Advisory Opinion On Student Discipline
(Outdated, for historical purposes only)
Mass. General Laws Chapter 71, Section 37H
The superintendent of every school district shall publish the district's policies pertaining to the conduct of teachers and students. Said policies shall prohibit the use of any tobacco products within the school buildings, the school facilities or on the school grounds or on school buses by any individual, including school personnel. Copies of these policies shall be provided to any person upon request and without cost by the principal of every school within the district.
Each school district's policies pertaining to the conduct of students shall include the following: 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 student's civil rights. 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.
In each school building containing the grades nine to twelve, inclusive, the principal, in consultation with the school council, shall prepare and distribute to each student a student handbook setting forth the rules pertaining to the conduct of students. The school council shall review the student handbook each spring to consider changes in disciplinary policy to take effect in September of the following school year, but may consider policy changes at any time. The annual review shall cover all areas of student conduct, including but not limited to those outlined in this section.
Notwithstanding any general or special law to the contrary, all student handbooks shall contain the following provisions:
- 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.
- 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.
- 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); provided, however, that any principal who decides that said student should be suspended shall state in writing to the school committee his reasons for choosing the suspension instead of the expulsion as the most appropriate remedy. In this statement, the principal shall represent that, in his opinion, the continued presence of this student in the school will not pose a threat to the safety, security and welfare of the other students and staff in the school.
- 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.
- When a student is expelled under the provisions of this section and applies for admission to another school for acceptance, the superintendent of the sending school shall notify the superintendent of the receiving school of the reasons for the pupil's expulsion.
Note: As of April 4, 1994, subsection (e) will read as follows:
- 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.
Mass. General Laws Chapter 71, Section 37H, as amended by Section 36 of Chapter 71 of the Acts of 1993 (the Education Reform Act), and further amended by Section 1 of Chapter 380 of the Acts of 1993.
Mass. General Laws Chapter 71, Section 37L
The school committee of each city, town or regional school district shall inform teachers, administrators, and other professional staff of reporting requirements for child abuse and neglect as specified in sections fifty-one A to fifty-one F, inclusive, of chapter one hundred and nineteen.
In addition, any 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 weapon 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. Said superintendent, police chief, and representative from the department of social services, together with a representative from the office of student services or its equivalent, shall arrange an assessment of the student involved in said weapon report. Said student shall be referred to a counseling program; provided, however, that said counseling shall be in accordance with acceptable standards as set forth by the board of education. Upon completion of a counseling session, a follow-up assessment shall be made of said student by those involved in the initial assessment.
A student transferring into a local system must provide the new school system with a complete school record of the entering student. Said record shall include, but not be limited to, any incidents involving suspension or violation of criminal acts or any incident reports in which such student was charged with any suspended act.
Mass. General Laws Chapter 71, Section 37L, as amended by Section 37 of Chapter 71 of the Acts of 1993 (the Education Reform Act).
H 5440 Chapter 38O
In the Year One Thousand Nine Hundred and Ninety-three
An Act Relative To Safety In The Public Schools
- Be it enacted by the senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
- SECTION 1 Section 37H of chapter 71 of the General Laws, inserted by section 36 of chapter 71 of the acts of 1993, is hereby amended by striking out subsection (e) and inserting in place thereof the following subsection:-
- (e) 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.
- SECTION 2. Said chapter 71 is hereby further amended by inserting after said section 37H, inserted by section 36 of chapter 71 of the acts of 1993, the following section:-
- Section 37H 1/2. Notwithstanding the provisions of section eighty-four and sections sixteen and seventeen of chapter seventy-six:
- Upon the issuance of a criminal complaint charging a student with a felony or upon the issuance of a felony delinquency complaint against a student, the principal or headmaster of a school in which the student is enrolled may suspend such student for a period of time determined appropriate by said principal or headmaster if said 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 student shall receive written notification of the charges and the reasons for such suspension prior to such suspension taking effect. The student shall also receive written notification of his right to appeal and the process for appealing such suspension; provided, however, that such suspension shall remain in effect prior to any appeal hearing conducted by the superintendent.
