KIMBERLY H. GRAHAM ET AL. v. JANIE R. FRIEDLANDER ET AL.
(SC 20243)
Supreme Court of Connecticut
Arguеd September 16, 2019—officially released February 4, 2020
Robinson, C. J., and D‘Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.
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Syllabus
The plaintiffs, four school-age children diagnosed with autism spectrum disorder and enrolled in the Norwalk public school system, and their parents, brought an action seeking damages from the defendant Board of Education of the City of Norwalk and three of its members in connection with the hiring of the defendants S Co. and L, S Co.‘s owner, to provide autism related services to certain children in the Norwalk school district. The plaintiffs alleged, inter alia, that, under state law, the negligent hiring and supervision of L by the board and board members proximately caused them to suffer permanent and ongoing injuries and losses. L represented when she was hired that she had received various master‘s degrees and was a board certified behavior analyst, but the board and three board members never performed a background check or confirmed her credentials. The board and board members filed a motion to dismiss those counts of the complaint asserted against them on the ground that the plaintiffs sought relief for the board‘s and board members’ alleged failure to provide special education services under the Individuals with Disabilities Education Act (
- The trial court incorrectly concluded that the plaintiffs were required to exhaust their administrative remedies, the plaintiffs having alleged common-law negligence claims that were not subject to an exhaustion requirement, and, accordingly, the judgment was reversed as to the trial court‘s dismissal on the basis of the plaintiffs’ failure to exhaust their administrative remedies, and the case was remanded for further proceedings: although the federal act contains an exhaustion requirement (
20 U.S.C. § 1415 (l) ) that is applicable to civil actions brought under federal laws that protect the rights of disabled children, the plaintiffs’ claims were not subject to federal exhaustion requirements because those claims did not allege violations of federal laws protecting the rights of disabled children but, rather, alleged common-law negligence under state law; moreover, although the state legislature implemented the substantive and procedural requirements of the federal act by statute in§ 10-76a et seq. and required the exhaustion of administrative remedies under§ 10-76h for state law claims seeking relief for the denial of a free appropriate public education, a claim by claim analysis of the plaintiffs’ complaint revealed that the plaintiffs, in asserting claims of negligence and loss of parental consortium, did not seek relief for the denial of education services but, rather, for an alleged regression in the children‘s symptoms of autism spectrum disorder and an inability to communicate effectively resulting from the time that the children spent under the care of unqualified personnel, and, accordingly, the plaintiffs’ claims did not trigger the exhaustion requirement of§ 10-76h ; furthermore, this cоurt relied on the framework set forth in the United States Supreme Court‘s recent decision in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), in determining that, because the plaintiffs’ negligence claims could have been brought outside the school setting, and because the history of the proceedings prior to the filing of their complaint demonstrated that the plaintiffs never invoked the formal procedures of filing a due process complaint or requested a hearing, the plaintiffs sought relief for something other than the denial of a free appropriate public education. - The board and board members could not prevail on their claim, as an alternative ground for upholding the dismissal of the plaintiffs’ action, that they were entitled to sovereign immunity because they were acting as agents of the state in providing special education services, and, accordingly, this court upheld the trial court‘s denial of the motion to dismiss on the basis of sovereign immunity: although a local board of education acts as an agent of the state when it is fulfilling the statutory duties imposed on it by the legislature pursuant to the state constitutional (
art. VIII, § 1 ) mandate of free public education and, thus, when it is carrying out the educational interests of the state, a local board of education acts as an agent of a municipality in its function of maintaining control over the public schools within the municipality‘s limits, and when a board of education acts on behalf of a municipality rather than the state, sovereign immunity is not implicated; in the present case, this court, upon reviewing the statutes (§§ 10-240 and10-241 ) delegating control of the public schools to municipalities, concluded that a private lawsuit, such as the plaintiffs’ action, alleging a violation of the duties within a municipality‘s control, does not constitute a serious interference with the performance of the state‘s functions or its control over its respective instrumentalities, funds and property, and, because the plaintiffs did not allege that the board and board members failed to develop or design a special education program in accordance with state mandates but claimed that their alleged injuries occurred in the execution of such a program, the municipality, rather than the state, was subject to liability, and, accordingly, sovereign immunity was not implicated.
