Graham v. Friedlander ( 2020 )

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KIMBERLY H. GRAHAM ET AL. v. JANIE
R. FRIEDLANDER ET AL.
(SC 20243)
Robinson, C. J., and D’Auria, Mullins, Kahn,
Ecker and Vertefeuille, Js.
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 connec-
tion 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 negli-
gent 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 (20 U.S.C. § 1400 et seq.),
thus triggering an administrative exhaustion requirement contained in
that act and in the applicable state statutory (§ 10-76a et seq.) scheme
that implements the federal act, thereby depriving the trial court of
subject matter jurisdiction. The board and board members specifically
contended that, although the plaintiffs did not allege a violation of the
federal act, they sought relief for the denial of a free appropriate public
education under the federal act and that, regardless of whether the
complaint alleged a violation of the federal act or some other common-
law claim, the federal act and state law (§ 10-76h) mandated the exhaus-
tion of administrative remedies insofar as the crux of the complaint
was the alleged denial of a free appropriate public education. The board
and board members alleged, in the alternative, that they were entitled
to sovereign immunity because they were acting as agents of the state
in providing special education services. The trial court granted the
motion to dismiss and rendered judgment for the board and board
members, concluding that the plaintiffs were required to exhaust their
administrative remedies but had failed to do so. The court denied the
motion as to the claim that the plaintiffs’ action was barred by sovereign
immunity. On appeal, the plaintiffs claimed, inter alia, that they were
not required to exhaust their administrative remedies because they did
not seek relief for the denial of a free appropriate public education
but, rather, asserted common-law claims under state law that were not
subject to the exhaustion requirements. Held:
1. 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 proceed-
ings: 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; further-
more, this court 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), 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.
2. 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 and 10-241) 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 plain-
tiffs 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 defen-
dant 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.
Angelo A. Ziotas, with whom was Jennifer B.
Goldstein, for the appellants (plaintiffs).
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 chil-
dren, brought this action against the Board of Education
of the City of Norwalk (board) and three of its mem-
bers,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 asked to deter-
mine whether the claims alleged in the plaintiffs’ com-
plaint seek relief for a failure to provide special educa-
tion services under the Individuals with Disabilities
Education Act (act), 20 U.S.C. § 1400 et seq., thus trig-
gering an administrative exhaustion requirement con-
tained in that act and within General Statutes § 10-
76h, or whether the plaintiffs’ action seeks relief for
something other than the provision of a free appropriate
public education (FAPE), thereby relieving the plain-
tiffs of the exhaustion requirement. To decide this issue
at this stage in the litigation—on review of the trial
court’s decision to grant the board defendants’ motion
to dismiss for lack of subject matter jurisdiction on the
basis of a failure to exhaust administrative remedies—
we must confine our inquiry to the allegations in the
plaintiffs’ complaint.4 On the basis of those allegations,
we conclude that the plaintiffs seek relief for something
other than the denial of a FAPE and were, therefore,
not obligated to exhaust their administrative remedies.
Accordingly, we agree with the plaintiffs that the trial
court improperly dismissed their action on the ground
that the plaintiffs had not exhausted their administra-
tive remedies. As an alternative ground for upholding
the granting of the motion to dismiss, the defendants
ask us to determine that the board defendants acted
as agents of the state in providing special education
services, therefore entitling them to sovereign immu-
nity. We agree with the trial court that the board defen-
dants were acting under the control of, and as an agent
of, the municipality rather than the state, and were not
entitled to sovereign immunity. Accordingly, we uphold
the trial court’s denial of the board defendants’ motion
to dismiss on the sovereign immunity ground.
I
The following facts, as alleged in the plaintiffs’ com-
plaint, 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-XX-XXXXXXX-T (Sep-
tember 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 Nor-
walk 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 of Lore proximately caused permanent
and ongoing injuries and losses to their four children
and to them individually as parents.5
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 juris-
diction. 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 trans-
ferred to this court. See General Statutes § 51-199 (c);
Practice Book § 65-1.
On appeal, the plaintiffs claim that they did not have
to exhaust administrative remedies because their com-
plaint 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 defen-
dants contend that, although, on the face of the com-
plaint, 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 defen-
dants are entitled to sovereign immunity as agents of
the state.
Applicable to both the exhaustion analysis and the
sovereign immunity analysis is our standard of review
for a court’s decision on a motion to dismiss and princi-
ples of statutory interpretation. Our review of the trial
court’s determination of a jurisdictional question raised
by a pretrial motion to dismiss is de novo. State v.
Samuel M., 323 Conn. 785, 794–95, 151 A.3d 815 (2016).
