Massachusetts School Discipline Laws & Regulations: Due Process

Massachusetts School Discipline Laws & Regulations: Due Process

Category: Exclusionary Discipline: Suspension, Expulsion, and Alternative Placement
Subcategory: Due Process
State: Massachusetts

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Massachusetts

LAWS

ALM GL ch. 71, § 37H. Policies relative to conduct of teachers or students; student handbooks.

Each school district's policies pertaining to the conduct of students shall include the following: disciplinary proceedings, including procedures assuring due process; standards and procedures for suspension and expulsion of students; procedures pertaining to discipline of students with special needs; standards and procedures to assure school building security and safety of students and school personnel; and the disciplinary measures to be taken in cases involving the possession or use of illegal substances or weapons, the use of force, vandalism, or violation of a student's civil rights. Codes of discipline, as well as procedures used to develop such codes shall be filed with the department of education for informational purposes only. [...]

Notwithstanding any general or special law to the contrary, all student handbooks shall contain the following provisions:

(a) 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 as defined in chapter ninety-four C, including, but not limited to, marijuana, cocaine, and heroin, may be subject to expulsion from the school or school district by the principal.

(b) 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, may be subject to expulsion from the school or school district by the principal.

(c) Any student who is charged with a violation of either paragraph (a) or (b) shall be notified in writing of an opportunity for a hearing; provided, however, that the student may have representation, along with the opportunity to present evidence and witnesses at said hearing before the principal.

After said hearing, a principal may, in his discretion, decide to suspend rather than expel a student who has been determined by the principal to have violated either paragraph (a) or (b).

(d) Any student who has been expelled from a school district pursuant to these provisions shall have the right to appeal to the superintendent. The expelled student shall have ten days from the date of the expulsion in which to notify the superintendent of his appeal. The student has the right to counsel at a hearing before the superintendent. The subject matter of the appeal shall not be limited solely to a factual determination of whether the student has violated any provisions of this section.

ALM GL ch. 71, § 37H1/2. Felony complaint or conviction of student; suspension; expulsion; right to appeal.

Notwithstanding the provisions of section eighty-four and sections sixteen and seventeen of chapter seventy-six:

(1) Upon the issuance of a criminal complaint charging a student with a felony or upon the issuance of a felony delinquency complaint against a student, the principal or headmaster of a school in which the student is enrolled may suspend such student for a period of time determined appropriate by said principal or headmaster if said principal or headmaster determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. The student shall receive written notification of the charges and the reasons for such suspension prior to such suspension taking effect. The student shall also receive written notification of his right to appeal and the process for appealing such suspension; provided, however, that such suspension shall remain in effect prior to any appeal hearing conducted by the superintendent.

The student shall have the right to appeal the suspension to the superintendent. The student shall notify the superintendent in writing of his request for an appeal no later than five calendar days following the effective date of the suspension. The superintendent shall hold a hearing with the student and the student's parent or guardian within three calendar days of the student's request for an appeal. At the hearing, the student shall have the right to present oral and written testimony on his behalf, and shall have the right to counsel. The superintendent shall have the authority to overturn or alter the decision of the principal or headmaster, including recommending an alternate educational program for the student. The superintendent shall render a decision on the appeal within five calendar days of the hearing. Such decision shall be the final decision of the city, town or regional school district with regard to the suspension.

(2) Upon a student being convicted of a felony or upon an adjudication or admission in court of guilt with respect to such a felony or felony delinquency, the principal or headmaster of a school in which the student is enrolled may expel said student if such principal or headmaster determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. The student shall receive written notification of the charges and reasons for such expulsion prior to such expulsion taking effect. The student shall also receive written notification of his right to appeal and the process for appealing such expulsion; provided, however, that the expulsion shall remain in effect prior to any appeal hearing conducted by the superintendent.

The student shall have the right to appeal the expulsion to the superintendent. The student shall notify the superintendent, in writing, of his request for an appeal no later than five calendar days following the effective date of the expulsion. The superintendent shall hold a hearing with the student and the student's parent or guardian within three calendar days of the expulsion. At the hearing, the student shall have the right to present oral and written testimony on his behalf, and shall have the right to counsel. The superintendent shall have the authority to overturn or alter the decision of the principal or headmaster, including recommending an alternate educational program for the student. The superintendent shall render a decision on the appeal within five calendar days of the hearing. Such decision shall be the final decision of the city, town or regional school district with regard to the expulsion.