Argued September 16, 2019—officially released February 4, 2020
Procedural History
Action to recover damages for, inter alia, personal injuries sustained by the plaintiffs’ minor children, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the defendant Spectrum Kids, LLC, was defaulted for failure to appear; thereafter, the trial court, Povodator, J., granted the motion to dismiss filed by the named defendant et al.; subsequently, the court granted the motions for reargument filed by the plaintiffs and the defendant city of Norwalk and rendered judgment for the named defendant et al., from which the plaintiffs appealed. Reversed in part; further proceedings.
Tadhg Dooley, with whom was Aaron S. Bayer, for the appellees (named defendant et al.).
Opinion
D‘AURIA, J. The plaintiffs,1 the parents of four school-age children, individually and on behalf of their children, brought this action against the Board of Education of the City of Norwalk (board) and three of its members,2 in their official capacities (board defendants), the city of Norwalk (city), and Spectrum Kids, LLC, and its owner, Stacy Lore.3 On appeal, we are
I
The following facts, as alleged in the plaintiffs’ complaint, and procedural history are relevant to our review of these claims. The board and the city hired Lore and Spectrum Kids, LLC, “to provide autism related services to children in the school district with an autism or related diagnosis.” Lore represented at the time she was hired that she had received various master‘s degrees and was a board certified behavior analyst. None of the defendants ever performed a background check on Lore or confirmed her alleged credentials. We note that, in a criminal action, Lore was charged with larceny, to which she pleaded guilty and was sentenced to three years in prison and five years of probation. See State v. Lore, Superior Court, judicial district of Stamford-Norwalk, Docket No. CR-10-0125486-T (September 2, 2010).
The four minor plaintiffs were pupils enrolled in the Norwalk public schools and had been diagnosed with autism spectrum disorder. The plaintiffs alleged that between November, 2007, and May, 2008, Lore and Spectrum Kids, LLC, were retained to provide the minor plaintiffs with autism related services within the Norwalk public schools. The plaintiffs brought state law claims against the board defendants, the city, Lore, and Spectrum Kids, LLC, in connection with the hiring of Lore and Spectrum Kids, LLC, and the services, or lack thereof, that were provided. The complaint consists of eighty-four counts. As to the board defendants, in counts one through sixty, the plaintiff parents allege that the board defendants’ negligent and careless hiring and supervision
The board defendants moved to dismiss counts one through sixty of the plaintiffs’ complaint on the ground that the plaintiffs’ failure to exhaust their administrative remedies deprived the trial court of subject matter jurisdiction. In the alternative, the board defendants claimed that the doctrine of sovereign immunity mandated the dismissal of the claims. The trial court granted the motion to dismiss on the ground that the plaintiffs had failed to exhaust their administrative remedies. The trial court denied the board defendants’ motion to dismiss as to their claim that sovereign immunity barred the plaintiffs’ action. The plaintiffs and the city filed motions to reargue. The trial court allowed the parties to present additional arguments and held a hearing but denied the parties relief in the form of a modification of the court‘s previous decision. The plaintiffs then timely appealed to the Appellate Court. The appeal was transferred to this court. Sеe
On appeal, the plaintiffs claim that they did not have to exhaust administrative remedies because their complaint advances a state law claim that does not allege a violation of the act. They further allege that they do not seek relief for the denial of a FAPE but, rather, assert common-law claims of negligent hiring and supervision, loss of consortium and negligent infliction of emotional distress—all falling outside the exhaustion requirements contained in the act. The board defendants contend that, although, on the face of the complaint, the plaintiffs do not allege a violation of the act, the complaint in fact seeks relief for the denial of a FAPE. They further contend that, regardless of whether the plaintiffs’ complaint alleges a violation of the act or some other common-law claim, the act and state law mandate the exhaustion of administrative remedies prior to the filing of a complaint, as long as the crux of the complaint is the denial of a FAPE. Alternatively, they contend that this court should affirm the trial court‘s judgment on the ground that the board defendants are entitled to sovereign immunity as agents of the state.
