How We Won School Discipline Reform in Massachusetts
By Tom Mela, Massachusetts Advocates for Children
This guest post was written by Tom Mela, Senior Project Director at Massachusetts Advocates for Children (MAC). The post was originally published on the National Opportunity to Learn blog, and is reprinted in this blog with the permission of Tom Mela.
Left to right: Gavi Wolfe (ACLUM), Sondra Peskoe (One
Massachusetts), Rep. Alice Wolf, Tom Mela (MAC)
and Ann Lambert (ACLUM) at the Massachusetts
State House when Chapter 222 was passed.
Photo courtesy of MAC.
Though Massachusetts’ public schools rank near the top of schools nationwide, they still struggle to ensure that students are treated fairly in the classroom. In Massachusetts and across the nation, students of color and students with disabilities still face higher suspensions and expulsions rates than their counterparts, often for similar, minor misbehavior.
But starting this year, Massachusetts is taking a bold step to change that. The new Chapter 222 law, which went into effect July 1, puts Massachusetts at the forefront of a nationwide movement to reduce the use of out-of-school exclusions and provide those students who are barred temporarily from the classroom access to the resources they need to keep up with their studies.
It has taken years of organizing to get to this point. Massachusetts Advocates for Children is funded through the state’s civil legal aid system to convene the Education Law Task Force (ELTF), a coalition of public interest legal organizations with expertise in education law. To help advocates in other states learn how they, too, might tackle the school-to-prison pipeline, here’s how our Massachusetts coalition came together, fought hard, and won reform.
As part of a major education reform act in the mid-1990s, Massachusetts enacted laws to empower school principals to exclude students from school for disciplinary reasons. These laws were part of a national push towards “zero-tolerance” discipline policies. But rather than make schools safer, the result was that the number of excluded students increased significantly.
Advocates became concerned about principals’ use of zero tolerance, and especially the policy’s disproportionate impact on students of color and students with disabilities. When a student is barred from the classroom, it increases the likelihood that they might fall behind, drop out and become involved in the juvenile justice system, making exclusions a big contributor to our nation’s pervasive achievement gaps and the school-to-prison pipeline.
In response, a group of advocates including parents, students, teachers and attorneys in Massachusetts came together to form the ELTF. They found a legislative champion in Rep. Alice Wolf of Cambridge, and together they drafted and filed legislation to reform the Massachusetts school discipline laws.
For years their efforts to enact such legislation were stymied by the associations that represent principals, superintendents and school committees, who denied there was a problem and argued that in the interest of school safety (during the “Columbine” era) building administrators should have broad discretion to prevent potential harm to the school.
In the meantime, education reform in Massachusetts began to address the needs of those students who were at high risk of failure. When the Legislature established the Graduation and Dropout Prevention and Recovery Commission in 2008, one of the main question addressed was whether school exclusion contributes to school dropout. School exclusion was becoming a national issue as officials in other states and even the federal government began recognizing the link between suspensions/expulsions and dropout rates. Members of the ELTF testified to the Commission, and the Commission’s final report recommended school discipline reform.
Immediately after Mitchell Chester arrived in Massachusetts in 2008 to become its Department of Elementary & Secondary Education (DESE) Commissioner, the ELTF informed him about the discipline problem in this state. He was particularly shocked to learn that excluded students were not entitled to alternative education services.
As a result, the legislation was revised and re-filed by Rep. Wolf and others in 2011, and, with the support of the legislative leadership, was enacted minutes before midnight on the final day of the session in 2012. Many members and associates of the ELTF had testified at the legislative hearing, and they signed a letter to the governor urging his approval. Governor Patrick signed Chapter 222 on August 6, 2012.
The most important provisions of Chapter 222 are:
- All public schools, including charter schools, must comply and revise their policies to assure that exclusion is a last resort and that alternatives to exclusion are tried first.
- Students who face school exclusion are entitled to full due process rights, including parental involvement and accommodation for students with limited English proficiency
- During both short-term and long-term exclusions, students have the right to make academic progress.
