In 2016, the Connecticut General Assembly passed Public Act 16-147, which ushered in a series of changes regarding public school student discipline and expulsions.  Among its many notable provisions, the new law created changes to a Board of Education’s duty to offer an alternative educational opportunity to expelled students.

At present, Connecticut law provides that school districts must offer expelled students an alternative educational program in certain circumstances – namely, if the student is under the age of sixteen, or for some students between the ages of sixteen and eighteen if certain conditions are met.  (See Connecticut General Statute sec. 10-233d, subd. (d).)  Despite this mandate, the existing statute does not define what constitutes an alternative educational opportunity.  In the absence of clear guidance, school officials have often looked to Connecticut regulations governing homebound instruction in order to develop an appropriate alternative educational opportunity.

Public Act 16-147 will amend General Statute 10-233d, and consequently, will change prior practices by offering clearer guidance to schools regarding the provision of an alternative educational opportunity to expelled students.   Under the new law, which will go into effect on August 15, 2017, students under the age of sixteen and, in most circumstances, students between the ages of sixteen and eighteen who are expelled for the first time must be offered an alternative educational opportunity.

Alternative Educational Opportunity Re-defined

The new law indicates that an alternative educational opportunity must be “equivalent to alternative education, as defined by [Connecticut General Statute] section 10-74j, with an individualized learning plan.”

General Statute section 10-74j provides that an alternative education is a school or program maintained and operated by a local or regional board of education, which must also comply with the Connecticut General Statutes 10-15 and 10-16, as well as federal and state laws governing public schools.  General Statutes 10-15 and 10-16 require that schools must provide a minimum of 180 school days per year and a minimum of 900 hours of school work for full-day kindergarten students and grades one through twelve.  In practice, this may require schools to offer alternative educational opportunities constituting a full-school year of five-hour school days for eligible expelled students.  In addition, the new law will require that an alternative educational opportunity must include the provision of an individualized learning plan.  Unfortunately, the term “individualized learning plan” is not defined.

Implications for the Future

In light of the above-described changes, school officials will have increased responsibilities when providing expelled students with alternative educational opportunities.  These changes will likely require Boards of Education to significantly increase the amount of resources, in terms of both staff time and financial allotments, needed to provide compliant alternative educational programs.

Nonetheless, substantial uncertainly remains regarding the exact duties the new law will create.  At present, interested stakeholders are awaiting updated guidelines from the State Board of Education, which should shed light on critical questions such as “what constitutes an individualized learning plan?”  While awaiting additional guidance, however, school officials should prepare for the substantial changes to come.  Education Law Attorneys at Berchem, Moses & Devlin, P.C. will monitor the status of this statute and provide analysis of any new guidance when it is available.

The education team at Berchem, Moses & Devlin, P.C. offers representation and guidance to school district clients across the State of Connecticut.  For inquiries regarding Public Act 16-147 and more, visit, or email us at

School is back in session once again, and districts are confronting the perennial challenge of educating students with a multitude of physical, cognitive and behavioral limitations. Among these conditions, Attention Deficit Hyperactivity Disorder (ADHD) stands out in both its ubiquity and its potential to thrust parents and school districts into conflict over appropriate educational programming. In fact, the United States Department of Education’s Office for Civil Rights (OCR) has received over 2,000 complaints involving allegations of discrimination against students with ADHD in the past five years alone. The staggering number of complaints is testimony to both the elusive nature of ADHD and the difficulties school districts are experiencing in identifying, evaluating, and providing appropriate programming to students with the disorder. Absent clarification of the rights of students with ADHD and the responsibilities of the school districts that serve them, the surge in complaints and litigation is unlikely to subside in the foreseeable future.

Fortunately, school districts are beginning the new school year armed with guidance for meeting their obligations to students with ADHD under federal law. Over the summer, the OCR published a Dear Colleague letter highlighting the recurring problems school districts are facing with respect to ADHD and emphasizing the need for school districts to tailor their responses in compliance with Section 504 of the Rehabilitation Act of 1973. The letter was accompanied by a comprehensive Resource Guide outlining the applicable federal law, providing step-by-step instructions for compliance with substantive obligations, and reminding school districts of their duty to notify families of their rights and procedural protections. These publications can aid school districts in revising their policies and procedures in accordance with federal law, which will likely result in better programming for students with ADHD and a reduction in complaints and litigation.

