Connecticut Education Law Blog

Connecticut Education Law Blog

State Supreme Court Holds that Private School had Duty to Warn and Protect Students Against Risk of Serious Insect-Borne Disease When Organizing Trip Abroad

Posted in State of Connecticut Supreme Court Decisions

On August 11, 2017, the State of Connecticut Supreme Court delivered its decision in Munn v. Hotchkiss School, SC 19525 (Conn. 2017), holding that the state’s public policy does not preclude imposing a duty on a school to warn about or protect students against the risk of a serious insect-borne disease when organizing a trip abroad.  The decision sets an important precedent regarding the extent to which a school may be held liable for injuries sustained by students during school-sponsored programs and activities.  Local and regional boards of education, as well as private schools and other educational institutions, are strongly advised to scrutinize their programs and activities in light of the Munn decision.

The facts of the case date back to the summer of 2007, when the Hotchkiss School, one of the state’s most prestigious private boarding schools, organized an educational trip to China.  The trip itinerary included a tour of a city in the northeastern part of the country, as well as a visit to a nearby forested mountain.  Prior to the trip, school administrators had allegedly visited the Center for Disease Control (CDC) website, which noted the existence of tick-born encephalitis in northeastern China.  While insect repellant was listed among the “miscellaneous items” on the school’s suggested packing list, students were never warned about the existence of the disease in the region, nor were they advised to use insect repellant or wear protective clothing prior to visiting the mountain.

The group of students, teachers, and chaperones hiked up the mountain together, and were supposed to descend together via cable car.  The student and a few classmates, however, were permitted to descend the mountain on foot.  After deviating from the paved pathways, the students became lost, and had to navigate through a heavily forested area before rejoining their group.  The student received several insect bites during the descent, and soon developed symptoms of tick-borne encephalitis.  The disease caused devastating physical and neurological injuries, including brain damage, loss of speech, impaired motor skills, and difficulty eating and swallowing.

The student’s parents filed a negligence action against the school in federal district court, alleging that the school breached its duty to warn and protect student against the risk of contracting the disease.  The jury returned a verdict in favor of the student and awarded her more than $41 million.  The school appealed the case to the Second Circuit, arguing that it did not have a duty to warn or protect students against the disease, and that the jury award was excessive.  The Second Circuit agreed with the student that there was sufficient evidence for the jury to find that her illness was foreseeable, but asked the State of Connecticut Supreme Court to determine whether the state’s public policy imposed such a duty on the school and whether the jury award was excessive.

The Court answered the Second Circuit’s question in the affirmative, applying four factors to determine whether such a duty existed: (1) the normal expectations of the participants in the activity under review; (2) the policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.  The Court also determined that the jury award was not excessive under the circumstances.

With respect to the first factor, the Court began by recognizing that schools have historically had a duty to exercise reasonable care to protect students from foreseeable harms whenever they act “in the place of a parent” (in loco parentis).  This duty exists when students are in school or are otherwise under the school’s control, such as during transportation, school-sponsored athletic events, off-campus picnics, etc.  The Court determined that this duty extended to school-sponsored educational trips abroad, and opined that student and parents would normally expect schools to take reasonable measures to warn and protect students from diseases that are present in the areas to be visited.  The Court emphasized the difference in information between schools and families when planning for school-sponsored trips, and recognized that schools typically have superior knowledge regarding the areas to be traveled and the associated risks.

With respect to the remaining factors, the Court recognized the importance of promoting international studies and cultural awareness, but disagreed with the school’s contentions that a duty to warn and protect students from diseases during trips abroad would “chill” participation in such trips or result in increased litigation.  The Court noted the scarcity of similar claims against schools, and emphasized that schools only have a duty to exercise reasonable care to protect students from foreseeable harms.  In other words, the duty to warn and protect does not amount to an absolute guarantee of safety.  For a school to be liable for negligence, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision is exercised.  There must also be actual injury, and the school’s breach of its duty must be the cause of such injury.

