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Education Laws and Regulations

Advisory on Student Discipline under Chapter 222 of the Acts of 2012
An Act Relative to Student Access to Educational Services and Exclusion from School
(G.L. c. 71, 37H ¾ and G.L. c. 76, §21)1

February 28, 2015

  1. Introduction

    Chapter 222 of the Acts of 2012 (Chapter 222),2 effective July 1, 2014, is the most comprehensive Massachusetts legislation to address student discipline in 20 years.3
    Its primary objectives are:

    1. to limit the use of long-term suspension as a consequence for student misconduct subject to G.L. c. 71, §37H ¾ until other consequences have been considered and tried as appropriate, and
    2. where exclusion from the classroom or school occurs for any type of disciplinary offense, to require schools to make education services available so the student has an opportunity to make academic progress while suspended or expelled.

    The Department of Elementary and Secondary Education (the Department) has prepared this Advisory on Student Discipline (Advisory) to support implementation of Chapter 222, specifically the two new statutes enacted, G.L. c. 71, §37H ¾ and G.L. c. 76, §21. The Advisory provides further detail on the Student Discipline Regulations (the Regulations), 603 CMR 53.00, which address a principal's4 responsibilities under G.L. c. 71, §37H ¾, the provision of education services to any student who is suspended or expelled for any reason, and student discipline data collection and reporting.5 The Advisory provides basic information on the state laws and regulations pertaining to student discipline. The Department encourages superintendents and school administrators to consult with their district legal counsel for specific advice.

    Nothing in this Advisory diminishes any of the rights and protections afforded to eligible students under the federal Individuals with Disabilities Education Act (IDEA). The additional rights and disciplinary procedures applicable to such students are set forth at 20 USC §1415 (f) - (k), 34 CFR §§300.530 - 300.537. For guidance on these issues, please refer to Questions and Answers On Discipline Procedures by U. S. Department of Education.

  2. Student Suspension and Expulsion by Category of Offense and Possible Consequences

    There are now three Massachusetts statutes to consider in determining the discipline hearing to be held and the possible consequences that may be imposed if a student is found to have violated the school's code of conduct. Understanding which statute applies to the offense will assist in determining the applicable provisions of the Regulations, 603 CMR 53.00 Student Discipline. The statutes, offenses, and potential consequences follow. The Appendix contains more detail on each of the statutes, along with relevant regulatory provisions.

    G.L. c. 71, §37H

    • Offense:6

      • Possession of a dangerous weapon
      • Possession of a controlled substance
      • Assault on a member of the educational staff

    • Consequence: the student may be subject to suspension or expulsion by the principal

    G.L. c. 71, §37H ½

    • Offense:

      • A felony charge or felony delinquency complaint

    • Consequence: the student may be subject to indefinite suspension if the principal determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school.

    • Offense:

      • Conviction, adjudication, or admission of guilt with respect to a felony

    • Consequence: the student may be subject to expulsion if the principal determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school.

    G.L. c. 71, §37H ¾

    • Offense:

      • Any offense not covered7 by G.L. c. 71, §37H or §37H ½

    • Consequence: the student may be subject to suspension as provided by the school discipline code. The statute prohibits schools from suspending a student for more than 90 school days (total) in one school year. Principals are to exercise discretion in deciding consequences, consider ways to re-engage the student in school, and avoid using long-term exclusion unless alternatives have been tried.

  3. Alternatives to Suspension under §37H ¾ (603 CMR 53.05)

    Principals should be judicious in determining whether suspension is the appropriate consequence for §37H¾ offenses. Schools must follow specific notice and hearing requirements (outlined in section IV B, below) for such suspensions, and may not suspend a student charged with a §37H ¾ offense for more than 90 school days (total) in the school year. In-school suspension (ISS) and short-term suspension (STS) for more than 10 days consecutively or cumulatively within the school year, is deemed a long-term suspension, subject to the notice and hearing process set out in §53.08(3).

    More importantly, research has shown that suspending students from school for non-violent offenses, and particularly suspending them repeatedly, has limited effectiveness in improving their behavior and performance, and causes the students to fall behind academically. School leaders in Massachusetts and across the U.S. have found that by improving school climate through positive behavioral interventions, supports, and strategies, including restorative practices and conflict resolution, they not only reduce suspensions but also promote greater school safety, discipline, and academic success.8

    For these reasons, the statute directs principals to exercise their discretion, consider ways to re-engage the student, and "avoid using long-term suspension from a school as a consequence until alternatives have been tried." For example, exclusion from extracurricular activities or attendance at a school-sponsored event instead of removal from the classroom or school may have a greater impact on changing a student's behavior. Exclusion from such extracurricular activities is not considered suspension because participation is a privilege.9

    The Department encourages schools and districts to adopt evidence-based strategies and programs to address the behavioral and social-emotional issues that give rise to student misconduct. The Department is building a resource bank of school practices and models that can improve school climate and reduce student misconduct and the perceived need to remove students from the school or classroom. We welcome your suggestions; please contact the Center for Student Support at ssca@doe.mass.edu or (781) 338-6303.

