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Standards for Determining Unsafe Schools in Massachusetts

Section 9532 of the No Child Left Behind Act of 2001 (NCLB) states:

Each State receiving funds under the "No Child Left Behind" (NCLB) Act shall establish and implement a statewide policy requiring that a student attending a persistently dangerous public elementary school or secondary school, as determined by the State in consultation with a representative sample of local educational agencies, or who becomes a victim of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school that the student attends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school.

Pursuant to this federal law, the Massachusetts Department of Elementary and Secondary Education (Department) establishes the following standards to determine an unsafe or "persistently dangerous" school. NCLB stipulates that a school may be deemed unsafe as a whole entity or for an individual student who becomes a victim of a violent criminal offense. The Department will implement these standards as of July 1, 2003.

In meeting this federal requirement, the Department seeks to establish and implement a policy that is preventive as well as responsive to immediate concerns. Thus, corrective action will be part of the process when a school is determined to be unsafe or persistently dangerous. The corrective action process is not intended to abridge the right of a student to be allowed to attend a safe public elementary or secondary school within the local educational agency, as provided by the federal law.

Individual Student Option
Beginning in the 2003/2004 school year, any student who becomes a victim of a violent criminal offense as defined by Massachusetts General Laws Chapter 140, Section 121, which takes place in or on the grounds of the public elementary or secondary school that the student attends, must to the extent feasible be allowed to transfer immediately to another public school within the school district. For purposes of this policy, "in or on the grounds of" the school includes school premises, school buses, and attendance at school sponsored or school related events including athletic games and field trips. A copy of Mass. Gen. Laws Chapter 140, Section 121 is attached.

Whole School Option
To be designated as "persistently dangerous," a school must meet either of the following criteria for three consecutive years beginning with the most recent enrollment data available to the Department as well as the prior two years.

• One or more students have been expelled for violation of the Federal Gun-Free Schools Act
  or
• The number of students who have been permanently excluded or expelled from school for a period greater than 45 days under Mass. General Laws Chapter 71, Section 37H for weapons or physical assaults or for violent crimes as defined by Mass. General Laws Chapter 140, Section 121 exceeds 1.5 % of the student enrollment. The rate will be based on each individual school's enrollment data submitted to the Department.

For any school that meets either criterion at any time, the school district may voluntarily declare the school in "greatest need" under Section 9532 of the No Child Left Behind Act. The district may then direct federal Safe and Drug-Free Schools program funds and services to assess and identify any problems as well as voluntarily implement a corrective action plan to ensure a safe school environment for all students and staff.

For any school that meets either criterion for two consecutive years, the Department will request that the school and district evaluate their needs and adopt or revise a corrective action plan to ensure a safe school environment for all students and staff. The school and district shall maintain the corrective action plan as a public record. To the extent feasible, the Department will provide technical assistance to the school and district.

For any school that meets either criterion for three consecutive years, the Department will designate the school as unsafe or persistently dangerous. Parents may then exercise their right to have their child attend a safe public elementary or secondary school within the local educational agency [school district], as provided by Section 9532 of the No Child Left Behind Act. The school will be required to submit a corrective action plan to the Department. To the extent feasible, the Department will collaborate with other state and local agencies to provide support and technical assistance to the school and district.

If the Department notifies a school or district that the school is or may be designated as unsafe or persistently dangerous, school officials will have ten working days to present information to the Department that may have a bearing on the designation. The local officials' response may include any or all of the following:

1. Clarification of the disciplinary incident data submitted;
2. The school's safety plan;
3. Local efforts to address the school's safety concerns;
4. The school safety data reported to the state consistent with requirements of ESEA, Title IVA Safe and Drug-Free Schools and Communities Act, section 4112 (c)(3);
5. More current data that the school may have available;
6. Any extenuating circumstances; and
7. Any other information the school officials believe may be relevant.

The Department will review the information provided by the school officials before making a final determination.

Approved by the Massachusetts Board of Education: March 25, 2003

Excerpts from Relevant Federal and State Laws

Section 9532 of the No Child Left Behind Act
The Unsafe School Choice Option (USCO) (section 9532 of the Elementary and Secondary Education Act (ESEA) of 1965, as amended by the No Child Left Behind Act of 2001) requires that each State receiving funds under the ESEA establish and implement a statewide policy as follows:

Each State receiving funds under the "No Child Left Behind" (NCLB) Act shall establish and implement a statewide policy requiring that a student attending a persistently dangerous public elementary school or secondary school, as determined by the State in consultation with a representative sample of local educational agencies, or who becomes a victim of a violent criminal offense, as determined by State law, while in or on the grounds* of a public elementary school or secondary school that the student attends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school.