II
To reach the question of whether the plaintiffs were required to exhaust their administrative remedies, we first must determine whether the act‘s exhaustion requirement applies to state law claims, not brought under the act, that allege a violation of a FAPE. In the event that the act‘s exhaustion requirement does not apply to state law claims, we must then determine whether state law, like the act, mandates exhaustion prior to filing a claim in Superior Court seeking relief for the denial of a FAPE. Finally, if the state statutory scheme does require exhaustion, we must examine the plaintiffs’ complaint to determine whether the complaint in fact alleges the denial of a FAPE, which is subject to exhaustion, or some other claim that is not subject to exhaustion.
The act is a federal statute that “ensures that children with disabilities receive needed special education services.” Fry v. Napoleon Community Schools, 137 S. Ct. 743, 748, 197 L. Ed. 2d 46 (2017); see also
Disputes often arise over whether the special education services provided to children with physical or intellectual disabilities are sufficient to satisfy a child‘s individualized education plan. To resolve these disputes, the act requires state or local
The act also contains an exhaustion requirement pursuant to which individuals cannot file a civil action under the act until they have satisfied the procedural dispute resolution mechanism established by the relevant state agency. See
The plain language of the act provides that exhaustion is required when a civil action is brought ”under such laws . . . .” (Emphasis added.)
Despite the language of
Connecticut implements the substantive and procedural requirements of the act through
Upon receipt of the written request, “the Department of Education shall appoint an impartial hearing officer who shall schedule a hearing . . . pursuant to the Individuals with Disabilities Education Act . . . .”
Additionally, the extensive administrative scheme established by the legislature supports our conclusion that parties asserting a state law claim and seeking relief for the denial of a FAPE must first exhaust administrative remedies pursuant to
In reaching this conclusion, we arrive at the final inquiry—whether the plaintiffs in this case in fact seek relief for the denial of a FAPE, thereby triggering the state law exhaustion requirement, or whether they were not required to exhaust administrative remedies because they seek relief for some other kind of action. The board defendants contend that the crux of the plaintiffs’ complaint is the denial of a FAPE and that exhaustion is, therefore, required. The plaintiffs contend that they do not claim the denial of a FAPE. They characterize the complaint as a “common-law claim for negligent hiring, not a claim that ‘charges, and seeks relief for,’ the denial of a FAPE under the [act].”
We agree with other courts that have addressed this issue that the analysis should proceed claim by claim. We must look to the essence, or the crux, of each of the plaintiffs’ claims within the complaint to evaluate whether each claim seeks relief for the denial of a FAPE. See, e.g., Fry v. Napoleon Community Schools, supra, 137 S. Ct. 755; Doucette v. Georgetown Public Schools, 936 F.3d 16, 24 (1st Cir. 2019); Wellman v. Butler Area School District, 877 F.3d 125, 132-33 (3d Cir. 2017). Performing this claim by claim analysis helps ensure that claims that involve the same parties or events as a dispute over the denial of a FAPE, but do not actually involve the denial of a FAPE, do not get “swept up and forced into administrative proceedings with claims that are seeking redress for a school‘s failure to provide a FAPE . . . .” Doucette v. Georgetown Public Schools, supra, 26.
Our claim by claim analysis begins with our review of the allegations in the plaintiffs’ complaint.8 Count one of the complaint
Counts two and four incorporate the same facts and allege a claim for loss of parental consortium on behalf of Kimberly H. Graham and Erik J. Graham, the parents of Nathan Graham, claiming injuries in the form of loss of affection, care, and companionship of their son. Counts three and five incorporate the same facts and allege a claim for negligent inflictiоn of emotional distress, also on behalf of Kimberly Graham and Erik Graham, claiming injury in the form of anxiety and emotional distress. Counts six through sixty repeat the same facts, claims, and injuries as to each of the other minor plaintiffs and their parents as against each of the three board defendants.
