There is an entirely new section that will be added to the student discipline statute in Massachusetts, effective July 1, 2014. This new section will provide students with several important rights in the disciplinary process, and will assign several new responsibilities to school districts. It will be referred to as section 37H 3/4, and will have 6 supbarts, summarized as follows:
- (a): This subpart states that 37H 3/4 applies to all students who are suspended or expelled, with a few very big exceptions. 37H 3/4 does not apply:
- If a student is found with a dangerous weapon or a controlled substance on school grounds, or at a school-sponsored or school-related event; or
- If a student assaults school faculty or staff on school grounds, or at a school-sponsored or school-related event; or
- If a student is charged with a felony.
- (b): This subpart requires the decision maker at a disciplinary hearing to “exercise discretion; consider ways to reengage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.”
- (c): Students suspended or expelled under 37H 3/4, as well as their parents, must be provided with written notice of the charges and the reason for the suspension or expulsion in English, as well as in the student’s primary language if that language is other than English. The affected student also must have the opportunity to meet with the principal, headmaster, or other designee to discuss the charges and reasons for the suspension or expulsion prior to the suspension or expulsion taking effect. Parents must be given the opportunity to participate in this meeting, as well.
- (d): This subpart concerns notification:
- If the principal makes a decision to suspend or expel a student after the meeting described in subpart (c), then the principal shall update the written notification to reflect the meeting that took place;
- If a student is suspended or expelled for more than 10 school days in any school year, the school must provide the student and parents with written notification of a right to appeal and the process for appealing. However, the suspension or expulsion will remain in effect prior to any appeal hearing;
- If a student in kindergarten through grade 3 receives an out of school suspension, the principal shall notify the superintendent in writing “prior to such suspension taking effect.”
- (e): This subpart concerns the appeals process:
- Students suspended or expelled for more than 10 school days – whether contiguous or cumulative – shall have the right to appeal the suspension or expulsion to the superintendent;
- Students or parents must notify the superintendent in writing of their request for an appeal within 5 calendar days of the effective date of the suspension or expulsion. However parents or students may also request an extension of up to 7 calendar days, and if such an extension is requested, then it “shall be granted.” The wording of this law is a bit vague. My reading of this law is that students can request an additional 7 calendar days beyond the initial 5, allowing for a total of 12 calendar days to appeal. However, I can foresee some school districts trying to argue that the law only allows for an additional 2 days, for a total of 7 calendar days;
- The superintendent must make a good faith effort to include the parent or guardian in any appeal, but does have the right to proceed with an appeal hearing without the parent or guardian, as long as that good faith effort was made;
- At the appeal hearing, students have the right to present oral and written testimony, and to cross-examine witnesses. Interestingly, it is only the student who has this right, not the parent or guardian. However, the student does have the right to counsel at the appeal hearing;
- The superintendent must render his or her decision within 5 calendar days of the hearing, and this decision is the final decision of the school district. No further appeals within the school district are allowed.
- (f): “No student shall be suspended or expelled from a school or school district for a time period that exceeds 90 school days, beginning the first day the student is removed from an assigned school building.”
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.