In the case at hand, the risk of students contracting tick-borne encephalitis had been foreseeable because school administrators had allegedly viewed the CDC website and learned that the disease existed in the northeastern China.  The school, however, failed to exercise reasonable care by not warning students of the risk, and not advising or requiring them to use insect repellant or other protective measures during the trip.

Importantly, one of the concurring justices disagreed with the majority’s contention that the school’s alleged knowledge of the existence of the disease in northeastern China made the disease a foreseeable risk.  The concurring justice noted that tick-borne encephalitis is an extremely rare disease even in northeastern China, and questioned whether schools should have a duty to warn and protect student against all conceivable risks that attend foreign travel.  Such a duty, it was argued, would be oppressive to schools, would lead to increased litigation, and would ultimately detract from the international educational experience.  It was recommended that injuries sustained from such remote risks be deemed unforeseeable as a matter of law or, alternatively, that schools be generally immune from lawsuits stemming from study abroad and related programs.

Despite this concurring opinion, the Munn decision should serve as a warning to schools that they may be held liable for injuries sustained by students during school-sponsored programs and activities, even if the precipitating danger appears remote or unlikely.  Schools are advised to reevaluate their programs and activities, as well their corresponding policies and procedures, in light of this decision.

The case will now be returned to the Second Circuit, presumably for a final ruling in favor of the student.  The Munn decision will be formally published in the August 22, 2017 edition of the Connecticut Law Journal.  The full texts of the majority and concurring opinions are currently available through the following web link:

https://www.jud.ct.gov/external/supapp/archiveAROsup17.htm

Attorneys at Berchem Moses P.C. are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com .

Updated Federal Regulations: Rosa’s Law Changes Section 504 and IDEA References from “Mental Retardation” to “Intellectual Disability”

Posted in Individuals with Disabilities Education Act (IDEA)

Beginning August 10, 2017, the regulations implementing Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 34 C.F.R. Part 104, and the Individuals with Disabilities Education Act (“the IDEA”), 34 C.F.R. Part 300, will be revised to change references to “mental retardation” to “intellectual disability.”  The revisions are being made pursuant to Public Law 111-256, better known as Rosa’s Law.  Originally enacted in October 2010, Rosa’s Law is named for Rosa Marcellino, a child with Down Syndrome whose family advocated for more accurate and progressive terminology in legislation affecting individuals with disabilities.  The Marcellino family’s efforts are part of a larger trend toward replacing outdated or pejorative legal terms with language that acknowledges the dignity and capabilities of individuals with disabilities.

Section 504 prohibits discrimination against individuals with disabilities by recipients of federal financial assistance, and ensures that children with disabilities have equal access to their education.  Rosa’s Law amends the Section 504 regulations in part by changing the definition of “handicapped person.”  A handicapped person generally means any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.  The amended definition replaces “mental retardation” with “intellectual disability” as an example of a physical or mental impairment which may render someone an individual with disability entitled to protection under the Act.

The IDEA guarantees a free appropriate public education (“FAPE”) in the form of special education and related services to a child with a disability.  Rosa’s Law amends the IDEA regulations in part by changing the definition of “child with a disability.”  A child with a disability generally means a child evaluated as having one or more enumerated disabilities and who, by reason thereof, needs special education and related services.  The amended definition replaces “mental retardation” with “intellectual disability” as one of the enumerated disabilities that may render a child eligible for special education and related services.

Importantly, Rosa’s Law does not provide a new definition for “intellectual disability” in either Section 504 or the IDEA, nor does it provide any additional rights or eligibility requirements for individuals who have intellectual disabilities.

The full text of the updated federal regulations, as well as a more detailed explanation of Rosa’s Law, is available via the following web link:

https://www.federalregister.gov/documents/2017/07/11/2017-14343/rosas-law?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

The revisions to the federal regulations in accordance with Rosa’s Law are testament to the Department of Education’s responsiveness to public and private advocacy.  The Department continues to actively seek input regarding revisions to its implementing regulations.  On June 18, 2017, Secretary Betsy DeVos released a statement inviting entities significantly affected by the Department’s regulations, including state and local governments, to provide input on regulations that may be appropriate for repeal, replacement, or modification.  Secretary DeVos’ invitation was made in furtherance of the Trump administration’s policy of reducing “unnecessary regulatory burdens,” including those regulations are excessively costly, “outdated, unnecessary, or ineffective.”  Local and regional boards of education are encouraged to explore submitting comments for revisions to the Department’s regulations before the August 21, 2017 deadline.

