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Advisory Opinion On Student Discipline
(Outdated, for historical purposes only)

This document does not include updated information on current state and federal laws regarding student discipline. Outdated citations to statutes and regulations have been deleted. However, links to current federal laws regarding disciplining students with disabilities are included for your reference. Retained sections of this advisory remain in effect.

To: School Superintendents and Principals, Other Interested Parties
From: Robert V. Antonucci, Commissioner of Education
Date: January 27, 1994*

Since the enactment of the Education Reform Act in June 1993, the Department of Elementary and Secondary Education has received many inquiries from school superintendents, principals, parents and others about the provisions of the Act dealing with student suspension, expulsion and school safety. Those provisions were further amended by Chapter 380 of the Acts of 1993, which takes effect on April 4, 1994. The Department has prepared this advisory, with the assistance of the Office of the Attorney General, to provide guidance on the new state statutes in relation to federal special education and student records laws as well as state and federal court decisions that govern student discipline in our schools.

The Education Reform Act and Chapter 380 give school principals new authority over student discipline in serious situations. That authority will be effective, and will advance education reform, if it is used wisely. As educators, we must continually seek to balance the need to provide a safe school environment with the needs of the individual student and the community. We hope this advisory will assist you in your efforts to provide all students with a high quality public education, in a safe, supportive school environment that is conducive to serious learning.

The Department of Elementary and Secondary Education will be seeking information from school districts about implementation of these new state laws on suspension and expulsion, as well as your recommendations on effective programs and strategies. Suspension and expulsion from school are tools to be used sparingly, when we have no other way to protect the school community and deal with the student's problems. We must continue to work together, in partnership with other agencies and our communities, to address the issue of violence prevention, within the context of education reform.

* See September 1, 1994 and October 17, 1994 updates, attached.

Laws Affecting Public School Student Discipline

Massachusetts General Laws Chapter 71, Sections 37H and 37L, as amended by Sections 36 and 37 of the Education Reform Act of 1993, address public school codes of conduct; expulsion of students for weapons, controlled substances or assault on school staff; and reporting requirements with respect to expulsions. The General Laws are further amended by Chapter 380 of the Acts of 1993, An Act Relative to Safety in the Public Schools, effective April 4, 1994. Please see attachments:
Attachment 1: Mass. Gen. Laws Chapter 71, Sec. 37H
Attachment 2: Mass. Gen. Laws Chapter 71, Sec. 37L
Attachment 3: Chapter 380 of the Acts of 1993
Attachment 4: Mass. Gen. Laws Chapter 76, Secs. 16 and 17/DD
Attachment 5: Deleted - out of date - see p.12 regarding IDEA
Attachment 6: Sept. 1, 1994 Update Memo
Attachment 7: Oct. 17, 1994 Update Memo

These state laws must be read and applied in the context of other laws governing student discipline, particularly federal law. For example, Section 37H gives principals authority to expel students in certain circumstances, but the superintendent and school committee still have important responsibilities with respect to student discipline. Similarly, the state law on expulsion must be implemented consistent with the federal special education law (the Individuals with Disabilities Education Act) as it has been interpreted by the U.S. Supreme Court. Long-term suspension or expulsion of a student with special needs requires careful adherence to the procedures mandated by federal law. These issues and others are explained below in question and answer format, arranged in four general categories:

  1. Codes of Student Conduct (questions 1-3)
  2. Principal's Authority to Expel (questions 4-18)
  3. Rules Applicable to Students with Special Needs (Deleted - out of date - see p.12 regarding IDEA)
  4. Reporting Requirements and Student Records (questions 25-29)

A. Codes of Student Conduct

1. Who adopts and publishes the school district's code of conduct?

Section 37H states that the "superintendent of every school district shall publish the district's policies pertaining to the conduct of teachers and students." The district's policies are established by the school committee, in consultation with the superintendent.
At the high school level ("each school building containing the grades nine to twelve, inclusive"), the principal, in consultation with the school council, prepares a student handbook setting forth the rules on student conduct. The school council shall review the student handbook each spring to consider changes to take effect the following September, but may consider policy changes at any time.
Before the 1993 amendment, Section 37H stated that the high school handbook review committee (now the school council) would submit to the school committee its recommended additions or revisions to the code of student conduct, for action by the school committee. The current statute does not refer to school committee approval; it says simply that "the school council shall review the student handbook each spring to consider changes in disciplinary policy to take effect in September." School committees continue to have general authority to establish educational policies for the schools in the district. For that reason, we believe any changes in the high school student handbook that may differ from existing school district policy should be submitted to the school committee. The school committee also may delegate to the school council at any school the authority to establish student discipline policies for that school, under the school council statute (General Laws Chapter 71, Section 59C).

