A Parent's Guide to Connecticut School Law- Part 6
Other Education Criminal Juvenile Law
Summary: This publication is an in-depth look at the laws surrounding Education in the state of Connecticut, as well as the obligations of parents and the rights of students. Part 6 covers the laws regarding Bullying.
IX. School Bullying
Phoebe Prince was a
fifteen-year old girl who had moved from Ireland to attend South Hadley High
School in Massachusetts.248 Instead of enjoying her teen years, however, she
was for several months relentlessly tormented by classmates.249 Despite months
of verbal and social media attacks by other students—she was called an “Irish
slut” and “whore,” had her books routinely knocked out of her hands and
received threatening text messages—the school failed to take action, even as
Phoebe informed administrators about the bullying.250 On January 14, 2010,
after a classmate threw a Red Bull can at her from a car while she was walking
back from school, Phoebe hung herself in a stairwell.251 Phoebe’s suicide stands as a tragic testament to the
negative impact bullying may have on students. Connecticut, as other states, is
not immune to such tragedies. In 2002, a Meriden high school student killed
himself after enduring months of verbal and physical abuse.252 Even when
bullying does not drive students to suicide, it may have other harmful effects.
According to a recent survey, Connecticut high school students who admitted to
being bullied are more likely to experience depression, sleep less, skip school
and attempt suicide.253
Fortunately, both
Connecticut and the federal government have recognized the impact of bullying
and have made genuine efforts to address the problem. While there are currently
no federal anti-bullying laws, the U.S. Department of Education has, among
other things, created a federal task force to elicit ideas from the public,
held a bullying summit, and sent a “Dear Colleagues” letter reminding schools
that they may be liable under federal civil rights laws for bullying among
students.
For its part,
Connecticut passed a sweeping anti-bullying law, which took effect on July 1,
2011, expanding school staff training, addressing cyber-bullying, devising
statewide assessments, and delineating further responsibilities for schools.
This section will examine the new law in detail. The first part of this section
will provide parents with an overview of what actions constitute bullying. The
General Assembly has outlined specific criteria and listed a number of actions
that would qualify as bullying, including cyber-bullying. However, parents should
not limit themselves to the language of the statute. They should consult the
school handbook and the record of verified acts of bullying (described below)
for more specific information.
The second part of this
section will describe the state procedures by which parents and students can
inform the school about bullying incidents. Next, we will outline the school’s
responsibilities under the law, including investigation of bullying complaints,
training for school staff, and steps to monitor and improve the effectiveness
of school anti-bullying plans. We will conclude by discussing what state and
federal legal claims parents can pursue on behalf of their child if the school
fails to discharge its responsibilities with respect to preventing or stopping bullying
and providing a safe school environment.
What kind of actions qualify as bullying?
Starting July 1, 2011,
the General Assembly redefined bullying 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: 1) Physically or emotionally harms the student or
damages that student’s property;
2) Places such student
in reasonable fear of harm to himself or herself, or of damage to his or her
property;
3) Creates a hostile
school environment for that student;
4) Infringes on that
student’s rights at school; or
5) Substantially
disrupts the educational process or the orderly operation of the school.254”
Building on federal civil rights laws, the
General Assembly has also clarified that bullying based on any of the following
traits would also fall under the definition:
- Race or color
- Religion
- Ancestry
- National origin
- Gender
- Sexual orientation
- Gender identity or expression
- Socioeconomic status
- Academic status
- Physical appearance
- Mental, physical, development or sensory disability.255
Perhaps most
importantly, the General Assembly has honed in on cyber-bullying, which is “any
act of bullying through the use of the Internet, interactive and digital
technologies, cellular mobile telephone or other mobile electronic devices or any
electronic communications.”256 Under the definition, the use of email,
text messages, live web streams by a student or group of students to ridicule
or humiliate another student would be considered cyber-bullying.