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 under an education service plan, under section 21 of chapter 76.

ALM GL ch. 71, § 37H3/4. Suspension or expulsion on grounds other than those set forth in Sections 37H or 37H1/2.

(a) This section shall govern the suspension and expulsion of students enrolled in a public school in the commonwealth who are not charged with a violation of subsections (a) or (b) of section 37H or with a felony under section 3737H1/2.

(b) Any principal, headmaster, superintendent or person acting as a decision-maker at a student meeting or hearing, when deciding the consequences for the student, shall consider ways to re-engage the student in the learning process; and shall not suspend or expel a student until alternative remedies have been employed and their use and results documented, following and in direct response to a specific incident or incidents, unless specific reasons are documented as to why such alternative remedies are unsuitable or counter-productive, and in cases where the student's continued presence in school would pose a specific, documentable concern about the infliction of serious bodily injury or other serious harm upon another person while in school. Alternative remedies may include, but shall not be limited to: (i) mediation; (ii) conflict resolution; (iii) restorative justice; and (iv) collaborative problem solving. The principal, headmaster, superintendent or person acting as a decision-maker shall also implement school- or district-wide models to re-engage students in the learning process which shall include but not be limited to: (i) positive behavioral interventions and supports models and (ii) trauma sensitive learning models; provided, however, that school- or district-wide models shall not be considered a direct response to a specific incident.

(c) For any suspension or expulsion under this section, the principal or headmaster of a school in which the student is enrolled, or a designee, shall provide, to the student and to the parent or guardian of the student, notice of the charges and the reason for the suspension or expulsion in English and in the primary language spoken in the home of the student. The student shall receive the written notification and shall have the opportunity to meet with the principal or headmaster, or a designee, to discuss the charges and reasons for the suspension or expulsion prior to the suspension or expulsion taking effect. The principal or headmaster, or a designee, shall ensure that the parent or guardian of the student is included in the meeting, provided that such meeting may take place without the parent or guardian only if the principal or headmaster, or a designee, can document reasonable efforts to include the parent or guardian in that meeting. The department shall promulgate rules and regulations that address a principal's duties under this subsection and procedures for including parents in student exclusion meetings, hearings or interviews under this subsection.

(d) If a decision is made to suspend or expel the student after the meeting, the principal or headmaster, or a designee, shall update the notification for the suspension or expulsion to reflect the meeting with the student. If a student has been suspended or expelled for more than 10 school days for a single infraction or for more than 10 school days cumulatively for multiple infractions in any school year, the student and the parent or guardian of the student shall also receive, at the time of the suspension or expulsion decision, written notification of a right to appeal and the process for appealing the suspension or expulsion in English and in the primary language spoken in the home of the student; provided, however, that the suspension or expulsion shall remain in effect prior to any appeal hearing. The principal or headmaster or a designee shall notify the superintendent in writing, including, but not limited to, by electronic means, of any out-of-school suspension imposed on a student enrolled in kindergarten through grade 3 prior to such suspension taking effect. That notification shall describe the student's alleged misconduct and the reasons for suspending the student out-of-school. For the purposes of this section, the term "out-of-school suspension" shall mean a disciplinary action imposed by school officials to remove a student from participation in school activities for 1 day or more.

(e) A student who has been suspended or expelled from school for more than 10 school days for a single infraction or for more than 10 school days cumulatively for multiple infractions in any school year shall have the right to appeal the suspension or expulsion to the superintendent. The student or a parent or guardian of the student shall notify the superintendent in writing of a request for an appeal not later than 5 calendar days following the effective date of the suspension or expulsion; provided, that a student and a parent or guardian of the student may request, and if so requested, shall be granted an extension of up to 7 calendar days. The superintendent or a designee shall hold a hearing with the student and the parent or guardian of the student within 3 school days of the student's request for an appeal; provided that a student or a parent or guardian of the student may request and, if so requested, shall be granted an extension of up to 7 calendar days; provided further, that the superintendent, or a designee, may proceed with a hearing without a parent or guardian of the student if the superintendent, or a designee, makes a good faith effort to include the parent or guardian. At the hearing, the student shall have the right to present oral and written testimony, cross-examine witnesses and shall have the right to counsel. The superintendent shall render a decision on the appeal in writing within 5 calendar days of the hearing. That decision shall be the final decision of the school district with regard to the suspension or expulsion.

