeking legal assistance as against the state or a municipality faces a virtual hornet’s nest of obstacles and legal entanglements. A trusted, informed advocate is essential to place such a claim in the best possible legal position. The invitation is open to consulting with attorneys at our firm who are experienced in this type of civil litigation.
If you have questions regarding any personal injury matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.
A Bronx school employee is suing the Board of Education for $100 million for employment discrimination – saying she was denied a transfer, even though officials knew she was being harassed by her boss. Continue Reading
The city’s Board of Education settled a discrimination and retaliation lawsuit brought by a former Bronx School Board employee last week for $100,000. Continue Reading
Is a Bonus a ‘Wage’?: Not According to a Recent Connecticut Supreme Court Decision
Are you currently employed in Connecticut and have been promised a year-end bonus or had been promised a year-end bonus and never received it? A recent Connecticut Supreme Court decision may affect the amount of protection you are afforded under Connecticut law if your employer defaults or has defaulted on that promise.
This recent case addressed the question of whether a year-end bonus promised by an employer is considered a ‘wage’ for the purposes of the Connecticut Wage Act. Answering that question in the negative, the Supreme Court denied a Connecticut employee the ability to proceed with a wrongful withholding of wages claim that he had initially pursued after his employer failed to pay out what the employee had thought to be a promised year-end bonus.
Under this decided Supreme Court case, the amount of liability your employer will face for failing to pay out a promised year-end bonus will hinge upon how your employer defined the conditions under which a bonus would be paid. If the conditions are specific goals set for you as an individual employee (e.g. a certain number of billable hours need to be reached), then under the Connecticut Wage Act your employer will be required to pay out that bonus as wages in accordance with their promise. If they do not, you are afforded the protections of the Wage Act and can bring an action against your employer for wrongfully withholding wages. If successful, it is possible that you could receive, by way of damages, twice the full amount of your bonus and any attorney fees incurred in pursuing the action. In addition, due to the serious nature of such an offense, your employer could potentially be fined and/or imprisoned for their actions.
Unfortunately, however, if your employer was more ambiguous about the requisite conditions for a bonus, under this new case law, it is likely that they will be able to avoid liability for wrongfully withholding your wages. If that is the case, while you can still pursue other causes of action against your employer, you will not be able to receive twice the full amount of your bonus or attorney fees.
The events of this recently decided case unfolded as follows: At the beginning of the employment relationship between an employee and a Connecticut law firm, the parties agreed that the employee’s annual compensation would consist of a base salary and a year-end bonus. The employment contract called for this year-end bonus to be based on factors such as seniority, business generation, productivity, professional ability, pro bono work, and loyalty to the firm. The employee remained at the firm for several years and each year he received his salary and the promised year-end bonus. When the employee left the firm he discovered that he was not going to receive the year-end bonus for that last year of his employment. To try and recover what he had thought was a promised bonus; the employee commenced an action against his employer alleging breach of contract and wrongful withholding of wages.
The trial court dismissed the wrongful withholding of wages claim, determining that the year-end bonus was not ‘wages’ as defined by the Connecticut Wage Act. The breach of contract claim, however, went to trial. The Trial Court found in favor of the employee and awarded him damages in the amount of his year-end bonus plus interest. On appeal, the Appellate Court upheld the Trial Court’s finding as to the breach of contract claim but reversed the Trial Court’s decision to dismiss the wrongful withholdings of wages claim. The Appellate Court determined that the structure of the agreement as to the year-end bonus meant that the bonus could have been classified as ‘wages’ under the Connecticut Wage Act and therefore held that the employee could proceed with his wrongful withholding of wages claim.
The issue of the wrongful withholdings of wages claim was appealed to the Connecticut Supreme Court where the Court decided that because the employee’s bonus was discretionary, (not ascertainable by applying a formula) it did not constitute ‘wages’ under the Connecticut Wage Act. The employee, therefore, was not able to proceed with his wrongful withholding of wages claim.
Although the employee did recover some monetary damages through his breach of contract claim, it was not anywhere near as much as he would have received if he had been able to proceed with his wrongful withholding of wages action.
It is quite possible that after the release of this opinion many employers will revisit their bonus policies to make the language a little less precise or announce that their bonuses are discretionary in order to take advantage of the protections afforded under this recent case. It is important, therefore, that as an employee you are aware of what kind of bonus you have been promised so that you know how strongly to rely on that promised bonus and what options are available to you if the employer refuses to pay.