Nevertheless, parents
should still consult the school’s bullying policy for more detail as to what
behavior qualifies as bullying since districts and local boards may have
modified the definition. Parents can usually find the policy in the school
handbook or on the school website.257 If the policy is not available in the
school publication or website, parents should ask for a copy of the policy,
which the school is required to provide immediately upon request.258 The local
board also must establish a procedure for each school to maintain reports of
bullying in the school and maintain a list of verified acts of bullying, which
they also have to make available to parents.259 The list, at a minimum, should
provide some details on each individual act. Regardless of the format, the
school cannot include the names of any students involved in the action under
the federal Family Educational Rights and Privacy Act (FERPA). The federal act
also forbids schools from informing parents about the consequences imposed upon
the bullying child.260
How can parents inform schools that their child is being bullied?
As part of a required
safe school climate plan, the local or regional board of education must have a
process in place for students to anonymously report to school employees acts of
bullying.261 Under the statute, “school employees” include a teacher,
substitute teacher, school administrator, school superintendent, guidance
counselor, psychologist, social worker, nurse, physician, paraprofessional, or
anyone who has regular contact with students through the performance of his or
her duties.262 The board must notify parents annually about the process by
which students can make such reports.263
Because students are
often and understandably scared to report these acts for fear of retaliation,
the board must also provide a way for parents or guardians of the afflicted
students to file written reports of suspected bullying.264 Moreover, any school
employee who witnesses an act of bullying or receives word from a student of
such an occurrence must notify the safe school climate specialist (who we will
discuss later on in the section) or another school administrator if the climate
specialist is not available, no later than the next school day after the
bullying takes place.265 The school employee must file a written report within
two days after the bullying incident.266
To encourage people to
report acts of bullying, the statute insulates school employees, students, and
parents from any resulting lawsuits provided they follow the relevant provisions
outlined in the statute and act in good faith. This immunity extends to local
boards that are making good-faith efforts to implement a safe school climate
plan or investigate bullying incidents. This immunity does not attach if their
actions were reckless, willful, or wanton.267
Before filing a bullying
complaint, parents should consider meeting with administrators or teachers to
discuss the bullying incident. Given the immediate and harmful impact that
bullying has on a child, parents should involve the relevant school authorities
as fully and early as possible. If parents and school officials cannot
informally resolve the situation, parents should file a formal complaint. Prior
to filing, parents should gather as much documentation as possible. Documents
reflecting conversations that parents have had with their child and/or the
bully, relevant written communications with school staff, messages passed
around the Internet, accounts of previous attempts to address the situation,
and expert evaluations from social workers, physicians, or counselors would
assist parents in making a strong case on behalf of their child.268
Parents should
specifically cite to and make clear that they are invoking both the Connecticut
anti-bullying law and the specific policy of the school district. It is
important to spell out the bullying incident in as much factual detail as
possible, including the names, dates, locations, nature and the length of time
of the bullying. Finally, parents should address the complaint to the school
principal, with copies to teachers, the local board, social workers and
counselors.269 Once parents file the complaint, it is
the obligation of the school to ensure the safety of the student who is being
bullied. To ensure that the school is working towards this goal, parents should
consult frequently with the relevant school staff as to what steps it is taking
to address the issue and assess the success of such efforts.
What are the school’s obligations in addressing bullying?
Each local or regional
board of education must approve of a safe school climate plan and submit it to
the State Department of Education for approval no later than January 1,
2012.270 Within thirty days after approval, the board must post the plan on its
and each school’s website, and publish the plan in any school district
publications or school handbooks.271 The plan’s requirements can be broken down
into three general components: (1) the investigation and resolution process for
handling bullying complaints; (2) the specific bullying training school staff
must undergo; and (3) steps to track and improve anti-bullying plans. We will
address the three components in order below.
