On Wednesday, January 17, the Connecticut Supreme Court issued its highly anticipated decision regarding the adequacy of education funding from the State.  In Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 2018 WL 472325 (2018), the court ruled that the State met its obligation to provide “minimally adequate” funding to school districts across Connecticut, and did not deny equal protection to students from the neediest districts.  In so ruling, the State’s highest court partially reversed Superior Court Judge Thomas Moukawsher’s September 2016 decision, which held that Connecticut is “defaulting on its constitutional duty to provide adequate public school opportunities because it has no rational, substantial, and verifiable plan to distribute money for education aid.”  The decision is the culmination of more than twelve (12) years of litigation dating back to 2005, when CCJEF and a group of representative families first filed suit alleging that inadequate funding violated students’ state constitutional rights to “suitable and substantially equal educational opportunities” and equal protection under the law.  The plaintiffs largely represented minority families and others residing in school districts long perceived as underfunded by the combination of State spending and local property taxes.  The decision is particularly impactful as Connecticut continues to reel from a deficit of more than $200 million, while also struggling to create and implement an education funding scheme that is both more equitable and predictable to local and regional school districts. Continue Reading State Supreme Court Rules That Education Funding Meets Minimum Adequacy Standard; No Equal Protection Violation Against Students from Neediest School Districts

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back in October 2016 certifying only two issues for its consideration: 1) whether deference should extend to an unpublished letter by the United States Department of Education, Office of Civil Rights (OCR), which does not carry the weight of law and was adopted in the context of the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. Continue Reading The United States Supreme Court Sends Virginia Transgender Bathroom Case Back to the 4th Circuit

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 Continue Reading Connecticut Swiftly Responds to Federal Rollback of Transgender Student Protections

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. Continue Reading 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

On September 7, 2016, Superior Court Judge Thomas Moukawsher issued a 255-page Memorandum of Decision in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, a case that has been pending for more than 10 years. The decision held that the State provides a constitutionally acceptable amount of funding for education, but the distribution of the funding is irrational and contributes to disparate outcomes for rich and poor districts in Connecticut.

The Court ordered the State to submit proposed reforms within 180 days on:

  • The relationship between the state and local government in education;
  • An educational aid formula;
  • A definition of elementary and secondary education;
  • Standards for hiring, firing, evaluating, and paying education professionals; and
  • Funding, identification, and educational services standards for special education.

Each reflects an area in which the Court held the State’s educational policies were unconstitutional because they were not “rationally, substantially, and verifiably” linked to teaching children and thus did not pass muster under the State Constitution. Judge Moukawsher’s decision effectively orders an overhaul to Connecticut’s education system affecting matters from labor relations with teachers to what it means to earn a “credit” toward graduation.

The State has appealed the ruling to the Connecticut Supreme Court, which has agreed to hear the case. The State contends that the standard that educational policies must be “rationally, substantially, and verifiably” linked to teaching children is “entirely made up and has the effect of giving the judiciary broad control over educational policy.” The State also contends that it cannot present the plans ordered by the Court because only the legislature has the authority to address such issues and no executive-branch entity has the authority to speak for the legislature.

The Connecticut Supreme Court agreed to the State’s request for a stay of Judge Moukawsher’s order pending the appeal. This means that the 180-day requirement for proposed reforms is held in abeyance until the Connecticut Supreme Court decides the case. Based on the briefing schedule, a decision should not be expected until late 2017 at the earliest.

Since the issues presented in this litigation addressed disparities allegedly created at the State level, local and regional boards of education are not compelled to take any action as a result of this ruling. Even if the order ultimately goes into effect, the State (most likely through the legislature) will need to act before any impact is felt at the local level. This does not mean that the General Assembly cannot take action sooner to address the issues identified by Judge Moukawsher. Likewise, even if the Connecticut Supreme Court sides with the State and finds the State’s educational policy constitutional, Judge Moukawsher’s scathing indictment of how the General Assembly addresses educational policy (particularly as it relates to allocation of funding) may lead to legislative soul-searching and a particular interest in addressing the issues identified in the decision.

Right now, boards of education should wait and see what happens with this appeal. The decision has potentially monumental implications for the future of education in Connecticut. It is clear that change is coming, but the form that change will take remains unclear.

While the other aspects of Connecticut’s new gun control law have received more notoriety, the new law included a number of provisions intended to improve school safety and security including the following: 

  1. Requires each school to have a safety committee;
  2. Requires each school to conduct a risk vulnerability assessment;
  3. Require each school to have a safety and security plan which incorporates national standards and takes an “all hazards” approach;
  4. While not requiring it, the new law encourages schools to conduct “mental health first aid” training for teachers, and directs the Commissioner of Education to consider requiring such training as part of new teacher training programs.
  5. Requires all new school construction utilizing State grant funds to comply with new (yet to be promulgated) school construction safety standards.

Continue Reading Gun Bill Includes Many New Requirements For School Boards


School administrators frequently grapple with the treatment of video recordings. From Constitutional issues to concerns about education records, administrators need to be aware of how to use surveillance cameras appropriately and how to respond to requests for copies of those video recordings. As more and more districts are using video surveillance in schools, this issue promises to remain a big issue for districts into the foreseeable future.

Continue Reading Who’s watching who? And who can review?

As you may recall from our previous posts regarding student’s online speech, the summer of 2011 brought with it a split in the Circuit Courts regarding how to handle discipline of student’s off-campus online  speech.  Specifically, the cases J.S. v. Blue Mountain Sch. Dist. and Layshock v. Hermitage Sch. Dist. out of the Third Circuit and Kowalski v. Berkeley County Schools out of the Fourth Circuit, all three involving students’ online speech, were appealed to the Supreme Court. of the United States.  The two cases from the Third Circuit ruled in favor of the students, finding that their speech was protected by the First Amendment, while the Kowalski v. Berkeley County Schools out of the Fourth Circuit, was decided in favor of the school district.  Our hopes were that the Supreme Court would weigh in on this controversial issue of student’s off campus online speech and provide school districts and administrators with clear guidance regarding how to appropriately discipline students’ off-campus speech, but unfortunately, the Supreme Court has declined to hear the cases that were brought before it regarding off-campus online speech. So, where does that leave us?

Continue Reading Supreme Court Declines to Hear Student Off-Campus Online Speech Cases

The issue in Cox v. Warwick Valley Central School District stemmed from a student assignment to write an essay for English class. The teacher asked students to write about what they would do if they had 24 hours to live. While this sort of creative writing occurs every day in classrooms across the country, teachers sometimes get troubling responses. One student in this class, Raphael, wrote an essay called “Racing Time”, in which he described drinking, smoking, doing drugs and doing other illegal activities, and ended the essay with him taking cyanide and shooting himself in the head in front of his friends. After Principal John Kolesar removed the student from class and later called the Department of Children and Family Services (DCYS) because he felt the parents did not take the essay seriously enough, the parents sued, alleging retaliation against their son in violation of his First Amendment rights, and for deprivation of the parents’ substantive due process rights for calling DCYS.

Continue Reading Second Circuit Again Sides with District in Recent First Amendment Case

School districts in Connecticut looking for guidance on how to handle discipline of students engaging in provocative speech on-line at home have been watching with interest the outcome of two cases in the Third Circuit that seemed to reach conflicting results.  Both cases were re-heard by the Third Circuit Court of Appeals, sitting en banc, which recently ruled in favor of the student in both cases.  So, where does that leave us? 

Continue Reading Circuit Courts Continue Battle Over Free Speech Rights for Students