1. nauset Public Schools: Discipline and MDRs
February 1, 2018
nauset Public Schools: Discipline and MDRs
Paige L. Tobin, Esquire
Murphy, Lamere & Murphy, P. C.
Fall 2019
Murphy, Lamere & Murphy, P.C.

2. Chapter 222 – Student Discipline
Murphy, Lamere & Murphy, P. C.
Topics
Chapter 222 – Student Discipline
Manifestation Determination Reviews (MDRs)

3. Chapter 222 DUE PROCESS RIGHTS OF STUDENTS
Substantive due process
Procedural due process

4. M.G.L. c. 71 §37H Students subject to expulsion for:
1. possession of dangerous weapon;
2. possession of controlled substance;
3. assault upon educational staff person.
Student entitled to hearing.

5. M.G.L. c. 71 §37H ½ (felony complaint, felony conviction)
Student charged with felony criminal complaint subject to suspension. Student convicted of felony subject to expulsion. ONLY if the principal first determines that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school.

6. Doe v. Rizzi, Town of Stoughton NORFOLK, SUPERIOR COURT. NO
A 15 year old student charged with multiple felonies – attempted robbery outside of school.
Student suspended pending the outcome of the felony charges, and the school provided about three hours a week of tutoring. 
HELD: Court returned student to school. Court noted that 37H 1/2 is discretionary and intended to apply to serious violent felonies which did not describe the student's alleged actions. 
School did not prove student posed a substantial risk of harm to the school, and that the harm to student of not attending school "outweighs any harm that might be visited upon the defendants if they are enjoined from their unlawful actions." 

7. M.G.L. c. 71 §37H ¾ (Code of Conduct Violations – everything else!!)
Murphy, Lamere & Murphy, P. C.
M.G.L. c. 71 §37H ¾ (Code of Conduct Violations – everything else!!)
Applies to all suspensions and expulsions except for dangerous weapons, controlled substances and assaults on education staff, felony complaint or conviction

8. Removal from Extra-Curricular Activities
Murphy, Lamere & Murphy, P. C.
Removal from Extra-Curricular Activities
Not subject to the procedural requirements of Massachusetts Laws Chapter 37H ¾
Not a suspension
Parents should be notified in writing
ANY OTHER INVOLUNTARY REMOVAL IS A SUSPENSION!

9. TYPES OF EXCLUSIONS 2. Out of school short term suspension
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TYPES OF EXCLUSIONS
1. In-school suspension
2. Out of school short term suspension
3. Out of school long term suspension
4. Expulsion (ONLY under 37H and 37H ½)

10. In-School Suspension WITH NOTICE:
Murphy, Lamere & Murphy, P. C.
In-School Suspension
WITH NOTICE:
A student may be removed from regular classroom activities, but not from the school premises, for up to ten (10) consecutive school days or up to ten (10) school days cumulatively for multiple infractions during the school year
DUE PROCESS:
On same day as decision, notify the parent orally of the disciplinary offense, the reasons and the length of the in-school suspension
-- Invite the parent to a meeting to discuss the student's academic performance and behavior – same day if possible

11. ISS is a Removal from classroom activities…
Murphy, Lamere & Murphy, P. C.
ISS is a Removal from classroom activities…
“Removal of a student from regular classroom activities, but not from the school premises (less than 10 days during the school year)
If a student is separated from class for ten days or less due to misbehavior, but remains in school and is receiving instruction from a licensed teacher within a separate program, that is still considered an in-school suspension
No right to appeal
If in-school suspension for more than ten days, consecutively or cumulatively during a school year,  deemed a long-term suspension for due process, appeal, and reporting purposes

12. Sending students to the office…
Murphy, Lamere & Murphy, P. C.
Sending students to the office…
If a teacher sends a student to the assistant principal's office due to behavior issues and the student returns to class following a discussion with the assistant principal, does that lost class time count as an ISS?
Time does not count if it is less than half of the time that the school is in session that day
Maintain a record of such referrals to track the extent to which "referral to the office" is used as a classroom management tool, by whom, and with which students.
Periodic review of the data may reveal overuse

13. Out-Of-School Suspensions
Murphy, Lamere & Murphy, P. C.
Out-Of-School Suspensions
No Out-of-School Suspensions Without Oral and Written Notice
No matter how short of a suspension it is, the Principal must make REASONABLE EFFORTS to notify parents of opportunity to attend hearing.
Letter plus 2 attempts
MUST DOCUMENT ATTEMPTS TO CONTACT

14. Sending students home…
Murphy, Lamere & Murphy, P. C.
Sending students home…
A principal CANNOT send a student home from school for misconduct without complying with 603 CMR if the student would miss less than half of the school day
An involuntarily removal from school is a suspension and must be counted as such

15. February 1, 2018
What to include in the NOTICE (applies to both oral and written notice)
Murphy, Lamere & Murphy, P. C.
The disciplinary offense
The basis for the charge
The potential consequences and length
The opportunity for hearing (student and parent)
The date, time, and location of the hearing
Interpreter
If long-term suspension, NOTICE should include the right to appeal the principal's decision to the superintendent
Murphy, Lamere & Murphy, P.C.