Investigation and Resolution Process for Bullying Complaints
The plan calls for a
“safe school climate specialist” in every school, who must be the principal or
the principal’s designee.272 The climate specialist is responsible for
supervising the investigation of all reports of bullying immediately after
receiving the written report.273 While the climate specialist can review
anonymous reports by students, he or she cannot discipline the bullying student
on the basis of such reports.274 No later than forty-eight hours after the
investigation, the school must notify both the bullying student and the bullied
student and invite them to at least one meeting to discuss what steps the
school is taking to protect the victim and prevent future incidents from taking
place.275
The board must also
develop a “prevention and intervention strategy” for school employees to deal
with issues related to bullying.276 The General Assembly does not bind the
school to any specific requirements, but issues some recommendations for
schools to consider when formulating a strategy. For example, schools may
implement behavioral support programs or other evidence-based model approaches
to ensure a safe school climate or to prevent bullying. Schools should also
devise clear anti-bullying rules, outline appropriate consequences for such actions,
and have adults present to supervise students in specific areas where such
incidents are likely to occur. Other recommendations include school-wide
training, student peer training, education and support, and policies to
increase parent involvement in bullying prevention.277
Because every bullying
incident is different, the statute authorizes the board to initiate
case-by-case interventions to address repeated acts of bullying committed by a
student or directed against a student.278 In cases where the principal believes
that the bullying student is engaging in criminal conduct, he or she must
report the misconduct to local law enforcement authorities.279
On a more general level,
the superintendent of each local or regional board of education must appoint
from existing staff a safe school climate coordinator to oversee the climate
specialist in each school within the district.280 The coordinator is primarily
responsible for implementing the safe school climate plan. To that end, the
coordinator must collaborate with climate specialists, the board, and the
superintendent to identify and respond to bullying in the schools of the
district. At a minimum, the coordinator must meet with climate specialists at
least twice during the school year to discuss bullying issues, and any
recommendations to amend the district’s current plan. The coordinator also must
collaborate with the superintendent to provide data and information with
respect to bullying within their school district.281
Training and Plans for School Staff
To better identify and
address the problem of bullying within schools, the statute requires that all
school employees complete a training program run by the State Department of
Education on youth suicide prevention and bullying. All state school employees
must go through this program annually unless they have a valid bullying
certification.282 The General Assembly does not outline requirements for the
program, but does offer the following guidelines as to what should be included:
- Appropriate strategies to prevent bullying among
students in school and outside of the school setting;
- Appropriate strategies for immediate interventions to
stop bullying;
- Information concerning the interaction and relationship
of students committing acts of bullying and students who are the
victims of bullying;
- Findings on bullying, such as information about the
types of students who are at-risk for bullying in the school
setting;
- Information pertaining to cyber-bullying, including
related Internet safety issues; and
- Information on youth suicide, ways to identify youth at
risk of suicide and strategies for preventing it.283
As
a closing note, the training may be presented in person by mentors, offered in
state-wide workshops or through online courses.284
State Requirements to Monitor and Improve Bullying Plans
The General Assembly has prescribed requirements to
monitor the progress of and improve upon existing bullying plans. Starting July
1, 2012, a school principal must establish a committee or designate an existing
committee from the school to foster a safe school climate and address issues
related to bullying in the school.285 The committee, drawing upon investigative
bullying reports from the schools, is responsible for identifying and
addressing patterns of bullying among students, as well as reviewing and
amending school bullying policies. The committee also must make recommendations
on school climate issues and collaborate with the safe school climate
coordinator to collect data on these incidents.286
To ensure a more balanced viewpoint on these issues, at
least one parent or guardian of a student in the school must be on the
committee.287 The parent participates in all the committee activities outlined
above except for receiving copies of bullying reports, identifying and
addressing bullying among students in the school, or any other activities that
may compromise the confidentiality of a student.288
On a broader level, the statute gives the State
Department of Education oversight into tracking and evaluating each school’s
anti-bullying plans. The Department is responsible for collecting information
about school prevention efforts and intervention strategies to reduce bullying
and documenting school districts’ needs for training assistance to deal with
the problem.289 Based on the data it collects and other information, the
department must develop or recommend a model safe school climate plan
applicable to grades kindergarten to twelve.290 Beginning February 1, 2010, and
every two years thereafter, the department must submit to the General Assembly
a status report that should include the number of verified acts of bullying in
the state, analysis of action taken by school districts, and other
recommendations for preventing bullying.291
Can parents file a federal claim against the school if their child is a
bullying victim?
