CAS Legal Mailbag Question of the Week – 1/23/2018

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As the principal of a middle school, sometimes I feel more like a referee than an educator. Recently, I have received a number of complaints from teachers about one seventh grade biology teacher “hogging” the copier. It seems that she is constantly copying worksheets and other materials. Other teachers are having problems every morning making their own copies because this teacher gets to the copier early and stands there making hundreds of copies every morning.

Being a good principal, I met with her to discuss her copying practices. She was rather dismissive, asking me if I had ever taught biology. She claims that the textbook is woefully inadequate and that she must supplement the textbook extensively to teach her students appropriately. I asked her to show me what she meant, and she shared a number of articles and worksheets that she has gathered from other sources for just that one day of instruction. She claims that it is necessary for her to copy 30 to 40 pages of materials each day for her 100+ students. To make matters worse, she warned me ominously that, since she has been making this large number of copies every day since the beginning of the year, she is now protected by “past practice,” and I cannot impose restrictions now.

Am I stuck?

Thank you,

Copying Conundrum

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The End of a Long Road: The Connecticut Supreme Court Dismisses the Appeal of the CCJEF Plaintiffs

Because we conclude that the trial court was correct in its initial determination that the plaintiffs failed to establish that the state’s educational offerings are not minimally adequate under article eighth, § 1, and in its determination that the state has not violated their equal protection rights under the state constitution, the plaintiffs cannot prevail on their claims that the state has not provided them with a suitable and substantially equal educational opportunity.

With those words, Chief Justice Rogers of the Connecticut Supreme Court announced the end of a long road for the case of Connecticut Coalition on Justice in Educational Funding v. Rell, (SC 19768, January 17, 2018) (CCJEF II). Chief Justice Rogers was joined in the majority by Justices Eveleigh, Vertefeuille and Alvord. Dissenting in part were Justices Palmer, Robinson and Sheldon. Interestingly, Justices McDonald and D’Auria did not participate on the panel because of their involvement with the case prior to appointment to the Court. Justice D’Auria argued the case on behalf of the state when it was last before the Court in 2008, and Justice McDonald had been Corporation Counsel for the City of Stamford, which is a member of the plaintiff coalition. This landmark decision essentially leaves the burden of ensuring that all children in Connecticut receive substantially equal educational opportunities squarely in the hands of the legislature going forward. To understand how we arrived at this point, it is helpful to look briefly at the history of the case.

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CAS Legal Mailbag Question of the Week – 1/17/2018

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As the principal of a medium-size high school, I am responsible for investigating and acting on bullying claims.  Last week, two sophomore girls came to me to report that a senior male student had been posting a number of insulting comments about them on his Instagram account.  In this case, there wasn’t much to investigate.  They brought print-outs of the posts, and the posts were really mean.  He had posted pictures of both of them using some sort of app that made them look terrible, and he included various snotty comments about them.  These poor girls told me that these posts were humiliating and that they were having trouble coming to school to face the snarky comments from their classmates.  I then met with the male student to get his side of the story.  He was unapologetic; indeed he laughed at his handiwork.  At that point, I told him that he would be suspended for two days for violating the board’s bullying policy, but he contradicted me.

“You can’t do that!” he said.  In a rather patronizing tone, the male student asked me if I had heard about the First Amendment, and then he proceeded to lecture me about the Tinker standard, i.e., the rule announced by the United States Supreme Court in Tinker v. Des Moines Independent School District (U.S. 1969).  Citing Tinker, the student claimed that he has a right of free speech unless I can reasonably forecast significant disruption or material disruption of the educational process.  I told him that I know all about Tinker, and I complimented him on his scholarship.  When I told him that the suspension would stand, however, he challenged me, saying that school discipline for these posts would violate his First Amendment because his posts were certainly not disruptive.  “The ACLU will have a field day with you,” he threatened.

I do feel sorry for the two girls whose feelings were hurt, but I am not sure that I can really say that the posts disrupted my school.  Is this oaf possibly correct?