(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.

ALM GL ch. 76, § 16. Children excluded from school; remedies.

Any pupil who has attained age eighteen, or the parent, guardian or custodian of a pupil who has not attained said age of eighteen, who has been refused admission to or excluded from the public schools or from the advantages, privileges and courses of study of such public schools shall on application be furnished by the school committee with a written statement of the reasons therefor, and thereafter, if the refusal to admit or exclusion was unlawful, such pupil may recover from the town or, in the case of such refusal or exclusion by a regional school district from the district, in tort and may examine any member of the school committee or any other officer of the town or regional school district upon interrogatories.

ALM GL ch. 76, § 17. Hearing prerequisite to exclusion.

A school committee shall not permanently exclude a pupil from the public schools for alleged misconduct without first giving him and his parent or guardian an opportunity to be heard.

REGULATIONS

603 CMR 53.06. Notice of suspension and hearing under M.G.L. c. 71, § 37H3/4.

(1) Except as provided in 603 CMR 53.07 and 603 CMR 53.10, a principal may not impose a suspension as a consequence for a disciplinary offense without first providing the student and the parent oral and written notice, and providing the student an opportunity for a hearing on the charge and the parent an opportunity to participate in such hearing.

(2) The principal shall provide oral and written notice to the student and the parent in English and in the primary language of the home if other than English, or other means of communication where appropriate. The notice shall set forth in plain language:

(a) the disciplinary offense;

(b) the basis for the charge;

(d) the opportunity for the student to have a hearing with the principal concerning the proposed suspension, including the opportunity to dispute the charges and to present the student's explanation of the alleged incident, and for the parent to attend the hearing;

(e) the date, time, and location of the hearing;

(f) the right of the student and the student's parent to interpreter services at the hearing if needed to participate;

(g) if the student may be placed on long-term suspension following the hearing with the principal:

1. the rights set forth in 603 CMR 53.08(3)(b); and

2. the right to appeal the principal's decision to the superintendent.

(3) The principal shall make reasonable efforts to notify the parent orally of the opportunity to attend the hearing. To conduct a hearing without the parent present, the principal must be able to document reasonable efforts to include the parent. The principal is presumed to have made reasonable efforts if the principal has sent written notice and has documented at least two attempts to contact the parent in the manner specified by the parent for emergency notification.

(4) Written notice to the parent may be made by hand delivery, first-class mail, certified mail, email to an address provided by the parent for school communications, or any other method of delivery agreed to by the principal and parent.

603 CMR 53.07. Emergency removal under M.G.L. c. 71, § 37H3/4.

(1) Nothing in 603 CMR 53.00 shall prevent a principal from removing a student from school temporarily when a student is charged with a disciplinary offense and the continued presence of the student poses a danger to persons or property, or materially and substantially disrupts the order of the school and, in the principal's judgment, there is no alternative available to alleviate the danger or disruption. The temporary removal shall not exceed two school days following the day of the emergency removal, during which time the principal shall:

(a) Make immediate and reasonable efforts to orally notify the student and the student's parent of the emergency removal, the reason for the need for emergency removal, and the other matters set forth in 603 CMR 53.06(2);

(b) Provide written notice to the student and parent as provided in 603 CMR 53.06(2);

(c) Provide the student an opportunity for a hearing with the principal that complies with 603 CMR 53.08(2) or (3), as applicable, and the parent an opportunity to attend the hearing, before the expiration of the two school days, unless an extension of time for hearing is otherwise agreed to by the principal, student, and parent.

(d) Render a decision orally on the same day as the hearing, and in writing no later than the following school day, which meets the requirements of 603 CMR 53.08(2)(c) and (d) or (3)(c) and (d), as applicable.

(2) A principal may not remove a student from school on an emergency basis for a disciplinary offense until adequate provisions have been made for the student's safety and transportation.

603 CMR 53.08. Principal's hearing under M.G.L. c. 71, § 37H3/4.

(1) The principal shall determine the extent of the rights to be afforded the student at a disciplinary hearing based on the anticipated consequences for the disciplinary offense. If the consequence may be long-term suspension from school, the principal shall afford the student, at a minimum, all the rights set forth in 603 CMR 53.08(3) in addition to those rights afforded to students who may face a short-term suspension from school.