As a condition of receiving ESEA funds, each state must certify in writing to the U.S. Secretary of Education that the state is in compliance with these requirements.

*For the purposes of the Massachusetts policy, "school grounds" includes:

1. school premises
2. school buses
3. school-sponsored or school-related events including athletic games and field trips

Federal Gun-Free Schools Act
The Gun-Free Schools Act (GFSA) requires that each state receiving federal funds under the Elementary and Secondary Education Act (ESEA) have a state law that requires all local educational agencies (i.e., school districts) in the state to expel from school for at least one year any student found bringing a firearm to school. State laws must also authorize the school district's chief administering officer to modify any such expulsion on a case-by-case basis. In addition, the GFSA states that it must be construed so as to be consistent with the Individuals with Disabilities Education Act (IDEA).

Massachusetts General Laws Chapter 140, Section 121
M.G.L. c. 140, § 121 defines "violent crime" as follows:

"Violent crime", shall mean any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult, that:

1. has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another;
2. is burglary, extortion, arson or kidnapping;
3. involves the use of explosives; or
4. otherwise involves conduct that presents a serious risk of physical injury to another.

Victim of Violent Crime: A victim of a violent crime is a victim of one or more of the crimes defined above.

Massachusetts General Laws Chapter 71, Section 37H
.........Notwithstanding any general or special law to the contrary, all student handbooks shall contain the following provisions:

1. Any student who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon, including, but not limited to, a gun or a knife; or a controlled substance as defined in chapter ninety-four C, including, but not limited to, marijuana, cocaine, and heroin, may be subject to expulsion from the school or school district by the principal.
2. Any student who assaults a principal, assistant principal, teacher, teacher's aide or other educational staff on school premises or at school-sponsored or school-related events, including athletic games, may be subject to expulsion from the school or school district by the principal.
3. Any student who is charged with a violation of either paragraph (a) or (b) shall be notified in writing of an opportunity for a hearing; provided, however, that the student may have representation, along with the opportunity to present evidence and witnesses at said hearing before the principal.

After said hearing, a principal may, in his discretion, decide to suspend rather than expel a student who has been determined by the principal to have violated either paragraph (a) or (b).

4. Any student who has been expelled from a school district pursuant to these provisions shall have the right to appeal to the superintendent. The expelled student shall have ten days from the date of the expulsion in which to notify the superintendent of his appeal. The student has the right to counsel at a hearing before the superintendent. The subject matter of the appeal shall not be limited solely to a factual determination of whether the student has violated any provisions of this section.
5. When a student is expelled under the provisions of this section, no school or school district within the commonwealth shall be required to admit such student or to provide educational services to said student. If said student does apply for admission to another school or school district, the superintendent of the school district to which the application is made may request and shall receive from the superintendent of the school expelling said student a written statement of the reasons for said expulsion.

Excerpts from Unsafe Schools Choice Option - Non Regulatory Guidance from the U.S. Department of Education

1. Providing a Safe Public School Choice Option to Students Attending Unsafe Public Schools
   
   
   1. What must an LEA do when one or more of its schools have been identified as persistently dangerous?
      • At a minimum, an LEA that has one or more schools identified as persistently dangerous must, in a timely manner:
        1. Notify parents of each student attending the school that the state has identified the school as persistently dangerous;
        2. Offer students the opportunity to transfer to a safe public school, including a safe public charter school, within the LEA; and
        3. For those students who accept the offer, complete the transfer.
      • In addition, an LEA should also:
        4. Develop a corrective action plan; and
        5. Implement that plan in a timely manner.
        6. Parental notification regarding the status of the school and the offer to transfer students may be made simultaneously.
      
      
   2. What is "timely implementation" of these steps?
      1. Although "timely implementation" depends on the specific circumstances within the LEA, generally, an example of timely notification to parents or guardians is within ten school days from the time that the LEA learns that the school has been identified as persistently dangerous.
      2. An example of timely development of a corrective action plan and the offer to students of the opportunity to transfer generally is within twenty school days from the time that the LEA learns that the school has been identified as persistently dangerous.
      3. Transfers of students generally should occur within 30 school days.
      
      
   3. Should the LEA submit its corrective action plan to the SEA for approval?
      1. Yes. In addition, after approving an LEA's corrective action plan, the SEA should provide technical assistance as the plan is implemented and should monitor the LEA's timely completion of the approved plan.
      
