Massachusetts Special Education Director to Speak in Kingston
Don’t miss a great opportunity to listen to and meet Marcia Mittnacht, the Director of Special Education for the Commonwealth of Massachusetts. Ms. Mittnacht will be speaking in Kingston at the next meeting of the Kingston Special Education Working Group on Wednesday, November 14, 2012 at 7:00 PM. The meeting will be held at the Kingston Council on Aging, 30 Evergreen St. in Kingston. Ms. Mittnacht will be speaking about special education programs in Massachusetts. For additional information, call 508-732-0033.
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.
Student Discipline Laws in Massachusetts: Big Changes Are Coming
Massachusetts has some rather Draconian student discipline laws. The situation will be somewhat improved when a new set of recently passed laws go into effect on July 1, 2014 (yes, almost 2 years away). Over the coming days and weeks, I will break down and explain the changes in this blog. Before I dive into the changes, though, it’s probably worthwhile to explain the current law so that we have a baseline to appreciate the improvements.
The two discipline laws in Massachusetts that most directly affect students are known affectionately as 37H and 37H 1/2 (pronounced 37H and a half). These are both sections of Massachusetts Gen. Laws Chapter 71. 37H grants tremendous discretionary power to school principals. For example, school principals may (but are not required to):
- 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; or a controlled substance… including, but not limited to, marijuana, cocaine, and heroin…” (Mass. Gen. Laws ch. 71 § 37H(a));
- Expel 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…” (Mass. Gen. Laws ch. 71 § 37H(b)).
Any student charged with any of the above violations 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)).
Although the above sections could be problematic, depending on how a principal wields his or her power, they are not what I find most troubling. Here is what makes the law so Draconian: “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.
As we will see in coming blog entries, the new laws will drastically improve the current situation for students.
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.
Massachusetts Special Education Evaluation Timelines
The law regarding timelines for special education evaluations can be confusing. State law can vary from the federal IDEA requirement, and parents also need to be aware of whether the law refers to “days” or “school days.” The term “days” refers to calendar days, which includes weekends, holidays and vacations; the term “school days” refers to days in which school is in session.
Federal law states that evaluations must be conducted within 60 days of receipt of parental consent for the evaluation, but defers to state timelines if such timelines exist (34 C.F.R. 300.301(c)). Both Massachusetts and New Hampshire have implemented their own specific timelines. The remainder of this article will be specific to Massachusetts law; I will post a separate article specific to New Hampshire law.
In Massachusetts:
“Within 45 school working days after receipt of a parent’s written consent to an initial evaluation or reevaluation, the school district shall: provide an evaluation; convene a Team meeting to review the evaluation data, determine whether the student requires special education and, if required, develop an IEP in accordance with state and federal laws; … The evaluation assessments shall be completed within 30 school working days after receipt of parental consent for evaluation. Summaries of such assessments shall be completed so as to ensure their availability to parents at least two days prior to the Team meeting.” 603 C.M.R. 28.05(1).
In other words, in Massachusetts, once a parent provides consent, the school district has 30 school days to complete the evaluation. The entire process, including conducting the evaluation and convening the Team meeting to discuss the results, must be complete within 45 school days of parental consent. Furthermore, a summary of the evaluations must be provided to the parents at least 2 days prior to the Team meeting.
We can look at an example to better understand these timelines. Let’s assume that a parent provided consent for an evaluation on 09/12/11. Counting ahead 30 school days, including a day off for Columbus Day, brings us to 10/25/11, which in this example is the deadline for conducting the evaluation. Counting ahead 45 school days from 09/12/11, including days off for Columbus Day and Veteran’s Day, brings us to 11/16/11, which is the deadline for conducting the Team meeting and drafting the IEP.
But what happens if consent is provided at the end of the school year, and there is not enough time under the law as listed above to complete the evaluation and conduct the Team meeting? In Massachusetts, parents may still be in luck. Massachusetts has added the following protection:
“If consent is received within 30 to 45 school working days before the end of the school year, the school district shall ensure that a Team meeting is scheduled so as to allow for the provision of a proposed IEP or written notice of the finding that the student is not eligible no later than 14 days after the end of the school year.” 603 C.M.R. 28.05(1).
Again, let’s look at an example to better understand this law. Assume that the school year ends on Friday, June 22, 2012. 45 school days prior to June 22, 2012 brings us to April 12, 2012. 30 school days prior to June 22, 2012 brings us to May 10, 2012. Thus, we have three time frames to consider:
- Consent provided prior to April 12, 2012: the school district will be expected to complete the evaluation, Team meeting, and draft IEP before the end of the school year on June 22.
- Consent provided after May 10, 2012: the school district will not be required to complete the evaluation prior to the end of the school year, because there are fewer than 30 school days remaining.
- Consent provided between April 12, 2012 and May 10, 2012: the school district will be required to complete the evaluation prior to and of the school year. If the 45 day rule would go beyond June 22, then the school district will be required to convene the Team meeting no later than 14 calendar days following the end of the school year.
Special Education Blog 