The OCR publications detail the bases for many of the complaints by families of students with ADHD. These allegations include the failure of school districts to identify and properly evaluate students with ADHD, to provide appropriate regular or special education and related services, to educate teachers and staff regarding students’ needs, and to notify families of their procedural and substantive rights under Section 504.

School districts are reminded of their “Child Find” obligation to identify and locate students suspected of having “disabilities” under Section 504. A student has a “disability” if she has a physical or mental impairment that substantially limits one or more major life activities, and is also protected from discrimination if the student has a record of such an impairment, or is regarded as having such an impairment. The OCR emphasizes some examples of major life activities that could be substantially limited by ADHD, including concentrating, reading, thinking, and functions of the central nervous system/brain. Once a student is identified as possibly having a disability, school districts are obligated under Section 504 to conduct an evaluation at no costs to the student’s family. The evaluation must be conducted by appropriate personnel, without undue delay, and without regard to the effects of “mitigating measures” such as medication. Importantly, OCR states its own presumption that a student diagnosed with ADHD is substantially limited in one or more major life activities, and thus qualifies as a student with a disability under Section 504 unless proven otherwise. Overall, the definition of “disability” is to be construed broadly, and the determination of whether a student has a disability should not demand extensive analysis.

A student with a disability under Section 504 is entitled to a free appropriate public education (FAPE) comprised of regular or special education and related and/or supplementary services, modifications, and accommodations. FAPE must be individually tailored to a student’s particular needs, and provided without inappropriate consideration of administrative and financial burdens. With respect to ADHD, OCR cautions against the “blanket” provision of boilerplate services to any student diagnosed with the disorder. Instead, a “Section 504 plan” should be developed and implemented by a team of administrators and staff knowledgeable of the student’s particular needs. For example, a student with ADHD-predominantly inattentive type may supports such as prompting and redirection, while a student with ADHD-predominantly hyperactive/impulsive type may require a smaller classroom setting and reduced auditory or visual stimulation. The Section 504 plan should be disseminated to all of the student’s teachers in order to ensure uniform and consistent implementation.

Finally, school districts are obligated to notify families of their rights and procedural safeguards under Section 504. If a parent believes her child has a disability, she has the right to request an evaluation at district expense. If the school district refuses to conduct an evaluation, an explanation must be provided, and the parent must be able to challenge the district’s decision. Similarly, a parent must be able to challenge the determination that a student does not qualify as having a disability under Section 504. Finally, if a parent disagrees with the programming implemented for her child, she must be able to challenge the adequacy of the programming before a neutral hearing officer.

The OCR Dear Colleague letter and Resource Guide should be embraced by all school districts as the new school year begins. The existing confusion surrounding ADHD and the obligations of school districts under federal law indisputably drains educational resources and has resulted in a plethora of complaints and litigation. School districts are encouraged to heed the instructions and suggestions detailed in the OCR publications, and to revise their policies and procedures related to students with disabilities accordingly. In doing so, school districts will not only preserve scarce resources and avoid costly litigation, but more importantly, they will ensure that students with disabilities such as ADHD are being provided appropriate programming and afforded an equal opportunity to receive a quality education.

The education team at Berchem, Moses & Devlin, P.C. offers representation and guidance to school district clients across the State of Connecticut. For inquiries regarding Section 504 compliance and more, visit, or email us at

On December 31, 2015, the Department of Education issued a Dear Colleague Letter before the beginning of the new year to remind schools of the importance of providing a discrimination free learning environment. The letter specifically focused on discrimination and harassment in schools based on race, religion, and national origin in light of the large number of families fleeing violence in Syria.

The Department of Education emphasized that the United States must welcome these refugees while also being committed to safeguarding the safety and security of the American people during this time of heightened fear and anger. One important aspect the Department of Education highlighted was ensuring that a student’s ability to learn was not affected due to inappropriate school conduct or discrimination.