      
   4. What types of corrective action may be taken?
      • Corrective action should be based on an analysis of the problems faced by the school and address the issues that resulted in the school being identified as persistently dangerous.
      • Some examples of corrective action include:
        1. hiring additional personnel to supervise students in common areas,
        2. increased instructional activities in areas such as conflict resolution,
        3. working with law enforcement officials to identify and eliminate gang-related activities,
        4. in-service training of teachers and administrators concerning consistent enforcement of school discipline policies,
        5. limiting access to campuses, and
        6. hiring of security personnel or
        7. purchase of security equipment.
      
      
   5. What resources are available to help schools implement corrective action?
      1. Consistent with applicable requirements such as those contained in the Safe and Drug-Free Schools and Communities Act "Principles of Effectiveness," Safe and Drug-Free Schools and Communities Act State Grant program funds may be used to implement planned corrective actions [section 4115].
      2. LEAs may also consider using the flexibility provided under Section 6123(b) of the ESEA, which provides for the transfer, under certain circumstances, of funds from one ESEA program to another.
      3. State and local resources may also be used to help schools implement corrective action.
      
      
   6. What does the LEA do when corrective action has been completed?
      1. Upon completion of its planned corrective action, an LEA may apply to the SEA to have the school removed from the list of persistently dangerous schools. After ensuring that all corrective action has been completed, the SEA should reassess the school using the agreed upon criteria for the identification of persistently dangerous schools.
      
      
   7. Must all students attending a persistently dangerous school be offered the opportunity to transfer?
      1. Yes.
      
      
   8. Are students at persistently dangerous schools required to transfer to another school in the LEA?
      1. No. Students are not required to transfer, but must be offered the opportunity to do so.
      
      
   9. If a student attending a public school identified as persistently dangerous elects to transfer to a safe public school, how is the school selected?
      1. To the extent possible, LEAs should allow transferring students to transfer to a school that is making adequate yearly progress and has not been identified as being in school improvement, corrective action, or restructuring. The LEA is encouraged to take into account the needs and preferences of the affected students and parents.
      
      
   10. If a student elects to transfer to a safe public school, is the transfer permanent or temporary?
       1. The transfers may be temporary or permanent, but must be in effect as long as the student's original school is identified as persistently dangerous. In making the determination of whether the transfer should be temporary or permanent, LEAs should consider the educational needs of the student, as well as other factors affecting the student's ability to succeed if returned to the transferring school.
       2. For example, an LEA may want to consider allowing a student to complete his or her education through the highest grade level at the receiving school.
       
       
   11. What if there is not another school in the LEA for the transferring student(s)?
       1. LEAs are encouraged, but not required, to explore other appropriate options such as an agreement with a neighboring LEA to accept transfer students.
       
       
2. Providing a Safe Public School Choice Option to Students who Have been Victims of a Violent Criminal Offense
   
   
   1. What should an LEA do when a student has become a victim of a violent criminal offense?
      1. Consistent with the statewide USCO policy, an LEA should offer, generally within ten calendar days, an opportunity to transfer to a safe public school (including public charter schools) within the LEA to any student who has become the victim of a violent criminal offense while in or on the grounds of a public school that the student attends.
      
      
   2. Is a student who has become the victim of a violent criminal offense required to transfer to another school in the LEA?
      1. No. The student must be offered the opportunity to transfer; however, the student may elect to remain at the school.
      
      
   3. If a student who has been the victim of a violent crime elects to transfer to a safe public school, how is the school selected?
      1. To the extent possible, LEAs should allow transferring students to transfer to a school that is making adequate yearly progress and has not been identified as being in school improvement, corrective action, or restructuring. The LEA is encouraged to take into account the needs and preferences of the affected students and parents.
      
      
   4. What if there is not another safe school in the LEA for the transferring student?
      1. LEAs are encouraged, but not required, to explore other appropriate options such as an agreement with a neighboring LEA to accept transfer students.
      
      
   5. If a student elects to transfer to a safe public school, are resources available to help cover the costs (such as transportation costs) associated with the transfer?
      1. The USCO statute does not authorize resources specifically to help cover these costs. However, under certain circumstances Federal funds may be used. For example, Title IV, Part A funds may be used to establish safe zones of passage to and from school to ensure that students travel safely on their way to school and on their way home [section 4115(b)(2)(E)(v)]. In addition, Title V, Part A funds may be used to help cover costs such as tuition or transportation related to USCO or expansion of public school choice [sections 5121(8) and 5131(12) and (25)].
      2. In addition, LEAs are encouraged to work with local victims assistance units to determine if they have funds available for this purpose.