Posts tagged with "school district"

Bullying Remains at Forefront of Education Law

Bullying Remains at Forefront of Education Law as One State Criminalizes Student-on-Teacher Bullying…

In an interesting article , author John Ross reported on a newly-enacted North Carolina law that criminalizes student-on-teacher cyberbullying, a less discussed but still pervasive bullying issue.  Students who use computers with the “intent to intimidate or torment” school employees can be subjected to a Class 2 misdemeanor under North Carolina’s new measure.  The law is the first in the nation to directly address student-on-teacher bullying.

Despite North Carolina being the first to criminalize such behavior, other states, including Connecticut, have addressed student-on-teacher bullying cases.  In a 2008 case, the Second Circuit considered an appeal in which the plaintiff, a student in Burlington, Connecticut, claimed that school administrators violated her First Amendment rights by preventing her from running for senior class secretary because of off-campus speech she engaged in in which she called school administrators derogatory names after they cancelled a school event that plaintiff was in charge of organizing.[1]

Alleging a violation of her First Amendment rights, plaintiff moved for a preliminary injunction to void the election for Senior Class Secretary and order the school to hold a new election.  Both the district court and the appellate court denied the motion for a preliminary injunction, thereby upholding the school district’s punishment relating to plaintiff’s blog posts.[2]

The Second Circuit reconciled the U.S. Supreme Court’s seminal holding in Tinker v. Des Moines, 393 U.S. 503 (1969) (students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate) with the competing notion that “the constitutional rights of students in public school ‘are not automatically coextensive with the rights of adults in other settings.’”[3] Ultimately, the Second Circuit, in an opinion in which now-U.S. Supreme Court Justice Sonia Sotomayor concurred, based its argument on the holding of an earlier decision, which held that “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that that the off-campus expression might also reach campus.”[4]

Concluding that it was “reasonably foreseeable that [plaintiff’s] posting would reach school property,”[5] the Second Circuit held that plaintiff failed to show that her First Amendment rights were violated when she was disqualified for running for a student government position.  The Court did note that its decision was narrow, leaving open the possibility that a more severe punishment by the school may have given rise to a constitutional violation.[6] That issue remains to come before the Second Circuit.

The attorneys at Maya Murphy, P.C. are experienced in education matters.  If you have any questions relating to education, bullying, or cyberbullying issues, do not hesitate to contact Joseph C. Maya, Esq. in our Westport, Fairfield County office, at either 203-221-3100 or JMaya@mayalaw.com.


[1] Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

[2] Id.

[3] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

[4] Doninger, 527 F.3d at 48, quoting Wisniewski v. Bd. Of Educ., 49 F.3d 34, 40 (2d Cir. 2007).

[5] Id. at 50.

[6] Id. at 53.

The Application of Governmental Immunity to School Bullying Suits

In Connecticut, the doctrine of “governmental immunity” may bar a plaintiff bullying victim from succeeding in a claim against a school district.  The general concept of governmental immunity stems from the value judgment that government officers and employees should have discretion to carry out their duties without the perpetual fear or threat of a lawsuit for any injury caused in the administration of their duties.  However, the concept of governmental immunity applies only where municipal officers are engaged in discretionary acts, as opposed to ministerial acts.  A ministerial act refers to an act “which is performed in a prescribed manner without the exercise of judgment or discretion.”[1] In other words, for a plaintiff to allege the existence of a ministerial duty, he or she must demonstrate that “the defendant was required to perform in a prescribed manner and failed to do so.”[2] Connecticut courts have generally found that the supervision of students, implementation of school policies, and control of a school and its students are carried out through discretionary acts,[3] which allow a school to invoke governmental immunity if subjected to a suit.

However, there are three exceptions to discretionary act immunity.  Liability may be imposed for a discretionary act where the conduct alleged involves malice, wantonness, or intent to injure; liability may be imposed for a discretionary act when a statute specifically provides for a cause of action against a municipality for failure to enforce certain laws; and finally, liability may be imposed “when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.”[4] It is this last exception, the identifiable person-imminent harm exception, which is relevant in school bullying cases.  The Connecticut Supreme Court has “construed this exception to apply not only to identifiable individuals, but also to narrowly defined identifiable classes of foreseeable victims.”[5] Such victims can include victims of school bullying in cases where imminent harm was foreseeable if the defendants did not act with reasonable care.  Whether it would be apparent to a school district that their actions, or inactions, would be likely to subject a plaintiff to harm will be a major factor that a court uses in determining whether a school district can be immune from a bullying suit based on governmental immunity.