If you have already been denied your year-end bonus and believe that it was a discretionary bonus, there are still ways in which you can potentially recover that lost income, such as the breach of contract claim pursued by the employee in this recent case. If you have been denied a year-end bonus that was not discretionary and you had met the required conditions for receiving that bonus, you are still protected under the Connecticut Wage Act and can bring a wrongful withholding of wages action against your employer. This action may allow you to receive damages in the amount double your bonus and possibly receive any incurred attorney fees.
If you have any questions regarding employment and labor law in Connecticut, please contact Joseph C. Maya, Esq. He can be reached at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com. Mr. Maya handles cases involving employment contracts, separation agreements, non-competition agreements, restrictive covenants, union arbitrations, and employment discrimination cases in New York and Connecticut.
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Since student records often contain confidential information such as grades, disciplinary history, and medical history, it is important for parents to understand what procedures school districts must follow when disclosing educational records either with or without parental consent. This section will provide parents with an overview of the Family Educational Rights and Privacy Act (FERPA), the primary federal legislation guiding schools in the disclosure of student educational records.
The first part of this section will touch upon the rights of parents to access their own child’s educational records, including restrictions on this right, and the right of parents and students to amend their educational records. Beyond outlining the respective rights of parents and students to access their records, FERPA also touches upon the confidentiality to be afforded these educational records. While schools cannot generally disclose information within the student educational records without parental or student consent, parents should be aware that there are several exceptions to this rule, which we will also discuss. We will then conclude with a discussion on the general obligations of the school or district to notify parents and students about their rights under FERPA.
What materials are considered “educational records?
The U.S. Congress has defined “educational records” as records, files, documents, or any other materials that (1) contain information related to the student; and (2) are maintained by an educational institution or by a person acting on behalf of such an institution. While the definition is broad, the legislation also spells out what material is excluded from the definition. Under the Act, a record that teachers or other school employees maintain in their sole possession is not considered an educational record. In addition, records of law enforcement authorities in the school, records of a student who is eighteen years or older that are maintained by a physician, psychiatrist, psychologist, or records in connection with the treatment of a student, do not fall under the definition.
What are the rights of parents and students to access educational records?
Under FERPA, parents and students have the right to access their educational records, subject to a few limitations. Parents may exercise these rights while the student is a child, and the right extends to the student once he or she turns eighteen. Nevertheless, at this stage, parents still have the right to access the records without consent from the student provided the student is listed as a dependent on a parent’s federal income tax return.
Under the statute, each school must develop appropriate procedures for granting requests by parents for educational records within a reasonable timeframe, not to exceed forty-five days. In addition, the U.S. Department of Education calls for schools to respond to reasonable requests for explanations or interpretations of the records also within a reasonable time. If circumstances prevent parents or eligible students from exercising their right to access the records, the school must either provide the parent or student with copies of the requested documents or make alternative arrangements for them to review the education records. Finally, the regulations prohibit the school from destroying records if there is an outstanding request for them.
There are, however, two important limitations to this right of review. First, if information about another student is on the educational record, the parent can review only the portion of the record pertaining to his or her child. Second, while non-custodial parents generally can review their child’s records without consent from the student or other parent, a school must deny such a request if there is a court order, state statute, or legally binding document explicitly revoking the right.
How do parents and students request to amend students’ educational records?
If a parent believes that his or her child’s educational records are inaccurate, misleading, or in violation of students’ rights to privacy, the parent may request that the school amend the record. The school must decide whether to move forward with this request within a reasonable time. If it opts not to carry out the request, then it has to inform the parent or eligible student of its decision and his or her right to an informal hearing to contest the decision.
The DOE has set forth minimum requirements for the conduct of such a hearing. The school must hold the hearing within a reasonable time after the request and notify the parent or student of the date, time, and place, reasonably in advance of the proceeding. While an individual from an educational agency or institution may preside over the hearing, he or she must not have a direct interest in the outcome of the case. In terms of the hearing itself, DOE simply requires that the contesting party must have a full and fair opportunity to present evidence relevant to the issue at hand. The regulations provide that parents or eligible students have the right to be represented by an individual at his or her expense, including an attorney. As with other administrative proceedings, the hearing officer can only consider evidence that was presented during the hearing.
If the hearing officer decides in favor of the parent or eligible student, the school must amend the record accordingly, and inform the requesting party of this decision. On the other hand, if the hearing officer decides that the educational record is not inaccurate or misleading, parents have the right to put forth a statement in the record commenting on the contested information and why he or she disagrees with the decision of the school. The school has to keep the statement in the record as long as the record is maintained and must disclose the statement whenever it discloses the record to which the statement refers to.
When can a school disclose information regarding your child’s educational records?