The counts brought on behalf of the children are the operative claims of this dispute. If the claims on their behalf for negligent hiring and negligent supervision are dismissed, the claims by the parents for loss of consortium and emotional distress must necessarily fall as well because they are derivative of the injured parties’ causes of action. See, e.g., Jacoby v. Brinckerhoff, 250 Conn. 86, 91–92, 735 A.2d 347 (1999); id. (“an action for loss of consortium, although independent in form, is derivative of the injured spouse‘s cause of action” (internal quotation marks omitted)); see also Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 520, 838 A.2d 993 (2004) (“bystander emotional distress, like loss of consortium, is a [third-party] cause of action . . . [and] [t]herefore . . . a form of [third-party] liability” (internal quotation marks omitted)). Without a viable claim of injury to the children, the parents will be unable to establish the foundation for their claims, which are premised on the injuries suffered by their children. To decide whether the counts brought by the plaintiff parents on behalf of the plaintiff children against each of the board defendants survive a motion to dismiss for failure to exhaust administrative remedies, we must determine whether they are claims that seek relief for the denial of a FAPE, or whether
To make this determination, we look to the recent decision of the United States Supreme Court in Fry v. Napoleon Community Schools, supra, 137 S. Ct. 743, for guidance in determining what types of allegations should be construed as claims for the denial of a FAPE, even if the plaintiff, through artful pleading, does not allege the denial of a FAPE in the complaint. In Fry, the plaintiff parents alleged that their daughter‘s school district discriminated against her in violation of the Americans with Disabilities Act of 1990,
The Supreme Court vacated the judgment of the Sixth Circuit and remanded the case to that court to determine whether the gravamen of the action was the denial of a FAPE, “even though that does not appear on the face of [the] complaint.” Id., 758. The Supreme Court specifically stated that it had granted certiorari in Fry to “address confusion in the courts of appeals as to the scope of
The first factor—whether the claim could have been brought outside the school setting—can be evaluated in the form of two hypothetical questions: “First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?” (Emphasis in original.) Id., 756. If the answer to both questions is yes, then it is unlikely that the complaint is about the denial of a FAPE. Id.
The court provided one illustrative example: “[S]uppose that a teacher, acting out of animus or frustration, strikes a student with a disability, who then sues the school under a statute other than the [act].” Id., 756 n.9. The plaintiff‘s claim under this hypothetical would be unlikely to require exhaustion; id., 756-57 n.9; even though “the suit could be said to relate, in both genesis and effect, to the child‘s education.” Id., 756. The crux of the complaint would not “concern the appropriateness of an educational program.” Id., 757 n.9. Rather, a child could file the same action against an official at another public facility for abuse, and an adult could file a similar action for abusе by a school official. Id.
An exercise in hypotheticals relevant to the facts of this case yields not so unusual scenarios in which a child or an adult with special needs could bring a negligent hiring claim. First, the plaintiffs could have brought essentially the same claim if they
These hypotheticals help to illustrate that the crux of the plaintiffs’ complaint is not the denial of educational services as in a case in which, for example, a teacher failed to provide the proscribed daily thirty minutes of mathematics instruction. The crux of the complaint is an alleged regression regarding the symptoms of autism spectrum disorder and an inability to communicate effectively caused by the time the children spent under the care of an uncertified and unqualified behavior analyst. The distinction is subtle and requires our acceptance of the allegation that an uncertified behavior therapist can cause injury to individuals diagnosed with autism spectrum disorder in the form of regression. We do not hesitate to construe the allegations in the light most favorable to the plaintiffs and accept those allegations, given that our task in this appeal is to review the trial court‘s granting of the board defendants’ motion to dismiss.