Thank you,
Help Me Out Here Continue Reading

CAS Legal Mailbag Question of the Week – 1/9/2018

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As a middle school principal, I run a tight ship, and I expect that the students in my school will be respectful in their interactions with me and all the other staff members. I was infuriated, therefore, by the conduct of a seventh grader last week. A teacher complained that the student had used vulgarity in her classroom and she sent him down to the office. I was surprised that the student was totally relaxed when I called him into my office for a little chat, but I was totally shocked when, after my first question, his response was “Buzz off, Fatso!” I know that I did gain a little weight over the holidays but his impertinence was astounding. When I told him that he owed me an apology, his response was that I owed him an apology, and then he simply repeated everything I said in a sing-song voice, ending with “You’re suspended.”

After calling his mother to come pick him up, my next call was to the superintendent with my recommendation that we expel the student for his misconduct. Mr. Superintendent was surprisingly unsympathetic and responded simply with “That’s not going to happen.” I tried to impress upon him the importance of maintaining standards and making an example of this student, but he was not buying it. “We can’t expel every mouthy kid,” he responded. “We would go bankrupt!”

I was shocked that my superintendent would let financial considerations color his decision whether to expel this student. Do you know what he is talking about?

Thank you,
Perplexed Principal Continue Reading

Register Now for Sexual Harassment Prevention Training – 2018 Schedule

Don’t wait until it’s too late. There are steps you can take now to protect you and your business from costly litigation. The programs outlined below will provide training and education on sexual harassment awareness and prevention for all supervisory personnel as required by Connecticut law.

Registration fee is $50 per person, and each attendee will be provided with a certificate upon completion.*

Each program will satisfy the requirements of Connecticut law and will include the following topics:

  • Federal and State Statutory and Regulatory Provisions
  • Types of Conduct That May Constitute Sexual Harassment
  • Development of an Effective Sexual Harassment Policy, and
  • Procedures for Receiving and Investigating Complaints

Please register for the desired date and location by clicking one of the registration links below.

* In order to satisfy state sexual harassment prevention training requirements, if applicable to employer, attendees must arrive on time and attend the full two-hour session. Guests arriving after 10 minutes of the session start time will need to contact us and reschedule for a future date.

February 8, 2018 Session – Hartford – REGISTER NOW!

Presenter: Brenda A. Eckert
When: February 8, 2018 | 7:30 AM – 10:00 AM EST
Where: 7:30 – 8:00 AM | Registration/Breakfast; 8:00 – 10:00 AM | Training
Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT
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April 5, 2018 Session – Hartford –
REGISTER NOW!

Presenter: Henry J. Zaccardi

When: April 5, 2018 | 7:30 AM – 10:00 AM EDT
Where: 7:30 – 8:00 AM | Registration/Breakfast; 8:00 – 10:00 AM | Training

Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT
Get Directions >>

April 26, 2018 Session – Hartford – REGISTER NOW!

Presenter: Peter J. Murphy
When: April 26, 2018 | 7:30 AM – 10:00 AM EDT
Where: 7:30 – 8:00 AM | Registration/Breakfast; 8:00 – 10:00 AM | Training

Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT
Get Directions >>

April 26, 2018 Session – Stamford – REGISTER NOW!

Presenters: Keegan Drenosky, Clarisse N. Thomas

When: April 26, 2018 | 1:00 PM – 3:30 PM EDT
Where: 1:00 – 1:30 PM | Registration/Refreshments; 1:30 – 3:30 PM Training

Shipman & Goodwin Stamford Office
300 Atlantic Street
Stamford, CT 06901
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August 9, 2018 Session – Hartford – REGISTER NOW!

Presenter: Christopher E. Engler

When: August 9, 2018 | 7:30 AM – 10:00 AM EDT
Where: 7:30 – 8:00 AM | Registration/Breakfast; 8:00 – 10:00 AM | Training

Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT
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October 4, 2018 Session – Hartford – REGISTER NOW!

Presenter: Jarad M. Lucan

When: October 4, 2018 | 7:30 AM – 10:00 AM EDT
Where: 7:30 – 8:00 AM | Registration/Breakfast; 8:00 – 10:00 AM | Training
Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT
Get Directions >>

October 18, 2018 Session – Hartford – REGISTER NOW!

