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Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

As a middle school principal, I have spent the better part of this school year navigating between two warring parents whose children have been in conflict. From the screen shots I have received from them, I see that their two children have gotten into it over social media, back and forth with snotty comments about each other. 

Each parent has filed a formal complaint against the other child, claiming that the posts by the other child constitute bullying. While we work through the new legislation to a new approach to bullying, I am stuck with the current statute. As Legal Mailbag well knows, the current statute defines “bullying” as follows: “(1) ‘Bullying’ means an act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in reasonable fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.” The back and forth on social media between these two middle-schoolers is unfortunate, and we have talked with both of them about the need to move on. But I just don’t consider these juvenile exchanges on social media as “severe, persistent or pervasive,” and I don’t see physical or emotional harm either. Consequently, I have not made a finding of bullying by either child.

Yesterday, I heard from somebody at the State Department of Education. Apparently, one of the parents filed some sort of complaint against me. The caller was cordial, but he mentioned “Section 10-4b” and told me that he was going to have to meet with me to review the situation. What on earth is going on?

Signed,
When Will It End?

Dear When:

“Section 10-4b” refers to Connecticut General Statutes, Section 10-4b, which in turn is related to Connecticut General Statutes, Section 10-4a. Starting with that statute, we see that the General Assembly has defined the “educational interests of the state,” which each local and regional school district in Connecticut must implement as required by Conn. Gen. Stat. § 10-220(a) (“Duties of boards of education”). Section 10-4a defines the educational interests of the state as follows:

For purposes of sections 10-4, 10-4b and 10-220 and subdivision (1) of subsection (b) of section 10-66dd, the educational interests of the state shall include, but not be limited to, the concern of the state that (1) each child shall have for the period prescribed in the general statutes equal opportunity to receive a suitable program of educational experiences; (2) each school district shall finance at a reasonable level and at least, as appropriate, equal to the minimum budget requirement pursuant to the provisions of section 10-262j, an educational program designed to achieve this end; (3) in order to reduce racial, ethnic and economic isolation, each school district shall provide educational opportunities for its students to interact with students and teachers from other racial, ethnic, and economic backgrounds and may provide such opportunities with students from other communities; and (4) the mandates in the general statutes pertaining to education within the jurisdiction of the State Board of Education be implemented. (Emphasis added).

As you see from the emphasized words, by virtue of Section 10-4a and Section 10-220, school boards and their agents (including you) are required to implement “the mandates in the general statutes pertaining to education.” If school officials do not follow the laws governing education in Connecticut, they are not implementing the educational interests of the state as required.

Connecticut General Statutes, Section 10-4b, is the enforcement mechanism. That statute provides that any person may file a complaint with the State Board of Education alleging that a school board (through its agents) is not implementing the educational interests of the state. Under Section 10-4b, upon receipt of such a complaint, the State Board of Education (acting through the Commissioner) may appoint an agent to undertake a prompt investigation and report back to the State Board of Education. If after such investigation, the agent of the State Board of Education finds that there is reasonable cause to believe that a school board has not implemented the educational interests of the state (including a finding that a school board is not following the education laws in the state), the State Board of Education will then conduct an inquiry. At that inquiry, the respondent board of education may appear and respond to the allegation that it has not implemented the educational interests of the state. If the State Board so finds after conducting that inquiry, it can order that the respondent board of education engage in a remedial process by developing a plan to comply. Moreover, the State Board of Education can go to superior court to enforce any such remedial order. 

What, you may ask, does all of this have to do with you and the bullying claims you are dealing with. Apparently, the parent who filed the complaint is alleging that you are not following the law, presumably because you have not substantiated the claim of bullying against the other student. Legal Mailbag advises that you relax and cooperate with the agent from the State Board of Education when you meet with him or her. At that time, you can explain your good faith efforts here with the hope that the complaint will go no further.

The General Assembly has made a connection between bullying investigations and Sections 10-4a and 10-4b. In 2021, it enacted Conn. Gen. Stat. §§ 10-222q and 10-222r. Section 10-222r requires that the Social and Emotional Learning and School Climate Collaborative “develop a plain language explanation of the rights and remedies available under sections 10-4a and 10-4b for distribution to parents and guardians pursuant to subdivision (2) of subsection (c) of section 10-222d” (the statute requiring districts to develop safe school climate plans). It is an imperfect world, however, and there is no “subdivision (2) of subjection (c) of section 10-222d.” Nonetheless, Conn. Gen. Stat. § 10-222r requires that boards of education post that “explanation of the rights and remedies available under sections 10-4a and 10-4b” on their district websites. To the best of Legal Mailbag’s knowledge, the plain language statement of rights and remedies has not been issued, and thus compliance with Conn. Gen. Stat. § 10-222r is on hold.

That said, Legal Mailbag offers two thoughts in closing. First, irrespective of whether and when the plain language statement of rights and remedies is issued and then posted by school boards on their websites, the Section 10-4b process is in place. Accordingly, you should cooperate with the agent who is investigating the pending 10-4b complaint against your school district. Second, we hope and expect that the new legislation that will simplify the process of dealing with student-to-student conflict, with the new definition of “challenging behavior,” the new tiered approach to intervention that will be required, and the new definition of “bullying” as “unwanted and aggressive behavior among children in grades kindergarten to twelve, inclusive, that involves a real or perceived power imbalance.” That new definition of “bullying” should be helpful in situations such as that you describe, when students are simply trading antagonisms.

Please let Legal Mailbag know how you make out with the Section 10-4b investigation!

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Photo of Thomas B. Mooney Thomas B. Mooney

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and…

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and all other legal proceedings involving boards of education. Tom is the author of A Practical Guide to Connecticut School Law (9th Edition, 2018), a comprehensive treatise on Connecticut school law, and two columns, “See You in Court!,” which appears in the CABE Journal, and “Legal Mailbag,” which appears in the CAS Bulletin.