2. What must the school district's code of conduct for students include?

Section 37H states that the code shall include: disciplinary proceedings, including procedures assuring due process; standards and procedures for suspension and expulsion of students; procedures pertaining to discipline of students with special needs; standards and procedures to assure school building security and safety of students and school personnel; and the disciplinary measures to be taken in cases involving the possession or use of illegal substances or weapons, the use of force, vandalism, or violation of other students' civil rights. The code shall also prohibit the use of any tobacco products within school buildings or school facilities, on school grounds or on school buses. Codes of conduct should be updated to include as well the new provisions of Section 37H 1/2, as amended by Chapter 380 of the Acts of 1993, effective April 4, 1994. (See question 15.)
The student handbook for school buildings containing grades 9-12, inclusive, shall also include provisions contained in Section 37H as amended, regarding the principal's authority to expel students for possession of a dangerous weapon or a controlled substance, or assault on a staff member.

3. Who should receive copies of the discipline code?

The principal of every school is responsible for providing a free copy of the discipline code to any person upon request. Section 37H specifies that in grades nine through twelve, the principal shall distribute the student handbook to each student. In fact, at every grade level the principal should assure that the school or district rules have been distributed to each student, since due process requires that people have fair notice of the conduct that is expected and the sanctions that may be imposed. For the same reason, the rules must be made available in the primary language of the student or family whose primary language is not English.
In addition, Section 37H provides that each school district's codes of discipline, "as well as procedures used to develop such codes, shall be filed with the Department of Elementary and Secondary Education for informational purposes only." These materials are available to the public at the Department of Elementary and Secondary Education as well as at the school building and district level.

B. Principal's Authority to Expel

4. What is the authority of the principal to suspend or expel students for certain serious offenses on school premises or at school-sponsored or school-related events?

Section 37H gives principals authority to expel a student who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon or a controlled substance, or a student who assaults school personnel on school premises or at school-sponsored or school related events, including athletic games. This authority is limited by the federal special education law; please refer to Section C of this advisory.

5. What grades are covered by this provision?

The expulsion section refers to "student handbooks," a term used in Section 37H only in connection with school buildings "containing grades nine to twelve, inclusive." While the statute is not entirely clear, it may be prudent to read Section 37H to authorize expulsion by the principal only in school buildings that contain the grades nine through twelve. This would include schools whose grade configuration is, for example, 10-12, 9-12, 8-12 or 7-12. Under this reading of Section 37H, an elementary or middle school student may still be expelled, but the expulsion would be based on two factors: (a) the misconduct and potential sanction are covered by the discipline code, and (b) the expulsion is decided not by the principal but by the school committee under General Laws Chapter 76, Section 17. A copy of G.L. c. 76, s. 17 is attached as Attachment 3.

6. What is a "dangerous weapon?"

Section 37H(a) refers to "a dangerous weapon, including, but not limited to, a gun or a knife." The statutory term offers two illustrations of dangerous weapons, but does not provide an actual definition. In criminal law, the term "dangerous weapon" depends on the circumstances; if used in an assault on another person, a baseball bat, a pair of scissors, or even a shod foot could be considered a dangerous weapon. Mere possession of such an object does not make it a "dangerous weapon." Educational professionals must view the circumstances of each case and make a reasonable determination whether a particular object in a student's possession constitutes a dangerous weapon in the school setting. See Att. 7: Oct. 17, 1994 memo on Gun-Free Schools Act.