  4. Required Notice of Suspension and Hearing

    1. Statutory Offenses

      Chapter 222 and the Regulations do not alter the notice and hearing process for students charged with statutory offenses identified in G.L. c. 71, §37H and G.L. c. 71, §37H ½. The attached chart provides detail regarding the notice, hearing, and appeal requirements pertinent to §37H and §37H ½.

      Although suspension is limited to no more than 90 school days in a school year under §37H ¾, principals continue to have discretion under §§37H and 37H ½ to impose a longer suspension or expulsion10 on a student for one of the statutory offenses, such as possession of a dangerous weapon or a controlled substance on school grounds or assault on school staff. A student who is suspended long-term or expelled under §§37H or 37H ½ must have an opportunity to make academic progress, as discussed below in section VII. The principal must inform the student and the student's parent in writing of this opportunity and how to obtain education services at the time of the suspension or expulsion.

    2. Non-statutory Offenses (603 CMR 53.06 and 603 CMR 53.08)

      Parental Involvement

      Chapter 222, and §37H ¾ in particular, underscores the involvement of the student's parent11 whenever school administrators address student misconduct.

      Notice
      With the exception of an emergency removal,12 a principal cannot remove a student from school for an offense under §37H ¾ without first providing oral and written notice13 to the student and an opportunity for a hearing. The principal must also make "reasonable efforts" to notify the student's parent orally, and provide written notice informing the parent of an opportunity to participate in the student's disciplinary hearing. Section 53.06(2) requires at least two attempts to reach the parent using the parent's emergency contact information. Principals may decide that additional efforts are appropriate based on knowledge of the family's circumstances or for other reasons. If successful in reaching the parent, the principal should discuss, at a minimum, the offense, the basis of the charge, the possible consequences, and the parent's opportunity to participate in a disciplinary hearing with the student.

      The principal should document efforts to reach the parent, and conversations with the parent if successful in reaching the parent, and maintain a copy of the written notice to the parent in the student's file.

      All required notices to the parent and student must be in plain language, and in English and the primary language of the home if other than English, or other means of communication where appropriate. 603 CMR 53.06(1).

      Hearing
      The student disciplinary hearing process is determined by the anticipated consequence for the disciplinary offense. The process is, in general, more limited for a student who is facing a possible short-term suspension, defined in the Regulations as removal from school for ten days or less, than for a student who is facing a long-term suspension.14 Similarly, a short-term suspension hearing may be more informal than a long-term suspension hearing, provided the principal covers the elements set forth in 603 CMR 53.08(2).15

      A long-term suspension includes removal from the school premises for more than ten consecutive days. It also includes removal "for more than ten school days cumulatively for multiple disciplinary offenses in any school year."16 The regulations outline the procedural requirements, including the student's right before the hearing to review his or her record and any documents upon which the district will rely; see 603 CMR 53.08(3)(b).

      For both short-term and long-term suspensions, the principal must provide the parent an opportunity to discuss the student's conduct at the hearing and permit the parent to offer information that the principal should consider in making a decision. Whether the student admits that he or she committed the offense or the principal determines that the facts support such a finding, the principal must consider possible alternatives to suspension before deciding on the consequences. Barring an emergency removal, the student remains in school pending the principal's decision.

      The principal's decision in a short-term suspension can be as informal as an update to the written notice that the principal originally provided to the student and parent, provided, at a minimum, that it is consistent with 603 CMR 53.08(2)(b) and (c). The decision regarding a long-term suspension must contain the elements set forth in 603 CMR 53.08(3), including the student's right to appeal an adverse decision to the superintendent.

      Students who are suspended long-term have a right to appeal the principal's decision to the superintendent, and the principal must include notice of the right to appeal in the suspension decision. Students who have been suspended short-term do not have the same right of appeal to the superintendent under §37H ¾ though the district may choose to provide it.

      When a student is suspended for any period of time, the principal must inform the student and his or her parent in writing of the student's opportunity to make academic progress during the period of the suspension. This obligation is addressed in more detail in section VII.

      Notice to the Superintendent
      Superintendents and building administrators should take particular care to monitor the suspension of preschoolers and young children to determine whether alternatives to suspension are available within the school and are adequately considered. Whenever a principal decides to suspend a student in a preschool program or in grades K-3 from school, regardless of the length of the suspension, the principal must send a copy of the written decision to the superintendent before the suspension takes effect and explain the reasons for excluding the student from school.