‘‘In this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . . In under-
taking this review, we are mindful of the well estab-
lished notion that, in determining whether a court has
subject matter jurisdiction, every presumption favoring
jurisdiction should be indulged.’’ (Internal quotation
marks omitted.) Metcalf v. Fitzgerald, 333 Conn. 1, 7,
214 A.3d 361 (2019), cert. denied, 88 U.S.L.W. 3222 (U.S.
January 13, 2020) (No. 19-490). To the extent that we
are called upon to engage in statutory interpretation,
our review is plenary and guided by General Statutes
§ 1-2z. See, e.g., Gonzalez v. O & G Industries, Inc., 322
Conn. 291, 302–303, 140 A.3d 950 (2016).6
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 com-
plaint 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 ser-
vices.’’ Fry v. Napoleon Community Schools, U.S.
, 137 S. Ct. 743, 748, 197 L. Ed. 2d 46 (2017); see
also 20 U.S.C. § 1400 (d) (2012). ‘‘The [act] offers federal
funds to [s]tates in exchange for a commitment: to
furnish a ‘free appropriate public education’ [FAPE]
. . . to all children with certain physical or intellectual
disabilities.’’ Fry v. Napoleon Community Schools,
supra, 748. Once a state accepts the act’s financial assis-
tance, eligible children acquire a ‘‘ ‘substantive right’ ’’
to a FAPE. Id., 749. The primary vehicle for providing
each eligible child with a FAPE takes the form of an
individualized special education plan. 20 U.S.C. § 1414
(d) (2012); Fry v. Napoleon Community Schools,
supra, 749.
Disputes often arise over whether the special educa-
tion services provided to children with physical or intel-
lectual disabilities are sufficient to satisfy a child’s indi-
vidual education plan. To resolve these disputes, the
act requires state or local agencies to establish and
maintain procedures to ‘‘ensure that children with disa-
bilities and their parents are guaranteed procedural
safeguards with respect to the provision of a free appro-
priate public education by such agencies.’’ 20 U.S.C.
§ 1415 (a) (2012); see Fry v. Napoleon Community
Schools, supra, 137 S. Ct. 748. ‘‘[A] dissatisfied parent
may file a complaint as to any matter concerning the
provision of a FAPE with the local or state education
agency (as state law provides).’’ Fry v. Napoleon Com-
munity Schools, supra, 749; see 20 U.S.C. § 1415 (b)
(6) (2012).
The act also contains an exhaustion requirement pur-
suant to which individuals cannot file a civil action
under the act until they have satisfied the procedural
dispute resolution mechanism established by the rele-
vant state agency. See 20 U.S.C. § 1415 (l) (2012). In
relevant part, the statute provides: ‘‘Nothing in this
chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitu-
tion, the Americans with Disabilities Act of 1990 . . .
title V of the Rehabilitation Act of 1973 . . . or other
Federal laws protecting the rights of children with disa-
bilities, except that before the filing of a civil action
under such laws seeking relief that is also available
under this subchapter, the procedures . . . shall be
exhausted to the same extent as would be required
had the action been brought under this subchapter.’’ 20
U.S.C. § 1415 (l) (2012).
The plain language of the act provides that exhaustion
is required when a civil action is brought ‘‘under such
laws . . . .’’ (Emphasis added.) 20 U.S.C. § 1415 (l)
(2012). ‘‘[S]uch laws’’ plainly encompass the federal
protections of the rights of children with disabilities
embodied in the United States ‘‘Constitution, the Ameri-
cans with Disabilities Act of 1990 . . . title V of the
Rehabilitation Act of 1973,’’ and the act itself. 20 U.S.C.
§ 1415 (l) (2012); accord Moore v. Kansas City Public
Schools, 828 F.3d 687, 693 (8th Cir. 2016). The plaintiffs,
however, did not bring a civil action ‘‘under such laws.’’
Nowhere in their complaint do they allege violations
of the constitution or the act or any other federal statute
that protects the rights of children with disabilities. The
complaint alleges state common-law negligence claims.
We agree with the plaintiffs that their claims, on their
face, are not subject to the federal exhaustion require-
ments because their claims do not allege violations of
federal laws protecting the rights of children with disa-
bilities—the claims do not fall ‘‘under such laws.’’