7. What is an "assault?"

Black's Law Dictionary (revised 4th edition) defines "assault" to mean "an intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward person of another, under such circumstances as create well-founded fear of imminent peril, coupled with apparent present ability to execute attempt, if not prevented." [Emphasis added.] Because the potential penalty (expulsion from school) is so serious, we believe courts are likely to interpret the term in Section 37H(a) strictly, requiring either an actual physical assault, or at least a threat accompanied by the means to carry it out, in circumstances that create a reasonable fear of imminent danger.

8. May the principal expel a student for physical assault on another student?

No. Under Section 37H, the principal may expel a student only for assault on a school staff member. A student who assaults another student may be expelled, but only if the misconduct and potential penalty are included in the discipline code, and the expulsion is decided by the school committee under G.L. Chapter 76, Sec. 17.

9. What is the difference between a suspension and an expulsion?

While these terms are not defined in the Massachusetts education statutes, "expulsion" generally connotes a permanent exclusion from the public school, while "suspension" means the student has temporarily lost the right to attend school. In Goss v. Lopez, 419 U.S. 565 (1975), the U.S. Supreme Court characterized a suspension of ten school days or less as a short-term suspension, and held that before imposing such a suspension, the due process clause of the Constitution requires the public school to give the student: (a) notice of the charges against him or her; (b) an explanation of the evidence; and (c) the opportunity to present his or her side of the story to an impartial decision-maker (e.g., the school administrator). In an emergency, the hearing may be delayed but must be held within a reasonable period of time. The Court stated that more formal procedures are required for long-term suspensions (those of more than ten school days) or expulsions. Those procedures are discussed in question 10.
Some school discipline codes use the generic term "exclusion" to cover what other discipline codes might call a suspension or an expulsion. Whatever it is called, the important issue that courts consider, in deciding whether the student received due process, is the length of time the student is removed from school for disciplinary reasons. A removal for up to ten school days is generally considered to be a short-term suspension, to which the Goss rules apply. Removal for more than ten school days, including but not limited to expulsion, is considered long-term, and more formal procedures (discussed in question 10) will apply.
Section 37H(e), as amended by Chapter 380 of the Acts of 1993 (effective April 4, 1994), says:
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 such student.
However, nothing in the General Laws prohibits a school or school district from admitting or re-admitting a student who has been expelled. School officials have the discretion to admit or re-admit students, and may base those decisions on factors such as the type of offense for which the student was expelled, the age of the student, the period of time the student has been out of school, what the student has done in the interim, the recommendations of staff at any alternative education program the student has been attending, and other relevant factors. It is advisable to include in the student discipline code the standards for readmission, to ensure equitable treatment for all students.
Because denial of an education is such a serious deprivation, the Department of Elementary and Secondary Education encourages school officials to consider each expulsion decision carefully, and to reconsider those decisions after a reasonable period of time, particularly for young students.

10. What procedures are required by law when the principal (or superintendent or school committee) imposes a long-term suspension (more than ten school days) or expels a student pursuant to Section 37H, Section 37H 1/2, or General Laws Chapter 76, Section 17?

While each of these statutes sets out certain procedural requirements, the elements of due process for student discipline have been addressed by the courts.
In the Goss decision, the U.S. Supreme Court stated that suspensions for longer than ten school days, or expulsion for the remainder of the school term, or permanently, may require more formal procedures than the minimal requirements for short-term suspensions discussed in question 9. However, the Supreme Court did not set forth the precise rules of due process for long-term suspensions or expulsions. Lower courts addressing this issue usually do not hold schools to the same standards of formality as are required of courts in criminal proceedings, but they do require a fair hearing that generally includes the following procedural rights for the student facing possible long-term suspension or expulsion:
(a) written notice of the charges (in the student's primary language);
(b) the right to be represented by a lawyer or advocate (at the student's expense);
(c) adequate time to prepare for the hearing;
(d) access to documented evidence prior to the hearing;
(e) the right to request that witnesses attend the hearing, and to question them (although some courts have held that in the school context, the student's right to confront and cross-examine student witnesses may be outweighed by the need to protect them from possible retaliation); and
(f) a reasonably prompt written decision including specific grounds for the decision.
As the Supreme Judicial Court noted in Nicholas B. v. School Committee of Worcester, 412 Mass. 20 (1992), the testimony and proceedings in any hearing on long-term suspension or expulsion should be recorded electronically or otherwise. In addition, the student or parent may request that the proceedings be interpreted into their primary language.
These procedural requirements apply also to suspensions of indefinite length that are likely to exceed ten school days.
Prior to imposing long-term suspension or expulsion for a student eligible for special education, principals should review their obligations under the Section 615(k) of the federal Individuals with Disabilities Education Act of 2004 (IDEA 2004). Access to a free appropriate public education must be provided to an eligible student excluded for school for more than 10 days, even if the student's conduct was not a manifestation of his or her disability. Also, please note that a student not yet found eligible for special education may likewise be protected under IDEA 2004 if the district has knowledge that the student has a disability.