      Student Misconduct, Civil Rights, and Disciplinary Procedures
      Student misconduct may violate not only a school's code of conduct, but one or more federal civil rights statutes, including Title VI (discrimination on the basis of race, color, or national origin17), Title IX (discrimination on the basis of sex), or Section 504 (discrimination on the basis of disability).18 In 2010 policy guidance on bullying and harassment, the Office for Civil Rights of the U.S. Department of Education (OCR) stated:

      The label used to describe an incident (e.g. bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be addressed for civil rights implications. So, for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable civil rights statutes and regulations enforced by OCR.19

      This means, for example, if a student routinely pushes and calls another student derisive names at school based on the student's ethnicity, such behavior would constitute bullying, but it is also likely to be considered harassment in violation of the targeted student's rights under Title VI.

      Schools have a duty to take prompt and effective action to investigate and resolve allegations of harassment and bullying. This is fundamental to maintaining a safe and supportive school climate for all students, as well as being required under federal civil rights laws and the state anti-bullying law. In cases of alleged harassment or other civil rights violations, school officials have to comply with federal requirements that protect the victim's rights as well as state requirements for a disciplinary hearing under Chapter 222. The Department strongly advises principals and superintendents to consult with local counsel on any disciplinary incident that raises civil rights issues, to determine the appropriate process and remedies required by federal civil rights laws and state discipline law and regulations. School administrators are also advised to review the guidance from OCR on peer-to-peer violence and harassment, and the rights of victims in the resolution process.20

  5. Emergency Removal (603 CMR 53.07)

    Even in schools with positive school climate and student supports, there may be students who do not conform their behavior to school expectations and must be removed from the premises for safety reasons or to prevent a material and substantial disruption of the school. In these instances, the principal may take action under 603 CMR 53.07 to remove the student from school before providing the necessary written notice and conducting the disciplinary hearing that is otherwise generally required under 603 CMR 53.08. 603 CMR 53.07, which refers to Emergency Removal, reads in relevant part:

    Nothing in 603 CMR 53.00 shall prevent a principal from removing a student from school temporarily when a student is charged with a disciplinary offense and the continued presence of the student poses a danger to persons or property, or materially and substantially disrupts the order of the school, and in the principal's judgment, there is no alternative available to alleviate the danger or disruption.

    This provision, which sets the standard for emergency removals, also reaffirms the principal's paramount responsibility and authority to attend to the safety and security of the school. The responsibility includes making sure that adequate provision has been made for the safety and transport of the student who is removed on an emergency basis. See, 603 CMR 53.07(2).

    Although the school must provide written notice and the opportunity for a disciplinary hearing within 2 school days21 following the emergency removal, principals must make reasonable efforts on the day of the removal to talk to the student and the student's parent to notify each of the removal and the reasons for it. 603 CMR 53.07 further requires that the principal provide the parent and student the written notice required for short-term or long-term suspensions, as applicable, under 603 CMR 53.06. Principals must be prepared to decide on the same day as the hearing whether the student committed the alleged offense and, if so, what the consequence is for the infraction. The principal must also tell the student and parent of his or her decision on the hearing day, and provide them a written decision on the following school day.

  6. In-school Suspension (603 CMR 53.10)

    In-school suspension (ISS) is defined in part as:

    Removal of a student from regular classroom activities, but not from the school premises, for no more than ten consecutive school days, or not more than ten school days cumulatively for multiple infractions during the school year. … In-school suspensions for ten days or less, consecutively or cumulatively during a school year, shall not be considered a short-term suspension under these regulations. If a student is placed in in-school suspension for more than ten days, consecutively or cumulatively during a school year, such suspension shall be deemed a long-term suspension for due process, appeal, and reporting purposes.

    Unlike out-of-school suspension (see notice requirements in Section IV B, above), with an in-school suspension, although strongly recommended, the principal is not required to inform the parent, orally or in writing, before imposing ISS for 10 days or less. In such cases, the principal may place a student in ISS as long as the principal provides the student minimal due process consisting of the following: notice of the disciplinary offense; the basis for the charge; and the opportunity for the student to present his or her side of the story.22 The principal must also tell the student how long he or she will be in ISS.23

    A principal who has not already talked to the parent before placing the student in ISS must make reasonable efforts to orally notify the parent of the suspension as soon as possible on the same day of the ISS, and send written notice on the same day that informs the parent of the suspension. The standard for "reasonable efforts" in the ISS context is the same as for out-of-school suspension.24 The purpose of the written notice is not only to inform the parent of the ISS, but also to invite the parent to meet to discuss the student's academic performance, behavior, and strategies to address academic engagement and improve behavior.