Though there are no federal anti-bullying laws, the
United States Department of Education (DOE) recently sent a “Dear Colleague”
letter to all boards of education throughout the country advocating a more
forceful approach to addressing bullying in schools.292 In the letter, the DOE
acknowledged that bullying “fosters a climate of fear and disrespect that
can...impair the physical and psychological health of its victims” and
“negatively affect learning.”293 More tellingly, the DOE noted that certain
student misbehavior that violates a school’s anti-bullying policy could also
trigger liability under federal antidiscrimination laws enforced by the
Department’s Office for Civil Rights (OCR).294
Within the DOE, OCR is responsible for enforcing within
a school setting, federal statutes prohibiting discrimination based on race,
color, national origin, sex, and disabilities. While the OCR does not
explicitly pursue discrimination claims based on religion, it noted that many
religious groups face discrimination on the basis of actual or perceived shared
ancestry or ethnic characteristics, thereby invoking a civil rights statute
that is covered by OCR. OCR has decreed that if a school encourages, tolerates,
fails to adequately address, or ignores peer harassment based on the traits
mentioned above at a level sufficient to create a hostile school environment,
the school staff may be liable under the statutes enforced by the OCR.295
As a general proposition, a school may be liable if it
fails to address harassment incidents about which it knows or should have
known. The school may be deemed to be on notice if the harassment was in plain
sight, widespread, or well known to the staff, such as harassment occurring in
hallways, recess, or on the school bus. The school may also be put on notice if
a responsible employee knew, or in the exercise of reasonable care, should have
known about the harassment. An example of this is when a student or another
person informed the employee about the bullying and that employee did not
inform the administration about the incident.296
The DOE letter sets forth four major responsibilities
that schools must undertake to address discrimination against students in the
school. First, when responding to harassment, the school must take immediate
and appropriate steps to investigate the situation. Though the specific steps
will depend on factors such as the nature of the allegations, the age of the
student(s) involved, and the size of the school, the school’s investigation
must be prompt, comprehensive, and impartial.297
Second, once the school determines that harassment did
occur, it must take effective steps to end the harassment. Appropriate steps
include separating the bully and the target, providing counseling for one or
both of the students implicated in the matter, and taking disciplinary measures
against the harasser. The letter emphasizes that the school must not penalize the
student who was harassed.298
Third, the school must take action to eliminate the
hostile environment and its effects. To that end, schools may need to provide
training or offer other intervention programs to the harassers, and on a
broader level, to students, families, and school staff in the larger school
community. It may also be necessary for the school to issue new policies
against harassment and reporting procedures to respond to the problem. The
school must provide additional services to the harassed student, especially if
the school was late to respond to the incident.299
Finally, the school must take steps to prevent future
harassment and retaliation against the person filing the complaint. At a
minimum, the school must reach out to harassed students and their families
concerning how to report future incidents, follow up with them regarding any
new harassment actions, and promptly respond to related problems as they
arise.300
As a final note, a school is required to discharge
these duties if the misconduct falls under the anti-bullying policy, regardless
of whether the student complained, requested the school to take action, or
claimed that the misconduct was anti-discriminatory.301
Can parents file a state claim against the school if their child is a
bullying victim?
Under Connecticut law, there is no definitive answer as
to when a school may be liable for an act of student bullying. We will outline
the legal requirements and challenges parents may face in pursuing a negligence
claim against the school. Whether a parent can prevail on such a claim is
dependent on the unique facts and circumstances surrounding their child’s case.
Therefore, it is best to consult with an attorney before contemplating a
negligence claim.