11. Must the principal expel a student who is found to have violated the rules against possession of a dangerous weapon or controlled substance or assault on a staff member?

No, except as required under the federal Gun-Free Schools Act. [See Attachment 7: October 17, 1994 memorandum from the Commissioner of Education.] Under Section 37H, the principal has the discretion to decide, after the hearing, to suspend rather than expel the student for violating the rule. For example, in cases involving a knife, the principal may consider factors such as whether the student exhibited an intent to cause physical injury and whether the student has a history of violent conduct. [As a result of enactment of Chapter 51 of the Acts of 1994, a principal who decides to suspend rather than expel a student no longer is required to send written notice to the school committee. See Attachment 6: September 1, 1994 memorandum from the Commissioner of Education.]

12. If the principal chooses to suspend rather than expel the student, and later the student commits another offense that causes injury, will the principal be liable?

As a general rule, no. We cannot predict with certainty how the courts will address tort claims arising out of these situations. However, the Massachusetts Tort Claims Act, General Laws Chapter 258, section 10(b) contains a "discretionary function" exception, which Massachusetts courts have applied in cases involving student discipline. In line with that legal doctrine, the expulsion statute refers to the principal's "discretion" in deciding that a student should be suspended rather than expelled. The principal is not expected to be a guarantor, but rather a professional educator who exercises reasonable care in reviewing the circumstances of the case, and makes a considered judgment about whether the student's continued presence poses a threat. As the Massachusetts Appeals Court stated in Cady v. Plymouth-Carver Regional School District, 457 N.E. 2d 294 (Mass. App. 1983):
Standards for dealing with ... disruptive student behavior, must be as variable as the personalities of the students and the settings in which disruption occurs. Certainly, there are no readily ascertainable standards. ... We can imagine circumstances in which ignoring obviously dangerous proclivities of a student might be negligent because the standards are clear. Permitting a student who has attacked another with a knife ostentatiously to continue to carry one is an example. That, however, is far from the case here. ... Management of student imbroglios, student discipline, and school decorum fall readily within the discretionary function exception to the Tort Claims Act.
In short, where a principal uses reasonable care and makes a professional judgment, based on all the circumstances, that a student should be suspended rather than expelled, courts are very likely to defer to that judgment rather than second-guess it.

13. What is the role of the superintendent?

Section 37H(d) states that a student who has been expelled from a school district by a principal shall have the right to appeal to the superintendent. The student has ten days from the date of expulsion (i.e., the date of receipt of the principal's written decision) to notify the superintendent of the appeal. An appeal to the superintendent does not stay the exclusion of the student from school.
The superintendent is required to hold a hearing, at which the student has the right to legal representation. The statute provides for a broad scope of review by the superintendent; it specifically says "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." In short, the superintendent is encouraged to consider factors beyond the specific infraction, such as alternative methods for addressing the student's behavior, in deciding whether to sustain, modify or reverse the principal's decision.
In addition, the superintendent should play a significant role in assuring that principals in the school district have adequate information about their roles and responsibilities with respect to student discipline, in the context of the applicable law and the district's policies. For example, particularly in larger districts, principals need to be aware of alternative programs and student support resources that may be available outside of their own schools. A student who has been unlawfully excluded from public school may recover money damages in an action against the town or regional school district, under General Laws Chapter 76, Section 16. (See Attachment 4.) Consequently, the school district has an interest in seeing to it that principals exercise their expulsion authority lawfully.

14. What is the role of the school committee?

The school committee establishes the school district's policies, in consultation with the superintendent. In addition, the school committee continues to conduct hearings under General Laws Chapter 76, Section 17 in student expulsion cases not covered by Section 37H (for example, expulsion for assault on another student).