Despite the language of 20 U.S.C. § 1415 (l), the board
defendants, in their motion to dismiss before the trial
court, argued that, because states are required under
the act to establish their own procedural mechanism
to resolve disputes, the exhaustion requirement is trig-
gered for state law claims that seek relief for the denial
of a FAPE, even when the claims do not purport to be
brought under the act. The trial court’s memorandum
of decision does not address whether state law claims
trigger an exhaustion requirement under state law. On
appeal, the board defendants do not argue, as they
did before the trial court, that the claims triggered an
exhaustion requirement under state statutes. Rather,
they cite exclusively to the federal administrative
exhaustion section under the act. See 20 U.S.C. § 1415
(l) (2012). We, however, find it necessary to determine
whether state law mandates exhaustion of administra-
tive remedies when the claim seeks relief for the denial
of a FAPE. To answer this question, we look to the
procedural mechanisms established by our state legisla-
ture to provide special education services to children.
Doing so, we conclude that our state legislature created
an exhaustion requirement for state law claims that
seek relief for the denial of a FAPE. See General Statutes
§ 10-76a et seq.
Connecticut implements the substantive and proce-
dural requirements of the act through § 10-76a et seq.
The specific procedures for resolving disputes are set
forth in § 10-76h. Under § 10-76h (a) (1), a parent of a
child requiring special education and related services
‘‘may request a hearing of the local or regional board
of education or the unified school district responsible
for providing such services whenever such board or
district proposes or refuses to initiate or change the
identification, evaluation or educational placement of
or provision of a free appropriate public education to
such child or pupil.’’ The request must be made in writ-
ing, contain a statement of the specific issues in dispute,
and be requested within two years of the board’s pro-
posal or refusal to initiate a change in the child’s educa-
tion plan. General Statutes § 10-76h (a) (1) through (4).
Upon receipt of the written request, ‘‘the Department
of Education shall appoint an impartial hearing officer
who shall schedule a hearing . . . pursuant to the Indi-
viduals with Disabilities Education Act . . . .’’ Gen-
eral Statutes § 10-76h (b). Section 10-76h requires the
Department of Education to provide training to hearing
officers, delineates who may act as hearing officers and
members of hearing boards, identifies the parties that
shall participate in a prehearing conference to attempt
to resolve the dispute, and describes the authority that
the hearing officer or board of education shall have.
See General Statutes § 10-76h (c) and (d). Section 10-
76h also establishes the processes for appealing from
decisions of the hearing officer or the board of educa-
tion. Section 10-76h (d) (4) provides in relevant part:
‘‘Appeals from the decision of the hearing officer or
board shall be taken in the manner set forth in section
4-183 . . . .’’7 A plain reading of General Statutes § 4-
183 of the Uniform Administrative Procedure Act, Gen-
eral Statutes § 4-166 et seq., informs us that, prior to
bringing a claim in Superior Court, individuals must
exhaust all administrative remedies available within the
relevant agency.
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 admin-
istrative remedies pursuant to § 10-76h. ‘‘It is a settled
principle of administrative law that if an adequate
administrative remedy exists, it must be exhausted
before the Superior Court will obtain jurisdiction to
act in the matter.’’ (Internal quotation marks omitted.)
Financial Consulting, LLC v. Commissioner of Ins.,
315 Conn. 196, 208, 105 A.3d 210 (2014). The exhaustion
requirement ‘‘serves dual functions: it protects the
courts from becoming unnecessarily burdened with
administrative appeals and it ensures the integrity of
the agency’s role in administering its statutory responsi-
bilities. . . . There are two ways to determine whether
an administrative remedy has been exhausted. [When]
a statute has established a procedure to redress a partic-
ular wrong a person must follow the specified remedy
and may not institute a proceeding that might have
been permissible in the absence of such a statutory
procedure. . . . When, however, a statutory require-
ment of exhaustion is not explicit, courts are guided
by [legislative] intent in determining whether applica-
tion of the doctrine would be consistent with the statu-
tory scheme. . . . Consequently, [t]he requirement of
exhaustion may arise from explicit statutory language
or from an administrative scheme providing for agency
relief.’’ (Internal quotation marks omitted.) Id. On the
basis of the statute’s clear and unambiguous language,
as well as the established and extensive administrative
scheme, we conclude that the plaintiffs must exhaust
administrative remedies before filing a claim for the
denial of a FAPE under state law.
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 con-
tend 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 sets forth a negligence claim
brought on behalf of the minor plaintiff, Nathan T. Gra-
ham, against a board employee, the defendant Janie R.
