Posts tagged with "parent"

Court Considers Economy in Relocation Case

When a custodial parent would like to relocate, and that relocation would have a significant impact on an existing parenting plan, the moving party must show that the relocation is for a legitimate purpose, the proposed location is reasonable in light of that purpose, and the relocation is in the best interests of the child(ren). C.G.S. Sec. 46b-56d(a). Further, the court should consider, but is not limited to, the following factors: a) each parent’s reasons for seeking or opposing the move; b) the quality of the relationship between the child and the custodial and noncustodial parents; c) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent; d) the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move; and e) the feasibility of preserving the relationship between the noncustodial parent and child  through suitable visitation arrangements. C.G.S. Sec. 46b-56d(a).

In light of the current state of our economy, it appears as though judges may be assigning greater weight to parties’ economic circumstances, recognizing that it is becoming increasingly  necessary for parties to move considerable distances to obtain (or retain) employment.  Just recently, the Superior Court of New Haven (Gould, J.) permitted a mother to relocate with the parties’ three minor children from Connecticut to Pennsylvania on the basis that, among other things, the move would allow her to transition back into the work force, which the mother claimed would be necessary for her to adequately support her children, and herself.

After considering the statutory criteria set forth above, the Court explained,  “Our society is an increasingly mobile one.  Largely because of the instability and unpredictability of the employment market . . . repeated, separate moves by each parent are coming to represent the norm.” (internal quotations omitted)  J. Wallerstein & T. Tanke [‘To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce,’ 30 Fam. L.Q. 305, 310 (1996)].   The Court continued, “Our family law should recognize that reality. Therefore, to serve the best interests of a child in a single-parent family unit, the custodial parent should be permitted to pursue, within reasonable limits, opportunities that could lead to a better life for the parent as well as the child.” (internal citations omitted).

Should you have any questions regarding this posting, please feel free to contact Maya Murphy, P.C. at JMaya@mayalaw.com or by telephone at (203) 221-3100.

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.

What Rights Do I Have under the Family Educational Rights and Privacy Act (FERPA) in Connecticut?

Under the Federal Educational Rights and Privacy Act, parents have the right to review all education records that relate to their child.  School districts or other education institutions must give parents access to these records within 45 days of their request.  Further, under Connecticut state law, a parent making such a request is entitled to “prompt” access to the records.  Under both federal and state law, non-custodial parents have the right to access student records as well.  This access is provided unless the district has evidence that there is a court order, state law, or other legal requirement related to custody that specifically revokes this right.

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

On the Use of Metal Detectors at Public Schools

On July 21, 2012, 15-year-old Keijahnae Robinson was sitting on her aunt’s front porch with friends after attending a Sweet Sixteen birthday party. She was looking forward to her own celebration, which was a week away. Unfortunately, she became the thirteenth homicide in Bridgeport this year after two gunmen “sprayed the… porch she was on, striking her in the head and wounding her two friends.”[1] The family’s planned beach party for Keijahnae “became hushed preparations for her funeral and burial.”[2] While Keijahnae’s murder prompted widespread discussion regarding juvenile curfews in the city,[3] one response that has received less attention was the decision by the Bridgeport Board of Education to install metal detectors and “implement other provisions” at several schools, with the aim of avoiding future tragedies.[4]

What prompts any given school district to utilize metal detectors varies, though it unsurprisingly it is almost always linked to acts of violence on or off school grounds. For example, personnel in Hartford public schools use handheld metal detectors “[i]n view of the escalating presence of weapons in America’s schools today.”[5] The shooting suicide of a 13-year-old student at Stillwater Junior High School (in Oklahoma) late last month has administration admitting, “The metal detector question is something we’ll talk about pretty quickly.”[6] In Bridgeport, it was the off-campus shooting death of a young girl aspiring to be the next Mariah Carey.[7]

Public opinion of the use of metal detectors in schools is naturally divided. Bridgeport parents and students were “very grateful that the school has undertaken these extra measures of security.”[8] Others question the effectiveness of detecting weapons,[9] cite insufficient data to decide either way,[10] or argue safety isn’t the real issue.[11]

However, what is of greatest import to schools is the legality of metal detector use, which at this point in time is on their side. The Connecticut Association of Boards of Education (CABE) appears to have provided its endorsement, noting that Fourth Amendment restrictions on searches and seizures still apply. As one member of CABE stated, “A school needs justifiable reasoning for implementing them such as a pattern of weapons.”[12] Courts will uphold the employment of metal detectors by school districts as a means to screen students for contraband or weapons that pose a risk of harm to the student body. Deemed a minimally intrusive search, “[t]he courts have allowed schools to use this method in order to ensure weapons are excluded from the school environment.”[13]

Students do not fully surrender their constitutional protections while at school, and as such it is important, as a parent, to understand and appreciate your child’s rights. If you believe that your child was subject to an impermissible search by school officials, it is imperative that you consult with an experienced school law practitioner. Should you have any questions regarding school searches 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.