(2) Principal Hearing–Short-term Suspension.

(a) The purpose of the hearing with the principal is to hear and consider information regarding the alleged incident for which the student may be suspended, provide the student an opportunity to dispute the charges and explain the circumstances surrounding the alleged incident, determine if the student committed the disciplinary offense, and if so, the consequences for the infraction. At a minimum, the principal shall discuss the disciplinary offense, the basis for the charge, and any other pertinent information. The student also shall have an opportunity to present information, including mitigating facts, that the principal should consider in determining whether other remedies and consequences may be appropriate as set forth in 603 CMR 53.05. The principal shall provide the parent, if present, an opportunity to discuss the student's conduct and offer information, including mitigating circumstances, that the principal should consider in determining consequences for the student.

(b) Based on the available information, including mitigating circumstances, the principal shall determine whether the student committed the disciplinary offense, and, if so, what remedy or consequence will be imposed.

(c) The principal shall notify the student and parent of the determination and the reasons for it, and, if the student is suspended, the type and duration of suspension and the opportunity to make up assignments and such other school work as needed to make academic progress during the period of removal, as provided in 603 CMR 53.13(1). The determination shall be in writing and may be in the form of an update to the original written notice.

(d) If the student is in a preschool program or in grades K through 3, the principal shall send a copy of the written determination to the superintendent and explain the reasons for imposing an out-of-school suspension, before the short-term suspension takes effect.

(3) Principal Hearing–Long-term Suspension.

(a) The purpose of the hearing is the same as the purpose of a short-term suspension hearing.

(b) At a minimum, in addition to the rights afforded a student in a short-term suspension hearing, the student shall have the following rights:

1. In advance of the hearing, the opportunity to review the student's record and the documents upon which the principal may rely in making a determination to suspend the student or not;

2. the right to be represented by counsel or a lay person of the student's choice, at the student's/parent's expense;

3. the right to produce witnesses on his or her behalf and to present the student's explanation of the alleged incident, but the student may not be compelled to do so; and

4. the right to cross-examine witnesses presented by the school district; and

5. the right to request that the hearing be recorded by the principal, and to receive a copy of the audio recording provided to the student or parent upon request. If the student or parent requests an audio recording, the principal shall inform all participants before the hearing that an audio record will be made and a copy will be provided to the student and parent upon request.

(c) The principal shall provide the parent, if present, an opportunity to discuss the student's conduct and offer information, including mitigating circumstances, that the principal should consider in determining consequences for the student.

(d) Based on the evidence, the principal shall determine whether the student committed the disciplinary offense, and, if so, after considering mitigating circumstances and alternatives to suspension as set forth in 603 CMR 53.05, what remedy or consequence will be imposed, in place of or in addition to a long-term suspension. The principal shall send the written determination to the student and parent by hand-delivery, certified mail, first-class mail, email to an address provided by the parent for school communications, or other method of delivery agreed to by the principal and the parent. If the principal decides to suspend the student, the written determination shall:

1. Identify the disciplinary offense, the date on which the hearing took place, and the participants at the hearing;

2. Set out the key facts and conclusions reached by the principal;

3. Identify the length and effective date of the suspension, as well as a date of return to school;

4. Include notice of the student's opportunity to receive education services to make academic progress during the period of removal from school as provided in 603 CMR 53.13(4)(a);

5. Inform the student of the right to appeal the principal's decision to the superintendent or designee, but only if the principal has imposed a long-term suspension. Notice of the right of appeal shall be in English and the primary language of the home if other than English, or other means of communication, where appropriate, and shall include the following stated in plain language:

a. the process for appealing the decision, including that the student or parent must file a written notice of appeal with the superintendent within five calendar days of the effective date of the long-term suspension; provided that within the five calendar days, the student or parent may request and receive from the superintendent an extension of time for filing the written notice for up to seven additional calendar days; and that,

b. the long-term suspension will remain in effect unless and until the superintendent decides to reverse the principal's determination on appeal.

(e) If the student is in a public preschool program or in grades K through 3, the principal shall send a copy of the written determination to the superintendent and explain the reasons for imposing an out-of-school suspension, whether short-term or long-term, before the suspension takes effect.

