New Massachusetts law substantially changes school discipline procedures

By Greg Vanden-Eykel

As of July 1, procedures governing the suspension and expulsion of K-12 students attending public and charter schools in Massachusetts will be substantially altered. Schools should prepare for these impending changes by revising their student exclusion policies and training administrators and teachers on how to execute the new policies.

These changes are the result of an Act signed into law by Gov. Deval Patrick in August 2012 that modifies disciplinary and exclusionary actions taken by public school districts and charter schools under certain situations. (Unless otherwise stated, the provisions of the Act discussed here do not apply to exclusions under G.L. c. 71, § 37H or G.L. c. 71, § 37H½).

The Act alters Massachusetts exclusion policy primarily in three ways, as detailed below.

I. Continuing education opportunities for excluded students

The Act requires public school districts and charter schools for the first time to provide all excluded students, including those excluded pursuant to G.L. c. 71, § 37H or G.L. c. 71, § 37H½, with opportunities to make academic progress while excluded. In the past, this requirement applied only to students covered by the IDEA.

Public school districts and charter schools now must:

1) Create a “School-wide Education Service Plan” for all students excluded for more than 10 consecutive school days. This plan must provide methods by which excluded students continue to make academic progress. Acceptable methods include tutoring services, alternative placement, Saturday school, and/or online/distance learning.

2) Provide a list of alternative educational services to students excluded for more than 10 consecutive school days as well as to their parent(s) or guardian(s).

3) Allow students to select their alternative educational service.

4) Facilitate the student’s alternative education service selection and verify enrollment in the selected service.

5) Allow students who are excluded for 10 or fewer consecutive school days, to make up assignments and earn credits missed while excluded (e.g., homework, quizzes, papers, and/or projects missed).

6) Admit or provide educational services to students (1) excluded from another public school district or charter school, and (2) who move into a new public school district or enroll in a new charter school, during the exclusion.

This changes the law significantly. Previously, no school was required to admit or provide educational services to excluded students while the student was excluded.

Public school districts and charter schools may be reimbursed for the instructional costs incurred while providing continuing education services under the same procedures applied to special education reimbursement under G.L. c. 71B, § 5B.

II. Creating new due process requirements

The Act, in a new statutory section (G.L. c. 71, § 37H¾), modifies existing due process requirements concerning school exclusion by:

1) Requiring school decision makers who hold student disciplinary meetings or hearings to:

a.      Exercise discretion in deciding consequences for the accused student;
b.      Consider ways to re-engage the student in the learning process; and
c.      Avoid using expulsion as a consequence, until all other remedies and consequences have been tried.

2) Requiring decision makers to provide, prior to excluding a student:

a.      Written notice, in English and the primary language spoken at the student’s home, to the student and student’s parent(s) or guardian(s) explaining the reasons for exclusion and the length of the potential exclusion;
b.      An opportunity for the student to meet with the principal or headmaster to discuss the reason(s) for exclusion; and
c.      Reasonable efforts to include the student’s parent(s) or guardian(s) in the meeting. The meeting can take place without the parent(s) or guardian(s) only if the decision maker can document all reasonable efforts taken to include the parent(s) or guardian(s).

3) Requiring decision makers to provide, after the meeting and decision to exclude a student:

a.      A revised written notice to the student and the parent(s) or guardian(s) reflecting the outcome of the meeting; and
b.      Written notice, in English and the language primarily spoken at the student’s home, of the right to appeal to the superintendent, and of the appellate process for an exclusion of more than 10 school days.

4) Creating an appeals process for exclusions of 10 or more consecutive school days that requires:

a.      Written notification by the student or his/her parent(s) or guardian(s) to the superintendent of a request to appeal no later than five calendar days following the effective date of the exclusion;
b.      Holding a hearing between the superintendent and the student and his/her parent(s) or guardian(s) within three days of the request for an appeal. The superintendent may proceed without the parent if he/she can document that the school made good faith and reasonable efforts to include the parent.
c.      Allowing the student, during the hearing, to:
i. Present oral and written testimony;
ii. Cross-examine witnesses; and
iii. Right to counsel.
d.      The superintendent to issue a written ruling within five calendar days.

5) Limiting exclusions to 90 school days or less, regardless of the reason for the exclusion.

6) Requiring decision makers to notify the superintendent, in writing, of out-of-school exclusions for any student enrolled in K-3. Notice must be provided beforethe exclusion becomes effective, and include:

a. A description of the alleged conduct; and
b. Reasons for the out-of-school suspension.

III. Instituting school discipline reporting requirements

The Act, for the first time, also requires all public school districts and charter schools to report to the Department of Elementary and Secondary Education “the specific reasons for all suspensions and expulsions, regardless of the duration or type.”

This reporting requirement applies to suspensions and expulsions under G.L. c. 71, §§ 37H, 37H½, and 37H¾. The Department will gather this information and publish annual reports concerning school discipline across the Commonwealth.

Questions remain as to how these new requirements are to be implemented and funded. Indeed, the Department has just recently published the draft regulations in connection with the Act and is soliciting public comments through March 7.

Nevertheless, to ensure compliance, now is the time for school committees, Board of Trustees, and schools to become familiar (or re-familiarize themselves) with the Act, and to revise their school discipline policies. The Act creates many new obligations, and preparation now will save time, money, and valuable resources so that schools are ready to roll when the 2014 school year begins.

Greg is an attorney in the Boston office of Barton Gilman where his practice includes advising clients on education and employment law matters.