- During long-term exclusions, students must be provided alternative education services.
- Except for very serious offenses, students may not be excluded for more than 90 school days.
- Schools must review their school exclusion data and increase their reporting to DESE.
- DESE must post annual state-wide exclusion data each fall.
- DESE must analyze the annual exclusion data and follow-up when the numbers are high and when there are significant disparities by race and for students with disabilities.
To help with the implementation of Chapter 222 (especially for the requirement that excluded students be provided with alternative education services) the ELTF monitored a cost study and worked to ensure funding. In early July 2014, Governor Patrick signed the Fiscal Year 2015 Massachusetts Budget, which includes funds specifically to help schools implement Chapter 222.
Though the new law did not to take effect until July 1, 2014, soon after it passed in 2012 the Superintendent of the Boston Public Schools expressed an interest in immediately revising the city’s Code of Conduct before the start of the 2013-2014 school year. The ELTF collaborated with the district’s Code of Conduct Advisory Committee (COCAC) and worked intensively to align the revisions to the code with the requirements of Chapter 222. The Boston School Committee approved those changes during the summer of 2013. Now that the law’s regulations have been put in place, the ELTF is revisiting the Boston code with school officials to make sure it remains aligned.
During the period between the enactment of the law and when it went into effect this July, Chapter 222 required DESE to issue implementing regulations. The ELTF submitted draft regulations, submitted “Public Comments,” and testified to the Board of Elementary & Secondary Education. At the end of April 2014, the board issued its final implementing regulations, which the ELTF found satisfactory. The ELTF plans to monitor compliance with Chapter 222 and its regulations at the local, district and state levels. Members of the ELTF will also continue to collaborate with COCAC by representing families of city’s students facing school exclusion and by monitoring citywide school data. The ELTF remains available to consult with school reform advocates throughout the country.
Chapter 222 constitutes a dramatic change in law and policy for all Massachusetts public school students. Fewer students will be excluded from school, struggle and drop out, and more students will thrive, graduate and go on to become strong, productive members of our Commonwealth.
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.
New Section to Student Discipline: 37H 3/4
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.
My Child Was Suspended for Having a Knife at School – Now What?
The first assumption I am going to make for this blog article is that the child has an IEP. Having an IEP does make a big difference in terms of how the school can deal with disciplining the child.
There are three distinct discipline time-frames that should be considered. The first time-frame is short term, and concerns suspensions for 10 school days or less; the second time-frame is medium term, and concerns discipline for up to 45 school days; the third time-frame is long-term, and concerns discipline that might extend beyond 45 school days.
Regarding a 10 day suspension, the federal Individuals with Disabilities Education Act (IDEA) applies. Under the IDEA, “School personnel… may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).” 20 U.S.C. § 1415(k)(1)(B). In other words, a special education child can be disciplined just like a non-special education child for up to 10 school days.
Any removal beyond 10 school days is considered a change in placement. For any such change in placement, the school district needs to conduct a Manifestation Determination to determine if the behavior in question is a manifestation of the child’s disability, or if the conduct in question may have been caused by the school district’s failure to implement the IEP. If the conduct is found to be a manifestation of the disability, the district is required to conduct a Functional Behavioral Assessment and to develop a Behavior Plan, and also to return the child to the placement from which he was removed. 20 U.S.C. § 1415(k)(1)(E)-(F). If the behavior was not a manifestation of a disability, the child can be removed from his then-current placement, though he shall “continue to receive educational services… so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”
The above paragraph applies to any type of discipline issue if the school district is trying to remove the child for more than 10 days. However, regardless of the outcome of the Manifestation Determination, the school district may remove a child to an interim alternative educational setting in various special circumstances. One such special circumstance is when a child possesses a weapon – which includes a knife – on school grounds. 20 U.S.C. § 1415(k)(1)(G). Under federal law, one big question concerns the size of the knife. According to 18 U.S.C. § 930(g)(2), the definition of a weapon “does not include a pocket knife with a blade of less than 2½ inches in length.” If the knife in question is less than 2½ inches in length, the district would not have the right to remove the child under this section of the law.