Friedlander. It alleges that Friedlander never performed
a background check on Lore, never confirmed Lore’s
credentials, should have known of Lore’s inability to
provide adequate services, and failed to follow protocol
in confirming Lore’s background and credentials but
nevertheless hired Lore. Lore then provided inadequate
autism related services to Nathan Graham. The com-
plaint alleges that, by failing to confirm Lore’s creden-
tials and failing to adequately supervise the services
provided, Friedlander allowed Nathan Graham to be
put in ‘‘harm’s way . . . .’’ Count one further alleges
that, ‘‘[a]s a direct and proximate result of the negli-
gence and carelessness of’’ Friedlander, Nathan Gra-
ham suffered injuries. Those injuries include a ‘‘regres-
sion of the progress made to alleviate the symptoms of
[autism spectrum disorder] . . . [l]ack of progress in
the symptoms of [autism spectrum disorder, and an]
[i]nability to communicate effectively.’’
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 infliction of emotional dis-
tress, also on behalf of Kimberly Graham and Erik Gra-
ham, claiming injury in the form of anxiety and emo-
tional 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 par-
ties’ 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 reme-
dies, we must determine whether they are claims that
seek relief for the denial of a FAPE, or whether they
seek relief for a claim that does not trigger an exhaus-
tion requirement.
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, 42 U.S.C.
§ 12101 et seq., and the Rehabilitation Act of 1973, 29
U.S.C. § 794 et seq., when it refused to permit her to
bring her service dog to school. Fry v. Napoleon Com-
munity Schools, supra, 751–52. The plaintiffs filed suit
in United States District Court, and the defendant
school district moved to dismiss the action. Id., 746.
The District Court granted the motion to dismiss, and
the United States Court of Appeals for the Sixth Circuit
affirmed, holding that § 1415 (l) of the act ‘‘required the
[plaintiffs] to first exhaust the [act’s] administrative
procedures.’’ Id., 752.
The Supreme Court vacated the judgment of the Sixth
Circuit and remanded the case to that court to deter-
mine 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 § 1415 (l)’s exhaustion requirement.’’ Id., 752.
To determine whether the gravamen of the complaint
concerns the denial of a FAPE, the court established a
framework for analyzing claims involving special educa-
tion services. Id., 756–57. Justice Kagan, writing for the
majority, directed courts to consider two factors. Id.
The first factor requires consideration of whether the
claim could have been brought outside the school set-
ting. Id., 756. The second factor requires consideration
of the history of the proceedings prior to the filing of
the complaint. Id., 757.
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]up-
pose 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 appropriate-
ness 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 abuse 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 negli-
gent hiring claim. First, the plaintiffs could have brought
essentially the same claim if they attended a municipal
summer camp that touted a unique special needs pro-
gram focused on speech, social skills, occupational
therapy, and physical therapy, yet that was run by uncer-
tified and unqualified staff. If the children suffered a
regression in development and an inability to communi-
cate—the injuries alleged in the present case—they
could claim that the negligent hiring of the camp staff
proximately caused those injuries. Second, an adult
participating in a municipally funded behavioral therapy
treatment program offered in the evenings at a school
could also bring the same claim for regression resulting
from services provided by an uncertified and unquali-
fied behavior therapist. A negligent hiring action could
follow, which would not require as a precondition the
exhaustion of administrative remedies.
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 ana-
lyst. The distinction is subtle and requires our accep-
tance of the allegation that an uncertified behavior ther-
apist 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 allega-
tions, 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 educa-
tional 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 Commu-
nity 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 exclusive 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 acknowl-
edge 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 the Third Circuit has described a possible
scenario in which a student brings a claim challenging
the sufficiency of her individualized education plan but
who also happened to be physically assaulted on the bus
to school. See Wellman v. Butler Area School District,
supra, 132–33. Although the plaintiff may choose to
bring her claims in a single complaint, the claim for
relief for physical injuries ‘‘has nothing to do with her
access to a FAPE and relief [under the act].’’ Id., 133.
‘‘Surely the [Fry] [c]ourt would not have envisioned that
such a claim would be subject to the [act’s] procedural
requirements, nor would subjecting such a claim to
these procedural requirements necessarily result in any
benefit to either the parties or court reviewing the mat-
ter at a later date.’’ Id.
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 defen-
dants state that ‘‘the crux of [the] plaintiffs’ complaint
is that they received inadequate special education ser-
vices 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 exclu-
sively on the alleged inadequate services. The plaintiffs
alleged several ways in which the negligence and care-
lessness of the board defendants ‘‘proximately caused’’
injuries to the parents and their children. Rather than
parsing out a specific phrase, we quote the entire para-
graph 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 proto-
col in confirming . . . Lore’s background and cre-
dentials.’’
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
form of inadequate education services. Rather, they
alleged negligence against the board defendants
because the board defendants should have known of
Lore’s inability to provide adequate services.
