Posts tagged with "special education law"

Teacher Placed on DCF’s Child Abuse and Neglect Registry

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Case Background

Twelve-year-old Kyle G., while attending MicroSociety Magnet School in New Haven, Connecticut, was subjected to repeated harassment and bullying, amounting to child abuse and neglect.  However, Kyle’s bully was not another student, but rather his teacher Nicholas Frank.  The witnesses, Kyle’s classmates.

Mr. Frank subjected Kyle to constant ridicule in front of Kyle’s classmates, calling Kyle “cheeks,” “birthing mother,” and “fish out of water.” Mr. Frank even resorted to physical harassment, by pinching Kyle’s cheeks.  Mr. Frank limited Kyle to asking only ten (10) questions a day, and if Kyle went over, Kyle could choose his punishment: have his cheeks pinched or lunch detention.  As a result, Kyle became terrified in class, as he was afraid of how Mr. Frank was going to make fun of him next. Kyle’s grades started slipping from A’s to C’s. He had trouble sleeping and started wetting his bed.

Kyle’s mother became alarmed and reported her concerns to the school administrators. Upon learning of Mr. Frank’s actions, the school advised him to stop calling Kyle names, stop pinching his cheeks, and to minimize contact with Kyle.  When questioned, other students confirmed Kyle’s story. Students reported that Mr. Frank called Kyle “pregnant” due to his weight.  As a result of the investigation, Mr. Frank was suspended for eight days without pay.

The Charges

Connecticut Department of Children and Families (“DCF”) learned of the incident and charged Mr. Frank with emotional neglect. A hearing officer substantiated the finding, holding that Mr. Frank “subjected Kyle to ‘acts, statements, or threats’ that would have an adverse impact on Kyle, including referring to his facial appearance and his weight.” After substantiating the findings, DCF had a separate hearing as to whether Mr. Frank should be placed on DCF’s central registry of child abuse and neglect.

In deciding to place Mr. Frank on the central registry, the hearing officer determinate that Mr. Frank “in light of the attention given to anti-bullying in the school context, should have been aware of the implications of his statements. Kyle suffered an adverse emotional impact from the plaintiff’s [Mr. Frank’s] behavior as his grades dropped and his fear of school increased.” The hearing officer found that Mr. Frank had a pattern of abuse.

On Mr. Frank’s appeal of the DCF’s findings, the Superior Court rejected Mr. Frank’s arguments that the decision was not based on substantial evidence. The Court stated, “the court defers to the conclusion of the hearing officer who noted that teachers through the schools districts are on notice that poking fun at students is inappropriate behavior.”

By: Leigh H. Ryan, Esq.

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If you or someone you know has been a victim of bullying or harassment, please contact a knowledgeable attorney.  At Maya Murphy, P.C., we have decades of experience dealing with Education Law, harassment or bullying, Special Education Law, and discrimination– often in situations where they run concurrently.  We handle all types of issues, in a broad geographic area, which includes Westport, Fairfield, Greenwich, New Canaan, and the entire Fairfield County area.

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

When is Cyberbullying a Crime?

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When Connecticut amended its anti-bullying law in 2011, it included a new provision requiring the school principal, or the principal’s designee, “to notify the appropriate local law enforcement agency when such principal, or the principal’s designee, believes that any acts of bullying constitute criminal conduct.”[1] What is not made clear in the revised law is what kind of conduct may rise to a criminal level. A victim of bullying may have a claim under a civil tort theory in an instance where the level of bullying does not constitute a crime.  However, some provisions of Connecticut’s criminal law may be implicated by severe, pervasive, or egregious instances of bullying in schools. So, when is cyberbullying a crime? 

1. Criminal Harassment

Connecticut General Statute § 53a-182b, Harassment in the first degree, and § 53a-183, Harassment in the second degree, are Connecticut’s criminal harassment statutes.  A person is guilty of harassment in the first degree when, “with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail, computer network, as defined in section 53a-250, or any other form of written communication, in a manner likely to cause annoyance or alarm and has been convicted of [a specifically enumerated felony].”

A person is guilty of harassment in the second degree when, “(1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

2. Bias Crimes

A person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.[2] Furthermore, a person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following:

  1. Causes physical contact with such other person;
  2. Damages, destroys or defaces any real or personal property of such other person; or
  3. Threatens, by word or act, described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.[3]

In an action for damages resulting from intimidation based on bigotry or bias, any person injured in person or property as a result of such an act may bring a civil action against the person who committed such act to recover damages for such injury.  Where a plaintiff in such an action prevails, the court shall award treble damages and may award equitable relief and reasonable attorneys’ fees in its discretion.[4]

3. Criminal Threats

Under Connecticut law, a person is guilty of threatening when: (1) by physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury; (2) such person threatens to commit any crime of violence with the intent to terrorize another person; or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror.[5]

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If you have any questions relating to cyberbullying, or other education issues, do not hesitate to contact Joseph Maya and the other experienced education law attorneys at Maya Murphy, P.C. in Westport, CT at 203-221-3100 or JMaya@Mayalaw.com.