15. May a student be suspended or expelled for out-of-school conduct?

As a general rule, public schools have limited authority to discipline students for conduct that takes place outside of school or school related functions or activities. General Laws Chapter 71, Section 84, a local option statute that applies to cities and towns that have accepted it, states that students shall not be suspended or expelled for conduct that is not connected with any school-sponsored activities. The issue also has been addressed by two recent state court decisions, and by recent legislation.
In the first decision, Nicholas B. v. School Committee of Worcester, 412 Mass. 20 (1992), the Supreme Judicial Court upheld a school committee's discipline of a student for assaulting and battering another student immediately after school, off school grounds - an offense not specifically included in the school discipline code. The Court held that under the circumstances, the school committee's action was not arbitrary or capricious, because the incident had been planned during the school day and it continued a confrontation between two groups of students that had occurred on school grounds. On the facts of the case, the Court ruled that the student knew his violent conduct was seriously wrong and contrary to school policy, even though the discipline code did not address conduct off school grounds.
The second decision is Petruzzelli v. Shawsheen Valley Regional Technical High School, ___ Mass. ___ (Mass. App. No. 93-J-237, April 7, 1993). In that case the Massachusetts Appeals Court ruled that a public school had no legal authority to exclude from school a student who had been found delinquent by reason of manslaughter as a result of a homicide that took place during the summer and did not involve the school or school activities. The Court noted that there had been no showing that the student posed a risk to others in the school, and found that as a matter of public policy in the Commonwealth "students should not be expelled from school for reasons having nothing to do with school."
The Legislature enacted Chapter 380 of the Acts of 1993 in response to the Petruzzelli decision. (See Attachment 3.) Effective April 4, 1994, the new law amends General Laws Chapter 71, section 37H to allow the principal or headmaster of a school to suspend a student who has been charged with a felony or is the subject of a felony delinquency complaint, if the principal or headmaster determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. The new statute also allows the principal or headmaster to expel a student who has been convicted, adjudicated, or admitted guilt with respect to a felony or felony delinquency, if the principal or headmaster determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. [Emphasis added.]
In Massachusetts, a felony is any crime for which a statute authorizes punishment by incarceration in a state correctional facility rather than only a sentence to a House of Correction, regardless of the sentence actually imposed. Felonies range in seriousness from property crimes (such as larceny of property valued at over $250) to the most violent crimes against persons, such as rape or murder. Because of the range of offenses included in the term felony, educational professionals should view the circumstances of each case carefully and make a reasoned determination whether the specific conduct underlying the felony charge or conviction can support the required finding that the student's continued presence would have a substantial detrimental effect on the general welfare of the school.
Under the new Section 37H 1/2, suspension or expulsion is not automatic. It depends on the principal's determination that the student's continued presence in school poses a substantial detriment to the general welfare of the school. Principals should exercise this judgment carefully. The new legislation was motivated by the perceived need to exclude several students charged with or convicted of serious violent felonies. The Department recommends that principals reserve the exclusion power for such offenses.

16. What procedures are required for a suspension or expulsion under Section 37H 1/2, as amended by Chapter 380 of the Acts of 1993?

The new law specifies the requirements concerning written notice to the student, and the right to appeal the decision of the principal or headmaster to the superintendent. Please refer to Attachment 3 for the statutory requirements, and to question 10, above, for the standards courts have used in determining whether an expulsion or long-term suspension meets constitutional standards. School district codes of student conduct should include reference to the principal's authority to suspend or expel students under Section 37H. See Att. 7: Oct. 17, 1994 memo discussing DiRenzo case.