The student shall have the right to appeal the suspension to the superintendent. The student shall notify the superintendent in writing of his request for an appeal no later than five calendar days following the effective date of the suspension. The superintendent shall hold a hearing with the student and the student's parent or guardian within three calendar days of the student's request for an appeal. At the hearing, the student shall have the right to present oral and written testimony on his behalf, and shall have the right to counsel. The superintendent shall have the authority to overturn or alter the decision of the principal or headmaster, including recommending an alternate educational program for the student. The superintendent shall render a decision on the appeal within five calendar days of the hearing. Such decision shall be the final decision of the city, town or regional school district with regard to the suspension.
- Upon a student being convicted of a felony or upon an adjudication or admission in court of guilt with respect to such a felony or felony delinquency, the principal or headmaster of a school in which the student is enrolled may expel said student if such 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 student shall receive written notification of the charges and reasons for such expulsion prior to such expulsion taking effect. The student shall also receive written notification of his right to appeal and the process for appealing such expulsion; provided, however, that the expulsion shall remain in effect prior to any appeal hearing conducted by the superintendent.
The student shall have the right to appeal the expulsion to the superintendent. The student shall notify the superintendent, in writing, of his request for an appeal no later than five calender days following the effective date of the expulsion. The superintendent shall hold a hearing with the student and the student's parent or guardian within three calendar days of the expulsion. At the hearing, the student shall have the right to present oral and written testimony on his behalf, and shall have the right to counsel. The superintendent shall have the authority to overturn or alter the decision of the principal or headmaster, including recommending an alternate educational program for the student. The superintendent shall render a decision on the appeal within five calender days of the hearing. Such decision shall be the final decision of the city, town or regional school district with regard to the expulsion.
- Upon expulsion of such student, no school or school district shall be required to provide educational services to such student.
- SECTION 3. The Department of Elementary and Secondary Education and the department of youth services shall, pursuant to a study and recommendations conducted by the MassJobs Council, assure that an educational opportunity is provided for a student whose admission to a school or right to educational services is the provisions of this act.
- Said study shall contain a statistical analysis of the number of students who have been expelled and the services that are now provided, and recommendations for the provision of education to expelled students in the future. Said study shall be completed within five months and shall be submitted to the house and senate clerk and the house and senate chairmen of the joint committee on education, arts and humanities.
House of Representatives, December 22, 1993.
Passed to be enacted, Charles F. Flaherty, Speaker
In Senate, December 23, 1993
Passed to be enacted, William M. Bulger, President.
4 January, 1993,
Approved, 11:06 AM
William F. Weld,
Mass. General Laws Chapter 76, Section 16
- Any pupil who has attained age eighteen, or the parent, guardian or custodian of a pupil who has not attained said age of eighteen, who has been refused admission to or excluded from the public schools or from the advantages, privileges and courses of study of such public schools shall on application be furnished by the school committee with a written statement of the reasons therefor, and thereafter, if the refusal to admit or exclusion was unlawful, such pupil may recover from the town or, in the case of such refusal or exclusion by a regional school district from the district, in tort and may examine any member of the school committee or any other officer of the town or regional school district upon interrogatories.
Mass. General Laws Chapter 76, Section 17
- A school committee shall not permanently exclude a pupil from the public schools for alleged misconduct without first giving him and his parent or guardian an opportunity to be heard.
|To:||School Superintendents and Principals|
|From:||Robert V. Antonucci, Commissioner of Education|
|Date:||September 1, 1994|
|Re:||Amendment to State Law on Student Suspensions and Expulsions|
The state law authorizing principals to suspend or expel students in certain circumstances, General Laws chapter 71, section 37H, has been amended to eliminate the requirement that the principal notify the school committee when s/he decides to suspend rather than expel a student. The amendment is effective as of July 13, 1994, the date on which Governor Weld signed an emergency letter so that principals may be fully authorized to effect school discipline decisions when schools reopen in September 1994.
