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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 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 (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 commonlaw claim, the federal act and state law (§ 10-76h) mandated the exhaustion 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 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 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 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.

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,1the parents of four schoolage 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 asked to determine whether the claims alleged in the plaintiffs’ complaint seek relief for a failure to provide special education services under the Individuals with Disabilities

Education Act (act), 20 U.S.C. § 1400 et seq., thus triggering an administrative exhaustion requirement contained 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 plaintiffs 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 administrative 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 immunity. We agree with the trial court that the board defendants 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’ 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 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 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. 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 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.

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 principles 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 necessarily implied from the allegations, construing them in a

manner most favorable to the pleader. . . . In undertaking this review, we are mindful of the well established 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 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, 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 assistance, 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 education services provided to children with physical or intellectual disabilities are sufficient to satisfy a child’s individual education plan. To resolve these disputes, the

act requires state or local agencies to establish and

maintain procedures to ‘‘ensure that children with disabilities and their parents are guaranteed procedural

safeguards with respect to the provision of a free appropriate 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 Community Schools, supra, 749; see 20 U.S.C. § 1415 (b)

(6) (2012).

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 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 Constitution, 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 disabilities, 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 Americans 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 disabilities—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 triggered 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 administrative 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 legislature 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 procedural 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 writing, contain a statement of the specific issues in dispute,

and be requested within two years of the board’s proposal or refusal to initiate a change in the child’s education 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 Individuals with Disabilities Education Act . . . .’’ General 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 education. 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, General 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 administrative 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 responsibilities. . . . There are two ways to determine whether

an administrative remedy has been exhausted. [When]

a statute has established a procedure to redress a particular 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 requirement of exhaustion is not explicit, courts are guided

by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory 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 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 sets forth a negligence claim

brought on behalf of the minor plaintiff, Nathan T. Graham, 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 complaint alleges that, by failing to confirm Lore’s credentials 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 negligence and carelessness of’’ Friedlander, Nathan Graham suffered injuries. Those injuries include a ‘‘regression 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 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 [thirdparty] 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 they

seek relief for a claim that does not trigger an exhaustion 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 Community 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 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 § 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 education 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 setting. 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]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 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 negligent 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 program focused on speech, social skills, occupational

therapy, and physical therapy, yet that was run by uncertified and unqualified staff. If the children suffered a

regression in development and an inability to communicate—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 unqualified 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 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 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 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 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 matter 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 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

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 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 contends that they enjoy sovereign immunity, stating 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 concerning hiring.’’ (Emphasis added.) The board defendants ask us to cast the complaint as one seeking relief

for the denial of a FAPE for the purpose of an exhaustion 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 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 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 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

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 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 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). Alternatively, 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 extension 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 constitution, which provides: ‘‘There shall always be free public elementary and secondary schools in the state. The

general assembly shall implement this principle by

appropriate legislation.’’ To provide the children of Connecticut 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 education 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.’’ Cheshire v. McKenney, 182 Conn. 253, 258, 438 A.2d 88 (1980).

‘‘In discharging its state constitutional mandate to provide free public primary and secondary education . . .

the state has delegated the duty to educate a municipality’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 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 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 primarily 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.) 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, 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.

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 purpose 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 municipalities. The municipalities, in turn, must carry out

those duties through their boards of education. See

Palosz v. Greenwich, supra, 184 Conn. App. 212 (concluding 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 maintaining control over the public schools within the municipality’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 charter, 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 districts. These powers include the authority to purchase

and convey real and personal property for school purposes, 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 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 § 10-

240.’’ Id., 212. The Appellate Court addressed whether

holding the board liable for the allegedly tortious conduct of an employee would operate to control or interfere 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 question: ‘‘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 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 § 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 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 § 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 special 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 district of Windham at Putnam, Docket No. CV-94-0048326-

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 negligence action).

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 § 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 children 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 special education delegation, the legislature merely supplemented the duties of the local boards to include providing 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 legislature 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 Krawiecki, 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 incorporated 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 Friedlander 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 allegations 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 plaintiff, 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 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;

‘‘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 [defendants], [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 defendant[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 governmental 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 accommodations; 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).