17. Is the school or school district required to provide any education services to a student who has been expelled?

Under current law, students in regular education programs who have been lawfully expelled from school have no legal right to continue receiving educational services during the period of expulsion. However, federal law requires school districts to continue to provide special education services to students with special needs who have been suspended or expelled from school for more than ten school days. (See question #21, below.)
In Board of Education v. School Committee of Quincy, 415 Mass. 240 (1993), the State Board of Education took the position that since the compulsory school attendance law (General Laws Chapter 76, section 1) requires all students age six to sixteen to attend school, it must impose a reciprocal duty on school districts to provide educational services to those students even when excluded from school for disciplinary reasons. The Supreme Judicial Court held that the compulsory attendance statute does not require school districts to provide educational alternatives to students properly expelled for disciplinary reasons. The Court noted that it was up to the Legislature to address the issue of whether and how educational programs would be provided to students who have been expelled.
The Quincy decision addresses only what state statutes require in these circumstances. It does not affect students with special needs, who have the right under federal law to continue receiving special education during a period of long-term suspension or expulsion from school. (See question #21, below.) Similarly, it does not limit a school district's ability or authority to provide alternative educational services to a student who has been expelled from school. Some school districts, either on their own or in partnership with others, routinely provide educational services to students who have been excluded from school. The Department of Elementary and Secondary Education encourages schools to identify and provide such services.

18. What alternative education programs exist or are being planned for regular education students who have been expelled from school?

Some schools and school districts, using their own resources or in partnership with other agencies, provide alternative education programs for students who have been removed from the regular school setting for disciplinary reasons. However, outside of the special education system, there is currently a gap in services for students who are excluded from school but not incarcerated. The Legislature has mandated that two studies be undertaken to close that gap. Section 87 of the Education Reform Act directs the Commissioner of Education, the Attorney General, and representatives of the Legislature and the Governor to "study the feasibility of establishing regional boarding schools and other educational alternatives for dropouts and for those students who are chronically disruptive." This study is proceeding, and will result in a needs assessment and a specific plan of action.
Second, Section 3 of Chapter 380 of the Acts of 1993 states that the Departments of Education and Youth Services shall, pursuant to a study and recommendations conducted by the MassJobs Council, assure that an educational opportunity is provided for students who have been excluded from school for disciplinary reasons. The study is to be completed within five months. The Department of Elementary and Secondary Education will work closely with school superintendents and principals in assessing current needs for alternative education programs, and determining how best to meet those needs.

C. Rules Applicable to Students with Special Needs

Questions 19-24 from the original 1994 Advisory Opinion on Student Discipline are no longer valid and have been deleted.

Discipline procedures for students with disabilities are governed by the federal Individuals with Disabilities Education Act (IDEA), which should be read in cooperation with state laws regarding student discipline, M.G.L. c. 71, ยงยง 37H and 37h1/2. Guidance from the U.S. Department of Education Office of Special Education Programs (OSEP) on the disciplinary provisions included in the IDEA is available at OSEP Legislation and Policy website.

You may view the text of the federal Individuals with Disabilities Education Act of 1997 (IDEA '97) and its implementing regulations. Specific provisions on student discipline are included in 34 CFR §§ 300.519 to 300.529. Also, the recently enacted Individuals with Disabilities Education Improvement Act (IDEA '04) included several changes to federal law governing discipline of students with disabilities. These changes, which are effective on July 1, 2005, are included in Section 615(k) of P.L. 108-446.

The Massachusetts Department of Elementary and Secondary Education will update this document to reflect the above changes as soon as additional information about IDEA 2004 is made available from the U.S. Department of Education's Office of Special Education Programs.

D. Reporting Requirements and Student Records

25. What reports does state law require schools to file in the case of a disciplinary incident involving a dangerous weapon?

Section 37L requires the following reports:
[A]ny school department personnel shall report in writing to their immediate supervisor an incident involving a student's possession or use of a dangerous weapon on school premises at any time.
Supervisors who receive such a weapon report shall file it with the superintendent of said school, who shall file copies of said report with the local chief of police, the department of social services, the office of student services or its equivalent in any school district, and the local school committee.
The weapon report must be filed in any case involving a student's possession or use of a dangerous weapon on school premises, regardless of whether it occurred during school hours, and whether or not the student has been expelled. Please refer to question 6, above, concerning what constitutes a "dangerous weapon."

