Applicability of Chapter 222 With Emphasis on MGL c.71, 37H, MGL c.71, 37H1/2, and MGL c.71, 37H3/4 PowerPoint Created By: Elizabeth Tashash, Education Advocacy Clinic Student, Suffolk University Law School Presenter: Isabel Raskin

Chapter 222’s Applicability Chapter 222 applies in the following ways to the following Massachusetts statutes: Amended M ASS. G EN. L AWS ch. 71, § 37H (2012) Amended M ASS. G EN. L AWS ch. 71, § 37H1/2 (2012) Created M ASS. G EN. L AWS ch. 71, § 37H3/4 (2012) Amended M ASS. G EN. L AWS ch. 76, § 1 (2012) Created M ASS. G EN. L AWS ch. 76, § 1B (2012) Amended M ASS. G EN. L AWS ch. 76, § 18 (2012) Created M ASS. G EN. L AWS ch. 76, § 21 (2012) Referenced M ASS. G EN. L AWS ch. 71B, § 5A (2012)

Question 1: Yes or No? Jen, a general education sophomore at Acme High School, is caught with marijuana in her purse at Acme’s homecoming dance. At the suspension hearing (and assuming all due process rights are provided), Acme High School’s principal decides to expel Jen. Can the principal do this under Chapter 222?

Answer 1: Yes Under M ASS. G EN. L AWS ch. 71, § 37H(a), any student found in possession of a controlled substance, such as marijuana, may be subject to expulsion from the school or school district by the principal. However, M ASS. G EN. L AWS ch.71, § 37H3/4(a) states that M ASS. G EN. L AWS ch.71, § 373/4 does not govern violations of M ASS. G EN. L AWS ch.71, § 37H(a). M ASS. G EN. L AWS ch.71, § 37H3/4 was created by Chapter 222.

Question 2: Yes or No? Using the fact pattern from Question 1, what if Jen’s out-of-school expulsion results in her exclusion from Acme High School from January through June? Can the principal do this under Chapter 222?

Answer 2: Yes Under M ASS. G EN. L AWS ch.71, § 37H3/4(f), no student shall be 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. However, M ASS. G EN. L AWS ch.71, § 37H3/4(a) states that M ASS. G EN. L AWS ch.71, § 373/4 does not govern violations of M ASS. G EN. L AWS ch.71, § 37H(a).

Question 3: Yes or No? Using the fact pattern from Question 1, during Jen’s exclusion from Acme High School, she does not receive any educational services from Blackacre School District, the school district of which Acme High School is a part. As a result, she misses all of her final exams. Can Blackacre School District do this under Chapter 222?

Answer 3: No Under M ASS. G EN. L AWS ch. 71, § 37H(e), any school district that suspends or expels a student under MGL c.71, 37H shall continue to provide educational services to the student during the period of suspension or expulsion, pursuant to M ASS. G EN. L AWS ch. 76, § 21. Under M ASS. G EN. L AWS ch. 76, § 21—created by Chapter 222—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.

Question 4: Yes or No? Using the fact pattern from Question 1, what if two months after Jen’s expulsion, she and her family move to a house located in the Whiteacre School District. Does Whiteacre School District have to perform any action with regard to Jen?

Answer 4: Yes Under M ASS. G EN. L AWS ch. 71, § 37H(e), if a student moves 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, pursuant to M ASS. G EN. L AWS ch. 76, § 21.

Question 5: Yes or No? What if Jen was not a sophomore in high school, but a 12-year-old, general education seventh grader at Acme Middle School, and she was found with the drug “Molly” at the middle school’s annual Walk-A-Thon fundraiser and the principal expels her? Okay to do under M ASS. G EN. L AWS ch. 71, §37H3/4?

Answer 5: Yes 12-year-old Jen can be indefinitely expelled, just as sophomore Jen could. However, 12-year-old Jen would likewise benefit from M ASS. G EN. L AWS ch. 71, § 37H(e). Under M ASS. G EN. L AWS ch. 71, § 37H(e), any school district that suspends or expels a student under MGL c.71, 37H shall continue to provide educational services to the student during the period of suspension or expulsion, pursuant to M ASS. G EN. L AWS ch. 76, § 21.

Question 6: Yes or No? Alex is a 15-year-old freshman at Acme High School. Recently, the Blackacre District Attorney’s office issued a felony delinquency complaint against Alex for an alleged assault with a dangerous weapon charge. Upon learning of the complaint, Acme High School’s principal decided to suspend Alex until the delinquency proceeding is complete which can take as long as 4-6 months. Alex receives written notice of the charges, reasons for the suspension, and notice of appeal; however he does not have an opportunity to meet with the principal to discuss the charges and reasons for suspension prior to the suspension taking effect. Can the principal do this?

Answer 6: Yes While a student covered under M ASS. G EN. L AWS ch. 71, § 37H3/4(c) would have the opportunity to meet with the principal to discuss the charges and reasons for the suspension prior to it taking effect, M ASS. G EN. L AWS ch. 71, § 37H3/4 does not apply to students charged with a felony under M ASS. G EN. L AWS ch. 71, § 37H1/2(1).