G.L. c. 71, §37H gives principals authority to suspend or expel a student for possession of a dangerous weapon or a controlled substance, or assault on school personnel, on school premises or at school-sponsored or school-related events, including athletic games. (This state law must be read and applied in conjunction with other applicable laws; please refer to the Department's January 1994 Advisory Opinion on Student Discipline for details.) Before the recent amendment, a principal who, after a hearing, decided to suspend rather than expel such a student, was required to send a letter to the school committee stating the reasons for the decision and the principal's opinion that the student's continued presence in school would not threaten the safety, security and welfare of other students and staff in the school.
A year's experience implementing this provision indicated that, in some cases, the requirement of the letter of the school committee was placing undue pressure on principals to expel students rather than make a decision that they themselves determined to be appropriate in the circumstances. For that reason, the Legislature enacted and the Governor signed into law Chapter 51 of the Acts of 1994, which deletes the requirement of notice to the school committee. We believe this amendment to the law will be helpful to school principals in exercising their decision-making authority. Copies of the amendment and the Governor's emergency letter are enclosed for your information.
July, 13, 1994
Honorable Michael Joseph Connolly
Secretary of the Commonwealth
State House - Room 340
Boston, Massachusetts 02133
Dear Secretary Connolly:
I, William F. Weld, pursuant to the provisions of Article XLVIII of the Amendments to the Constitution of the Commonwealth of Massachusetts, the Referendum II, Emergency Measures, do hereby declare that, in my opinion, the immediate preservation of the public peace, health, safety or convenience requires that the attached Act, Chapter 51 of the Acts of 1994, entitled "An Act Further Regulating School Suspensions," the enactment of which received my approval on July 1, 1994, should take effect immediately.
So that principals may be fully authorized to effect school discipline decisions when the schools reopen in September, I further declare that, in my opinion, it is in the public interest that this Act take effect immediately.
William F. Weld
Office Of The Secretary, Boston, Massachusetts July 13, 1994
I, Michael Joseph Connolly, Secretary of State, hereby certify that the accompanying statement was filed in this office by His Excellency the Governor of Massachusetts at three o'clock and fifty-two minutes P.M. on the above date, and in accordance with Article Forty-eight of the Constitution said Chapter takes effect forthwith, being Chapter fifty-one of the Acts of nineteen hundred and ninety-four.
Michael J. Connolly
Secretary of State
In the Year One Thousand Nine Hundred and Ninety-four
- An Act Further Regulating School Suspensions.
- Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
- Paragraph (c) of the fourth paragraph of section 37H of chapter 71 of the General Laws, as appearing in section 36 of chapter 71 of the acts of 1993, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-
- 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).
House of Representatives, June 16, 1994.
Passed to be enacted, David B. Cohen, Acting Speaker.
In Senate, June 21, 1994.
Passed to be enacted, William M. Bulger, President.
1 July, 1994, Approved, 11:20 AM, William F. Weld, Governor.
|To:||Superintendents of Schools, School Principals|
|From:||Robert V. Antonucci, Commissioner of Education|
|Date:||October 17, 1994|
|Re:||Student Suspension and Expulsion - New Developments|
I want to inform you about a new federal law and two recent court decisions that concern school safety and student suspension and expulsion in Massachusetts.
- 1. Federal Gun-Free Schools Act. The federal Gun-Free Schools Act of 1994 is Section 14601 of the Improving America's Schools Act, which takes effect in October 1994 and includes re-authorization of the Elementary and Secondary Education Act (ESEA). It requires each state, as a condition of receiving any federal funds under the ESEA, to require school districts and other local educational agencies to expel from school for a period of not less than one year any student who is determined to have brought a firearm to school. An exception is made to permit the chief administering officer (i.e., the superintendent of schools) to modify the expulsion requirement on a case-by-case basis. The law does not preclude an expelled student from receiving educational services in an alternative setting.