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin for public and private agencies that receive Federal funding. While Title VI does not expressly prohibit discrimination based on one’s religion, discrimination against persons who belong to a religious group based on their actual or perceived characteristics is a violation of Title VI.

The letter speaks to both K-12 and higher education institution’s duty to provide a safe learning environment, and limiting behavior that causes hostile environments. It additionally clarified that protecting free speech means allowing students, staff, and community members to express speech, even if it is at odds with the institution’s beliefs.

Some examples the Department of Education gave for helping facilitate the appropriate environment included encouraging students to express disagreement in a respectful manner, clearly communicating that harassment and bullying will not be tolerated, and creating opportunities for cultural groups to engage with each other and the school community.

The Department of Education acknowledged the difficulty of the work, but reiterated that schools have a responsibility to challenge past efforts, and welcome the refugees by working together to prevent discrimination.

School employees who fail to report child abuse may face tougher penalties for failing to report such incidents to DCF or the police as a result of a law passed by the General Assembly.

Public Act 15-205, An Act Protecting School Children, increases, from a class A misdemeanor to a class E felony, the penalty for a mandated reporter who fails to report suspected child abuse or neglect to the Department of Children and Families (DCF), if the (1) violation is a subsequent violation; (2) violation is willful, intentional, or due to gross negligence; or (3) a mandated reporter had actual knowledge of the abuse, neglect, or sexual assault.

The Act expands the reporting requirement for school employees and subjects violators to the penalties described above.  It also clarifies that the mandated reporter law protection applies to high schools students who are over age 18.  The Act requires school employees to report to DCF suspected sexual assault of any student who is not enrolled in adult education by a school employee.  It also establishes the factors on which a mandated reporter may base his or her suspicion.  Under the Act, it is a class D felony for anyone, other than a child or a student who is not enrolled in adult education, to intentionally and unreasonably interfere with or prevent such reporting or conspire to attempt to do so.

By law, (1) DCF must make available educational and refresher training for all mandated reporters of child abuse and neglect and (2) school employees must participate in the training course when hired and the refresher training every three years.  Under the Act, the principal for each school under the jurisdiction of a local or regional board of education now must annually certify to the superintendent that school employees complete such training and the superintendent must certify compliance to the State Board of Education (SBE).

The Act extends DCF’s investigation and notification requirements under existing law in reported child abuse or neglect cases to include cases of reported sexual assault of students by school employees.

It requires each local or regional board to (1) update its written policy, by February 1, 2016, to include the new school employee reporting requirements and (2) establish a confidential rapid response team, by January 1, 2016, to coordinate with DCF to ensure prompt reporting.  It also prohibits the boards from hiring noncompliant or convicted employees who were terminated or who resigned and requires SBE to revoke the certification, permit, or authorization of anyone convicted of certain crimes.

In addition, it (1) expands the list of suspected sexual assault crimes that school employees must report to DCF; (2) establishes the factors upon which a mandated reporter’s suspicion or belief may be based; (3) applies the original Act’s enhanced penalty of a class E felony to specific circumstances; (4) exempts children and any students who are not enrolled in adult education from the crime of interference with a mandated reporter’s duty to report; (5) extends DCF’s existing child abuse and neglect investigation and notification requirements to reported sexual assault cases; (6) eliminates the underlying Act’s provisions on SBE’s noncompliance investigation, the related forfeiture of state grants, and the child abuse and neglect investigation account; (7) establishes the membership of the confidential rapid response team; (8) broadens the range of criminal convictions for which rehiring is prohibited and the state’s attorney notification is required; and (9) makes various technical and conforming changes.

Effective Date: October 1, 2015; however, a provision on DCF’s training program (§1); provisions on rapid response teams (§9); rehiring prohibitions (§12 & 13) are effective July 1, 2015.

A Superior Court Judge recently held that a superintendents’ newsletter sent to parents which discussed a referendum does not violate Connecticut General Statutes §9-369b if the referendum has not yet been scheduled to take place.  In this case a complaint was filed alleging that the Bethel superintendent of schools used municipal funds to distribute a newsletter about a budget referendum, in violation of C.G.S. §9-369b.  The statute only prohibits distribution of such information when a referendum is legally “pending.”  As of the date of the superintendent’s newsletter on April 24, the referendum had not yet been scheduled to take place.  Because the superintendent’s April 24, 2015 newsletter was distributed before May 14, 2015, when the budget referendum qualified as “pending” under the local Charter, C.G.S. §9-369b did not apply.  The State Elections Enforcement Commission dismissed the complaint.