16. February 1, 2018
Murphy, Lamere & Murphy, P. C.
Emergency Removal
WHEN: 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
Murphy, Lamere & Murphy, P.C.

17. Emergency Removal DUE PROCESS
Murphy, Lamere & Murphy, P. C.
Emergency Removal DUE PROCESS
DUE PROCESS:
Notify the superintendent of removal and the reason (in writing)
Not to exceed two (2) school days
Reasonable efforts to notify parents and schedule hearing
Written notice and opportunity for hearing
Only after student’s safety and transportation considered

18. Murphy, Lamere & Murphy, P. C.
MOBILE CRISIS
If the removal is to secure medical or clinical treatment and is not a disciplinary response, the student's absence from school is not considered a suspension or a removal for disciplinary purposes requiring due process

19. Murphy, Lamere & Murphy, P. C.
Hearings
For both short-term and long-term suspensions, the principal must provide the parent an opportunity to discuss the student's conduct at the hearing and permit the parent to offer information that the principal should consider in making a decision.
Barring an emergency removal, the student remains in school pending the principal's decision.

20. Burden of proof It IS NOT beyond a reasonable doubt!
Murphy, Lamere & Murphy, P. C.
Burden of proof
It IS NOT beyond a reasonable doubt!
It IS a preponderance of the evidence!
More likely than not
51% sure

21. Principal’s Hearing (Short-term Suspension – less than 10 days):
Murphy, Lamere & Murphy, P. C.
Consider information and determine:
Whether student committed disciplinary offense
Are there mitigating circumstances
Consequences
Written determination to student
For preschool – grade 3: prior notice and reasoning to Superintendent

22. Principal’s Hearing (Long-term Suspension – more than 10 days):
Murphy, Lamere & Murphy, P. C.
Same as for short-term, PLUS, other rights:
In advance of hearing, student gets copy of student’s record and documents that Principal may rely upon
Right to representation at hearing (parents’ expense); right to produce, examine and cross- examine witnesses; right to request that hearing be recorded by principal

23. Special process for kindergarten – grade 3 students:
Murphy, Lamere & Murphy, P. C.
Special process for kindergarten – grade 3 students:
For any “out of school suspension,” the principal must:
Notify the Superintendent in writing prior to such suspension taking effect; and
The writing must describe the alleged misconduct
Does not include “in school suspensions”

24. Appeal Process under § 37H ¾
Murphy, Lamere & Murphy, P. C.
Appeal Process under § 37H ¾
Applies to any exclusion for more than 10 school days:
School provides written notice of appeal rights
Student has 5 calendar days to appeal with option to extend additional 7 days
Superintendent hears appeal within 3 school days

25. THE SUPERINTENDENT’S DECISION IS FINAL
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Appeal Hearing
Student’s Rights:
present oral and written testimony
cross-examine witnesses
the right to counsel (at own expense)
the right to interpreter (if needed)
the right to a decision within 5 calendar days
THE SUPERINTENDENT’S DECISION IS FINAL

26. Student’s Rights During Exclusion
Murphy, Lamere & Murphy, P. C.
Student’s Rights During Exclusion
No exclusion for more than 90 school days in a school year are allowed
Exception: exclusions under §37H or §37H½
Suspensions Less Than 10 Days, Student Gets To make up assignments and earn credits
Suspensions 10 Days or More, Student Gets:
Participation in the school-wide Educational Service Plan; and
List of available alternative educational services (tutoring, alternative placement, Saturday school, online learning)

27. Murphy, Lamere & Murphy, P. C.
Academic Progress
Notify in writing of opportunity to make academic progress during the suspension or expulsion.
Less than 10 days -- the school must provide an opportunity for the students to be able to earn credits, and make up assignments, tests, papers, and other school work.
More than 10 days – education service plan
The student and the parent have the right to choose a type of education service from those offered to all students in the education service plan.
The principal may recommend one option over others based on the school personnel's knowledge of the student.

28. If the student refuses to accept the education services …
Murphy, Lamere & Murphy, P. C.
If the student refuses to accept the education services …
Document efforts.
The school has met its legal obligations because it has provided the student an opportunity to make academic progress during the period of exclusion from school.
If the student subsequently changes his or her mind and requests education services, the school should provide the opportunity to make academic progress.

29. Principal’s Discretion: Do NOT delegate to SRO
February 1, 2018
Principal’s Discretion: Do NOT delegate to SRO
Murphy, Lamere & Murphy, P. C.
Principal or designee makes disciplinary decisions in the building, NOT school resource officer
Rights of principal may NOT be delegated to the school resource officer
Most disciplinary issues should be handled by the principal or designee, not the police
Student’s rights change depending on whether actions are taken by the school or by the police
Murphy, Lamere & Murphy, P.C.