Question 7: Yes or No? Using the same fact pattern as in Question 6, Alex does not receive any educational services while he is suspended. Can Acme High School’s principal do this?

Answer 7: No Under M ASS. G EN. L AWS ch. 71, § 37H1/2, any school district that suspends or expels a student under M ASS. G EN. L AWS ch. 71, § 37H1/2(1) or (2), respectively, shall continue to provide educational services to the student during the period of suspension or expulsion, pursuant to M ASS. G EN. L AWS ch. 76, § 21.

Question 8: Yes or No Two children get into a fist fight in school. The principal suspends both students for 100 days each, saying the school has a zero tolerance policy for fighting. Okay to do under Chapter 222 (M ASS. G EN. L AWS ch. 71, § 37H3/4)?

Answer 8: No M ASS. G EN. L AWS ch. 71, § 37H3/4 governs the suspension and expulsion of students in public schools who are not charged with M ASS. G EN. L AWS ch. 71, § 37H and M ASS. G EN. L AWS ch. 71, § 37H1/2 offenses. M ASS. G EN. L AWS ch. 71, § 37H3/4(b) states that any person acting as the decision-maker deciding the consequences for the student shall exercise discretion and avoid expulsion until other remedies are employed. M ASS. G EN. L AWS ch. 71, § 37H3/4(f) states that no student shall be suspended from a school district for a time period that exceeds 90 school days, beginning on the first day that a student is removed from the school building.

Question 9: Yes or No? Michael, a 13-year-old seventh grader at Acme Middle School, has already been absent 6 times this school year. These absences have not been excused. Does the principal of Acme Middle School have to notify Michael’s parent regarding the absences?

Answer 9: Yes Pursuant to M ASS. G EN. L AWS ch. 76, § 1B, a new section created by Chapter 222, Acme Middle School’s principal must make a reasonable effort to meet with the parent or guardian of a student who has 5 or more unexcused absences to develop action steps for student attendance. M ASS. G EN. L AWS ch. 76, § 1B establishes a pupil absence notification program

Question 10: Yes or No? A 9 th grade freshman in high school has been suspended three times this year already, the first time for three (3) days, the second time for five (5) days, the third time for one (1) day. After a hearing, he was just suspended for the fourth time this year for five (5) more days. His parents have requested an appeal of this suspension to the Superintendent or her designee and the school district has refused, saying they don’t grant Superintendent Appeal hearings for suspensions of fewer than ten days. Okay to do under M ASS. G EN. L AWS ch. 71, § 37H3/4?

Answer 10: No MASS. GEN. LAWS ch. 71, § 37H3/4(d) states that a student who is suspended for more than 10 days cumulatively for multiple infractions in a school year shall receive written notification of the right to appeal. The student’s parent/guardian shall receive written notification as well. A student suspended for more than 10 school days shall have the right to appeal to the superintendent. A student or his parent or guardian 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. Extension of up to 7 calendar days The superintendent or a designee shall hold a hearing with the student and the parent/guardian of the student within 3 school days of the student’s request for an appeal.

Question 11: Yes or No? Charles, a tenth grader, gets into an argument with his English teacher during his first period class and begins to get more and more angry. He knocks everything off the teachers desk and storms out of the room. The principal finds Charles in the hall and tells him to go home, he is being suspended for the day and not to come back to school without his parent. Okay to do under M ASS. G EN. L AWS ch. 71, § 37H3/4?

Answer 11: No This is not a M ASS. G EN. L AWS ch. 71, § 37H or M ASS. G EN. L AWS ch. 71, § 37H1/2 offense, so M ASS. G EN. L AWS ch. 71, § 37H3/4 applies. M ASS. G EN. L AWS ch. 71, § 37H3/4(b) states, “[a]ny principal, headmaster, superintendent or other person action as a decision-maker at a student meeting or hearing, when deciding the consequences for the student, shall exercise discretion; consider ways to re-engage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.” There is nothing in M ASS. G EN. L AWS ch. 71, § 37H3/4 that allows for an “emergency” suspension. This is one place where the Chapter 222 regulations matter!

Question 12: Yes or No? Joshua is facing a suspension for over ten days for being seriously disruptive in a repeated manner, making excessive noise, failing to listen to teachers, and interfering with the learning of others. The school has sent home a written notice in English and Spanish to the address on file. The notice lists the charges, explains the basis for the charges and the date of the hearing and the parents’ rights. On the date of the hearing, the parent does not show up. The principal holds the hearing anyway and suspends the student for 30 days. Okay to do under M ASS. G EN. L AWS ch. 71, § 37H3/4?

Answer 12: Yes and No This is a M ASS. G EN. L AWS ch. 71, § 37H3/4 offense, so M ASS. G EN. L AWS ch. 71, § 37H3/4 applies. M ASS. G EN. L AWS ch. 71, § 37H3/4(a) provides that a principal shall ensure that parents/guardians are included in the exclusion meeting, but the meeting can take place without the parent/guardian only if the principal can document reasonable efforts to include the parent in the meeting. DESE will promulgate regulations for including parents in student exclusion meetings, pursuant to this subsection.

Thank You! Questions?