- The exception permitting the school superintendent to modify the expulsion requirement on a case-by-case basis allows superintendents to exercise appropriate administrative discretion. It also enables the school district to comply with the federal special education law (the Individuals with Disabilities Education Act, or IDEA), in cases where the student found in possession of a firearm is a special education student. Section 615 (e)(3) of the IDEA has also been amended, effective October 1994. It will permit school districts, in cases where a special education student is determined to have brought a firearm to school, to place the student in an interim alternative educational setting, as determined by the evaluation team, for up to 45 days. Under the IDEA as amended, the student shall remain in the interim alternative setting pending any special education hearing request initiated by the parent, unless the parent and the school district agree otherwise.
- The new federal law also requires school districts and other local educational agencies, as a condition of receiving ESEA funds, to: (1) report annually to the state Department of Elementary and Secondary Education the number of students expelled from each school for possession of a firearm, and the circumstances of each case; and (2) refer to the criminal justice or juvenile delinquency system any student who brings a firearm to school.
- Because these federal requirements are new, we are awaiting further guidance from the U.S. Department of Education on how they are to be implemented. We expect to revise the Statement of Assurances that must be signed by applicants for federal ESEA funds in order to incorporate the Gun-Free Schools Act requirements. In the meantime, every school district should review and, if necessary, revise its student discipline code to assure that it contains a disciplinary sanction of a minimum one-year expulsion for any student who is determined to have brought a firearm to school -- subject to modification by the superintendent on a case-by-case basis.
- 2. Suspension for Felony Indictment: DiRenzo v. Gerhart. DiRenzo v. Gerhart, Mass. App. No. 94-J-602, is the first case involving General Laws Chapter 71, section 37H , the state statute that permits a principal to suspend a student who has been charged with an off-campus felony (or felony delinquency), or to expel a student who has been convicted of an off-campus felony (or felony delinquency). This case is still in litigation, and has not yet been decided on the merits. However, it is significant enough even at this stage for school officials to be aware of it.
- Two decisions have been issued in this case so far, both on preliminary matters. In the first decision (September 1, 1994) on a motion for preliminary injunction, a single justice of the Massachusetts Appeals Court enjoined the Rockland Public Schools from continuing the suspension of a student who was indicted (but not yet tried) for murder. Judge Laurence acknowledged the heinous nature of the crime of which the student was accused, but he found that the Rockland school officials did not comply with the requirements of General Laws Chapter 71, section 37H . First, the suspension was imposed not by the principal (as required by the law), but by the assistant principal. Second, the written notice to the student did not occur prior to the suspension, and there was no showing of an emergency that would allow the school district to hold the hearing after the fact. Third, the notice did not state any "charges or reasons" for the suspension other than the "conclusory recitation" that, because he had been indicted for murder, the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school.
- The judge found that the school had not offered any specific reasons for the suspension, such as "disobedient, disruptive, violent, disrespectful, or otherwise harmful conduct by the student at school; or any particular injury his continued attendance had caused or was likely to cause to students or faculty; or any specific threat or risk his presence had created or was likely to create for the school community or any of its members." As a result, he ruled that the school had not complied with the requirements of the state statute or the student's constitutional due process right to receive a statement of reasons specific enough so that he would have a meaningful right to appeal the suspension decision.
- Following this decision granting the student's motion for a preliminary injunction, the Rockland school officials proceeded to follow the procedural requirements outlined by the judge. The principal gave the student written notice of a new indefinite suspension, based not simply on the indictment but also on a statement of the disruptive effects of his continued presence in school. The student then requested that the Appeals Court find the Rockland officials in civil contempt of the prior court order. Judge Laurence, in a decision issued September 28, 1994, dismissed the complaint, finding that the second suspension notice did not suffer from the same procedural defects as the first, and that it did not violate the court order. The Massachusetts Board of Education, through the Attorney General, intervened in the case in support of Rockland's proper implementation of the suspension law.