The board defendants disagree and contend that the plaintiffs could not have brought essentially the same claim at another public facility, “seeking to hold a library or theater responsible for their lack of educational progress due to negligent hiring and supervision of a librarian or a theater director.” In our view, the board defendants read the hypothetical questions posed in Fry too narrowly. The court instructed us to inquire whether the same claim could have been brought if the “alleged conduct had occurred at a public facility that was not a school—say, a public theater or library . . . .” (Emphasis altered.) Fry v. Napoleon Community Schools, supra, 137 S. Ct. 756. We do not read Fry to confine our examination of the first factor to exclusively public theaters and libraries. The court, by stating, “say, a public theater or library,” plainly intended to offer examples of public facilities, not to propose an exсlusive list. Additionally, the complaint, viewed in the light most favorable to the pleader, alleges negligent hiring, not lack of educational progress. We answer yes to both of the hypothetical questions—a plaintiff could have brought a negligent hiring claim outside the school setting, and an adult at a school could have pressed essentially the same grievance. We view the allegations in the complaint similar to the abuse example in Fry. Rather than alleging a claim for abuse, the plaintiffs here have alleged negligent hiring resulting in injury. That claim falls much closer to an abuse claim than the contrasting example in Fry of a failure to provide remedial tutoring in mathematics—a clear example of a claim seeking relief for the denial of a FAPE. See id., 757.
Our research confirms that appellate courts acknowledge that state law claims for assault or battery are clear examples of claims seeking relief for something other than the denial of a FAPE. See, e.g., id., 756-57 n.9; Wellman v. Butler Area School District, supra, 877 F.3d 132. For example, the United States Court of Appeals for
This case presents a more difficult scenario than the clear demarcation that an assault claim is generally quite distinct from a claim seeking relief for the denial of a FAPE. The plaintiffs liken their claims to the assault example in Fry, alleging that the thrust of the claims is that the negligent hiring of Lore resulted in injuries to the children and their parents. The board defendants, on the other hand, urge us to focus on the nature of the injury alleged by the plaintiffs. The board defendants state that “the crux of [the] plaintiffs’ complaint is that they received inadequate special education services as a result of [the] defendants’ negligence in hiring an unqualified individual who was [unable] to provide adequate services . . . and that, as a result, they failed to make education progress.” (Citation omitted; internal quotation marks omitted.) By focusing on the phrase, “received inadequate special education services,” the board defendants view the complaint as one seeking relief for inadequate education—the denial of a FAPE.
We decline to read the plaintiffs’ complaint against the board defendants so narrowly or to focus exclusively on the alleged inadequate services. The plaintiffs alleged several ways in which the negligence and carelessness of the board defendants “proximately caused” injuries to the parents and their children. Rather than parsing out a specific phrase, we quote the entire paragraph of the complaint that alleges the plaintiffs’ injuries and losses:
“16. The injuries and losses suffered by the [plaintiffs] . . . were proximately caused by the negligence and carelessness of the [defendants] . . . in one or more of the following ways, in that:
“a. [The defendants] failed to confirm the credentials of . . . Lore;
“b. [The defendants] failed to perform a background check on . . . Lore and/or any of the employees of Spectrum Kids, LLC, as required by [
General Statutes ]§ 10-221d ;“c. [The defendants] failed to adequately supervise the services provide[d] by . . . Lore and/or any of the employees of Spectrum Kids, LLC;
“d. [The defendants] allowed [the plaintiffs] to be put in harm‘s way;
“e. [The defendants] knew or should have known of . . . Lore‘s inability to provide adequate services at the time of her hire;
“f. [The defendants] knew or should have known of . . . Lore‘s inability to provide adequate services at some point shortly after hiring her; [and]
“g. [The defendants] failed to follow standard protocol in confirming . . . Lore‘s background and credentials.”
We read this paragraph to set forth the causation elements for negligent hiring and negligent supervision claims. The plaintiffs did not allege an injury in the
The paragraph that follows directly sets forth the injuries that the plaintiffs allegedly suffered:
“17. As a direct and proximate result of the negligence and carelessness of the [defendants], [the plaintiffs] suffered the following injuries:
“a. A regression of the progress made to alleviate the symptoms of [autistic spectrum disorder].
“b. Lack of progress in the symptoms of [autism spectrum disorder].
“c. Inability to communicate effectively.”