[1] Public Act No. 11-232.

[2] Conn. Gen. Stat. §53a-181j.

[3] Conn. Gen. Stat. §53a-181k.

[4] Conn. Gen. Stat. §52-571c.

[5] Conn. Gen. Stat. §53a-62.

Search and Seizure: Your Child’s Fourth Amendment Rights in School

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As drugs and weapons infiltrate our nation’s schools, it is imperative that school officials take the necessary steps to maintain safety and preserve order in your child’s school. With that being said, your child has a right to privacy and school officials must not be overzealous in their investigation of alleged violations of school policy. The following will provide you, as a parent, with a basic understanding of the rights your child has as well as the requirements your child’s school must adhere to regarding the search of his or her person or property while in school.

The Fourth Amendment of the United States Constitution protects persons from unreasonable searches and seizures by agents of the government, which includes school officials. The Fourth Amendment provides that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause…”

First, we will discuss your child’s Fourth Amendment rights while he or she is at school and the applicable standard that will allow school administrators to conduct a search. Second, we will look at the permissible scope of locker and desk searches, searches of personal items, such as knapsacks and pocketbooks, as well as the use of drug testing, sniffer dogs and metal detectors.

While this is a practical overview of Fourth Amendment search and seizure issues pertaining to your child and their school, you should contact one of our attorneys at Maya Murphy P.C. if you believe that your child’s rights have been violated by a school official in the course of an investigation.

How does the Fourth Amendment apply to my child while at school?

The application of the Fourth Amendment to an in-school search of your child or their property differs from the more generally applicable criminal standard. With respect to the criminal standard, the Fourth Amendment requires law enforcement officials to first demonstrate that they have “probable cause” to believe that a crime has been committed. This usually means that evidence must be presented to a judge and a warrant must be obtained before law enforcement officials may conduct a search of private property. Unlike the criminal standard, the requirements for conducting a permissible search of your child while he or she is in school are somewhat different.

The United States Supreme Court has articulated a clear-cut standard that school officials must adhere to when conducting a search of your child or his or her property. First, school officials do not need to obtain a warrant before conducting a search of your child or his or her property. The Court reasoned that requiring school officials to obtain a warrant would interfere with their ability to obtain evidence and maintain the informal disciplinary procedures that schools use to preserve order. Moreover, the need to maintain safety in the school environment at all times outweighs the warrant requirement.

Unlike the criminal standard that requires probable cause, the legal standard set forth by the court for in-school searches by school officials is “reasonable, under all of the circumstances.” In determining what “reasonable” is, the Court has developed a two-fold inquiry before a search may be conducted of your child or his or her property. First, the search must be “justified at its inception.” Second, the search must be “permissible in its scope.”

What does “justified at inception” mean?

A school official that conducts a search of your child must have reasonable grounds for suspecting that the search will reveal evidence demonstrating that your child has violated or is violating school rules or the law. Here, unlike the probable cause standard requiring probability that a search will produce evidence, school officials using the reasonableness standard may conduct a search irrespective of whether it is probable that a search will reveal evidence of wrongdoing.

School administrators, however, must not abuse this leniency in conducting a search and must do so “with reason and common sense.” This relatively relaxed approach, while justified in deference to the safety of the school population, pertains only if at the time of the search, school officials had reasonable suspicion in conducting a search of your child or his or her property.

Reasonable suspicion sufficient to satisfy the “justified at inception” prong can be found in many different ways. For example, if your child is acting in a manner indicating that he or she has consumed alcohol or has taken illicit drugs, this will likely be found to be reasonable. Additional examples include, the smell of alcohol or drugs on your child, or other students informing school officials that your child may be engaging in activity inconsistent with school policy or the law.

To justify a search of your child or their property, school officials must have a logical reason for doing so in order to satisfy the “justified at inception” requirement. If a school official is able to demonstrate that school safety concerns were the primary factors for conducting a search, it is likely that the search will be found reasonable.

What does “permissible in its scope” mean?

A search will be found “permissible in its scope” when the measures that school officials employ in searching your child or their property were reasonably related to the objective of the search, and that the search was not excessively intrusive in light of the age and sex of your child.

First, when conducting a search, school officials must show that the search was related to the object of the search. Therefore, if your child is accused of allegedly possessing or selling illegal drugs, a more thorough search may be tolerated. On the other hand, if your child is accused of possessing a bottle of alcohol, a search of her pocketbook or his knapsack may be reasonable, while the removal of clothing would likely be unreasonable.