So far we have discussed only federal law. In Massachusetts, state law also applies for longer term suspensions (potentially beyond 45 school days). Under Mass. Gen. Laws ch. 71 § 37H(a), a school principal may expel 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.” Any student so charged must be notified in writing of an opportunity for hearing, and be allowed to have legal representation, as well as the opportunity to present evidence and witnesses at a hearing with the principal. The principal does have discretion to suspend rather than expel a student. (Mass. Gen. Laws ch. 71 § 37H(c)). There is also the right to appeal to the superintendent within 10 days of the expulsion. (Mass. Gen. Laws ch. 71 § 37H(d)).
To make matters even more concerning, Massachusetts law also states: “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. Gen. Laws ch. 71 § 37H(e)). In other words, if a principal, in his or her sole discretion, expels a student from school because of one of the above violations, the student may not be able to attend public school anywhere else in Massachusetts. Even moving from one district to another might not help. Luckily, federal law does serve as a safety net, such that school districts do need to provide IEP services for special education children, regardless of any discipline decisions that are applied.
Regarding the size of the knife, Massachusetts law does not have the same 2 ½ inch provision that federal law does. This means that even if you might have a strong argument that the district should not be able to apply a 45 day removal under IDEA because it cannot prove that the child had a knife larger than 2 ½ inches, the school district would still be able to apply a 45 day or longer suspension or removal under Massachusetts law.
For more information about Chapter 37H, 37H 1/2, and upcoming changes to this area of the law in Massachusetts, please refer to my other blog articles:
- “Student Discipline Laws in Massachusetts – Big Changes Are Coming”
- “School Discipline Gets Even More Draconian with Mass Gen Laws Ch 71 Section 37H 1/2”
- “Student Discipline Laws – Improvements to 37H”
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.
Student Discipline Laws – Improvements to 37H
In a prior blog post we learned that one of the current discipline laws (37H) can result in excruciatingly severe consequences for students who have committed certain offenses at school, to the point that a student might be expelled and unable to re-enroll anywhere else in Massachusetts :
“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. Gen. Laws ch. 71 § 37H(e)).
As of July 1, 2014, that section of the law will be repealed, and replaced with 3 new sections that will allow students to maintain the right to access educational services, while still allowing school administration to discipline students who commit certain offenses. The new law will include the following wording:
(e) Any school district that suspends or expels a student under this section shall continue to provide educational services to the student during the period of suspension or expulsion, under section 21 of chapter 76. If the student moves to another district during the period of suspension or expulsion, the new district of residence shall either admit the student to its schools or provide educational services to the student in an education service plan, under section 21 of chapter 76.
Section 21 of Chapter 76 that the new law refers to is itself a new section of the law that will appear in 2014. Section 21 goes into a bit more detail about what educational rights and services students will have access to while being disciplined. Section 21 includes the following wording:
Section 21. Principals and headmasters shall ensure that students who are suspended from school for 10 or fewer consecutive days, whether in or out of school, shall have an opportunity to make academic progress during the period of suspension, to makeup assignments and earn credits missed including, but not limited to, homework, quizzes, exams, papers and projects missed. Principals shall develop a school-wide education service plan for all students who are expelled or suspended from school for more than 10 consecutive school days, whether in or out of school. Principals shall ensure these students have an opportunity to make academic progress during the period of suspension or expulsion, to makeup assignments and earn credits missed, including, but not limited to, homework, quizzes, exams, papers and projects missed. Education service plans may include, but are not limited to, tutoring, alternative placement, Saturday school, and online or distance learning… Any school or school district that expels a student or suspends a student for more than 10 consecutive school days shall provide the student in the parent or guardian of the student with a list of alternative educational services. Upon selection of an alternative educational service by the student and the student’s parent or guardian, the school or school district shall facilitate and verify enrollment in the service…
In the above paragraph, I tried to color code the wording to highlight what I view as the two important sections. First, students who are suspended for less than 10 days (the blue text) will have the opportunity to make up work and credits that are missed. Second, principals must develop education service plans for students who are suspended or expelled for 10 days or more (the red text). While such students will have the opportunity to make up work and credits that are missed, the school environment and placement might be different for the students dealing with longer-term exclusions. Principals will need to present available placement options to the student in the student’s parents or guardians, and it will then be up to the student and his or her parents or guardians to decide which of the available placement options will be utilized for continued education.