Viewing the complaint in the light most favorable to the plaintiffs, we read the complaint to allege that the board defendants negligently hired Lore, that the board defendants should have known of Lore‘s inability to provide services, and that Lore‘s failure to provide services directly and proximately caused injury to the children in the form of a regression unique to children suffering from autism spectrum disorder and an inability to communicate effectively. Viewed in this most favorable light, the claim sets forth an allegation for negligent hiring, not the denial of a FAPE, and thus is not subject to dismissal for failure to exhaust administrative remedies. The fact that the plaintiffs used the words, “inability to provide adequate services,” does not automatically transform the claim into one alleging the denial of a FAPE or automatically subject the claim to an exhaustion requirement. The court in Fry warned against this kind of “magic words” approach. Fry v. Napoleon Community Schools, supra, 137 S. Ct. 755. “The use (or [nonuse]) of particular labels and terms is not what matters.” Id. What matters is the substance of the complaint. See id.
Moreover, the fact that the one kind of harm caused may also be the kind of harm caused in a case involving the denial of a FAPE does not mean that this kind of harm cannot be caused by other actions. If a teacher hits a special education student over the head and the student misses school for two weeks due to a concussion, the child could still bring an assault claim against the teacher even though one of the harms alleged in the complaint could be that the child did not receive special education services for two weeks while recovering from the injury. The mere acknowledgement that the child received inadequate services for two weeks would not make the claim one for the denial of a FAPE. The claim would remain one for assault. Likewise, in the present case, the plaintiffs allege in their complaint that the children suffered injuries similar to the kind of injuries a child would suffer from an assault. They allege that, because Lore had no credentials to provide special education services, the children under her instruction, suffering from autism spectrum disorder, were injured in permanent and unique ways—specific to children suffering from the disorder. The fact that the children also missed some hours of educational instruction does not supersede the injuries allegedly suffered and make the claim one for the denial of a FAPE.
We are further persuaded that the complaint does not seek relief for the denial of a FAPE on the basis of the absence of any mention of the act, other laws protecting children with disabilities, or the children‘s education plans. The board defendants, in their memorandum of law in support of their motion to dismiss before the trial court, admitted as much in the section that
Finally, we look to the second Fry factor—the history of the proceedings—to determine whether the plaintiffs’ complaint alleges the denial of a FAPE. See Fry v. Napoleon Community Schools, supra, 137 S. Ct. 757. A plaintiff who previously has invoked the act‘s formal procedures to handle the dispute could suggest that relief is indeed being sought for the denial of a FAPE. Id. This inquiry “depends on the facts” because “a court may conclude, for example, that the move to a courtroom came from a [late acquired] awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely.” Id.
In the present case, the plaintiffs became dissatisfied with Lore‘s services and learned that Lore in fact did not possess the degrees or certifications she claimed to have. Then, they рarticipated in multiple planning and placement team meetings to determine whether remedial services were appropriate as well as to receive the hours of service that were not delivered by Lore. The defendants admit that the “[p]laintiffs did not file a due process complaint or otherwise pursue administrative remedies under the [act].” Instead, they filed this lawsuit. The history of these proceedings, specifically, the fact that the plaintiffs never invoked the formal procedures of filing a due process complaint or requesting a hearing, supports our conclusion that the plaintiffs seek relief for something other than the denial of a FAPE.
Considering the factors outlined in Fry, we conclude that the plaintiffs allege common-law negligence claims that are not subject to an exhaustion requirement. At this early stage in the litigation, we are not required to determine whether, ultimately, a claim for negligent hiring lies against the defendants. All we hold today is that, for jurisdictional purposes, the plaintiffs do not need to exhaust administrative remedies as to the claims they allege for a determination of whether they state a claim on which relief can be granted. We reverse the judgment of the trial court on that ground.9
III
The board defendants contend alternatively that, even if the plaintiffs were not required to exhaust their administrative remedies prior to filing their state law claims, this court should uphold the dismissal of the complaint on the ground that the board defendants arе entitled to sovereign immunity. In their motion to dismiss, the board defendants claimed that their actions fell within the doctrine of sovereign immunity because they acted as agents of the state in carrying out a state mandated
“Sovereign immunity relates to a court‘s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review.” (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). “The principle that the state cannot be sued without its consent, sovereign immunity, is well established under our case law.” (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). Not as well established are the circumstances under which a municipality, cloaked with the state‘s sovereign immunity, is “protect[ed] against suit as well as liability—in effect, against having to litigate at all.” (Internal quotation marks omitted.) Sena v. American Medical Response of Connecticut, Inc., 333 Conn. 30, 42, 213 A.3d 1110 (2019).