The full text of Secretary DeVos’s invitation, including information regarding the process for submitting comments on existing federal regulations, is available via the following web link:

https://www.gpo.gov/fdsys/pkg/FR-2017-06-22/pdf/2017-13157.pdf

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.

Is Your Website Handicap Accessible?

Posted in Americans with Disabilities Act

It is illegal for public entities to discriminate against individuals with disabilities.  No one disputes this premise.  But did you know that if your website does not meet certain standards of accessibility you could be the subject of a complaint and investigation by OCR?

In 2010, the U.S. Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter to colleges and universities letting them know their websites and on-line portals need to be accessible to all students.  In May of 2011 that was extended to elementary and secondary institutions as well.  Since then OCR has been monitoring website accessibility through its power to enforce Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA.

While there are no regulations as of yet dictating standards, there are generally accepted standards such as those promulgated by the non-profit organization WebAIM based out of Utah State University, that publishes tools and checklists web developers and those responsible for maintaining district websites can use to determine whether your website is in compliance with these standards.

Recently, one of our clients received a notice from OCR that it has commenced an investigation into its website’s accessibility.  This is the first such case filed against a Connecticut school district of which we are aware.  Before your district is the subject of a complaint, you may wish to consult with your website designer to make certain you are in compliance with the applicable standards so that you can avoid a lengthy and expensive OCR investigation. Feel free also to contact Floyd Dugas (203-882-4110) or Eric Barba (203-882-4178) should you have any questions about these requirements.

The May 1st Dilemma: Non-Renewal vs. Layoff

Posted in Labor and Employment

Typically this time of year school district administrators ponder whether to “non-renew” non-tenured teachers in response to budget uncertainty, as opposed to waiting for the fiscal picture to become clear and possibly laying off teachers at a later time.  Given the state budget crisis, and unprecedented major cuts in funding on the table, the uncertainty is worse this year than ever before.  This has caused even superintendents and other administrators who previously were not inclined to non-renew teachers for economic reasons, to give serious consideration to doing so.

So what are the advantages and disadvantages of non-renewal relative to laying off non-tenured teachers?  If a teacher is non-renewed for economic reasons pursuant to C.G.S. Section 10-151(c), he/she has no recall rights and no right to a hearing before the Board of Education.  Moreover, if after the budget is settled the district decides to continue the employment of some but not all non-renewed teachers, it can pick and choose to whom it decides to offer reinstatement, thereby, enabling it to select the best and brightest.

On the other hand, if a district forgoes non-renewal, and then has to layoff teachers, those teachers will have recall rights under the collective bargaining agreement (typically based on certification and seniority), and have the ability to grieve their layoff if they believe the contract was not followed.  While the district loses the ability to pick and choose who it returns to work, this approach has the benefit of allowing the district to wait until the last possible moment before laying off staff, and avoids creating uncertainty and angst for newer teachers who may choose to pursue “greener pastures” once they are non-renewed.

Internet Thieves Are Targeting Municipalities and Boards of Education

Posted in Labor and Employment

Over the past few weeks, there have been several cyberattacks on Connecticut municipalities and boards of education.  On the municipal side, internet thieves have intercepted wire transfer instructions in two Connecticut municipalities resulting in the theft of significant sums.

Most recently, an outside party accessed a Superintendent’s email and requested W-2 information for the school district’s employees.  While local police, IRS and FBI are investigating the matter, it is believed this information was stolen with the intent of filing false tax returns for the affected employees.

In the same week, an unauthorized party in another school district again accessed the Superintendent’s email and requested bank account information from the district’s business office.  Fortunately, being suspicious of the request, the Business Manager inquired of the Superintendent whether the request was valid, was advised it was not, and therefore did not release the information.