Second, the search should not invade the legitimate privacy right of your child in relation to the search. Taking into consideration your child’s age and sex, different search procedures will be subjectively evaluated. For example, a school was found to have violated a thirteen-year old girl’s Fourth Amendment rights after school officials were informed that she allegedly possessed prescription painkillers. Following a search of the girl’s knapsack, which revealed no evidence of prescription drugs, she was sent to the nurse’s office for a strip search, which further revealed no evidence of prescription drugs.

Due to its highly intrusive nature, a strip search of your child should only be conducted when there is reasonable suspicion of danger or the resort to underwear for hiding evidence of wrongdoing. Conversely, pat-downs are held to be minimally intrusive. Thus, the means used in conducting a search and the age and sex of your child are pertinent factors that school officials must consider before conducting a search of your child’s person or their property.

What if a search of my child or their property results in the discovery of another item of contraband not subject to the initial search?

If a school administrator conducts a search of your child or their property when there is reasonable suspicion to do so and that search results in discovery of an item that was not the intended object of the search, the school may still use that evidence of contraband to discipline your child for violating school policy or the law. An example of such a scenario would include checking your child’s bag or purse for cigarettes and finding of illicit drugs, such as marijuana or other contraband.

Moreover, the school still may take disciplinary action against your child even if they violate your child’s Fourth Amendment rights. These violations, however, may provide grounds for you and your child to bring a Title 42 U.S.C. Section 1983 action against the school and school personnel for infringing upon your child’s civil rights.

Can my child’s school search their personal property?

Provided school officials adhere to the “reasonable, under all of the circumstances” requirement, your child’s personal property, such as purses, backpacks, and even their car is subject to being searched. Although conducting a search of your child’s property is permissible, school officials still must adhere to the same standard applicable to the search of your child’s person, i.e., the search must be “justified at inception,” and it must be “permissible in its scope.” Again, the search must not be excessively intrusive, and school officials must adhere to this requirement even when it comes to the searching of your child’s personal property.

Can my child’s locker or desk be subject to a search?

The short answer is yes. The Connecticut General Assembly enacted legislation, whereby, all boards of education may authorize school officials or law enforcement officials to search lockers and other school property that is available for use by your child, which includes desks, for the presence of weapons, contraband or the fruits of a crime. This legislation expressly states that a search of your child’s locker or other property owned by the school is permitted so long as the “reasonable, under all of the circumstances,” requirement is found (i.e., reasonable at inception and permissible in its scope).

Can my child’s school conduct a search without having reasonable suspicion?

Having discussed searches conducted by school officials where there was reasonable suspicion to support a search of your child or their property, we now turn our attention to random and suspicion-less searches involving your child.

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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 contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free consultations to all new clients.

Parents: The Connecticut Law on School Expulsions

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Under Section 10-233d of the Connecticut General Statutes, expulsion is an exclusion from school for a period of ten or more days. As with suspension, a student can be expelled by the local or regional school board if his or her conduct (1) violates publicized policy; (2) seriously disrupts the educational process; or (3) endangers persons or property.

For actions that occurred off school grounds, the student’s conduct has to have both violated publicized policy and seriously disrupted the educational process. The local board can consider (1) whether the conduct happened close to the school; (2) whether other students or a gang were involved; (3) whether the conduct involved violence, threats, unlawful use of a weapon, and any injuries; and (4) whether the conduct involved the use of alcohol.

What conduct qualifies for “mandatory expulsion” on school grounds?

The Connecticut General Assembly enacted legislation mandating expulsion for students who have engaged in specific dangerous conduct. If a student possesses a firearm or another weapon while on school grounds or at a school-sponsored activity, the school must expel that student for no less than one calendar year under state and federal law. The federal law, the Guns-Free School Act, defines “firearm” as:

  • Any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
  • The frame or receiver of such a weapon;
  • Any firearm muffler or silencer;
  • Any destructive device, including a bomb, grenade, rocket, missile, mine, or similar device.

Building on the federal law, the General Assembly requires mandatory expulsion for no less than one calendar year for a student in possession of a firearm, deadly weapon, dangerous instrument, or martial arts weapon while on school grounds, subject to exceptions on a case-by-case basis. Listed below are the definitions for each of the terms:

  • Deadly weapon: Any weapon from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles.
  • Dangerous instrument: Any instrument capable of causing death or serious injury.
  • Martial Arts Weapon: A nunchaku, kama, kasari-fundo, octagon sai, tonfa, or Chinese star.
What conduct qualifies for “mandatory expulsion” off school grounds?

The requirements for mandatory expulsion differ if the conduct occurred off school grounds. In such cases, the school must recommend expulsion for the student only if that student carries a pistol without a permit or uses a firearm, instrument, or weapon in the commission of a crime.