The modern rationale for sovereign immunity rests on the practical ground that subjecting “the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property.” (Internal quotation marks omitted.) Id. The legislature has the power to limit or extend the scope of the state‘s immunity from suit. The legislature can waive immunity and consent to suit, thereby limiting the state‘s immunity. Compare C. R. Klewin Northeast, LLC v. State, 299 Conn. 167, 176, 9 A.3d 326 (2010) (discussing statutory waiver of sovereign immunity under
The state‘s deeply rooted interest in its public schools stems from
For example, in Board of Education v. Ellington, 151 Conn. 1, 9-10, 193 A.2d 466 (1963), we explained that the legislature granted boards of education the power to expend money to meet the requirements of state law pursuant to
On the other hand, “the state has delegated to the municipalities other duties related to its educational obligation.” (Emphasis added.) Board of Education v. New Haven, supra, 237 Conn. 175; see id. (citing
This dichotomy—boards of education acting as agents of the state at some times but acting as agents of the municipality at others—has resulted in the often quoted language: “Town boards of education, although agents of the state responsible for education in the towns, are also agents of the towns and subject to the laws governing municipalities.” Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). The questiоn of whether the board is acting as an agent of the state or of the town becomes determinative of whether the board is entitled to sovereign immunity because a suit against an agent of the state acting on behalf of the state is, in effect, a suit against the sovereign state. See Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). When a board of education acts on behalf of a municipality, however, the suit is one against an agent of the municipality, implicating perhaps governmental immunity, but not sovereign immunity. The test to determine whether a board of education is acting as an agent of the state and, thus, is entitled to sovereign immunity was first expressly stated in Cahill v. Board of Education, supra, 187 Conn. 102. In Cahill, we reasoned that, if the “action would operate to control the activities of the state or subject it to liability,” then the board would be entitled to sovereign immunity. Id. We concluded in Cahill that “[a] breach of contract between a local board of education and its employees does not give rise to a conclusion that such an action would
Since Cahill, our courts consistently have described the test for whether a board of education is entitled to sovereign immunity as whether the “action would operate to control or interfere with the activities of the state . . . .” (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998), overruled in part on other grounds by Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014); accord Palosz v. Greenwich, 184 Conn. App. 201, 207–208, 194 A.3d 885 (2018), cert. denied, 330 Conn. 930, 194 A.3d 778 (2018); Doe v. Board of Education, Docket No. 3:05-CV-482 (WWE), 2009 WL 369918, *3 (D. Conn. February 11, 2009). In other contexts, we have established different tests that, within that particular field, guide us in determining whether an entity is acting as an agent of the state.11 Irrespective of the particular test label, we begin by examining the relevant statutes to evaluate whether the legislature intended that the entity would act as an agent of the state. See, e.g., Sena v. American Medical Response of Connecticut, Inc., supra, 333 Conn. 45.
This delegatiоn of control to the municipalities is further enforced by
Reading these statutes in conjunction, in which the municipality, not the board of education, is directly delegated authority by the state, we are persuaded that a private lawsuit alleging a violation of the duties within the municipality‘s control would subject the municipality, not the state, to liability. Such a lawsuit would not constitute a serious interference with the performance of the state‘s functions or with its control over its respective instrumentalities, funds, and property. Rather, the municipality would be responsible for defending against the lawsuit, procuring insurance to cover any damages resulting from the lawsuit, and addressing injunctive relief sought by aggrieved parties—in short, liability.