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 spec-
trum 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 ser-
vices directly and proximately caused injury to the chil-
dren in the form of a regression unique to children
suffering from autism spectrum disorder and an inabil-
ity 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 auto-
matically 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 concus-
sion, 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 recov-
ering 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 memo-
randum of law in support of their motion to dismiss
before the trial court, admitted as much in the section
that contends that they enjoy sovereign immunity, stat-
ing that ‘‘this court lacks subject matter jurisdiction
to entertain the plaintiffs’ common-law claims against
them.’’ (Emphasis added.) Similarly, in the sovereign
immunity section of their brief to this court, the board
defendants conceded that, ‘‘in addition to [implicating
the duty to provide a FAPE] . . . this case concerns
alleged breaches of specific state mandated duties con-
cerning hiring.’’ (Emphasis added.) The board defen-
dants ask us to cast the complaint as one seeking relief
for the denial of a FAPE for the purpose of an exhaus-
tion requirement but then to view the complaint as
alleging a violation of common-law and state mandated
duties—not the denial of a FAPE—for the purposes of
sovereign immunity. We decline to do so.
Finally, we look to the second Fry factor—the history
of the proceedings—to determine whether the plain-
tiffs’ 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 court-
room 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 participated 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 adminis-
trative remedies under the [act].’’ Instead, they filed
this lawsuit. The history of these proceedings, specifi-
cally, the fact that the plaintiffs never invoked the for-
mal 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
are 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 function. The trial court denied the motion
to dismiss as to the claim of sovereign immunity. We
agree with the trial court that, on the basis of the board
members’ actions as alleged in the plaintiffs’ complaint,
the board defendants are not entitled to sovereign
immunity.10
‘‘Sovereign immunity relates to a court’s subject mat-
ter 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 Rail-
road Co. v. Commissioner of Revenue Services, 301
Conn. 268, 274, 21 A.3d 759 (2011). Not as well estab-
lished are the circumstances under which a municipal-
ity, cloaked with the state’s sovereign immunity, is ‘‘pro-
tect[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 consti-
tute a serious interference with the performance of their
functions and with their control over their respective
instrumentalities, funds and property.’’ (Internal quota-
tion 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 General Statutes § 4-61),
with Hicks v. State, 297 Conn. 798, 805, 1 A.3d 39 (2010)
(concluding that General Statutes § 52-556 does not
waive sovereign immunity with regard to postjudgment
interest pursuant to General Statutes § 37-3b). Alterna-
tively, the legislature can extend sovereign immunity
to local agents or actors functioning on behalf of the
state. See, e.g., Sena v. American Medical Response of
Connecticut, Inc., supra, 333 Conn. 51 (concluding that
legislature extended sovereign immunity state enjoys
to local actors of political subdivisions under General
Statutes § 28-13). The present case concerns the exten-
sion of sovereign immunity. Specifically, this case
addresses whether the legislature extended the state’s
immunity from suit to the board defendants for the kind
of relief that the plaintiffs seek.
The state’s deeply rooted interest in its public schools
stems from article eighth, § 1, of the Connecticut consti-
tution, which provides: ‘‘There shall always be free pub-
lic elementary and secondary schools in the state. The
general assembly shall implement this principle by
appropriate legislation.’’ To provide the children of Con-
necticut with public education, the legislature balances
two important tasks, a dichotomy of interests. On the
one hand, the state must enable agents to act on its
behalf to perform state functions. On the other hand,
the state must delegate important duties to the control
of the municipalities so that private litigation does not
interfere with the running of the state’s affairs.
‘‘There is no question but that local boards of educa-
tion act as agencies of the state when they are fulfilling
the statutory duties imposed upon them pursuant to
the constitutional mandate of article eighth, § 1.’’ Chesh-
ire v. McKenney, 182 Conn. 253, 258, 438 A.2d 88 (1980).
‘‘In discharging its state constitutional mandate to pro-
vide free public primary and secondary education . . .
the state has delegated the duty to educate a municipali-
ty’s children to local boards of education.’’ (Citation
omitted; footnote omitted.) Board of Education v. New
Haven, 237 Conn. 169, 174–75, 676 A.2d 375 (1996); see
id. (citing General Statutes § 10-220). We previously have
described local boards of education as ‘‘agenc[ies] of the
state in charge of education in the town’’ with ‘‘broad
powers’’ granted to them by the legislature. Fowler v.
Enfield, 138 Conn. 521, 530, 86 A.2d 662 (1952).
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 § 10-220. In Cheney v. Strasburger, 168
Conn. 135, 140–41, 357 A.2d 905 (1975), we determined
that boards of education have the power of eminent
domain when acting as agents of the state to carry out
the state’s educational interests. ‘‘It is basic that a town
board of education is an agent of the state when carrying
out the educational interests of the state.’’ Id., 141.
