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The parents of a Hamden public school student, who was claimed their son was not protected by the school when he was allegedly bullied, won no redress in their civil case against the school board.

New Haven Superior Court Judge Angela C. Robinson struck the final two counts brought by Frank Santoro Sr. and his wife on behalf of their son, in what is apparently the first Connecticut court ruling that a new anti-bullying statute creates no private cause of action against a school board.

"There are no cases directly on point addressing [whether] there is a private cause of action under [C.G.S.] Sec. 10-222d," Robinson wrote in addressing the second count. In the absence of any contrary precedent, Robinson found "insufficient indicia that the legislature intended to create a private cause of action" in the statute, which requires school boards to establish anti-bullying policies.

In first count, the parents represented by New Haven's John R. Williams also alleged the school board members denied their child equal educational opportunities. That pleading was attacked by lawyers for the school board as an insufficient statement that merely posited a legal conclusion.

Williams attempted to keep the case from being thrown out on sovereign immunity grounds by requesting injunctive relief, including an order to provide the Santoros with vouchers so their child could attend school outside of Hamden. The parents also asked for a writ of mandamus compelling the board to comply with the anti-bullying statute, "damages, and any additional relief to which equity may pertain."

Even though Williams asserted in oral argument that the Santoros were only seeking "prospective injunctive relief," the written claims actually seek more, Robinson noted.

She declined to fashion any injunctive relief on grounds that the request was "too vague and imprecise."

The ways a school board "implements its bullying policy are discretionary and contingent upon a multitude of variables, too numerous to permit any court to fashion a simple enjoinder which would not unduly interfere with governmental function," Robinson concluded.

Frank Santoro Sr., the eighth grade boy's father, said he's looking for a way to appeal the case.

"I'd like the judge to reconsider her ruling. This case has silenced parents and students, and told school administrators they can do anything they want, with immunity." He said he has spent thousands in federal and state litigation of his case, and considers the ruling a setback for students who are victims of school bullies.

He said his son, Frank Jr., a fourth grader when the litigation was filed, was being physically assaulted and sexually taunted by a black student who school authorities were reluctant to discipline "for fear of creating a racial lawsuit" from the alleged bully. When Santoro requested vouchers to transfer his son to another district, the request was refused. "But they did give vouchers to another student the guy who was doing the bullying." His son is now in eighth grade in a Hamden school.

The Real Bullies

Santoro's lawsuit names the town and school board and individually sues the superintendent, assistant superintendent, principal and a social worker. Santoro operates a web site called hamdenbullies.org.

"Actually, the real bullies were school administrators, who did their best to convince my son that it was his own fault he was being bullied," said Santoro.

In dismissing the first count, Robinson wrote that school boards enjoy both sovereign immunity and governmental immunity. Because the defendants are being sued for failing to fulfill the state constitutional requirement of equal educational opportunities, they are sued as agents of the state, she reasoned. She specifically granted the motion to strike based on the doctrine of sovereign immunity.

Thomas B. Mooney, a Shipman & Goodwin education lawyer and author of the leading legal treatise on Connecticut school law, respectfully disagreed that sovereign immunity applies here.

"The general weight of authority is that school boards enjoy governmental immunity, not sovereign immunity," he said.

An exception was created by the state Supreme Court in the 1994 case of Burns v. Stamford Board of Education, which allowed recovery under a negligence theory if the victim is 'within an identifiable class subject to immediate harm'," said Mooney. He represents the Hamden school board in other matters, and drafted its anti-bullying policy.

The 2002 anti-bullying law was reinforced with amendments in 2006 which add "harassment" to the definition of bullying, and require schools to alert students to the method for filing a bullying complaint, and to provide case-by-case interventions.

The steamroller defeat of the Santoros' case before Robinson is not a sign that parents have no recourse in a school bullying matter, said West Hartford lawyer Alyce Alfano, at Klebanoff & Alfano. Her firm focuses on school law, and has a history of successful outcomes in school bullying cases.

It represented a Greenwich student last year in a matter that was resolved in mediation "with a very favorable outcome for our client," she said.

"Litigation is the last resort in these cases," said Alfano. "I would always call the school district, call the school district's counsel and attempt to come up with a solution with negotiation or mediation," she said.

Alfano's education law boutique has a subspecialty in bullying cases, with half a dozen currently pending.

"This is a developing area of the law," she said, adding that in litigated cases, "federal judges seem to be sensitive to the issues at stake here."

Even before Connecticut adopted its anti-bullying statute, school districts had an obligation to provide students with a safe educational environment, Alfano said.

She called the Santoro ruling "an unfortunate decision obviously we're disappointed when a decision goes contrary to the protection of students in this situation."

Williams did not immediately return a call for comment.

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

Source: Thomas B. Scheffey, Bully Victim Has No Redress, CT LAW TRIB (Nov. 4, 2011), www.ctlawtribune.com