Our case law supports this interpretation of these statutes. We have stated that “[a] [local] board of education acts as an agent of its respective municipality when it performs those functions originally entrusted by the state to the municipality that the municipality has subsequently delegated to the board of education . . . .” (Emphasis added.) Board of Education v. New Haven, supra, 237 Conn. 181; see also Purzycki v. Fairfield, supra, 244 Conn. 112 (concluding that board of education was not vested with sovereign immunity because its duty to supervise students is performed for benefit of municipality); Sansone v. Bechtel, 180 Conn. 96, 100, 429 A.2d 820 (1980) (concluding that members of board of education are agents of state only when carrying out interests of state but its members are town officers).
Most recently, in Palosz v. Greenwich, supra, 184 Conn. App. 212, the Appellate Court concluded that the defendant board of education acted as an agent of the municipality, not the state, when its employees allegedly failed to comply with an antibullying policy that the board had adopted, resulting in a tragic suicide. Id., 203-204, 214-15. The Appellate Court stated that a board of education “acts as an agent of the municipality when it enforces and complies with . . . [policies] pursuant to its general powers of control over public schools, which is explicitly delegated to a local board of education through the municipality pursuant to
The board defendants try to distinguish Palosz by claiming that the plaintiffs in that case alleged a failure to comply with a policy that the defendant board of education itself developed. They claim that, by enacting its own policy, the board in Palosz was no longer acting as an agent of the state and, therefore, was not entitled to sovereign immunity, whereas, in the present case, the board defendants were following a state mandate. We disagree. Irrespective of whether a board establishes its own policy, it operates under the control of the municipality. The Appellate Court determined in Palosz that the board acts as an agent of the municipality when it enforces and complies with the policy “pursuant to its general powers of control over public schools, which is explicitly delegated to a local board of education through the municipality pursuant to
The argument that the board defendants make does raise a broader issue worth addressing briefly: whether any action that the board takes could be construed as operating to control the activities of the state or to interfere with its functions, thereby entitling the board to assert the state‘s sovereign immunity.
Even if we assume, without deciding, that certain enumerated board actions, such as the development or design of a policy pursuant to state statute, could operate to control and interfere with the activities of the state, that issue is not before us because nothing in the plaintiffs’ complaint alleges violations of the development or design of an education program. See id., 211 (discussing possibility that board‘s development, implementation, submission, and assessment of policy man-dated by state statute could be entitled to sovereign immunity because board would be acting as agent of state but not deciding issue because plaintiffs did not claim that defendant failed to comply with those requirements).
The parties disagree about exactly what is the main allegation—the crux—of the plaintiffs’ complaint. The board defendants claim that the crux of the complaint is inadequate education. The plaintiffs claim instead that it is the negligent hiring and supervision of Lore. Under either interpretation, the complaint clearly does not allege that the board defendants failed to set up, design, or establish a special education program in accordance with the state mandate. The alleged injury occurred in the execution of the program. A failure in execution subjects the party in control to liability, in this case the municipality, not the state.
The board defendants would have us reach a different conclusion. They contend that the actions of the board members in the present case are unique because they were acting as agents of the state in fulfilling their state and federally mandated duty to provide special education services to students with disabilities pursuant to
We disagree. Reading the statutes as a harmonious and consistent body of law; see, e.g., Board of Education v. State Board of Education, 278 Conn. 326, 333, 898 A.2d 170 (2006) (because “legislature is presumed to have created a harmonious and consistent body of law . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction” (internal quotation marks omitted)); leads us to conclude that, although the legislature enacted laws mandating that boards provide special education, that mandate does not “encroach upon the general powers of control delegated to the towns by
With the delegation of control of public education to the municipalities and boards comes significant funding to carry out this obligation along with, we conclude, liability for actions that would not oрerate to interfere with or control the activities of the state.13 We see no reason to depart from this construct and create an exception by which human resource actions relating to special education somehow operate to interfere with or control the activities of the state. The legislature
The judgment is reversed only as to the granting of the board defendants’ motion to dismiss on the ground that the plaintiffs failed to exhaust their administrative remedies and the case is remanded with direction to deny the board defendants’ motion to dismiss as to the exhaustion claim and for further proceedings according to law; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.