While in this day and age we all need to be cautious of providing sensitive information over the internet, in light of the latest incidents extra care should be taken when releasing sensitive information to anyone, including individuals we know.  Telephonic or in person confirmation should be sought, particularly if the request seems out of the ordinary.

For more information of such scams click on the link below.

http://ptac.ed.gov/sites/default/files/W2%20Phishing%20Scam.pdf

The United States Supreme Court Sends Virginia Transgender Bathroom Case Back to the 4th Circuit

Posted in Constitutional Issues, Transgender issues

March 6, 2017 marks a significant development in the case of Gloucester v. G.G., the closely followed and highly publicized Virginia transgender student bathroom case. The Gloucester case involves a local school board policy that effectively denies a transgender male high school student use of his school’s male bathroom and, in turn, the student’s claim of unequal treatment and discrimination by the board based upon sex under Title IX. The United States Supreme Court granted certiorari back in October 2016 certifying only two issues for its consideration: 1) whether deference should extend to an unpublished letter by the United States Department of Education, Office of Civil Rights (OCR), which does not carry the weight of law and was adopted in the context of the dispute at hand, indicating that Title IX applies to transgender identity, and 2) without deference to the agency, should the Department’s specific interpretation of Title IX be given effect. The United States Supreme Court will not hear the Gloucester case this month as scheduled. The Court vacated the ruling below and remanded the case back to the 4th Circuit Court of Appeals for reconsideration of the issues, presumably to include whether Title IX’s prohibition against discrimination on the basis of sex extends to gender identity. The Court takes such action notwithstanding requests from both parties that the case proceeds as scheduled and be heard this term.

The Supreme Court’s March 6, 2017 decision to remand the case is influenced by the 4th Circuit Court’s heavy reliance in reaching its decision below upon a 2015 OCR opinion letter. In that letter, OCR concludes that if schools opt to separate students in restrooms and locker rooms by sex, a school generally must treat transgender students consistent with their gender identity. The 2015 opinion letter was subsequently followed by May 2016 guidance from the Department of Justice and Department of Education (the Department) that confirms that schools generally should treat transgender students consistent with their gender identity and that the term “sex” under Title IX includes transgender identity. The Department’s May 2016 guidance issued under the Obama administration was rescinded in its entirety on February 22, 2017 under the Trump administration. No further guidance on this topic has been forthcoming from the Department. The Department has indicated that further time is needed to study the issue.

By its most recent action, the Supreme Court has declined to consider at this time the issue of whether “sex” under Title IX includes transgender identity. This leaves unclear the specific rights of transgender students under federal law. As previously indicated on this blog, discrimination based upon gender identity and expression is prohibited under Connecticut law and public schools must act accordingly. For specific guidance on this topic, contact our education law department at Berchem, Moses and Devlin and continue to consult our blog to keep abreast of further developments in this area of law and developments in the Gloucester case.

U.S. Supreme Court: Exhaustion of administrative remedies under the IDEA not required for disability discrimination claim if claim does not involve denial of FAPE

Posted in Americans with Disabilities Act

The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities access to a free appropriate public education (FAPE) and establishes a formal administrative framework within which disputes concerning the denial of FAPE are addressed. In addition, other federal statutes, such as the Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act, protect individuals with disabilities, and may also be applicable to children in a school setting. Under current law, a plaintiff bringing a disability discrimination claim under these other federal discrimination statutes which seeks relief also available under the IDEA, is required to exhaust the IDEA’s administrative process before bringing suit.  However, in a recently released opinion, the U.S. Supreme Court has clarified when exhaustion under the IDEA may not be required.

In Fry v. Napoleon Community Schools[1], the plaintiff, a student with cerebral palsy, sought permission from the district to bring her service dog to school. The district denied her request claiming that plaintiff was already provided a human aide as part of her Individualized Education Plan (“IEP”).  After transferring to a service dog friendly school, plaintiff filed suit against the district and the principal alleging discrimination under the ADA and § 504.   The District Court dismissed the suit for failure to exhaust administrative remedies.  The Sixth Circuit Court of Appeals agreed, holding exhaustion under the IDEA was required because the alleged harms were “educational” in nature.