Presenter: Brenda A. Eckert

When: October 18, 2018 | 7:30 AM – 10:00 AM EDT
Where: 7:30 – 8:00 AM | Registration/Breakfast; 8:00 – 10:00 AM | Training

Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT
Get Directions >>

October 18, 2018 Session – Stamford – REGISTER NOW!

Presenters: Keegan Drenosky, Clarisse N. Thomas

When: October 18, 2018 | 1:00 PM – 3:30 PM EDT
Where: 1:00 – 1:30 PM | Registration/Refreshments; 1:30 – 3:30 PM | Training

Shipman & Goodwin Stamford Office
300 Atlantic Street
Stamford, CT 06901
Get Directions >>

December 6, 2018 Session – Hartford – REGISTER NOW!

Presenter: Daniel A. Schwartz

When: December 6, 2018 | 7:30 AM – 10:00 AM EST
Where: 7:30 – 8:00 AM | Registration/Breakfast; 8:00 – 10:00 AM | Training

Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT
Get Directions >>

Education Legislation Summary: 2017 Special Session – Biennial Budget, Connecticut General Assembly

On October 26, 2017, the General Assembly passed Emergency Certified Bill 1502 (“Bill 1502” or “the Bill”). The Bill was signed by Governor Malloy on October 31, 2017 (except for a line item veto related to hospital charges). This summary is intended to give you a brief overview of some of the more significant changes affecting public elementary and secondary education.

Changes Affecting School Operations

Mandatory Medicaid Provider Enrollment

Effective no later than December 1, 2017, each local and regional board of education must (1) enroll as a provider in the state medical assistance program, (2) participate in the Medicaid School Based Child Health Program administered by DSS (Department of Social Services), and (3) submit billable service information electronically to DSS or its billing agent. The local or regional board of education may enter into an agreement with a third-party vendor or another local/regional board of education to comply with these requirements. See Bill 1502 § 51. Continue Reading

Claw Back of Parent PLUS Loan Proceeds to Pay College Tuition Hits a Roadblock

Over the last few years, Chapter 7 trustees of the bankruptcy estates of parents that paid college tuition for their children in the years before their bankruptcy filings have actively pursued the recovery of those tuition payments as constructively fraudulent transfers. While the case law on the viability of these claims is mixed, the success of some of these claims has appeared to set a new standard of care for trustees. Trustees likely will continue to feel compelled by their fiduciary duty to creditors to assert these fraudulent transfer claims for the foreseeable future.

Trustees now appear to be pushing the boundary of these claims by pursuing the recovery from colleges and universities of the distribution of the proceeds of federal education loans (the so-called “Parent PLUS loans”) made to parents for the educational expenses of their dependent children. There are some key differences between the typical case of a parent paying tuition directly to the undergraduate institution and a distribution of Parent PLUS loan proceeds. Unlike the direct payment of tuition from the parent to the child’s undergraduate institution, Parent PLUS loan proceeds are paid directly from the lender to the school. Moreover, federal law governing these loans prohibits the use of loan proceeds for anything other than the student’s educational expenses. In the few decided cases to date, these distinguishing factors have so far stymied trustees’ attempts to avoid and recover the distribution of these loan proceeds. Continue Reading

SEE YOU IN COURT! – January 2018

Mr. Superintendent was hoping that the first meeting of the Nutmeg Board of Education after the holidays would be uneventful, maybe even boring. It was not to be. During Public Comment, Peter Parent gave an impassioned speech about how the Nutmeg Public Schools are depriving his daughter of her privacy rights. At the beginning of the current school year, he reported, a transgender student who identifies as female started using the same girls bathrooms and girls locker room as his daughter. With increasing animation, Mr. Parent described how upset he is that his daughter may encounter this student in the bathroom and in the locker room. He ended his comments by slamming on the podium with each of three words, “This. Must. Stop!”

Veteran Board member Bob Bombast picked up on Mr. Parent’s emotion, and he was very curious to learn more. “How long has this been going on?” Bob asked indignantly. Before Mr. Parent could respond, however, Bob whirled around to confront Mr. Superintendent. “Tell me this isn’t true,” he demanded.