Moreover, the board must expel a student for at least one calendar year if the student is engaged in the sale or distribution on or off school grounds of a controlled substance, irrespective of the amount. Drugs such as marijuana, cocaine, heroin, hallucinogenic substances would fall under this definition. Parents should consult student handbooks for a more extensive list of prohibited controlled substances.

What are my child’s legal rights before expulsion?

The General Assembly has mandated that, unless there is an emergency, a student facing expulsion be entitled to a formal hearing in front of a hearing board within ten days after the proposed expulsion. As with suspension, an emergency exists if the student facing expulsion poses an unwarranted danger to a person or property or such a serious disruption to the educational process that the school has to delay the hearing until after the suspension.

Since school expulsion is a more serious form of discipline, only local or regional school boards can make the decision to expel a student. The following section will provide an overview of the procedures during expulsion proceedings, so parents can gain a better understanding of their child’s legal rights.

What are the school’s notice requirements? What can I do to prepare for the hearing?

When the administration recommends a student for expulsion, the local or regional school board must provide parents with written notice within twenty-four hours detailing the date, time, a plain statement of the matters at hand, and a list of local free or reduced-fee legal services. In addition, the board must provide all documentary evidence that the administration plans to use during the hearing.

To prepare for the hearing, parents should examine carefully the school record stating the facts of the matter, talk to school witnesses to see what they are going to say, and arrange for additional witnesses, especially ones that can testify favorably on your child’s character, to tell your child’s side of the story at the hearing.

What are my child’s legal rights at the hearing?

At the hearing, two issues will be decided: (1) whether the child should be expelled; and (2) if so, the length of the expulsion. Under Section 10-233d, at least three members of the local board of education have to preside over the expulsion proceedings. Alternatively, the school board can delegate the duty to an impartial hearing officer provided the officer is not a member of the appointing board.

In both cases, neither the board members nor the hearing officer can discuss the case outside the hearing. Should the administration elect to retain an attorney to represent it in proceedings, it cannot choose an attorney that represents both the local board of education and the administration.

Generally, the administration will begin the proceedings by laying out the underlying facts leading to expulsion. Then, both the administration and the student will have an opportunity to present evidence and cross-examine witnesses. Following the presentation of evidence, the members of the board can ask both sides questions concerning the expulsion. Before the board makes a final decision on whether the student should be expelled, both sides can present additional arguments opposing or supporting the expulsion.

Possible Recommended Results

The hearing officer can recommend one of the following three results. First, they can decide not to expel the student, thereby allowing the child to return to school immediately after the hearing.

Second, the board can recommend your child’s expulsion. If the board adopts this recommendation, the child, for the duration of the expulsion, will be ineligible to attend any other schools within the district or participate in any on or off campus school activities. The board can review the student’s disciplinary history to decide on the length of the expulsion, but cannot consider it for purposes of determining whether to move forward with the expulsion. For instance, if a student has been expelled only once, the board has discretion to shorten (or even waive) the expulsion.

Finally, the board can recommend “suspended expulsion.” In this case, the student is legally expelled, but is permitted to stay in school on a probationary status. The administration, however, can thereafter invoke the expulsion if the student engages in a further act of misconduct.

What are my child’s legal rights after the hearing?

Under the Connecticut statutes, parents are to receive a decision within twenty-four hours of the hearing Should the board proceed with the expulsion, parents cannot appeal the decision, but still have some options for their child.

First, if your child is under sixteen years old, then the local board must provide him or her with an alternative educational program during the course of the expulsion. If your child is between the ages of sixteen and eighteen, then the board must provide your child with an alternative educational opportunity if he or she wants to continue school and meets specified conditions set by the board.

But schools do not have to provide alternative educational opportunities if the student has been expelled previously, or was expelled for possession of a firearm or a controlled substance. While administrators have discretion in designing alternative educational programs, eligible students are entitled to at least two hours of tutoring per day and instruction in the core subjects of English, math, social studies, and science.

Second, parents can apply for their child to be enrolled in another school But the potential receiving school can reject your child’s application by adopting the decision of the previous school without a hearing on the matter. It can also hold an informal hearing to determine whether the prospective student would be expelled under that school’s rules and policies.

Third, the parent can apply on behalf of their child for early readmission to the school. The laws do not prescribe criteria for a child’s early readmission. Instead, readmission decisions are at the discretion of the local board, or a superintendent, who may themselves prescribe specific criteria for readmission.

Expunging Misconduct from a Student’s Record

As a closing note, notice of the expulsion and the nature of the misconduct must be on the student’s educational record. If the student graduates from high school, then the administrator must expunge the expulsion from the student’s record unless the student was in possession of a firearm or a deadly weapon. Alternatively, if the board shortened or waived the expulsion, then it can choose to expunge the expulsion from the student’s record if he or she completes an administration-specified program.

