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.
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.
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