603 CMR 53.09. Superintendent's hearing under M.G.L. c. 71, § 37H3/4.

(1) A student who is placed on long-term suspension following a hearing with the principal shall have the right to appeal the principal's decision to the superintendent.

(2) The student or parent shall file a notice of appeal with the superintendent within the time period set forth 603 CMR 53.08(3)(d)5.a. If the appeal is not timely filed, the superintendent may deny the appeal, or may allow the appeal in his or her discretion, for good cause.

(3) The superintendent shall hold the hearing within three school days of the student's request, unless the student or parent requests an extension of up to seven additional calendar days, in which case the superintendent shall grant the extension.

(4) The superintendent shall make a good faith effort to include the parent in the hearing. The superintendent shall be presumed to have made a good faith effort if he or she has made efforts to find a day and time for the hearing that would allow the parent and superintendent to participate. The superintendent shall send written notice to the parent of the date, time, and location of the hearing.

(5) The superintendent shall conduct a hearing to determine whether the student committed the disciplinary offense of which the student is accused, and if so, what the consequence shall be. The superintendent shall arrange for an audio recording of the hearing, a copy of which shall be provided to the student or parent upon request. The superintendent shall inform all participants before the hearing that an audio record will be made of the hearing and a copy will be provided to the student and parent upon request.

(6) The student shall have all the rights afforded the student at the principal's hearing for long-term suspension under 603 CMR 53.08(3)(b).

(7) The superintendent shall issue a written decision within five calendar days of the hearing which meets the requirements of 603 CMR 53.08(3)(d)1. through 4. If the superintendent determines that the student committed the disciplinary offense, the superintendent may impose the same or a lesser consequence than the principal, but shall not impose a suspension greater than that imposed by the principal's decision.

(8) The decision of the superintendent shall be the final decision of the school district, charter school, or virtual school, with regard to the suspension.

603 CMR 53.10. In-school suspension under M.G.L. c. 71, § 37H3/4.

(1) The principal may use in-school suspension as an alternative to short-term suspension for disciplinary offenses.

(2) The principal may impose an in-school suspension for a disciplinary offense under 603 CMR 53.10, provided that the principal follows the process set forth in 603 CMR 53.10(3) through (5) and the student has the opportunity to make academic progress as set forth in 603 CMR 53.13(1).

(3) The principal shall inform the student of the disciplinary offense charged and the basis for the charge, and provide the student an opportunity to dispute the charges and explain the circumstances surrounding the alleged incident. If the principal determines that the student committed the disciplinary offense, the principal shall inform the student of the length of the student's in-school suspension, which shall not exceed ten days, cumulatively or consecutively in a school year.

(4) On the same day as the in-school suspension decision, the principal shall make reasonable efforts to notify the parent orally as soon as possible of the disciplinary offense, the reasons for concluding that the student committed the infraction, and the length of the in-school suspension. The principal shall also invite the parent to a meeting to discuss the student's academic performance and behavior, strategies for student engagement, and possible responses to the behavior. Such meeting shall be scheduled on the day of the suspension if possible, and if not, as soon thereafter as possible. If the principal is unable to reach the parent after making and documenting at least two attempts to do so, such attempts shall constitute reasonable efforts for purposes of orally informing the parent of the in-school suspension.

(5) The principal shall send written notice to the student and parent about the in-school suspension, including the reason and the length of the in-school suspension, and inviting the parent to a meeting with the principal for the purpose set forth in 603 CMR 53.10(4), if such meeting has not already occurred. The principal shall deliver such notice on the day of the suspension by hand-delivery, certified mail, first-class mail, email to an address provided by the parent for school communications, or other method of delivery agreed to by the principal and the parent.

603 CMR 53.12. Disciplinary offenses under M.G.L. c. 71, § 37H or 3737H1/2.

(1) School districts shall adopt disciplinary policies and procedures applicable to a student who is accused of a disciplinary offense under M.G.L. c. 71, § 37H or 37H. Such policies and procedures shall be consistent with the applicable statute and provide due process of law.

(2) The principal may remove a student who has committed a disciplinary offense under M.G.L. c. 71, § 37H or 37H from school for more than 90 days in a school year.

(3) Any student who is removed from school for a disciplinary offense under M.G.L. c. 71, § 37H or 37H shall have an opportunity to receive education services and make academic progress during the period of removal, as provided in 603 CMR 53.13.