If you have any questions about bullying, cyberbullying, or education law in general, do not hesitate to contact Joseph C. Maya, Esq., in our Westport office, at 203-221-3100, or at JMaya@mayalaw.com.


[1] Heigl v. New Canaan, 218 Conn. 1, 5, 587 A.2d 423 (1991).

[2] Id.

[3] Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349, at *9 (Feb. 6, 2012).

[4] Straiton v. New Milford Bd. Of Educ., 2012 Conn. Super. LEXIS 773, at *20 (Mar. 13, 2012), quoting Violano v. Fernandez, 280 Conn. 310, 319-20 (2006).

[5] Straiton, at *22.

THE IDEA’S “CHILD FIND” PROVISION: JUST HOW HARD DOES A SCHOOL DISTRICT HAVE TO LOOK?

            Parents, school administrators, and education attorneys are waiting to see if the United States Supreme Court will review the decision of the United States Court of Appeals for the Ninth Circuit in Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181 (9th Cir. 2010).  That decision significantly increased a School District’s obligation to identify students eligible for special education, and greatly expanded parents’ rights to a due process hearing to determine if the District had failed to discharge its duty.  Although handicapping the Supreme Court is crystal ball gazing, at best, the Court may well not only hear the case, but also reverse the Court of Appeals.  Until the appellate dust settles, this article will give you the new legal landscape and inform students and parents of their expanded rights.

            The Individuals with Disabilities Education Act (“IDEA”) conditions federal funding to states on their adopting policies and procedures ensuring that “all children with disabilities . . . who are in need of special education services[] are identified, located, and evaluated.”  This provision is known as the “child find” requirement.  The IDEA further requires School Districts to provide written notice to a child’s parents whenever it “proposes to initiate or change” or ”refuses to initiate or change the identification, evaluation, or educational placement of the child . . . .”

            The student involved in the case, Starvenia Addison, received horrific and indefensible treatment at the hands of the Compton, California School District.  Her school counselor did not consider it atypical for Addison, a ninth-grader, to perform at a fourth-grade level.  In the fall of her tenth-grade year, Addison failed every academic subject.  The counselor considered these grades to be a “major red flag.”  Teachers reported Addison’s work as “gibberish and incomprehensible.”  A third-party mental health counselor recommended that the District assess Addison for learning disabilities.  Despite the recommendation, the District did not refer Addison for an educational assessment and instead promoted her to eleventh grade.

            Addison brought an administrative claim under IDEA seeking compensatory educational services for the District’s failure to identify her needs and provide a free appropriate public education.  An administrative law judge found for Addison and the U.S. District Court subsequently agreed.  An appeal followed to the Court of Appeals.  The Ninth Circuit, obviously (and understandably) deeply offended by the District’s actions, phrased the District’s arguments in such pejorative terms that it was obvious that it, too, was going to find in Addison’s favor.  For example, the Court said: “the School District seeks to cast its deliberate indifference as something other than a ‘refusal.’”  Two Judges of the three-judge panel affirmed the District Court in perfunctory fashion with only casual references to broad legal generalizations.

            The remaining Appellate Judge, however, filed a dissenting opinion that dwarfs the majority opinion in terms of depth, breadth, and legal analysis.  He, too, was troubled by the distressing facts, but essentially found that under the IDEA and state law, a due process hearing may be held only where the District purposefully acts, or refuses to act, as opposed to where the complained-of conduct is best described as negligent.  Actually, the complained-of conduct could also be fairly described as gross negligence or reckless indifference but the dissenting Judge chose not to go there, perhaps fearing that it would lead him to a different result.  The otherwise thorough and well-reasoned dissent offers the Supreme Court a road map to overturning the decision of the Court of Appeals.

            For the time being, however, the decision of the Ninth Circuit in Addison is binding on the Federal Courts in the nine most western states of the United States, and may be considered persuasive, and therefore followed, by other Courts throughout the nation.  In petitioning the Supreme Court to take up the case, the District cites liberally to the dissenting opinion and laments the majority’s creation of a claim for educational malpractice where none has previously existed.  Finally, because there are 2200 school districts and over one million special education students served within the geographical boundaries of the Ninth Circuit, the Supreme Court may consider the Addison case sufficiently impactful to warrant review.