26. Is this provision consistent with the state and federal laws concerning disclosure of student record information?

In our opinion, it is. The Massachusetts Student Records Regulations generally prohibit school officials from disclosing student records to third parties without the consent of the eligible student or parent. However, the reporting requirement in Section 37L is acknowledged in the state regulations, effective in 1995. 603 CMR 23.07(4)(e) allows school officials to disclose information about a student to appropriate parties without consent, in connection with a health or safety emergency.
The federal Family Educational Rights and Privacy Act (FERPA) and its implementing regulations (34 CFR Part 99) also require public schools and other recipients of federal education funds to protect the privacy of student records. Like the state regulations, the FERPA regulations generally require schools to obtain consent before releasing student records, unless a specific exception applies. One such exception, allowing release of personally identifiable information from the student's education records without consent, is "in connection with a health or safety emergency" (34 CFR §99.31(a)(10)), provided that "knowledge of the information is necessary to protect the health or safety of the student or other individuals" (34 CFR §99.36(a)).
Section 37L requires the superintendent to send the weapons report to two parties outside the school district: the chief of police (who oversees public safety in the community) and the Department of Social Services (which investigates and intervenes in cases of child abuse and neglect). By the terms of the statute, these reports involve dangerous weapons, indicating the Legislature's determination that the reports to the chief of police and DSS are necessary in order to protect health and safety. Under these circumstances, we believe the reporting requirement meets the FERPA standard.
The Department of Elementary and Secondary Education recommends that school superintendents and principals confer with the local police chief and the Area Director for the Department of Social Services, to discuss and agree on a protocol for meeting the requirements of the statute.

27. Under Section 37L, once the various parties receive the weapon report, what are they supposed to do?

Section 37L requires the superintendent, police chief, Department of Social Services representative and representative from the school district's office of student services (or its equivalent) to "arrange an assessment of the student involved in said weapon report." It says the student "shall be referred to a counseling program" meeting Board of Education standards, and that upon completion of counseling, "a follow-up assessment shall be made of said student by those involved in the initial assessment." These requirements apply to all students who have been found to possess or use a dangerous weapon on school premises, whether or not they have been expelled.
The assessment and counseling contemplated by Section 37H may or may not be school-based. Depending on the circumstances and the particular community, the assessment and counseling might be conducted by a court clinic, a mental health or social services provider, the school district, or some other entity. The statute does not mandate that the school district pay for the assessment and counseling; the student and family should be advised of any potential cost to them. However, the school district is required to provide counseling services at no cost to the student if such services are regularly available to other students within the district.

28. If a student transfers from one school to another, what records must be provided to the new school?

Under Section 37L, any student transferring into a new school district must provide the new district with "a complete school record," including, but not limited to, "any incidents involving suspension or violation or criminal acts or any incident reports in which such student was charged with any suspended act." The responsibility under Section 37L rests with the student who is transferring; the student may either get the records from the former school and present them to the new school, or may request that the former school send the records directly to the new school.
In addition, under Section 37H(e), when a student has been expelled for possession of a dangerous weapon or a controlled substance or assault on school staff, and the student applies for admission to another school, the superintendent of the sending school shall notify the superintendent of the receiving school of the reasons for the pupil's expulsion. The new amendment to Section 37H(e), effective April 4, 1994, clarifies that the superintendent of the former school district provides the written statement of reasons upon request from the superintendent of the new district. (The amendment allows the new school district to deny admission to the student; see question 9.)

29. Are these provisions on transfer of records consistent with the state and federal laws concerning transfer of student records?

The requirement that the student transferring to a new school present his or her complete school record does not pose a problem under the state or federal student records regulations. The regulations govern disclosure of student records by schools, not by the students themselves.
When a student has been expelled under Section 37H and applies for admission to school in another district, the superintendent of the first district must send the superintendent of the second district a written statement of the reasons for the expulsion. This statutory requirement supersedes any contrary requirement of the state student records regulations. The federal regulations under FERPA (34 CFR §99.31(a)(2) and 99.34) allow a school to disclose student records, without consent, to officials of another school where the student seeks or intends to enroll, as long as the first school (a) makes a reasonable attempt to notify the parent or eligible student, or has a written policy that it forwards students records to other schools in which the student seeks or intends to enroll; and (b) upon request, gives the parent or eligible student a copy of the record and the opportunity for a hearing. Compliance with these procedures allows the superintendent to send to the new school the reasons for the student's expulsion, without the consent of the parent or eligible student.

Last Updated: January 10, 2005
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