Ministerial Actions
Municipal employees, including public school personnel,
may be held liable for failing to adequately perform ministerial duties. Courts
have generally characterized ministerial actions as prescribed actions that do
not involve the exercise of judgment or discretion.302 These types of actions
are usually secondary in nature and executed according to established policy,
rule or practice.303 Examples of ministerial acts include a school’s failure to
inspect and keep hallways clean pursuant to a board of education bulletin or
the absence of adult supervision during recess.304
The Connecticut courts appear to be divided as to
whether a school’s failure to take action against bullying when it knew or
should have known about the misconduct constitutes a misperformance of a
ministerial function. In one case, a parent filed a lawsuit against the local
board of education, the school principal, and school athletics personnel after
the student claimed that he had been bullied and harassed by other teammates
during an after-school high school program.305 The court held that the failure
of school employees to guarantee the student would not be bullied or harassed
during a voluntary after-school program was not a misperformance of a
ministerial action.306
The court ruled differently in another case when a
student who had been teased on a daily basis had an object thrown at her head,
causing severe brain injuries.307 After the incident, the parents filed a
negligence claim against the town, the local board of education and the school,
alleging that they failed to follow their anti-bullying plan.308 Because the
school had prescribed detailed procedures for teachers and administrators to
handle bullying incidents, the court reasoned that their related actions could
be ministerial in nature and allowed the parent to proceed to trial under that
theory.309
While no two bullying incidents are alike, whether a
particular action is ministerial is dependent on the level of detail in that
school’s anti-bullying plan. A parent will likely have a better chance to
prevail on a negligence claim under a “ministerial action” theory if the school
fails to discharge a responsibility that was spelled out in the plan in such
exquisite detail that it eliminated or marginalized a school employee’s
judgment or discretion. Since the revised state law mandates much more specific
procedures for school employees to follow, some of these actions may be found
to constitute ministerial functions. Given the recency of the law, it remains
to be seen whether a court would adopt this view with respect to the actions
outlined in the statute.
Governmental Actions
Municipal employees are granted qualified immunity with
respect to performance of governmental acts, which are actions that benefit the
public and are discretionary or supervisory in nature.310 Generally, there are
three exceptions to the granting of this immunity: (1) actions that involve
malice or intent to injure; (2) statutory causes of action against the
municipal employee; or (3) a public employee’s failure to act directed at an
identifiable person subject to imminent harm.311 The first two exceptions are
self-explanatory, and most actions against schools for failing to prevent
bullying do not involve them. Therefore, we will focus on the third
exception.
To satisfy the third exception, so as to deprive a
municipal employee of qualified immunity, plaintiffs have to show that there is
(1) an identifiable victim; (2) imminent harm; and (3) a public official to
whom it is apparent that his or her conduct is likely to subject that victim to
harm.312 For school purposes, an identifiable person has traditionally included
schoolchildren attending school during school hours.313 One Connecticut court,
however, seemed to expand on this definition when it noted that a person could
be considered an identifiable person if he or she was exposed to imminent harm
(which we will discuss in more detail below). The court also noted that
Connecticut appellate courts have relaxed the definition of “identifiable
person” for schoolchildren and identified them as a “foreseeable class to be
protected.”314
To satisfy the “imminent harm” element, the particular
misconduct must be limited in time and geographical area.315 With respect to
the time component, the action must be temporal or of short duration. Risks
that might occur at some unspecified time in the future do not constitute
imminent harm. In applying this definition, one court has held that an incident
where a student tripped another student during recess did meet the requirement
because recess was a defined period of time that took place after lunch every
school day.316 Another court held differently when a male student made a series
of sexual threats and advances to a female student because the actions
complained of occurred during different school years.317 In terms of the
geographical area, the conduct has to be confined to a specific location.
Therefore, if the action has the potential to occur at multiple places, then it
would not constitute imminent harm.318
As indicated above, the presence or absence of
qualified immunity is a highly fact-specific inquiry. Therefore, if parents
want to proceed with this claim against school officials, it would be best to
consult with an attorney to evaluate the respective strengths and weaknesses of
such a claim.
X. Conclusion
For the attorneys of Maya Murphy, P.C., writing and
publishing the foregoing “owners’ manual” for parents of students has been a
labor of love. At each stage, we asked ourselves “what do parents need to
know?”; “what do students need to know?” At the risk of demystifying to some
degree the practice of law, we have shared with you our education, training and
experience as attorneys immersed in the practice of education law, and our own
insights as parents of children attending Connecticut public schools that along
the way have also “been there, and done that.”
It is our sincere hope that this publication provides
frequent comfort and valuable guidance to parents and children alike.
Educational issues, particularly those involving student discipline, can be
among the most stressful and potentially divisive to descend upon a family. Our
goal has been to provide families with relevant and useful information to help
reduce the stress and avoid altogether any familial division. If we have been
the least bit successful, we will have met our personal expectations and
professional responsibilities.