            Until  Addison is affirmed, reversed, or otherwise clarified, special needs students and their parents have additional ammunition with which to press their School District for an educational evaluation, an IEP, a due process hearing, and potentially the bringing of an action in U.S. District Court.

       

If you have any questions regarding your child’s education, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Connecticut School Districts and Bullying: What Can Parents Do?

I was greeted this morning with a very unfortunate email.  The email concerned bullying in Westport Schools and included a heart wrenching video of an 8th grade girl claiming to be a victim of bullying in Westport schools. (http://patch.com/A-gcKG) It is just not enough to feel sorry for this victim of bullying, we need to question the effectiveness of the current law and policies in place to avoid the tragic consequences that other towns have dealt with because their students were victims of bullying.

I previously blogged about the revisions to Connecticut’s law against bullying in 2008.  Under Connecticut General Statute section 10-222d, the law requires “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” In addition to definitional changes, the statute requires:

  1.  teachers and other staff members who witness acts of bullying to make written notification to school administrators;
  2. prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;
  3. requires prevention strategies as well as interventions strategies;
  4. requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;
  5. requires school to annually report the number of verified acts of bullying to the State Department of Education (DOE);
  6. no later than February 1, 2009, boards must submit the bullying policies to the DOE;
  7. no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and
  8.  effective July 1, 2009, boards must now provide in-service training for its teacher and administrators on prevention of bullying.

Westport responded to the requirements of this statute with a comprehensive bullying policy which can be found on the school district’s website under the tab for parents, and then selecting policies.  Here is the direct link to the policy: (http://www2.westport.k12.ct.us/media/policies/prohibition_against_bullying_5131.911_revised_8.25.2008.pdf)

Armed with Connecticut’s law and Westport’s policy, what should we do as parents, community members, and professionals?  I do not profess to have the answers but at a minimum, we should discuss this with our children, question the school administrators, guidance staff and teachers. Together we should challenge ourselves to make a difference using the channels available to us.  There are ways that we can help to effectuate change before it is too late.  If you know of a child affected by bullying, please act on their behalf.  Not every student will post a video to tell you this is happening. If the school is not addressing the bullying in a meaningful way to eradicate the conduct, legal redress is available and the courts will readily intervene.

If you have any questions please feel free to contact me by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at SMaya@Mayalaw.com. Attorney Maya is a partner at Maya Murphy, P.C. Her practice is limited to Education Law and Trusts and Estates.

What Parents Need to Know About Special Education Law

The state and federal governments enacted various regulations to protect a student with disabilities and to ensure that he or she obtains a Free Appropriate Public Education (FAPE).  Parents play a key role in the success of any special education program implemented for their children. Given the complexity of special education law, it is important to understand the significant responsibility a parent has in the special education system.

Referral to Special Education and Related Services

This is the first step in the process to determine a child’s eligibility for special education and related services. Parents should be aware that you have the right to request such a referral.  The referral must be in writing.  School officials also have the ability to make a referral.  However, a parent is often in a better position to suspect any disabilities, and can make an early referral to special education services through Connecticut’s Birth to Three program, prior to enrollment in school.

Planning and Placement Team (PPT)

The PPT reviews all referrals to special education. As a parent of a child, you have the right to be actively involved in the PPT, and are, in fact, a valued asset of the PPT.   A PPT generally consists of the parent(s), one of the child’s educators, a special education teacher, a representative of the school district, a pupil services personnel, and the child (depending on age).   As a parent, you have the right to include other individuals who have knowledge or special expertise regarding your child.  As a valued member of the PPT, the school district must try to schedule meetings at a mutually agreeable time and place for you and must notify you, in writing, at least five (5) school days prior to holding the meeting.

Evaluations, Independent Educational Evaluations (IEE), and Reevaluations

The evaluation is the study used to determine a child’s specific learning strengths and needs, and ultimately determine whether your child is eligible for special education services. As an active participant, a parent can assist the PPT in designing the evaluation.  That is why sharing with the PPT all important information concerning your child’s skills, abilities, observations, and needs can be extremely beneficial to the process.  If you disagree with the evaluation conducted by the school district, you have a right to obtain an independent educational evaluation (IEE).  Such an IEE can be obtained at the school district’s expense, unless the school district can prove its evaluation is appropriate or that the IEE does not meet the school district’s criteria. If the school district believes that its evaluation was appropriate, it must initiate a due process hearing (or pay for the IEE).  In either event, you have a right to an IEE. However, if the school district’s evaluation is found appropriate, the parent will have to bear the cost of the IEE.  Reevaluation must be performed at least once every three (3) years, or sooner if conditions warrant. At the reevaluation, the educational needs of your child will be assessed, along with present levels of academic and related development needs of your child to determine whether your child continues to need special education and related services and whether your child’s IEP needs to be modified.