What are my child’s legal rights when he or she is removed from class?

Removal is defined as exclusion from a classroom for all or part of a single class period given that such exclusion does not extend beyond ninety minutes. A teacher can remove a child from class if that student deliberately causes a serious disruption of the educational process within the classroom. If a teacher decides to proceed with this action, he or she has to send the student to a designated area and immediately inform the principal of the student’s name and the specifics of the incident.

Generally, the school is not obligated to provide the student with an informal hearing before removal. Students, however, are entitled to an informal hearing if the teacher removes the student more than six times during the school year or twice a week, whichever comes first.

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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 regarding school expulsion or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free consultations to all new clients.

What Parents Should Know About School Suspensions in Connecticut

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It is now well-established that out-of-school sanctions have an adverse academic and social impact on students. Out-of-school suspensions and expulsions contribute to poor performance in school, higher drop-out rates, and increased misbehavior at school.

One report found that students who had been subjected to out-of-class disciplinary sanctions tended to score lower on the Connecticut Mastery Test (CMT) and Connecticut Academic Proficiency Test (CAPT). In another study, 89% of sixteen and seventeen-year-old students in the juvenile justice system had previously been suspended or expelled from school. Despite their negative impact on students, Connecticut schools continue to resort with alarming frequency to out-of-school sanctions. During the 2007-2008 school year for example, as a result of suspensions or expulsions, schoolchildren within the state missed over 250,000 school days.

What is the law in Connecticut on school suspensions?

The General Assembly has defined suspension as exclusion from school privileges and transportation for no more than ten days. Under Section 10-233b of the Connecticut General Statutes, school administrators can suspend students only if the conduct:

1. violates publicized policy of the local or regional board of education;
2. seriously disrupts the educational process; or
3. endangers persons or property

If the student’s conduct occurred on school grounds, then it needs to satisfy only one of the elements. If the student’s conduct occurred off-campus, then administrators can suspend students only if the misbehavior violates publicized policy and seriously disrupts the educational process. We will discuss each of the elements in detail below so parents can better understand what kind of student conduct would result in suspension.

What conduct qualifies as “violation of publicized policy?”

The Connecticut General Assembly has authorized local or regional boards of education to prescribe disciplinary rules and policies for the schools they oversee. Individual schools, in accordance with these policies, will typically list prohibited conduct in school handbooks. The school administration may suspend a student if he or she engages in such conduct.

What do I do if my child is suspended?

If your child is suspended under the publicized policy category, you should first consult the school handbook to determine whether his or her conduct violates any articulated school disciplinary rule. You will likely be able to make a stronger case for your child during suspension hearings (which we will discuss in more detail later in the section) if you can show that his or her conduct is neither prohibited by the school nor violates any school rules. There are three things to keep in mind in the process.

First, Connecticut courts have held that school rules have to be clear and understandable so students and parents can reasonably understand what conduct is prohibited. Second, under the Connecticut statutes, school districts must inform parents and students at least annually of board policies related to student conduct, which they usually do through student handbooks. Finally, any school rule must have some rational relationship with its intended purpose.

It is worth noting that this is not a difficult standard for the board or the school to meet since it does not have to show that the rule is the best approach, but only that there is some reasonable connection between the two.

What kind of behavior qualifies as “serious disruption of the educational process?

According to guidelines issued by the Connecticut State Department of Education, a student’s conduct is not a serious disruption of the educational process unless it substantially interferes with the operation of a class, study hall, library, or any meeting involving students and school staff. The Department has noted that recurring or cumulative disruptions, even if not considered serious if taken separately, can amount to a serious disruption of the educational process. In making this determination, the Department suggests that administrators should consider the frequency, number, and severity of the offenses.

For conduct that occurs off school grounds, the Connecticut Supreme Court has held that there has to be a concrete relationship between the off-campus conduct and the school’s operation. Moreover, the General Assembly has set forth the following criteria that administrators may consider in determining whether a student’s conduct is a serious disruption: (1) Whether the incident occurred close to a school; (2) Whether other students or a gang were involved; (3) Whether the conduct involved violence, threats of violence, or unlawful use of a weapon and whether there were injuries; and (4) Whether the conduct involved the use of alcohol.

What kind of behavior qualifies as “endangerment of persons or property?

The State Department of Education has defined “endangerment of persons or property” as conduct that exposes a student to an injury, risk, or a harmful situation. Under this definition, fighting, bullying, possession of firearms or controlled substances, or damage to personal or school property would satisfy this requirement.

What If my child has a school disciplinary history or has never been suspended?

Administrators may consider a student’s past disciplinary record when determining the length of a suspension or whether it is warranted in the first place. If your child has never previously been suspended or expelled, the school administrator has discretion under the law to waive or shorten the suspension. Instead, school officials may require the student to complete an administration-specified program, which parents would not have to pay for. Conversely, the school administration may also hand down a harsher suspension period if your child has a record of past suspension, expulsion, or removal from class.