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 General
Statutes § 10-241). ‘‘Local boards of education act on
behalf of the municipality, then, in their function of
maintaining control over the public schools within the
municipality’s limits.’’ Cheshire v. McKenney, supra,
182 Conn. 258–59.
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
question 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 sover-
eign 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 per-
haps 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 operate to control the activities of the
state or subject it to liability.’’ Id. We premised that
conclusion on the notion that the local community pri-
marily maintains oversight of employment contracts
and that any damages resulting from a breach of those
contracts would be paid by the community, not the
state. Id.
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.) Pur-
zycki 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, 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 differ-
ent 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.
General Statutes § 10-240 provides: ‘‘Each town shall
through its board of education maintain the control of
all the public schools within its limits and for this pur-
pose shall be a school district and shall have all the
powers and duties of school districts, except so far
as such powers and duties are inconsistent with the
provisions of this chapter.’’ Under this section, the state
has delegated control of the public schools to the munic-
ipalities. The municipalities, in turn, must carry out
those duties through their boards of education. See
Palosz v. Greenwich, supra, 184 Conn. App. 212 (con-
cluding that § 10-240 explicitly delegates control over
public schools to local board of education through
municipality). ‘‘Local boards of education act on behalf
of the municipality, then, in their function of maintain-
ing control over the public schools within the munici-
pality’s limits.’’ Cheshire v. McKenney, supra, 182 Conn.
258–59. The members of local boards of education are
vested with the powers of their office by municipal
action pursuant to municipal elections, the town char-
ter, or appointment by an elected officer or body of the
municipality. Id., 259.
This delegation of control to the municipalities is
further enforced by § 10-241.12 Section 10-241 sets forth
the powers that the municipalities maintain to carry
out their statutory responsibilities regarding school dis-
tricts. These powers include the authority to purchase
and convey real and personal property for school pur-
poses, to build and repair schoolhouses, and to collect
taxes, borrow money, employ teachers, and pay their
salaries. Importantly, § 10-241 also expressly empowers
school districts to sue and permits them to be sued.
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 municipal-
ity, 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 par-
ties—in short, liability.
Our case law supports this interpretation of these
statutes. We have stated that ‘‘[a] [local] board of educa-
tion 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. Fair-
field, 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 alleg-
edly 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] pur-
suant to its general powers of control over public
schools, which is explicitly delegated to a local board
of education through the municipality pursuant to § 10-
240.’’ Id., 212. The Appellate Court addressed whether
holding the board liable for the allegedly tortious con-
duct of an employee would operate to control or inter-
fere with the activities of the state. Id. To that question,
it answered no. Id. A lawsuit alleging tortious conduct
would not operate to control the activities of the state
or interfere with its functions because the suit would
subject the municipality—not the state—to liability.
The trial court in the present case asked a similar ques-
tion: ‘‘The critical/essential claim is that the defendants
were negligent in verifying the credentials of someone
who was hired to provide special education services—
where is the control over state functions when the issue
really is a human resource/contract administration type
issue?’’ We are persuaded by the practical reasoning of
these courts.
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 estab-
lishes 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 municipal-
ity when it enforces and complies with the policy ‘‘pur-
suant to its general powers of control over public
schools, which is explicitly delegated to a local board
of education through the municipality pursuant to § 10-
240.’’ Palosz v. Greenwich, supra, 184 Conn. App. 212.
The key factor is the board’s execution of duties under
the control of the municipality, not the state. Certainly,
the determination of whether a board is entitled to
sovereign immunity does not turn on whether the board
established its own policy.
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 oper-
ate 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 develop-
ment or design of an education program. See id., 211
(discussing possibility that board’s development, imple-
mentation, 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 pursu-
ant to § 10-76a et seq. Section 10-76a et seq. establishes
state procedures to implement the federally funded act.
The board defendants argue that the state delegated
the authority to hire special education teachers directly
to the local board under General Statutes § 10-76d,
rather than to the municipality, and thus they acted as
agents of the state when hiring teachers. As agents of
the state, they contend, they are entitled to sovereign
immunity. The board defendants rely on Superior Court
cases and a United States District Court case for the
proposition that tort claims, including negligent hiring
and supervision of special education teachers, ‘‘would
interfere with [the state mandated] duty to provide spe-
cial education services.’’ Doe v. Board of Education,
supra, 2009 WL 369918, *3 (concluding that local school
board was entitled to sovereign immunity as to claims
of negligent hiring and supervision of employees); see
also Milhomme v. Levola, Superior Court, judicial dis-
trict of Windham at Putnam, Docket No. CV-XX-XXXXXXX-
S (July 14, 1995) (14 Conn. L. Rptr. 517, 518, 521) (school
board that provided minor child with transportation to
school under state mandated individualized education
program was entitled to sovereign immunity in negli-
gence action).