Individualized Education Program (IEP)

The IEP is a written plan that describes in detail your child’s special education program created by the PPT. Given the IEP is designed specifically for your child, it is vital that as a parent you exercise your right to be actively involved in the PPT meetings.  The IEP is designed to identify your child’s current levels of education and functional performance and any modifications or accommodations your child needs to participate in the general education curriculum. A child with a disability must, to the maximum extent possible, be educated with his/her nondisabled peers.  This is called the Least Restrictive Environment (LRE). By law, you are entitled to receive a copy of your child’s IEP within five (5) school days after the PPT meeting was held to develop or revise the same.

Informed Consent

Prior to evaluating a child for the first time, a school district must obtain the parent’s written informed consent.  Informed consent means that a parent has been given all the information needed to make a knowledgeable decision. Written informed consent must also be obtained prior to the initial placement into special education, before a child is placed into private placement, and before a child is reevaluated.  As a parent, you can refuse to give your consent and you can withdraw consent once it has been given.  Giving consent for an initial evaluation does not mean that consent was given to place a child into special education or for any other purposes.  A school district must obtain separate written informed consent for each.

Placement

To the maximum extent possible, your child must be educated with his/her nondisabled peers in a general education classroom.  Removal from the school that your child would attend had he/she not had a disability, should only occur when the nature or the severity of the disability is such that educating your child in that setting cannot be achieved satisfactorily.  If this is the case with your child, the PPT must find an appropriate educational placement as close as possible to your home, at the cost of the school district.  While you can place your child in private placement on your own, there is no guarantee of full or partial reimbursement from the school district and that will ultimately depend on the findings by a hearing officer.

Disciplinary Procedures

The school district’s code of conduct applies to all children, with or without a disability. Prior to any suspension or removal, your child has the right to an informal hearing conducted by a school administrator. If it is determined by the PPT that the behavior was caused or related to your child’s disability, then your child may not be removed from the current education placement (except in the case of weapons, drugs, or infliction of serious bodily harm).  It is the PPT’s obligation to conduct a functional behavioral assessment and implement a behavioral intervention plan.

Access to Records

If your child has not reached the age of majority, as a parent you have a right to inspect and review his/her school records. The request must be in writing. The school district must allow you to review the records within ten (10) school days from your request or within three (3) school days if you need the information for a PPT meeting.  Connecticut law provides that you are entitled one free copy of your child’s records, and the school district has up to five (5) school days to provide you with that copy.

Due Process

A parent has the right to ask for a due process hearing as a result of the school district’s refusal to consider or find that your child has a disability, to evaluate your child, to place your child in a school program that meets his/her needs, or to provide your child with a FAPE.   A parent may bring an advocate or attorney with them to aid throughout the hearing.  A hearing officer will make a final decision within 45 days from the start of the timeline.  Generally, while a due process hearing is pending, a child’s classification, program or placement cannot be changed.

Alternative Dispute Resolution

There are three ways, other than a full due process hearing, to settle disputes between parents and the school district. The first is the Complaint Resolution Process, wherein a parent files a written complaint with the Bureau of Special Education, alleging the local school district has violated a state or federal requirement.  Within sixty (60) days, a written report which includes the Bureau’s findings, conclusions, corrective actions and recommendations, will be mailed to the Complainant.  The second alternative is mediation. Both parties (the parents and the school district) must agree to mediate the dispute.  At mediation, if an agreement is reached, it is placed in writing and is legally binding.  All discussions during mediation are confidential.  The last alternative is an advisory opinion. This is a non-binding opinion, issued by a hearing officer, after a brief presentation of information by both parties.  After receiving the advisory opinion, the parties can decide to settle the dispute or proceed to a full due process hearing.

By: Leigh H. Ryan, Esq.

If you have any questions regarding special education law, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

 

What Should I Do if My Child Has Been Denied Special Education?

Schools may often refuse to make reasonable accommodations for children who need special education.  If your child has special education needs, the school must accommodate for the child under the Americans with Disabilities Act.  You have many rights in this situation such as the right to a manifestation hearing.  You may also have the right to file a complaint against the school district.  You should obtain an education attorney as soon as possible to educate you on your rights, and help you get the accommodations your child needs and deserves.  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.