  7. Academic Progress (G.L. c. 76, §21; 603 CMR 53.13)

    G.L. c. 76, §2125 is a cornerstone of Chapter 222, to promote continued academic progress for students who are excluded from their classroom or school, whether excluded pursuant to §37H, §37H ½, or §37H ¾ . Under this statute, a school has the obligation to provide each student who is suspended or expelled an opportunity to make academic progress during the suspension or expulsion. Students and parents must be notified in writing of this opportunity at the time of suspension or expulsion. (See discussion in this section regarding notice to expelled students and students who are suspended for more than 10 consecutive days, and their parents.)

    While all suspended and expelled students have the right to an opportunity to make academic progress, the statute and Regulations distinguish between those who are expelled or suspended for more than 10 consecutive days, and those who are suspended for 10 days or less, either in-school or out-of-school. With respect to the latter, the school must provide an opportunity for the students to be able to earn credits, and make-up assignments, tests, papers, and other school work.

    Students who are expelled or suspended for more than 10 consecutive days must be provided an equitable opportunity to receive education services that are identified in a school-wide education service plan. In reference to the education service plan, G.L. c. 76, §21 refers to a "list of … services," which means that the service plan must include at least two types of education service options.26 Each of these education service options must provide an opportunity for all affected students to "make academic progress toward meeting state and local requirements" and be "based on, and …provided in a manner consistent with, the academic standards and curriculum frameworks established for all students… ." See 603 CMR §§53.13(2) and 53.13(3).

    The education service plan also must include the process for notifying expelled and long-term-suspended students and their parents of the education service opportunity in a manner consistent with section 53.13(4).

    Under the statute, the student and the parent have the right to choose a type of education service from those offered to all students in the education service plan. While the choice is ultimately that of the student and the parent, this provision does not bar the principal (or his or her designee) from recommending one option over others based on the school personnel's knowledge of the student's academic needs, learning style, or behaviors, or other factors such as the amount of time the student is removed from his or her usual classroom or school environment.

    Although the statute directs the principal to develop the education service plan for the school, the Department recommends that the superintendent review the education service plans for all schools in the district to ensure equitable access for students at the same grade levels across the district.

  8. Data Collection and Reporting (603 CMR 53.14)

    In addition to collecting and annually reporting suspension and expulsion data, principals are required to have systems in place to periodically review the data. The purpose of the review is three-fold: 1) to assess what the data reveal about the extent of the use of suspension in their schools; 2) to determine the impact that disciplinary practices have on the removal and exclusion of selected student sub-groups; and 3) to consider and implement adjustments to practice as necessary and appropriate to address over-reliance on suspensions and expulsions and the impact on one or more student sub-groups compared with others.

    The Department will publish student discipline data by district and schools in the fall of each year. The Department also will publicly identify districts and schools whose data reveal over-reliance on long-term suspension and expulsion, and will assist such schools and districts by identifying program models that reduce reliance on suspension and expulsion as a response to misconduct.

    Further, the Department will identify districts and schools whose data reflect significant disparities in the rate of suspension and expulsion by race and ethnicity, or disability. The identified districts and schools must develop and implement a plan, approved by the Department, to address such disparities. This requirement is consistent with a joint U.S. Department of Education/Department of Justice January 8, 2014 Dear Colleague letter on the topic of Non-Discriminatory Administration of School Discipline. The letter stated in part:

    The Civil Rights Data Collection (CRDC), conducted by OCR, has demonstrated that students of certain racial or ethnic groups tend to be disciplined more than their peers. For example, national data show that African-American students without disabilities are more than three times as likely as their white peers without disabilities to be expelled or suspended. Although African-American students represent 15% of students in the CRDC, they make up 35% of students suspended once, 44% of those suspended more than once, and 36% of students expelled. Further, over 50% of students who were involved in school-related arrests or referred to law enforcement are Hispanic or African-American.

    The Departments recognize that disparities in student discipline rates in a school or district may be caused by a range of factors. However, research suggests that the substantial racial disparities of the kind reflected in the CRDC data are not explained by more frequent or more serious misbehavior by students of color… .

    The purpose of the Dear Colleague letter is to provide guidance to districts so as "to identify, avoid, and remedy discriminatory discipline" and to assist schools in providing equal educational opportunities. The Dear Colleague letter, which is part of a School Climate Discipline Guidance package. We recommend that school officials review the federal guidance as well as the other resources on the Department's website as you implement the new discipline law.

We hope this information is helpful to you. If you have questions or suggestions, please contact the Center for Student Support at ssca@doe.mass.edu or (781) 338-6303.

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Last Updated: February 27, 2015
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