Justice Elena Kagan, writing for the Court, discussed the interaction of these statues:  “In short, the IDEA guarantees individually tailored educational services for children with disabilities, while Title II (of the ADA) and § 504 promise nondiscriminatory access to public institutions.  That is not to deny some overlap in coverage: The same conduct might violate all three statutes – which is why, as in Smith, a plaintiff might seek relief for the denial of a FAPE under Title II and § 504 as well as the IDEA. But still, the statutory differences just discussed mean that a complaint brought under Title II and § 504 might instead seek relief for simple discrimination, irrespective of the IDEA’s FAPE obligation.”

The Court set forth a simple test for making this determination:  Could the same claim have been brought by an adult or if it had occurred at a public facility outside of a school setting? If so, then the claim does not go to the FAPE requirement; if, on the other hand, the answer to those questions is in the negative, the claim probably involves FAPE and the IDEA administrative process must be exhausted.

The case was remanded to the Court of Appeals for an appropriate analysis of whether the plaintiff’s claim alleges a denial of FAPE – in which case dismissal for failure to exhaust administrative remedies would be proper – or does not involve this core IDEA principle, in which case exhaustion is not required for plaintiff to proceed with her disability discrimination suit.

What’s the take away?

Exhaustion of administrative remedies under IDEA is not a necessary prerequisite to filing a disability discrimination suit where the claimed discrimination does not go to the core of the IDEA’s requirement to provide FAPE.  Further, courts in determining whether exhaustion is required, will have to engage in an analysis of whether the provision of a free appropriate public education is central to the alleged discriminatory act and not presume exhaustion under the IDEA is required simply because the discrimination claim involves a student with a disability. Will school districts see an increase in disability discrimination cases under Title II and § 504?  This will be an interesting one to follow…

[1] 580 U.S. _____ (2017)

Connecticut Swiftly Responds to Federal Rollback of Transgender Student Protections

Posted in Constitutional Issues, Transgender issues

Connecticut Governor Dannel P. Malloy has acted quickly to respond to recent developments in Federal law affecting the rights of transgender students by issuing an executive order reasserting the State’s protections for transgender people.  Despite a change in Federal guidance, and as detailed below, Connecticut affords greater protections to transgender people than currently provided under Federal law.

In recent weeks, the Federal government has withdrawn support and guidance providing protections to transgender students.  As detailed in this blog earlier this month, the Federal government signaled its new policy position when the Department of Justice effectively decided not to pursue an appeal against a Texas federal district court’s order granting a nationwide injunction challenging the implementation of joint guidance issued by the Department of Justice and Department of Education regarding Title IX protections available to transgender students. The Department of Justice and Department of Education jointly followed suit on February 22, 2017 by rescinding the Obama-era guidance extending Title IX protections to transgender students.  https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.docx

In response to these actions, Governor Malloy acted swiftly to reiterate Connecticut’s legal protections for transgender people by signing Executive Order No. 56.  The executive order explains that Connecticut law prohibits discrimination on the basis of their gender identity or expression.  This protection requires that public schools provide an equal opportunity for students to participate in school activities regardless of their gender identity or gender expression.  In addition, the executive order provides that bathrooms and locker rooms in public schools are public accommodations.  As such, discrimination on the basis of gender identity or expression in the provision of such accommodations is unlawful.

To assist school officials, the executive order directed the Connecticut Commission on Human Rights and Opportunities to develop guidance on policies that allow students to access school facilities in a manner consistent with their gender identity and expression.  In addition, Governor Malloy has directed the State Department of Education to provide additional guidance to public school superintendents regarding Connecticut’s anti-discrimination laws.

The full text of Executive Order No. 56 can be accessed at the following link: http://portal.ct.gov/-/media/CD26957CDAEA4D7AA25C3871B8BD2034.pdf

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.