Because the point at which a referendum is considered “pending” varies from Town to Town, districts should consult with legal counsel to make certain they do not run afoul of the State Campaign Finance laws when they issue such statements.

Michigan Forest Hills School District reached a $600,000 settlement with a female student who sued the district in federal court alleging that she was sexually assaulted in her school’s band room by a male classmate, MM.  The female identified as Jane Doe was a 15 year old sophomore at the time of the assault and MM was a sixteen year old junior. Jane Doe claims that the school failed to protect her from sexual harassment after she filed her complaint against MM who was a prominent athlete in the school under recruitment from Division 1 colleges with a promise of athletic scholarships.

The school’s investigation of Jane Doe’s complaint was quickly suspended when the police got involved.  The district’s Title IX coordinator, who was aware of the complaint, took no action to investigate.  As justification for its alleged inaction, the school claimed that it had insufficient evidence to act, and that it needed to wait for the completion of a police investigation which might bring forth more evidence. The school maintained that its initial inquiries were inconclusive regarding the assault. The school district maintained that they acted timely and appropriately after learning of the allegations, but also maintained that a local detective assigned to the case told them not to conduct a parallel investigation of their own. The detective denied making the statement.

Many months passed before the completion of the police investigation with no further school investigation, meanwhile Jane Doe and MM remained in school together and in the same lunch, even initially remaining in the same classroom for some two weeks before a change was made to MM’s class schedule after a second female came forward alleging MM assaulted her at school as well. While the police investigation lagged on, Jane Doe alleged that she was subject to a hostile school environment. She alleged that during the school year she was bullied on line by peers, pushed in the hallways at school into lockers, had her books thrown across the hallway at her, was continually taunted and harassed by the perpetrator and by the perpetrators’ friends as well as fellow classmates while in school, after school, and at afterschool activities including being forced to leave a school basketball game when students chanted until she left. As a result of the sexual harassment, Jane Doe alleged that her education was impacted negatively as she lost classroom time, avoided class time by staying in the school guidance counselor’s office, lost interest in afterschool activities, and required mental health counseling and medication for depression and anxiety related to the stress of attending school. Jane Doe alleges that even after reporting the many incidents of harassment, the only intermediary action taken by the school was to tell MM to leave her alone and to tell her to report any future issues with MM. Jane Doe and her parents were never questioned after their initial school meetings, not even after a second female student was allegedly assaulted two weeks after Jane Doe’s alleged assault. At various points, Jane Doe’s parents expressed concerns about the continued harassment of their daughter and shared copies of harassing messages received by her online, but their expressed concerns went largely unresponded to by the school.  No disciplinary action was taken against the male until the police investigation closed and a plea was negotiated at the end of the school year some eleven months after the alleged assault occurred.

A federal  district court judge granted summary judgment, in part, in favor of the female student on her §1983 equal protection claim. The female had alleged that the district failed to train its employees on how to handle sexual complaints notwithstanding the obvious risk that an untrained response would be deficient.  The district admitted that school district did not provide any training on responding to sexual assault claims.  When asked, the Title IX coordinator, the school district principal, nor the Superintendent was certain if Title IX applied to sexual assault situations. The judge ruled that the school failed to train staff on how to properly handle Title IX complaints of sexual assault and harassment and that training would have prevented Jane Doe’s injuries, at least to some extent. The district court judge reasoned that had the school immediately removed contact between the female and the male, it was very likely that the female would not have experienced ongoing harassment for the remainder of the school year. Under the parties’ settlement agreement, Forest Hills Public Schools will sponsor Title IX training as part of an existing Global Learning Initiative program.