Generally, schools cannot disclose to a third party information about the student from the educational records without signed and written consent from the parent or the eligible student. The signed and dated written consent may include a signature in electronic form provided it identifies the person giving the electronic consent and indicates his or her approval of the information contained within the consent. The written consent must specify which records are to be disclosed, state the reason for the disclosure, and identify the individual or organization to which the disclosure is being made. The school is obligated upon request to provide parents or eligible students with copies of the records that are to be disclosed.
When can a school disclose information without parental or student consent?
While FERPA provides extensive confidentiality protections for parents and students with respect to their educational records, there are several exceptions permitting the school to disclose the records without prior consent. For example, the school can disclose information to school officials having a legitimate educational interest in reviewing the record. School officials having such an educational interest include teachers and school employees that work directly with the student as well as attorneys for the school district. The right to disclosure may also extend to outside consultants, contractors, volunteers, and other parties that have contracted with the school provided they (1) perform a service for which the school would otherwise use employees; (2) are under the direct control of the school in the use and review of the records; and (3) will not disclose the information to an unauthorized party. Regardless of the source of the request, the school must take appropriate measures to ensure that these parties review only those records in which they have a legitimate educational interest.
The school does not need consent when it is disclosing information to state and local officials who are using the records to conduct audits, evaluations, and compliance reviews of specific educational programs. The school can also disclose to organizations that are contracting with the school to develop and administer predictive tests, administer aid programs and improve classroom instruction. Under the statute, the term “organizations” includes federal, state and local agencies, and independent organizations.
Congress has nevertheless imposed some restrictions to ensure these organizations are properly using the record. First, the written agreement between the school and the organization must specify the purpose, scope and duration of the studies, the information that is to be disclosed and contain assurances from the organization that it uses the records only for its intended purpose. Second, when conducting the studies, only representatives of the organization that have a legitimate interest in the information can access the records. Finally, once the organization completes the study, it has to destroy or return to the school all personally identifiable information. To ensure that schools comply with these requirements, the U.S. Department of Education has the authority to prohibit an institution from disclosing information to a third-party organization for five years if it makes a determination that the school violated the provisions outlined above.
If a student is intending to enroll or transfer to another school in a different district, the “receiving school” may access the educational records from the “sending school” without parental or student consent unless there is a board policy prohibiting the transfer of records. However, under Connecticut law, the receiving school must send written notification to the sending school at the time the student enrolls there. The sending school then has ten days after the written notification to send all the student’s educational records to the receiving school. If the sending school does disclose confidential information under these circumstances, it must make a reasonable attempt to notify the parent or the student at his or her last known address. However, schools do not have to carry out this notification task if (1) the parent or student initiated the disclosure, or (2) the school specifies a policy in its annual notification of forwarding a student’s records to the receiving school when that student enrolls there. In any event, the school has to provide copies of the disclosed records to the parent or student and an opportunity for a hearing if he or she wants to amend the records.
School officials may disclose information pursuant to a court order or subpoena. In doing so, the school has to make reasonable attempts to notify the parent or student about the order or subpoena in advance of the disclosure, so the parent or student has an opportunity to challenge the subpoena or court order. On a related note, if the school is defending or pursuing a legal action by or against a parent, it can disclose relevant student records without a court order, subpoena or prior parental or student consent.
Similarly, the school can disclose student information to state and local authorities without written consent if the disclosure is related to the juvenile justice system’s ability to serve that student and a particular state statute permits such an action. If the pertinent state statute was adopted after November 19, 1974, the authorities who are requesting the student records must certify in writing to the school that they will not disclose the information to any party that is not authorized by state law.
The school can also disclose confidential information in emergencies if the information is necessary to protect the health and safety of the student or other individuals. Parents should be aware that the school has the statutory authority to disclose confidential student records to teachers and school officials within the school and at other schools if they have a legitimate interest in the behavior of the student. The statute also permits the school to disclose information to any other individual whose knowledge of the information is necessary to protect the student and any other individuals.
Finally, the school can disclose “directory information” without consent if it has provided public notice to parents or eligible students attending the school. “Directory information” means any information in an educational record of the student that would not generally be harmful or an invasion of privacy if disclosed. Examples of directory information include the student’s name, address, phone listing, e-mail address, photograph, date and place of birth, major field of study, grade level, enrollment status, dates of attendance, participation in activities and sports, degrees, honors and awards received, etc. DOE has outlined requirements for what type of information must be in the public notice. First, the notice has to contain the types of personally identifiable information that the school has designated as directory information. Second, the school has to spell out the parent’s or the eligible student’s right to refuse to let the school disclose such information and the period of time within which he or she has to notify the school.
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.
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