Written by Lindsay E. Raber, Esq.


[1] “Bridgeport girl, shot after Sweet 16 party, dies,” by Stacy Davis and Michael P. Mayko. Published July 21, 2012. Accessed October 5, 2012: http://www.ctpost.com/news/article/Bridgeport-girl-shot-after-Sweet-16-party-dies-3725251.php

[2] Id.

[3] See, e.g., “Relatives of shooting victim call for curfew,” by Stacy Davis. Published July 24, 2012. Accessed October 5, 2012: http://www.ctpost.com/news/article/Relatives-of-shooting-victim-call-for-curfew-3729055.php

[4] “Spike In Violence Prompts Bridgeport To Install Metal Detectors,” by Tikeyah Whittle. Published Spetember 11, 2012. Accessed October 5, 2012: http://www.ctnewsjunkie.com/ctnj.php/archives/entry/spike_in_violence_prompts_bridgeport_school_to_install_metal_detectors/

[5] “Hartford Public School Board of Education Policies and Regulations.” Accessed October 5, 2012: http://www.noahwebstermicrosociety.org/Board%20of%20Ed%20Rules%20Reg.pdf

[6] “Oklahoma teen suicide mourned,” by Christine Roberts. Published September 27, 2012. Accessed October 5, 2012: http://articles.nydailynews.com/2012-09-27/news/34131892_1_memorial-service-metal-detectors-prayer-service

[7] See Footnote 1.

[8] See Footnote 4.

[9] “Expert: Metal detectors aren’t guarantee,” by Brian Troutman. Published September 17, 2012. Accessed October 5, 2012: http://www.abc2news.com/dpp/news/education/expert-metal-detectors-arent-guarantee

[10] “Impacts of Metal Detector Use in Schools: Insights From 15 Years of Research,” by Abigail Hankin, Marci Hertz, and Thomas Simon. Journal of School Health, Vol. 81, No.2 pp.100-106. Accessed October 5, 2012: http://www.edweek.org/media/hankin-02security.pdf

[11] “The issue isn’t ‘safety,’ it’s guns,” by Lori K. Brown. Published September 19, 2012. Accessed October 5, 2012: http://articles.baltimoresun.com/2012-09-19/news/bs-ed-schools-guns-20120919_1_gun-owners-school-gun-incidents-metal-detectors

[12] See Footnote 4.

[13] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., pp.62.

“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).

Woof!

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.

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]

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. 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.

Written by Lindsay E. Raber, Esq.


[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.

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.

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 defendants “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. 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.

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.

Written by Lindsay E. Raber, Esq.


[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.

Developing Your Special Education Child’s Individualized Education Program

A recent series of articles on this website provides an overview of the special education process so you, as a parent, know what to expect. You have the right to make sure your child receives a free appropriate public education (FAPE), and oftentimes that means a standard classroom environment does not meet your child’s special needs due to a disability. If your child is between 3 and 21 years of age, suffers from an enumerated disability under the Individuals with Disabilities Education Act (IDEA), and the disability interferes with his or her classroom performance, you have the opportunity to seek special education and related services. More importantly, you can play a critical role on the planning and placement team (PPT) to evaluate your child’s special education referral to determine eligibility.

So, you’ve made it this far: your child is deemed eligible for special education and related services, but… what happens now? The PPT will hold meetings to establish an individualized education program (IEP), which is “a written plan detailing your child’s special education program,”[1] including the following key elements:

  • Present levels of educational and functional performance;
  • Measurable educational goals linked to present levels of academic and functional performance for the coming year and short-term instructional objectives derived from those goals;
  • Evaluation procedures and performance criteria;
  • An explanation of the extent, if any, to which your child will not participate in the regular education class, the general education curriculum or extracurricular activities;
  • Modifications and accommodations your child needs to participate in the general education curriculum including nonacademic and extracurricular activities;
  • Special education and related services required by your child including transportation and physical and vocational education programs;
  • Recommended instructional settings and a list of people who will work with your child to implement the IEP;
  • The date services will begin and end, and the frequency of the identified services;
  • The length of the school day and year;
  • Statement of accommodations and modifications needed to facilitate CMT/CAPT, or district-wide testing;
  • Recommendations for participation in alternate assessments (if needed); and
  • Transition service needs.[2]

Within five days after the PPT meets and develops your child’s IEP, you must receive a copy of the plan. The same goes for any future revisions.