The United States Department of Justice Withdraws Its Objection to a Nationwide Order Banning the Implementation and Enforcement of the Departments of Justice and Education’s Guidance on Transgender Students

Posted in Constitutional Issues, Transgender issues

On February 10, 2017, the U. S. Department of Justice (DOJ) under the Trump administration withdrew a motion made in November 2016 under the Obama administration with the U.S. Circuit Court of Appeals for the 5th Circuit; in its motion, the DOJ objected to a Texas Federal Court judge’s nationwide ban on the enforcement by the Departments of Justice and Education (the Departments) of its interpretation of “sex” under Title IX.  On May 13, 2016, the Departments jointly released an eight page Dear Colleague Letter on Transgender Students explaining schools’ obligations under Title IX to protect students, including transgender students, from discrimination and harassment based upon sex.  The Departments treat a student’s gender identity as a student’s sex for purposes of Title IX and its implementing regulations.  The guidance confirmed that Title IX’s implementing regulations permits a school to provide sex-segregated facilities including restrooms under certain circumstances, but further elucidates that schools must allow transgender students access to such facilities consistent with their gender identity and may not require they use individual-user facilities when other students are not required to do so.¹ As recipients of federal funding, schools that fail to comply with the Departments’ guidance risk the possible loss of federal money.

The State of Texas, joined by ten other states and other entities², argued to Texas Federal Court judge, Reed O’Connor, the judge who ultimately granted the nationwide injunction, that the Departments had acted ultra vires, meaning beyond the scope of its authority and usurped the power of Congress by rewriting Title IX by revising the term “sex” in a manner entirely incompatible with congressional intent and it did so without resorting to proper procedures such as notice-and-comment required under the Administrative Procedure Act ( APA).

On the same day the DOJ withdrew its motion before the 5th Circuit Court of Appeals, the 5th Circuit Court of Appeals granted the parties’ request for a delay in the case and cancelled oral arguments that were scheduled for February 14, 2017.  It is speculated that the DOJ under the Trump administration may take a different approach on transgendered student’s rights and there is even the possibility the DOJ/OCR May 2017 guidance will be modified or rescinded.

While the nationwide ban remains in place, schools’ obligations to transgender students under Title IX remain in a state of flux;  schools await  a definitive answer on a number of questions including whether the term “sex” under Title IX is to be interpreted to prohibit discrimination and harassment against transgender students;  whether schools must permit transgender student access to school bathrooms or other sex segregated facilities based upon their gender identity and whether boards of education that adopt policies or practices prohibiting such use or require students to use a bathroom based upon their biological sex at birth will run afoul of federal law.

Clarity on the interpretation of what “sex” means under Title IX may be forthcoming sooner rather than later.  Answers may even come before the resolution of the appeal of the case of Texas v. United States or prior to any further issuance of guidance by the DOJ/DOE on the subject of transgender student’s rights as the United State Supreme Court will hear argument on March 28, 2017 in the case of G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Circ. 04/19/16). In the Gloucester case, a transgender male high school student sought a preliminary injunction to allow his use of a school’s restroom consistent with his male gender identity. The student alleges that his local Virginia school district denied him equal treatment and subjected him to discrimination based on sex in violation of the Title IX by passing a board policy that prohibited his continued use of the boys’ restroom for not being “biologically male.”   The highest court will consider only two issues on appeal: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect. The DOJ under Obama had filed a brief backing the student’s position. See Connecticut Education Law blog article: The United States Supreme Court Grants Certiorari in 4th Circuit Transgender Student Case.

To clarify, the nationwide ban is not aimed at schools but rather, the federal government. Schools are free to adopt or modify policies to accommodate transgender student access to school facilities such as restrooms. The ban also does not interfere with case-by-case decisions made by school administration regarding access to facilities based upon gender identity.