We disagree. Reading the statutes as a harmonious
and consistent body of law; see, e.g., Board of Educa-
tion 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 § 10-240.’’ Palosz v. Greenwich, supra, 184
Conn. App. 212. Section 10-76d (b) provides in relevant
part: ‘‘[E]ach local or regional board of education shall
. . . (1) [p]rovide special education for school-age chil-
dren requiring special education . . . .’’ Nothing in that
statute diminishes or rescinds the power that the state
has delegated to the towns, through local boards of
education, to control the public schools. Under the spe-
cial education delegation, the legislature merely supple-
mented the duties of the local boards to include provid-
ing special education programs and services.
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 operate 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 did
not expressly extend sovereign immunity to boards of
education for special education services. The legisla-
ture also did not render the general delegation of control
to municipalities inapplicable in the case of special
education. Without such a directive from the legislature,
we decline to conclude that sovereign immunity
extends as the board defendants claim. We therefore
conclude that the board defendants are not entitled to
sovereign immunity. We affirm the judgment of the trial
court on that ground.
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.
1
The plaintiff parents are Kimberly H. Graham, Erik J. Graham, Krishna
Thiruvengadachari, Supraja Rajagopalan, Margaret A. Kozlark, Michael W.
Bustell, Maria Murphy, and Patrick Murphy. The plaintiff children are Nathan
T. Graham, Vasisht Krishna, Henry J. Bustell, and Brooke Murphy.
2
The defendant board members are Janie R. Friedlander, Beatrice Kra-
wiecki, and Salvatore Corda.
3
In the underlying action, Spectrum Kids, LLC, was defaulted for failure
to appear. Before the trial court’s dismissal of the plaintiffs’ action, Lore
had filed an appearance but had not filed an answer or other responsive
pleading and had not been defaulted for failure to plead. In its memorandum
of decision granting the board defendants’ motion to dismiss, the trial court
thus referred to both Spectrum Kids, LLC, and Lore as ‘‘nonparticipating
defendants.’’
The plaintiffs did not direct any claims in their complaint specifically
toward the city, although the first count of the complaint, which is incorpo-
rated into all of the subsequent counts, alleged that the city is liable for
indemnification as a result of the acts and omissions of its employees that
occurred within the scope of their employment, pursuant to General Statutes
§ 7-465. The trial court dismissed the claim against the city, stating that it
was ‘‘premised on mootness and lack of a justiciable issue, coupled with
untimeliness of the commencement of the action against the city.’’
In this appeal, the plaintiffs do not challenge the trial court’s dismissal
of the indemnification claim against the city. Consequently, we address
only the claims against the board defendants—counts one through sixty of
the complaint.
4
Because the trial court granted the motion to dismiss as to all of the
claims against the city and the board defendants; see footnote 3 of this
opinion; this court has jurisdiction to consider the plaintiffs’ claims on
appeal under Practice Book § 61-3.
5
Count one of the complaint asserts a claim against the board defendant
Janie R. Friedlander on behalf of the minor plaintiff, Nathan T. Graham,
alleging negligent hiring and supervision that resulted in injuries, including
a regression of the progress made to alleviate the symptoms of autism
spectrum disorder, lack of progress in the symptoms of autism spectrum
disorder, and an inability to communicate effectively.
Counts two through five incorporate the allegations in count one and
assert individual claims by the parents of Nathan Graham as against Fried-
lander for loss of consortium and negligent infliction of emotional distress.
Counts six through ten repeat the allegations in the first five counts but
allege claims against the board defendant Beatrice Krawiecki.
Counts eleven through fifteen repeat the allegations in the first five counts
but allege claims against the board defendant Salvatore Corda.
Counts sixteen through thirty, brought by the parents of the minor plaintiff,
Vasisht Krishna, individually and on behalf of their child, repeat the allega-
tions and causes of action contained in the first fifteen counts as against
each of the three individual board defendants.
Counts thirty-one through forty-five, brought by the parents of the minor
plaintiff, Henry J. Bustell, individually and on behalf of their child, repeat
the allegations and causes of action in the first fifteen counts as against
each of the three board defendants.
Counts forty-six through sixty, brought by the parents of the minor plain-
tiff, Brooke Murphy, individually and on behalf of their child, repeat the
allegations and causes of action in the first fifteen counts as against each
of the three board defendants.