What action is the state taking to minimize the academic impact of school suspensions?

Under the Connecticut statutes, an in-school suspension consists of exclusion from the regular classroom, but not from school altogether, for no more than ten consecutive days. Based on data showing that out-of-school suspensions actually perpetuated misbehavior and increased the likelihood that students would end up in the juvenile justice system, the General Assembly moved to increase the use of in-school suspensions as a disciplinary tool. Starting July 1, 2010, all suspensions have to be in school unless:

1. The student poses such a danger to persons or property or a serious disruption to the educational process that he or she should be out of school; or
2. It is appropriate based on a student’s past disciplinary problems, specifically if the administration tried to address the student’s behavior through means other than suspension or expulsion.

The Connecticut State Department of Education has also recommended that administrators should consider the following mitigating factors before moving ahead with out-of-school suspensions:

• Age, Grade, and Developmental Stage of Student:

A younger child may not have the developmental maturity to understand that his or her conduct is inappropriate in a school setting. Alternative behavioral support programs educating him or her about this fact could be a more effective and less severe form of discipline.

• The Student’s Reasons for Engaging in Misbehavior:

If the student did not intend to harm someone or something, but was acting out of frustration, then an out-of-school suspension may be unwarranted because it would not effectively address the underlying problems. Examples of mitigating reasons include teasing by peers, family issues, etc.

• The Student’s Past Disciplinary Problems and Likelihood of Recurrence:

If the student does not have a disciplinary history, then an out-of-school suspension could be unnecessarily harsh. Instead, an in-school suspension or another behavioral support program could be equally as effective in punishing and deterring the student from engaging in such misconduct in the future. But if the student does have a history of disciplinary problems, an out-of-school suspension could be the next logical step in addressing the student’s behavior.

• The Risk of Loss of Instruction:

If a student is disengaging from class, an out-of-school suspension may compromise academic performance and actually exacerbate the student’s lack of interest in school.

• Cultural Factors:

A student could misbehave due to misunderstandings and different interpretations of events based on race, ethnicity, and linguistic differences.

• Extent of Parental Support in Addressing Student’s Misbehavior:

Administrators should consult with parents whenever a student is misbehaving in school. If there is not a history of such collaboration, then the school should involve parents in addressing a student’s misconduct before moving on to more serious measures.

If the school administration does proceed with an in-school suspension, the pupil can, depending on the administration’s preference, serve the suspension in the school or in a different school under the jurisdiction of the local or regional board of education.

What are my child’s legal rights before a suspension?

In Goss v. Lopez, the United States Supreme Court set forth a student’s procedural legal rights before he or she could be suspended. In that case, eight students had been suspended following an outbreak of student unrest without a hearing to determine the underlying facts resulting in the suspension. The Court noted that students facing suspension were entitled to notice of the reasons for the suspension and an informal hearing to tell their side of the story.

What are the school’s notice requirements? What can I do to prepare for the hearing?

The General Assembly, consistent with the decision in Goss, requires school officials to notify parents within twenty-four hours regarding the proposed suspension. Before the suspension, absent an emergency, the student is entitled to notice of the reasons for the suspension and an informal hearing in front of the administrator to explain his or her side of the story. Under the Connecticut statutes, an emergency exists if the student poses an unwarranted danger to a person or property or disruption to the educational process. If this is the case, then the hearing must be held as soon after the suspension as possible.

The hearing is the best opportunity for the student to persuade the school administration to dismiss or shorten the length of the suspension. To that end, parents may want to rely on the information mentioned above in helping their child craft a strategy during the give-and-take with the school administrator. For instance, students may point out that their conduct did not fall under the list of prohibited conduct warranting suspension or that the misbehavior did not constitute a serious disruption of the educational process.

Even if the student’s misbehavior was inappropriate within a school setting, students may also invoke the mitigating factors identified by the State Department of Education to shorten the length of the suspension or receive, instead, an in-school suspension. The particular approach to contesting a suspension will depend on the facts and circumstances of the student’s case.

What are my child’s rights after the hearing?

If the administration authorizes a suspension after a hearing, parents cannot appeal the decision. But the school must give the student the opportunity to complete homework, including examinations, which he or she missed during the suspension period. Under the law, schools also cannot use out-of-school suspensions to discipline students more than ten times or fifty days during the school year, whichever comes first, without convening a more formal hearing. The limit for in-school suspensions is fifteen times or fifty days during the school year.