Other changes to student discipline laws will be discussed in upcoming blog articles.
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.
School Discipline Gets Even More Draconian with Mass. Gen. Laws ch. 71 § 37H 1/2 –
In a prior blog post, I discussed how Draconian Mass. Gen. Laws ch. 71 § 37H can be. For example, if a student is simply found in possession of marijuana at a school-sponsored event – regardless of amount, regardless of use or non-use, regardless of whether they are even aware of being in such possession – not only can the student be expelled from school, but they can also be prevented from enrolling in any other school district in the Commonwealth.
As the TV commercials say, “But wait, there’s more…”
Massachusetts has also enacted Mass. Gen. Laws ch. 71 § 37H 1/2. Under 37H and 1/2, if a student is simply charged with a felony – even if the charge is baseless, and regardless of where the alleged event supposedly took place – the student can be suspended by the school principal. For how long? “[F]or a period of time determined appropriate by said principal or headmaster…” A day, a week, a month – the length of time is completely up to the principal. There is a standard that the principal is supposed to utilize, but even that is very subjective. Before a student can be suspended under this section of the law, the law requires that the principal determine that “the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school.” The student does have the right to appeal the principal’s decision to the superintendent, but that has to be done within 5 calendar days.
But wait, there’s more…
If the student is actually convicted of a felony – even if the felony has absolutely nothing to do with the school – the student can be permanently expelled. The same time frames, standards, and right to appeal as described above for suspensions apply equally to expulsions, as well. And as described in the prior blog post for 37H, no other school system in the Commonwealth is required to admit a student who has been expelled under this section of the law.
37H and 37H 1/2 have unfortunately been used too often in an unfair way to keep certain students from accessing a public school education. My child attended public school, so I certainly can appreciate the need to keep schools completely safe for all students and teachers. As a lawyer, though, it is very frustrating to see students being denied an education – sometimes permanently – simply because they may have been in the wrong place at the wrong time. It is also possible that a student may have made a really stupid decision that they could learn from if given the chance. When 37H 1/2 is used improperly, what it teaches young people who have made a mistake is that there is no sense being remorseful for one’s acts or learning from one’s mistakes, because punishment can be severe and permanent, even at a young age. Thanks to the very hard work and dedication of many state legislators and the fine people at Massachusetts Advocates for Children, improvements to the discipline laws are finally coming. I will provide details of the upcoming changes in future blog posts, so stay tuned.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
Categorizing Your Dispute
The school year is now well underway. It is a sad fact of life that as the school year rolls along, more and more disputes arise between parents and school systems regarding a child’s education. For disputes that cannot be resolved directly between the parents and the school systems, it is sometimes necessary to engage an attorney. When parents call my office, one of the first things I do is to categorize the dispute into one of four major categories (and then further sub categorize within those categories):
- Eligibility and Evaluations. Does the child have a disability? Is the child not making effective progress in regular education due to that disability? Does the child require specially designed instruction or related services in order to access the curriculum? If the answers to these questions are yes, then the child should be eligible for special education services.
- The Team process and IEP services. Who makes up the Team? Do Team meetings take place when and how they are supposed to according to the law? Does the IEP properly reflect the special needs of the child? Do the accommodations and services match what the medical professionals and recommended in the evaluations?
- Placement. Where will services be provided? In-district or out-of-district?
- Discipline. Has a child been removed from their educational placement because of discipline? Has this happened for more than 10 days? Did the school conduct a Manifestation Determination and a Functional Behavioral Assessment?
Once you know where the dispute exists within this special education “lifecycle,” you can then better understand your rights and the school district’s responsibilities under the law.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal disputes. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
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