This case highlights the need for schools to conduct their own Title IX investigations even when a police investigation is under way.  It will not suffice under the law for a school to report an incident to the police and to take no further investigatory or responsive action to protect complainants. Further, the ruling emphasizes how important it is that key school personnel receive appropriate and ongoing training regarding Title IX and its requirements under federal law. School employees should also be familiar with district board polices setting forth procedures for Title IX complaints, investigation, and recommended remedies including intermediary measures to be taken.

With the start of the 2014-2015 school year upon us, schools routinely post the class assignments in the public domain enabling other students and/or parents access to this information.  Many parents have expressed concern that such posting before the first day of class of the student’s name, room number, and the names of the students assigned to a particular teacher violates the Family Educational Rights and Privacy Act ( FERPA)(20 U.S.C. §1232g; 34 CFR Part 99).  FERPA requires that schools  have written permission from the parent or eligible student in order to release any information from the student’s record unless the circumstance or the particular party to whom the information is being released fall under one of the enumerated exceptions. See 34 CFR §99.31.

The simple act of posting the classroom assignment raises the following issues:  Is the class list a student record and therefore parent or eligible student consent is required to disclose?  May the class list be classified as directory information?  Is the school releasing confidential information without parent/eligible student permission if the class list is classified as directory information?  The answer to the first two questions is “yes” and the answer to the third question is “no”.

Schools must notify parents and eligible students annually of their rights under FERPA, which includes the right to disclose directory information without consent. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school. Therefore, a practical solution to this potential  FERPA violation is for Districts to include classroom and teacher assignment in their policy’s list of directory information thereby removing such information as being classified as confidential student record information that may not be disclosed without consent.  However, schools must allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information.  If the student classroom assignments are posted prior to the start of the school year, have the parents and eligible students been afforded a reasonable amount of time to request that the school not disclose directory information?  Probably not.  Therefore, districts may want to avoid any public posting of classroom/teacher assignments and provide the information to individual households.


The way student records are created, accessed and stored is changing drastically increasing concerns about schools’ ability to protect student privacy as required under laws such as the Federal Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA). Schools are shifting from a traditional paper model to the electronic creation, maintenance and sharing of records, particularly through the use of the Internet and cloud computing including cloud based classroom and school educational computer applications. Schools find themselves outsourcing school records functions to third party service providers more frequently, as well as increasingly sharing and assessing student testing information with or among multiple educational agencies. This paradigm has resulted in yet to be resolved legal issues with potential landmines for schools.

There are two general but distinct concerns resulting from this changing school landscape. The first is for the security of the data itself, particularly when it is no longer maintained in house on hardware physically located at school or in the school district, rather is kept in the cloud in an unknown location. 

Continue Reading Protecting Student Privacy When Cloud Computing and Outsourcing School Student Record Functions to Third Parties

U.S. Department of Education, Office of Civil Rights (OCR) Chief Catherine Lhamon along with U.S. Department of Justice (DOJ)Education Opportunities Section head Anurima Bhargava attended the April 2014 School Law Seminar held in New Orleans and fielded questions from attending school attorneys who sought clarification of the Departments’ position related to harassment standards for student on student harassment and asked questions about the Departments’ “Dear Colleague Letters” (DCL) on topics ranging from transgender students, athletics and extracurricular activities for students with disabilities and bullying and harassment to name some.

Here are a few highlights from the discourse:

  • Transgender Students: When questioned about a district’s obligation to honor requests by a transgender student to use the restroom of the gender with which the student identifies, the unequivocal response by OCR/DOJ was that districts must grant such requests or be subject to claims of discrimination, and that an offer for the student to use a private restroom which is not otherwise provided to all students would not suffice to meet legal obligations.

Continue Reading OCR Chief and DOJ Section Head Answer Tough Questions From School Attorneys At National Law Seminar

As this year’s snow-filled winter continues in Connecticut, so too do school cancellations for districts across the state. While students may enjoy the instant gratification that a snow day brings, few are as excited in June when make-up days must be added to the school calendar. Disruptions in the class schedule also impact teachers and school leaders who must adjust lesson plans and decide how the district will meet the number of class days mandated by state law. Some states, districts, and individual schools have decided to use technology to make up these otherwise missed days, or at least minimize the impact on the school’s schedule.

Continue Reading Snow Days and E-Learning