Legal Mailbag – 8-5-21

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

One of the teachers at my middle school has boundary issues. He has trouble being the grown-up, and he has demonstrated a concerning tendency to befriend students, especially girls, and communicate with them about personal matters. Right before COVID hit a year ago in March, a parent complained to us that he had found troubling texts on his daughter’s phone between the daughter and the teacher. The two had exchanged texts discussing her relationship with various boys, and on two occasions the teacher told the girl how pretty she is.

We did not know just how far this personal relationship between the teacher and the student had gone, and to be safe, we filed with DCF and placed the teacher on administrative leave. After investigating, however, the DCF worker reported back to us that she would not be substantiating either abuse or neglect of any sort.

We were relieved by this news, of course. We reinstated the teacher, and we lived with the new normal as we worked to get students and staff through the pandemic. However, last week, a different parent came to me, again with texts that seem to cross the line. The texts contained similar comments between the teacher and the student, including one in which the teacher expressed the wish that he were twenty years younger so that he could show the student how he really feels.

Again, we filed with DCF and placed the teacher on administrative leave. At this point, I have had it, and I want to fire this teacher. We will do another investigation, of course, but the texts are what they are, and I cannot imagine that the teacher will have an acceptable response to our concerns. However, when I talked with my superintendent about the situation, she told me that, in the absence of progressive discipline, it will be hard to fire this teacher.

Can’t we consider the previous DCF report prior warning and get rid of this creepy guy?

Ready, Aim, Fire


Dear Ready:

Unfortunately, the situation you describe is common. School officials report concerning conduct to DCF, and when DCF does not substantiate abuse or neglect, the teacher is reinstated and life goes on. The problem is that there is a huge difference between DCF substantiating that a teacher (or other school employee) abused or neglected a child, on the one hand, and a finding that the conduct of the teacher (or other school employee) was appropriate, on the other. It was your responsibility to draw that distinction when DCF reported back to you, and, at that time, you should have addressed any unprofessional conduct by the teacher.

Given your description of events, I infer that you were concerned that the texts with the first girl were inappropriate, and Legal Mailbag shares that concern. Before reinstating the teacher, therefore, you should have reviewed the situation, notified the teacher in writing that his conduct was unacceptable, warned him of the serious consequences of repeating such conduct, and imposed disciplinary action as was appropriate. By simply reinstating the teacher once DCF did not substantiate abuse or neglect, you managed to convey the opposite message – that such communications between the teacher and the female student were just fine.

We all know that DCF is the lead investigative agency when it receives reports of suspected neglect or abuse. Conn. Gen. Stat. §§ 17a-101g, 17a-101h. Moreover, Conn. Gen. Stat. § 10-221s provides:

(b) A local or regional board of education shall permit and give priority to any investigation conducted by the Commissioner of Children and Families or the appropriate local law enforcement agency that a child has been abused or neglected pursuant to sections 17a-101a to 17a-101d, inclusive, and section 17a-103. Such board of education shall conduct its own investigation and take any disciplinary action, in accordance with the provisions of section 17a-101i, upon notice from the commissioner or the appropriate local law enforcement agency that such board’s investigation will not interfere with the investigation of the commissioner or such local law enforcement agency. (Emphasis added).

Accordingly, once school officials hear from DCF that it has concluded its investigation, they are obligated to conduct their own investigation. If DCF has substantiated abuse, Conn. Gen. Stat. § 17a-101i requires that the school employee be suspended pending further proceedings, which can include a recommendation of termination under the Teacher Tenure Act. But school officials have an independent duty to investigate and take disciplinary action, if appropriate, even when DCF does not substantiate either abuse or neglect.

Finally, Legal Mailbag is not prejudging the outcome of your investigation of the teacher’s conduct with the second girl. Those texts are deeply concerning, and depending on all the facts and circumstances, they are cause for serious disciplinary action, potentially including termination of employment.