*SIGNIFICANT DEVELOPMENTS SINCE THIS ARTICLE WAS PUBLISHED* 

On February 22, 2017, the DOJ/ED rescinded it’s May 2016 Guidance on Transgender Students; in response, the Governor of Connecticut on February 23, 2017 issued an executive order protecting transgender students’ rights in Connecticut. Governor Malloy states in the order that  it is illegal in Connecticut to discriminate against students based upon gender identity or  expression and that transgender students must  be provided equal access to public  accommodations such as school restrooms and locker rooms. Additionally, a joint letter from Governor Malloy and SDE Commissioner Dianna R. Wentzell  was sent to all public school superintendents in the state directing schools to honor transgender students’ choice of facility. See our latest Connecticut Education Law Blog article for more details about these recent legal developments.

¹It is worth noting that a 2011 revision to C.G.S. 10-15, Connecticut’s antidiscrimination statute, added language explicitly prohibiting schools from discriminating against students based upon their “gender identity and expression.”  After the 2011 revision to the law, the Connecticut Safe School Coalition issued unofficial (unofficial guidance lacks the force of law) guidelines directing schools to permit transgendered students to use restrooms and facilities consistent with their gender identity.
 ²Plaintiffs include: (1) the State of Texas; (2) Harrold Independent School District (TX); (3) the State of Alabama; (4) the State of Wisconsin; (5) the State of West Virginia; (6) the State of Tennessee; (7) Arizona Department of Education; (8) Heber-Overgaard Unified School District (Arizona); (9) Paul LePage, Governor of the State of Maine; (10) the State of Oklahoma; (11) the State of Louisiana; (12) the State of Utah; (13) the state of Georgia; (14) the State of Mississippi, by and through Governor Phil Bryant; (15) the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin.

Practical Considerations in Complying with New Background Check Requirements for School Employers

Posted in Labor and Employment

Ever since the enactment of Public Act 16-67 last summer, school employers and contractors servicing them have faced the challenge of complying with new requirements for background checks for employees who will have direct contact with students. The central aspect of the legislation is a prohibition against offering employment to an applicant for a position with direct student contact unless the applicant is first required:

• To list the names and contact information for current or former school employers or other employers if the position otherwise caused the applicant to have contact with children;
• To provide a written authorization consenting to and authorizing current and former employers and the state Department of Education to disclose records and information and to release those entities from liability from such disclosures; and
• To provide a written statement giving certain information on prior abuse investigations involving the applicant.

The prospective employer must then contact the current and former employers listed and the state Department of Education to conduct a background check, seeking certain specified information. The law requires the current or former employers contacted to respond to the request for information.

The state Department of Education published a form for employers to use to conduct these checks. However, the employers cannot rely solely on the form, as it does not include the written authorization for the former employers and the state Department of Education to provide the information. Some of our clients have experienced resistance, particularly from private-sector employers, to disclosing the information. It is possible that the lack of a release form is driving this resistance. Our firm has developed an authorization/release form to fix this problem. We have also developed an applicant disclosure statement so that the applicant can indicate whether any of the scenarios pertaining to prior abuse investigations apply. In other words, using the state-developed forms will not, on its own, suffice for meeting the authorization/release and disclosure requirements.

Another issue employers have been facing is determining what it means for a position to involve “direct student contact.” The background checks are necessary before hiring for positions involving direct student contact, but where should the line be drawn? We have generally advised that any position in a school building should be treated as having direct student contact.

A similar issue is what it means for a current or former non-school position to have “caused the applicant to have contact with children.” These are the non-school-based positions that may need to be included in the background check. It is clear that a day care would need to be checked. But what if the applicant worked at an ice cream shop? What about a department store? We have advised clients to take a common-sense approach and contact the current or former employer if the position likely involved frequent interactions with children, but that it is not necessary if there is occasional, incidental contact.

Public Act 16-67 created several new obligations for school employers and, as is often the case, it may take a few years to work through the logistical implications and implement legislative fixes to certain problems. For now, employers should make good faith efforts to comply with the law in all respects, as it provides mechanisms designed to help schools avoid hiring employees with a history of child abuse.

Our team of labor/employment and education attorneys can assist with implementation of these new employment requirements for BOE personnel.

`