If the administration imposes an in-school suspension, parents should note that the Department of Education has issued guidelines on what they consider effective in-school suspension programs. First, the program should have a strong academic focus. To that end, the Department recommends that administrators group students together by age or grade and have the group supervised by a qualified individual. School officials should also keep the student to teacher ratio low and have certified teachers in essential areas such as math or reading to provide instruction to students. Along with providing students with an academically oriented program, administrators must allow students to receive and complete schoolwork from their regular classroom.

Second, the program should include a strong counseling component so students can get the necessary support to correct their behavior. Accordingly, guidance counselors, social workers, or psychologists should be available to students in the in-school suspension room. Quality programs would help the student manage his or her emotions, handle challenging situations more effectively, and develop positive relationships with both students and teachers.

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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 regarding school suspensions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free consultations to all new clients.

What Parents Need to Know About Special Education Law

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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 non-disabled 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 non-disabled 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.

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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.

Are Special Education Students Held to the Same Disciplinary Rules as Other Students?

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Is My Child Obligated to Adhere to the Same Disciplinary Rules as Any Other Student?

The code of student conduct that your child’s school district has in place applies to all students, including students who receive special education and related services. A more detailed look at disciplinary procedures can be found in the Discipline section of this publication. The following will provide you with an overview of certain obligations that both you as a parent and the school district must fulfill when your child has been disciplined due to behavior that may or may not have been disability-related.

The Role of a PPT

Your child’s PPT, of which you are a part, will meet to review the relationship between your child’s behavior and his or her disability. This is known as the “manifestation determination.” The PPT determines if your child’s behavior was caused by or had a direct and substantial relationship to his or her disability. The PPT will also determine whether your child’s behavior was caused by the school district’s failure to implement his or her IEP.

If the PPT determines that your child’s disability did not cause the subject behavior, then your child will be disciplined as would any other child who behaved in that particular manner. The manifestation determination must be conducted within ten (10) days of any decision to change the placement of your child due to a violation of the code of student conduct.

If the PPT finds that your child’s behavior was a manifestation of his or her disability or was due to a failure to implement his or her IEP, then your child may not be removed from their current educational setting. Thereafter, the PPT must conduct a functional behavioral assessment and implement a behavioral intervention plan.

A functional behavioral assessment looks at why your child behaved the way he or she did by collecting data to determine the possible causes of the problem and identify strategies to address your child’s behavior. The behavioral intervention plan, which is also developed by your child’s PPT, must be designed to teach your child appropriate behaviors and eliminate behaviors that impede on his or her ability to learn, as well as that of other students in your child’s class.

Interim Educational Settings

School personnel may remove your child from his or her current educational placement and into another appropriate interim educational setting for a maximum of ten (10) consecutive school days. Your child’s IEP determines what an appropriate interim educational plan setting will be. Although your child may be removed from his or her current educational setting and into an interim educational setting if it is found that his or her behavior was not a result of their disability, the child still must continue to receive educational services, so as to continue participation in the general education curriculum and to progress toward meeting the goals set out in his or her IEP.

There are three circumstances permitting your child’s school district to place your child in an interim educational setting for up to forty-five (45) days, irrespective of whether your child’s behavior was found to be a manifestation of his or her disability:

  • He or she carries a weapon to school or a school function, or is in possession of a weapon in school or at a school function;
  • He or she knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances while at school or a school function; or
  • Inflicts serious bodily injury upon another person while at school, or at a school function.

Moreover, a hearing officer may place your child in an interim educational setting if he determines that keeping your child in his or her current placement is substantially likely to result in an injury to your child or to others.

What if I disagree with my child’s placement?

If you disagree with any decision regarding the placement of your child following a disciplinary finding or manifestation determination, you have the right to initiate a due process hearing. Pending a decision by the hearing officer, unless you and the school district agree otherwise, your child will remain in the disciplinary placement until the earlier of the issuance of a decision or expiration of the placement.

In addition, the hearing officer may return your child to the placement from which he or she was removed if the hearing officer determines that removal was not valid or your child’s behavior was a manifestation of his or her disability.

The LEA is responsible for arranging the expedited due process hearing and must do so within twenty (20) school days of the date the complaint requesting the hearing was filed. The hearing officer must make a determination within ten (10) school days after the hearing is held. Decisions as to an expedited due process hearing pertaining to any of the matters in dispute are appealable.

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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 contact Joseph Maya and the other experienced attorneys at our Westport, CT office at (203) 221-3100 or JMaya@Mayalaw.com. We offer free consultations to all new clients.

Individuals with Disabilities Education Act: What You Need To Know

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What is the Individuals with Disabilities Education Act?

The Individuals with Disabilities Education Act (“IDEA”) was originally enacted in 1975. It primarily imposes certain legal obligations upon public schools regarding the provision of education for students with disabilities. IDEA requires that “all children with disabilities have available a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”

In other words, public school districts are essentially required to provide free services to all children with disabilities in order to facilitate an appropriate education that meets their needs.