Keep in mind that you have the right to participate in the PPT meetings, and your school district must work with you to select a time and place that works for both sides. You must receive five days written notice of any meeting to make sure you will be able to attend. This notice includes:

  • A list of who will be attending the meeting;
  • Affirmation of your right to bring with you other individuals who are able to provide support or who have knowledge and/or expertise with respect to your child’s needs.
  • An invitation to your child to attend if he or she is 16 years of age or older (or even if the child is younger, if participation is deemed appropriate), and “the purpose of the meeting will be the consideration of the postsecondary goals and transition services for the child”[3]

If the school schedules the meeting at a time or location you cannot make, alternative methods of participation, such as a telephonic or video conference call, must be explored. However, if the school district repeatedly attempts to schedule a meeting and each time you are unable to attend, they may hold the PPT meeting without you; the school must maintain a results log documenting these attempts.

If you are the parent of a child that has a disability, it is imperative that you participate in this process so as to help maximize your child’s educational opportunities. Should you have any questions about special education or education law in general, it may prove beneficial to seek the counsel of an experienced school law practitioner. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, 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.

Written by Lindsay E. Raber, Esq.


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., pp.20.

[2] “A Parent’s Guide to Special Education in Connecticut,” by the Connecticut State Department of Education, pp.4. Accessed October 9, 2012: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Parents_Guide_SE.pdf

[3] Id. at 5.

Evaluating Your Child’s Special Education Needs and Services

The process by which a child is determined eligible for special education and relates services may seem intimidating or overwhelming, as there is a wealth of information that any parent of a child with disabilities needs to understand. In this latest series of school law articles, we are presenting an overview of just what happens once a child is identified as potentially eligible, and this post specifically focuses on the evaluation process.

An initial evaluation occurs right after a child’s referral for special education, which the planning and placement team (PPT) uses to determine “your child’s specific learning strengths and weaknesses and needs, and to determine whether or not your child is eligible for special education services.”[1] You have the right to participate in the PPT, and thus have the valuable opportunity to provide all relevant information related to your child’s abilities, needs, and skills. Other information that the PPT considers is that collected by the school district and its employees: “informal and formal observations, a review of homework, standardized tests and other school records and information.”[2] However, the process must be conducted in a nondiscriminatory manner (consider the disproportionate placement of minority students in special education, discussed here), and you have the right to refuse consent or revoke it at any point.

When the evaluation is complete, you will meet with the rest of the PPT to interpret the data collected ruing the study. The purpose of this meeting is to determine:

  1. Whether your child has a disability (as enumerated in the Individuals with Disabilities Education Act, or IDEA)
  2. Whether that disability has an adverse impact on your child’s education
  3. Whether your child needs special education and related services to fulfill free appropriate public education (FAPE) requirements.

However, what happens if you don’t agree with the results of this evaluation? You may consult with a qualified examiner now employed by the school district to conduct an independent educational evaluation (IEE). Determining who pays for this boils down to two situations:

  1. The school district simply agrees to pay for the IEE. The evaluation criteria of the IEE must be the same as that used by the school in its own evaluation.
  2. The school district asserts that its evaluation was proper or the IEE criterion is insufficient. It may elect to pay for the IEE or hold a due process hearing, at which the hearing officer determines the appropriateness of the school’s evaluation. If the officer finds in their favor, you may still obtain an IEE, but you are responsible for paying for it.

The results of an IEE must be considered by the school district. “However, the school district is not required to agree with or implement any or all of the results or recommendations of the independent educational evaluation.”[3]

Placement in special education and your child’s IEP are not concrete. Indeed, reevaluations are made to determine several things:

  1. Whether or not your child still has a qualifying disability
  2. Your child’s present level of academic achievement as well as related developmental needs
  3. Whether or not your child still needs special education and related services
  4. Whether or not your child’s IEP requires modification

In essence, the PPT looks at the information regarding your child, and you may ask the school district to conduct additional assessments if you believe more information is necessary for making these determinations. The reevaluation process must occur at least once every three years, though the PPT may perform it more frequently. However, your written consent is required, though special circumstances permit the reevaluation without it.