Please know that we at Maya Murphy stand ready to be of
further service to you and your loved ones. My hope is this publication
will narrow the divide between teachers, parents and children. If at any point
there is something you don’t understand, call me. If there is a family that can
use help, but can’t afford representation, let me know. We want to help every
family, and importantly, every child. I can be reached via e-mail directly at
JMaya@Mayalaw.com. You can also call my office at (203) 221-3100, or in New York
at (212) 682-5700.
Footnotes
248 Helen Kennedy, Phoebe Prince, South Hadley High School’s “New Girl,” Driven to Suicide by
Teenage Cyber Bullies, N.Y. Daily News (Mar. 29, 2010), nydailynews.com.
249 Id.
250 Id.
251 Id.
252 Elaine Zimmerman and Thomas Brooks, Connecticut Cannot Lose More Children to Bullying,
Connecticut Mirror (May 19, 2011), http://www.ctmirror.org/node/12641.
253 Connecticut Commission on Children, Anti-Bullying Law Becomes Law 1 (2011).
254 2011 Conn. Pub. Acts 11-232, § 1(a)(1).
255 Id. 11-232 § 1(1)(v).
256 Id. 11-232, § 1(a)(2).
257 CT State Dep’t of Educ., Bullying and Harassment in Connecticut: A Guide for Parents and
Guardians, 5 (2010).
258 Id.
259 Conn. Pub. Acts. 11-232, § 1(b)(10).
260 20 U.S.C. § 1232g(a)(1)(A)(2010).
261 Conn. Pub. Acts. 11-232, § 1(b)(1).
262 Id. 11-232 § 1(a)(7).
263 Id. 11-232 § 1(b)(1).
264 Id. 11-232 § 1(b)(2).
265 Id. 11-232 § 1(b)(3).
266 Id.
267 Id. 11-232 § 10.
268 CT. State Dep’t of Educ., Bullying and Harassment in Connecticut: A Guide for Parents and
Guardians, at 7-8.
269 Id.
270 Conn. Pub. Acts. 11-232, § 1(c).
271 Id.
272 Id. 11-232 § 9(b).
273 Id.
274 Id. 11-232, § 1(b)(5).
275 Id. 11-232, § 1(b)(8)(9).
276 Id. 11-232, § 2.
277 Id.
278 Id. 11-232, § 1(b)(11).
279 Id. 11-232, § 1(b)(14).
280 Id. 11-232, § 9(a).
281 Id.
282 Id. 11-232 § 6.
283 Id.
284 Id. 11-232, § 6(7).
285 Id. 11-232, § 9(c)(1).
286 Id. 11-232, § 9(c)(2).
287 Id. 11-232, § 9(c)(1).
288 Id. 11-232, § 9(c)(3).
289 Id. 11-232, § 3(a)(1)-(2).
290 Id. 11-232, § 3(a)(3).
291 Id. 11-232, § 1(a)(4).
292 U.S. Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter 2 (2010).
293 Id.
294 Id.
295 Id. at 1-2.
296 Id. at 2.
297 Id.
298 Id. at 2-3.
299 Id. at 3.
300 Id.
301 Id.
302 Esposito v. Town of Bethany, No. CV065002923, 2010 WL 2196910, at * 5 (Conn. Super. Crt.
May 3, 2010).
303 Id. at * 6.
304 Id. at * 5.
305 Dornfried v. Berlin Bd. Of Educ., No. CV064011497S, 2008 WL 5220639, at * 1 (Conn. Sup.
Crt. Sept. 26, 2008).
306 Id. at * 5.
307 Esposito, No. CV065002923, 2010 WL 2196910, at * 8.
308 Id. at * 1.
309 Id. at * 8.
310 Id. at * 4.
311 Id.
312 Id. at * 8, * 9.
313 Id. at * 9.
314 Id. at * 9, *11.
315 Doe v. Bristol Bd. Of Educ., No. CV065002257, 2007 WL 1053836, at * 4 (Conn. Super. Crt.
Mar. 23, 2007).
316 Id. at * 4, * 5.
317 Negron v. Ramirez, No. CV095013686, 2011 WL 2739499, at * 8 (Conn. Super. Crt. June 10,
2011).
318 Id. at * 8.