What Should I Do if My Child Has Been Denied Special Education?

Schools may often refuse to make reasonable accommodations for children who need special education.  If your child has special education needs, the school must accommodate for the child under the Americans with Disabilities Act.  You have many rights in this situation such as the right to a manifestation hearing.  You may also have the right to file a complaint against the school district.  You should obtain an education attorney as soon as possible to educate you on your rights, and help you get the accommodations your child needs and deserves.  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.

Fired Teacher Sues for Wrongful Discharge and Defamation

A former middle school teacher who was wrongfully terminated by his employer suffered insult upon injury when he was defamed by his principal following his departure from the school, a new lawsuit alleges.

The physical education teacher – who previously had been praised as a “distinguished teacher” by the school – was continually harassed and berated by his supervising principal before ultimately being terminated, as the lawsuit sets forth.  Even after the teacher’s departure from the school, the abuse continued – culminating in the principal making a series of specific, baseless, outrageous statements to the teacher’s former colleagues.

The case is currently pending in the Superior Court in and for the Judicial District of Fairfield at Bridgeport, and has attracted local media attention (see below).  Any questions concerning this matter should be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

U.S. Department of Education Takes a Strong Stance Against Bullying

President Obama recently established an Inter-agency Task Force on Bullying. In conjunction with that, the Obama administration hosted its first ever National Bullying Summit and launched the Stop Bullying Now campaign, the It Gets Better Project, and a national database of effective anti-bullying programs. For more information on bullying, please review the following:

The Trevor Project

BullyingInfo.org

It Gets Better Project

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Identifying Acts of School Bullying

Written by Lindsay E. Raber, Esq.

October is the National Anti-Bullying month, yet the issue of bullying in schools remains headline news on a routine basis. Just today, I read about an incident where “two girls beat [the victim’s] head into the wall and floor when the teacher was out of the room,” causing “permanent hearing loss in her right ear.”[1] Worse still are the stories where the victim took his or her own life as an escape from the daily torment inflicted by bullies.

Without a doubt, parents are scared for the safety of their children. In her on-the-air speech addressing an email she received from a viewer critical of her weight, Jennifer Livingston of WKBT News 8 in Wisconsin admitted that “as the mother of three young girls [the growing prevalence of school bullying] scares me to death.”[2] Ms. Livingston further emphasized, “The internet has become a weapon. Our schools have become a battleground.”[3] Therefore, it is imperative that you, as a parent, are able to recognize acts of bullying and report incidents to your child’s school. The former is the focus of this article.

Recognizing Bullying Behaviors

Under Connecticut law for over a year now, bullying is defined as “the repeated use of a written, oral or electronic communication or physical act by one or more students directed at another student within the same school district which:

Physically or emotionally harms the student or damages that student’s property;
Places such student in reasonable fear of harm to himself or herself, or of damage to his or her property;
Creates a hostile school environment for the student;
Infringes on that student’s rights at school; or
Substantially disrupts the educational process or the orderly operation of the school.”[4]

Bullying on the basis of the following actual or perceived traits also qualifies: race or color; religion; ancestry; national origin; gender; sexual orientation; gender identity or expression; socioeconomic status; academic status; physical appearance; and mental, physical, developmental, or sensory disabilities.[5]

The Connecticut legislature has also taken aim at cyber-bullying, defined as “any act of bullying through the use of Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.”[6] Various forms of communication fall within this broad definition, including Facebook posts and messages, emails, text messages, live webcam sessions meant to ridicule or humiliate another student.

Notwithstanding these statutory definitions, you should review your child’s student handbook or school website to determine how your school district defines bullying. If neither source provides the policy, you should ask your school for a copy; this request must be fulfilled immediately.[7]

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 bullying 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] “Two girls accused of beating, bullying student taken into custody,” by WDRB News. October 16, 2012: http://www.wdrb.com/story/19835044/two-girls?hpt=ju_bn4

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

[3] Id.

[4] 2011 Conn. Pub. Acts 11-232, § 1(a)(1).

[5] Id.

[6] Id. at § 1(a)(2).

[7] “Bullying and Harassment in Connecticut: A Guide for Parents and Guardians,” by the Connecticut State Department of Education, on pp.5. http://www.sde.ct.gov/sde/lib/sde/pdf/equity/title_ix/bullying_q_and_a.pdf

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