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: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

A brand-new teacher we just hired at my middle school is quite bright, but apparently he missed the course on classroom management. In the few weeks of school so far, he has shown himself incapable of maintaining student discipline. We have been coaching him and trying to support him. Unfortunately, however, his students have sensed his weakness, and their disrespect and misbehavior have escalated. Last week, one student actually taunted him, to the laughter of the other students.

We are dealing with that student’s misbehavior through counseling, but the new teacher is not satisfied. Yesterday the teacher filed a bullying complaint against the student. I met with the teacher, and I told him that teachers can’t file bullying complaints. However, he pushed back, and he showed me a legislative update that talked about some new definition of “bullying” that doesn’t even refer to students. Can our newbie teacher be right?

Signed,
What’s Next
 

Dear What’s:

The newbie teacher is correct that there is a new definition of “bullying,” effective July 1 of this year. But Legal Mailbag does not read the law as amended to permit teachers to bring bullying complaints against students, and your newbie teacher better get his act together or find some other line of work.

Back in 2019, the General Assembly did revise the definition of “bullying” as set forth in statute, and when it did, it provided that the new definition would not be effective until July 1, 2021. Public Act No. 19-166. So without much recent fanfare, school officials must now fulfill their obligations under the bullying law in accordance with the new definition.

The previous definition referred repeatedly to “students,” as follows:

(1) “Bullying” means (A) the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same school district, or (B) a physical act or gesture by one or more students repeatedly directed at another student attending school in the same school district, that: (i) Causes physical or emotional harm to such student or damage to such student’s property, (ii) places such student in reasonable fear of harm to himself or herself, or of damage to his or her property, (iii) creates a hostile environment at school for such student, (iv) infringes on the rights of such student at school, or (v) substantially disrupts the education process or the orderly operation of a school. (Emphasis added)

By contrast, the new definition of “bullying” is much shorter, and it makes no reference to students:

(1) “Bullying” means an act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in reasonable fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.

To be complete, we note that both the previous and the current definitions of “bullying” go on to provide:

“Bullying” shall include, but need not be limited to, a written, oral or electronic communication or physical act or gesture based on any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics.

We see that the first sentence is significantly different in the amended law. Given that the new definition refers to individuals, not students, the question is whether persons other than students (including teachers) can be the perpetrator of bullying or whether, as in your question, teachers or other persons can be the victims of bullying.

Under this new definition, some things are clear and others are not. The old definition of “bullying” clearly limited district jurisdiction over bullying claims to interactions between students in the same school district, and the new definition does not include that limitation. The more difficult question is whether the new, broader definition should be read to include persons other than students within its scope. Ultimately, the courts may answer this question. However, reading the law as a whole, it appears that bullying should still be considered misconduct between students and that the statutory procedures for investigating bullying claims apply only to student/student interactions.

When it amended the definition of “bullying,” the General Assembly left largely intact the elements of the safe school climate plan districts are required to adopt in accordance with Conn. Gen. Stat. § 10-222d(b). Significantly, those elements refer repeatedly to students and their parents, as reflected in the emphasized quotations from Section 10-222(b):

• Enable students to anonymously report acts of bullying to school employees and require students and the parents or guardians of students to be notified at the beginning of each school year of the process by which students may make such reports,
• (2) enable the parents or guardians of students to file written reports of suspected bullying,
• (4) require the safe school climate specialist to investigate or supervise the investigation of all reports of bullying and ensure that such investigation is completed promptly after receipt of any written reports made under this section and that the parents or guardians of the student alleged to have committed an act or acts of bullying and the parents or guardians of the student against whom such alleged act or acts were directed receive prompt notice that such investigation has commenced,
• (7) provide for the inclusion of language in student codes of conduct concerning bullying,
• (8) require each school to notify the parents or guardians of students who commit any verified acts of bullying and the parents or guardians of students against whom such acts were directed not later than forty-eight hours after the completion of the investigation described in subdivision (4) of this subsection (A) of the results of such investigation, and (B) verbally and by electronic mail, if such parents’ or guardians’ electronic mail addresses are known, that such parents or guardians may refer to the plain language explanation of the rights and remedies available under sections 10-4a and 10-4b published on the Internet web site of the local or regional board of education pursuant to section 10-222r,
• (9) require each school to invite the parents or guardians of a student against whom such act was directed to a meeting to communicate to such parents or guardians the measures being taken by the school to ensure the safety of the student against whom such act was directed and policies and procedures in place to prevent further acts of bullying,
• (10) require each school to invite the parents or guardians of a student who commits any verified act of bullying to a meeting, separate and distinct from the meeting required in subdivision (9) of this subsection, to discuss specific interventions undertaken by the school to prevent further acts of bullying,
• (14) direct the development of student safety support plans for students against whom an act of bullying was directed that address safety measures the school will take to protect such students against further acts of bullying,
• (16) prohibit bullying (A) on school grounds, at a school-sponsored or school-related activity, function or program whether on or off school grounds, at a school bus stop, on a school bus or other vehicle owned, leased or used by a local or regional board of education, or through the use of an electronic device or an electronic mobile device owned, leased or used by the local or regional board of education, and (B) outside of the school setting if such bullying (i) creates a hostile environment at school for the student against whom such bullying was directed, or (ii) infringes on the rights of the student against whom such bullying was directed at school, or (iii) substantially disrupts the education process or the orderly operation of a school,

In considering the quoted language further, Legal Mailbag notes under element 8 the reference to referring parents and guardians to “the plain language explanation of the rights and remedies available under sections 10-4a and 10-4b published on the Internet web site of the local or regional board of education pursuant to section 10-222r.” Legal Mailbag does not believe that the social and emotional learning and school climate advisory collaborative responsible for drafting that statement of rights and remedies has published that statement yet. However, reference to Conn. Gen. Stat. §10-4b is further evidence that the bullying statute continues to be limited to student/student interactions. Section 10-4b provides that residents of a school district or parents of children attending school in that school district may file a complaint under that section. The statute does not authorize staff members employed by a school district to file a complaint under Section 10-4b.

Only time will tell how the courts will interpret the revised statute. However, the origin of the bullying statute and the continued repeated references in the statute to students and their parents or guardians lead Legal Mailbag to conclude that, notwithstanding the new definition of “bullying,” the bullying statute does not apply to a teacher’s complaint against a student or a student’s complaint against a teacher.