If you are the parent of a child that has a disability, it is imperative that you participate in this process so as to help maximize your child’s educational opportunities. Should you have any questions about special education or education law in general, it may prove beneficial to seek the counsel of an experienced school law practitioner. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, 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.

Written by Lindsay E. Raber, Esq.


[1] “A Parent’s Guide to Special Education in Connecticut,” by the Connecticut State Department of Education, pp.6. Accessed October 9, 2012: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Parents_Guide_SE.pdf

[2] Id.

[3] Id. at 7.

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

In a recent 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.

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.

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.

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.

Written by Lindsay E. Raber, Esq.


[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.)

Student Speech Rights in the Information Age

For nearly twenty years, the First Amendment framework chiseled out by the Tinker[1]-Fraser[2]-Hazelwood[3] trilogy worked wonders in establishing whether student speech could be regulated. Though students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”[4] school administrators have the authority to curtail or prohibit various forms of speech: that which would materially and substantially disrupt a classroom, is plainly offensive, or promotes illegal drug use. Educators may also exert editorial control over school-sponsored expressive activities, such as a school newspaper written by students.

As my colleague Bob, succinctly wrote, these cases were “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.”[5] Technology, which we insist makes life easier, instead simply made things more clouded and ushered in a new battleground for student speech litigation.

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.[6]

Thus, what happens when a student, who is neither on school grounds nor at a school-sponsored event, engages in speech critical of school administration? Does the school have authority to punish the student? The Second Circuit held the in the affirmative: quoting a decision rendered only two years earlier, the Court condoned discipline for speech or expressive conduct made off school grounds if the conduct “would foreseeably create a risk of substantial disruption within the school environment”[7] should the expression reach school grounds.[8]

Findings in other cases, however, are setting up the issue of disciplining off-campus student speech for a day in the U.S. Supreme Court, in large part due to conflicting decisions in the Appellate Courts.[9] Most recently on September 6, 2012, the United States District Court of the District of Minnesota, located in 8th Circuit, denied a defendant school district (and the defendant administrators) its motion to dismiss a lawsuit filed by a student who was punished for her off-campus speech.

In that case, using her personal computer at home, the student wrote on her own Facebook wall that she hated a school monitor because she “was mean to me.” For this, school administrators gave a warning. When the student thereafter posted a message that stated, “I want to know who the f%$# [sic] told on me,” again using her personal computer at home, she received a one-day suspension and was prohibited from attending a school-sponsored ski trip. Characterizing these posts as “a far cry from the statements made by the students in cases in which courts have approved of school intervention,” the District Court found that these statements “were not likely to cause a substantial disruption to the school environment.”[10]

While the foundations of student speech regulations are not yet set, it is important for students to realize that any electronic communication they send could potentially be viewed by anyone. All it takes is the recipient hitting the “Forward” button to send to unknown parties or “tattletaling” to a teacher or school administrator. As such, “[a]ny off-campus electronic communication relating or referring to students, teachers, administrators, or school activities has the potential to result in school discipline” and exclusion from participation in school activities.[11]

As a parent, controlling or monitoring your child’s electronic communications has become a highly difficult, if not impossible, task to fully accomplish. This is why it is imperative that you speak to your child about the ramifications of sending out messages they have no way to capture back and which may inadvertently come to the attention of school officials. Nonetheless, if your child is facing disciplinary action for off-campus conduct or speech, it is important that you are aware of your rights and consult an experienced school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions about 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] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

[2] Bethel School District v. Fraser, 478 U.S. 675 (1986).

[3] Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).

[4] Tinker, supra at 506.

[5] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., Esq, at 83.

[6] Doninger v. Niehoff, 594 F.Supp. 2d 211, 223 (D. Conn. 2009), aff’d in part and rev’d in part 2011 U.S. App. LEXIS 8441 (2d Cir. Apr. 25, 2011).

[7] Wisniewski v. Board of Education, 494 F.3d 34, 40 (2d Cir. 2007).

[8] Doninger, supra at 217.

[9] Compare Doninger, supra, with J.S. v. Blue Mountain School District, 2011 U.S. App. LEXIS 11947 (3d Cir. June 13, 2011) and Layshock v. Hermitage School District, 2011 U.S. App. LEXIS 11994 (3d Cir. June 13, 2011).

[10] R.S. et al v. Minnewaska Area School District No. 2149 et al, Civ. No. 12-588 (MJD/LIB). Accessed October 3, 2012: http://law.justia.com/cases/federal/district-courts/minnesota/mndce/0:2012cv00588/124914/28/

[11] Maya and Bob, supra at 92.