Mr. Superintendent demurred, stating that it was not the right time to discuss this matter. But Bob wouldn’t let it go, and fellow Board member Mal Content chimed in, demanding an explanation from Mr. Superintendent.

“OK, OK,” Mr. Superintendent responded, “I’ll explain.” Mr. Superintendent went on to describe a request by a student to identify as female, even though her assigned sex at birth is male. After meetings with the family, Mr. Superintendent explained, the district made a number of accommodations as requested by the parents, including changing all school records to show her chosen new name, which is consistent with her female identity.

Bob Bombast expressed shock at Mr. Superintendent’s statements. He challenged Mr. Superintendent, telling him that he couldn’t imagine that parents can change assigned bathrooms and even official school records just by asking. Mal Content weighed in as well, stating that falsifying public records must be some sort of crime. But other Board members tried to inject some reason into the discussion. Red Cent told both Bob and Mal to calm down and be more respectful in discussing this sensitive subject. Penny Pincher offered the observation that accommodating parent and student wishes does not cost a penny, and she expressed support for the family’s actions. The Board members went on to discuss Mr. Parent’s concerns for another ten minutes, until Mr. Chairman banged on the gavel and declared that the Board has a full agenda for the meeting and needed to get back on track.

“Just one more thing,” said Bob Bombast. “I move that we direct Mr. Superintendent to put this entire accommodation thing on hold until we appoint a study committee to recommend appropriate procedures for the Board to follow.”

“I second,” interjected Mal. But Mr. Chairperson was not having it.

“If and when I decide to put this matter on the agenda,” he intoned, “we can discuss all that. For now, however, the discussion is over.

Given that Mr. Superintendent is the chief executive officer of the Board of Education, were these Board members off base in discussing Mr. Parent’s concerns? Continue Reading

CAS Legal Mailbag Question of the Week – 12/19/2017

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As principal of an elementary school, I welcomed a new family to our school at the beginning of the school year. Mom and dad enrolled their eight-year-old son and their six-year-old daughter last September and, since that time, these children have been model school citizens. It was, therefore, especially painful when I received a telephone call from an anonymous person telling me that these students do not reside in my school district and are in fact undocumented foreign nationals who are in this country illegally.

I immediately spoke to my secretary, whose recollection of this family’s enrollment was imperfect to say the least. She did find her notes, but they simply set forth the address the parents had given as their residence in town. When I pressed her on what proof of residence the parents had provided, she told me that they looked nice, and that she figured that they were telling the truth. As you might imagine, I was disappointed at the lack of rigor my secretary exercised in enrolling these students, and I decided that I should adopt new procedures to assure that only eligible students attend my school.

This morning, I gave my secretary the new protocol. To enroll a student in our school, parents must show some identification and at least two documents establishing the claimed residence, such as a lease or utility bill. As a further safeguard against undocumented foreign nationals attending my school, the protocol requires that the secretary obtain the social security number of any parent who looks foreign.

Did I do a thorough enough job as the gatekeeper for my school? And, by the by, I sent a letter to the family that caused all the trouble directing them to remove their children from my school immediately.

Thank you,
Ever Vigilant Continue Reading

CAS Legal Mailbag Question of the Week – 12/12/2017

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As the principal of a middle school, life is always interesting and I have learned a lot. However, last week something came up that I have heard about but never had to address. One of the students met with me privately, and he told me that he is transgender and in the process of transitioning to female. I asked whether his parents were aware of his gender status, and he assured me that they were. I suggested that we all meet together, to which he readily agreed, and we set up a meeting for the next day.

Let me pause here. Now that the student has expressed a gender preference, I don’t know what pronoun to use. I will go out on a limb and start saying “she.” Anyway, the student and her mother came to see me yesterday. They explained that the student has long identified as female, but has only recently decided to live her life as such. They asked if I would change the school records to her new chosen female name, and further if I would instruct all staff members to treat her as female for all purposes, including access to bathrooms and locker rooms. I was as supportive as I could be, given my confusion, and I told them that I would consider their requests and be back to them.

I try to keep up, and I know that there has been litigation over such requests. This seems to be a situation, however, in which I can be sued no matter what I do. What does Legal Mailbag suggest that I do?

Thank you,
Seeking Help

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