What Qualifies as “Free Appropriate Public Education”? 

To break it down further, the term “free appropriate public education” typically means special education and related services that:

A). Have been provided at public expense, under public supervision and direction, and without charge;

B). Meets the standards of the state educational agency;

C). Include an appropriate preschool, elementary school, or secondary school education in the state involved; and

D). Are provided in conformity with the individualized education program.

The individualized education program, otherwise known as “IEP,” is a written plan detailing a child’s specifically-tailored special education program as required by IDEA. IDEA provides a vehicle in which parents disagreeing with their child’s IEP can ask for due process hearings to address their concerns. Representation by an experienced education law attorney is vital to ensuring that a school meets its IDEA obligations and properly facilitates a child’s success.

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If you have questions about special education law, please contact Joseph Maya and the other experienced education attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com.

Individuals with Disabilities Education Act & Informed Consent

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What is the Individuals with Disabilities Act?

The Individuals with Disabilities Education Act (“IDEA”) is a federal act that imposes legal obligations upon public school districts to provide a free appropriate public education to children with disabilities. Connecticut law requires schools to reach out and identify children who may be eligible for special education services. In other words, public schools cannot turn a blind eye to a child in need of services; they must take a proactive approach in determining who needs assistance.

What is an IEP?

After a child has been identified as one that may need special education, the school is obligated to conduct an initial evaluation. If it is determined that the child in fact needs special services, a Planning and Placement Team (“PPT”) will work to construct an individually tailored special education program for the child, otherwise known as “IEP.”

Generally, the school district must obtain informed consent from the parents in order to move forward with this process. Informed consent generally means that the parent must be given full and complete disclosure of all relevant facts and information pertaining to the school’s plan prior to consent.

If parents disagree about a child’s IEP or the initial decision to evaluate the child for special education services, they can file a due process claim with the State Department of Education. Likewise, if parents withhold informed consent for a plan, the school district can also file a due process claim to determine how to move forward.

Both the parents and the school district have the right to be represented by an attorney at the due process hearing. Both parties will have the ability to present oral argument and evidence as well as cross examine witnesses. As a result, it’s critical that parents have an attorney with thorough knowledge of education law to ensure that a school adequately fulfills all of its obligations under IDEA.

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If you have questions about special education law, please contact Joseph Maya and the other experienced education law attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com.

Weapon Incidents in Schools: Discretionary Discipline

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Uniform Policy

Connecticut law imposes a uniform discipline policy with respect to students who bring firearms, deadly weapons, dangerous instruments, or martial arts weapons to school or to off-campus school activities. Also, students who carry a firearm or deadly weapon face criminal charges under Connecticut’s penal code.

This uniform expulsion policy does not extend to students who possess other categories of potentially dangerous objects or devices. In these cases, individual school districts determine the appropriate discipline, which may include suspension.

Deterring Students from Bringing Weapons to School

Many school districts and states have taken steps to deter students from bringing weapons and other potentially dangerous devices to school. Initiatives include (1) peer reporting, (2) search and seizure, (3) policing, (4) code of conduct revisions, (5) violence reduction education, and (6) social/emotional intervention. Current initiatives promoted by the Connecticut State Department of Education (SDE) consist mainly of social/emotional intervention techniques that address a range of behavior problems.

Notably, some initiatives to deter weapon incidents in schools have faced constitutional challenges. Federal and state courts have weighed in on whether various weapons deterrent initiatives violate students’ constitutional rights under the First and Fourteenth Amendments, as well as under the civil rights acts.

Weapon incidents in schools may not always involve firearms, deadly weapons, dangerous instruments, or martial arts weapons. If a student brings a weapon to school that does not fall into the category of a firearm, deadly weapon, dangerous instrument, or martial arts weapon, then the school administration may choose its own punishment, which, by law, includes suspension.

What Warrants a Suspension?

To warrant a suspension under state law, a student’s conduct on school grounds or at a school-sponsored activity must (1) violate a publicized school board policy, (2) seriously disrupt the educational process, or (3) endanger people or property (CGS § 10-233c(a)). When a student possesses a weapon, school administrators could conclude that one or several of such conditions have occurred, thereby justifying suspension.

State law does not require or recommend a specific length of time for the suspension. However, it does require the student to serve the suspension in school, unless the administration determines that the student:

  1. poses a danger to the people or property of the school;
  2. poses a disruption to the educational process if he or she were to serve the suspension in school;
  3. deserves out-of-school suspension due to previous suspension or expulsion; or
  4. has not responded to behavioral support strategies previously offered by the administration (CGS § 10-233c(g)).
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If you have any questions regarding school discipline, or any education matter, please contact Joseph Maya at (203) 221-3100 or by email at JMaya@Mayalaw.com to schedule a free initial consultation today.