- In the September 28, 1994 decision, Judge Laurence stated that, because there was no hearing prior to the suspension notice from the principal, the hearing on the student's appeal to the superintendent must be held "not only promptly but also in a meaningful manner." He noted that because the suspension is for an indefinite and presumably long-term period (pending trial on the criminal charges), "relatively formal and quasi-adjudicatory procedures are called for" in the hearing before the superintendent. These procedures include:
- providing the student with all the evidence supporting the charges and reasons set forth in the suspension letter;
- allowing the student a full opportunity to test, explain and refute such evidence, and to submit evidence on his behalf; and
- ensuring that the school district records and preserves the record of the appeal proceedings, to allow for meaningful judicial review.
- The DiRenzo case is not yet concluded, and when we have further guidance from the courts we will let you know. The specific procedures and standards listed by Judge Laurence may or may not be required in every case. However, school districts should be aware that it is very important to follow the procedural requirements of state law and constitutional due process, whenever a long-term suspension or expulsion of a student is being considered. The procedural requirements outlined in the two DiRenzo decisions should be read in conjunction with the Department's January 1994 Advisory Opinion on Student Discipline, which addresses these issues in detail at pages 6 through 8.
- 3. School District's Authority to Expel: Parkins v. Boule. The Worcester Superior Court issued a decision this summer in Parkins v. Boule (C.A. No. 94-000987, Aug. 3, 1994). The decision is being appealed, and because it is so far only a decision of the Superior (Trial) Court, it is not a binding legal precedent for the Commonwealth. However, it is of interest because it is the first case to address the interpretation and constitutionality of General Laws Chapter 71, section 37H, the statute on expulsion for possession of a dangerous weapon, a controlled substance, or assault on school staff.
- This case involved a fifteen-year-old student who was expelled from Worcester North High School in November 1993 for possession in school of a weapon - a "novelty" lipstick container which, when twisted open, reveals a pointed, one-sided, one-and- one-quarter inch blade. While the student did not attempt to use the lipstick/knife to menace anyone, the principal decided, after providing her notice and holding an expulsion hearing, to expel her under Worcester's discipline code, which prohibits possession or use of any weapon on school premises or at school sponsored or school-related functions. The principal's decision was upheld by the superintendent of schools on appeal. The student was not allowed to attend school for the rest of the 1993-94 school year, nor did Worcester provide her with any alternative education.
- The Superior Court held that the school district's actions were consistent with constitutional and statutory requirements. Among other things, the court ruled as follows:
- General Laws Chapter 71, section 37H grants broad discretion to school officials in disciplinary matters, requiring only that they have a rational basis for their decision, to assure that the decision is not arbitrary or capricious. The court concluded the school officials here had more than adequate evidence to determine the student was a threat to others and that expulsion was appropriate.
- School officials may, in their experience and discretion, determine that possession of a weapon in school, whether or not it is used, is a threat to school safety. Section 37H would permit even an explicit policy of automatic expulsion for possession of a weapon in school.
- The term "dangerous weapon" as used in section 37H, the expulsion statute, is not limited to the definition of the term as used in the criminal law. School officials had reasonable discretion to determine that the "novelty item" this student carried was a dangerous weapon in the school context.
- The notice, hearing and appeal procedures followed by the principal and superintendent in this case met the due process requirements of the U.S. and Massachusetts Constitutions, and the expulsion did not violate the student's rights to substantive due process and equal protection under the U.S. Constitution.
- The decision of the Massachusetts Supreme Judicial Court in the McDuffy case, holding that the Commonwealth has a duty under the State Constitution to provide an education for all its children, does not vitiate the authority of school officials to expel students for disciplinary reasons.
- The state expulsion statute and the Worcester policy on weapons possession are not unconstitutionally vague.
The Parkins case is currently on appeal to the Supreme Judicial Court. We will inform school officials when the court decides the case.