6
‘‘General Statutes § 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after examining such text
and considering such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be considered. . . . The
test to determine ambiguity is whether the statute, when read in context, is
susceptible to more than one reasonable interpretation.’’ (Internal quotation
marks omitted.) Gonzalez v. O & G Industries, Inc., supra, 322 Conn.
302–303.
7
General Statutes § 4-183 (a) provides in relevant part: ‘‘A person who
has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision may appeal to the Superior Court . . . .’’
8
Count one of the plaintiffs’ complaint alleges in relevant part: ‘‘14. [The
defendants] hired . . . Lore to provide autism related services to individuals
in need of those services within the [Norwalk public schools].
‘‘15. None of the defendants ever performed a background check on the
defendant . . . Lore, nor did they ever confirm the alleged credentials of
. . . Lore.
‘‘16. The injuries and losses suffered by the [plaintiffs] . . . were proxi-
mately 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;
‘‘g. [The defendants] failed to follow standard protocol in confirming . . .
Lore’s background and credentials.
‘‘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.
‘‘18. As a further result of the negligence and carelessness of the [defen-
dants], [the plaintiffs’] injuries are permanent in nature and may require
additional care in the future.
‘‘19. As a further result of the negligence and carelessness of the defen-
dant[s], [the plaintiffs] [were] required to spend various sums of money for
additional treatment and services.’’
9
Because we conclude that, when the crux of the complaint is not the
denial of a FAPE and the exhaustion requirement is not triggered, we need
not reach the question of whether exhaustion would have been excused
under the doctrine of futility.
10
Of course, in certain circumstances, municipalities may enjoy govern-
mental immunity from liability, but that is entirely different from sovereign
immunity. See, e.g., Vejseli v. Pasha, 282 Conn. 561, 573, 923 A.2d 688 (2007).
The difference is that sovereign immunity prevents the state from being
sued in the first instance, whereas governmental immunity does not protect
against suit but could protect against liability. Id. The board has not asserted
a governmental immunity defense, and we do not decide that issue.
11
For example, in determining whether a corporate entity is an ‘‘ ‘arm of
the state,’ ’’ we have evaluated eight factors, namely, the creation of the
entity, the purpose of the entity, its financial dependency on the state,
whether its officers are state functionaries, whether the entity is operated
by state employees, whether the state has the right to control the entity,
whether the entity’s budget, expenditures and appropriations are closely
monitored by the state, and whether a judgment against the entity would
have the same effect as a judgment against the state. Rocky Hill v. SecureCare
Realty, LLC, 315 Conn. 265, 280, 105 A.3d 857 (2015); Gordon v. H.N.S.
Management Co., 272 Conn. 81, 98–100, 861 A.2d 1160 (2004). We have not
been asked by the parties in this case to alter, and see no reason to disturb,
the ‘‘ ‘control or interfere’ ’’ test for determining whether boards of education
enjoy sovereign immunity. Purzycki v. Fairfield, supra, 244 Conn. 112.
12
General Statutes § 10-241 provides: ‘‘Each school district shall be a body
corporate and shall have power to sue and be sued; to purchase, receive,
hold and convey real and personal property for school purposes; to build,
equip, purchase and rent schoolhouses and make major repairs thereto and
to supply them with fuel, furniture and other appendages and accommoda-
tions; to establish and maintain schools of different grades; to establish and
maintain a school library; to lay taxes and to borrow money for the purposes
herein set forth; to make agreements and regulations for the establishing
and conducting of schools not inconsistent with the regulations of the town
having jurisdiction of the schools in such district; and to employ teachers,
in accordance with the provisions of § 10-151, and pay their salaries. When
such board appoints a superintendent, such superintendent may, with the
approval of such board, employ the teachers.’’
13
Expenditures allocated by the state to the Department of Education for
the 2019–2020 fiscal year totaled $3,018,224,700. Public Acts 2019, No. 19-
117, § 1. That funding then filters to the school districts to, among many
other things, provide students with special education services. For example,
the Hartford school district spent $120,864,053 on special education services
in 2016–2017, comprised of federal, state, and district money. Connecticut
State Department of Education, Special Education Expenditures; Percentage
of Total Expenditures Used for Special Education, 2016–17 Hartford School
District, available at http://edsight.ct.gov/SASStoredProcess/guest?_rpttype
=listing&_year=2016-17&_district=Hartford+School+District&_program=%
2FCTDOE%2FEdSight%2FRelease%2FReporting%2FPublic%2FReports%2F
StoredProcesses%2FSpecialEducationReport&_select=Submit (last visited
January 30, 2020).