30. Top Ten Things to Know About MDRs

31. 1. Why Are We Holding an MDR?
Murphy, Lamere & Murphy, P. C.
1. Why Are We Holding an MDR?
Student has an IEP or 504 Plan or school has knowledge that student may be a student with a disability
A decision to change the placement of a student with a disability because of a violation of a student code of conduct has taken place or is about to take place

32. 2. What Is a Change In Placement?
Murphy, Lamere & Murphy, P. C.
2. What Is a Change In Placement?
Change of placement
Removal for more than 10 consecutive school days during this school year
Removal for more than 10 cumulative school days during this school year for behavior that constitutes a pattern
School District decides if there is a pattern

33. Murphy, Lamere & Murphy, P. C.
3. Who Is Present at an MDR?
The student’s parent(s) or legal guardian(s)
Relevant members of the student’s IEP Team, including the building administrator, teachers, evaluators, other appropriate staff
It is very important that ALL parties are present

34. Murphy, Lamere & Murphy, P. C.
4. What do we do at an MDR?
Describe the behavior subject to disciplinary action
Include setting events, antecedents, details of the behavioral incident, and immediate consequences
List witnesses and include all relevant details
Review, in terms of the above behavior, all relevant information in the student’s file
IEP
Evaluations
Teacher Observations
Information from parents or outside providers
ANY RELEVANT INFORMATION, including any outside assessment handed to the MDR Team at the MRD meeting
It is VERY important not that the team does not limit their review to the student’s IEP or diagnosis
Answer 2 questions
Decide on NEXT steps

35. 5. What Questions Must We Answer at an MDR?
Murphy, Lamere & Murphy, P. C.
5. What Questions Must We Answer at an MDR?
If the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
DIRECT nexus
Consider whether the student has shown a history of voluntary control of the behavior in question
Consider if the student, in an escalated emotional state, can recall the knowledge or to produce the skill
If the conduct in question was the direct result of the district’s failure to implement the student’s IEP
If a Positive Behavior Support Plan was mentioned in the IEP, was it being implemented as designed
Review specially designed instruction, related services, and supports for school personnel as specified in the student’s IEP. Were they being provided?
Do NOT consider whether child knows right from wrong, or whether the IEP was appropriate

36. 6. What Are Our Next Steps If There IS Manifestation?
Murphy, Lamere & Murphy, P. C.
6. What Are Our Next Steps If There IS Manifestation?
If the answer to either Question #1 or #2 is YES, then:
RETURN Student to his school environment
Conduct and FBA or update recently completed FBA, AND draft/update BIP, OR
Discuss with Parents whether they will AGREE to a change of placement
If Parents agree, may change placement

37. Murphy, Lamere & Murphy, P. C.
Behavior Plans
Law requires Team to consider the use of positive behavioral interventions and supports
Must meet the student’s specific needs and be
-based upon data
-specific
-flexible
Consider adding circumstances when law enforcement will be contacted

38. Functional Behavioral Assessments
Murphy, Lamere & Murphy, P. C.
Functional Behavioral Assessments
FBA recommended and scheduled
An FBA and BIP review must be undertaken if the conduct is a manifestation
However, the team should consider both where warranted by the conduct, even if not a manifestation of disability
The FBA is meant to be used “proactively” and “as appropriate”
Parental consent required

39. 7. What Are Our Next Steps If There Is NO Manifestation?
Murphy, Lamere & Murphy, P. C.
7. What Are Our Next Steps If There Is NO Manifestation?
If the answer to Question #1 and #2 is NO, then:
Discipline in the same manner and for the same duration as the children without disabilities.
Conduct an FBA, as appropriate

40. 8. What Educational Services Do We Have to Provide?
Murphy, Lamere & Murphy, P. C.
8. What Educational Services Do We Have to Provide?
When removed from his/her current placement, a student has a right to FAPE to enable participation in general education curriculum and progress toward meeting the goals set out in the student’s IEP
Under state law, a student serving a suspension for over 10 consecutive school days or an expulsion has an opportunity to receive education services and to make academic progress toward meeting state and local requirements, through a school-wide education service plan.
FOR Students with IEPs ONLY, TEAM MAKES THIS DECISION
If the child has been removed from his or her current placement for 10 school days in the same school year, educational and/or behavioral services must be provided during any subsequent days of removal

41. 9. How Do we Conclude the MDR?
Murphy, Lamere & Murphy, P. C.
9. How Do we Conclude the MDR?
Make a FINDING
No one has veto power
Do not take a vote
If no “consensus,” the District decides if there is/ is not manifestation
If no manifestation, may hold disciplinary hearing
Issue an N1

42. 10. Are There Any Special Circumstances?
Murphy, Lamere & Murphy, P. C.
10. Are There Any Special Circumstances?
When an incident at school or a school function involves:
the possession of weapon;
the possession or use of illegal drugs; or
infliction of serious bodily injury upon another person
The district may move a student to an Interim Alternative Education Setting (IAES) for up to 45 days without regard to whether the behavior is determined to be a manifestation of the student’s disability
The team determines the IAES

43. Authority for Alternative Placement
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Authority for Alternative Placement
Change of placement resulting from discipline and team determination
Alternative setting remains the student’s placement unless parent challenges manifestation determination or quality/quantity of alternative services
Unilateral removal by the District (Limit of 45 school days)
By Order of Court or Hearing Officer if a student is a danger to himself or others

44. Murphy, Lamere & Murphy, P. C.
Thank You