May 1, 2014

On April 29, 2014, the Board of Elementary and Secondary Education (Board) approved regulations related to the new student discipline law set to take effect July 1, 2014.  The "Act Relative to Student Access to Educational Services and Exclusion from School" and the new regulations seek to ensure access to educational opportunity for all students, including those who violate school rules.   The following is a brief overview of key provisions. 

Long-Term Suspension:   The Statute requires public schools to provide educational services for all students who are excluded from school for any offense for more than ten consecutive days.   The provisions for suspending and expelling students under M.G.L. c. 71, sec. 37H or 37H1/2 for conduct involving possession of controlled substance, possession of a dangerous weapon, assault of educational staff or felony charges/ convictions otherwise remain in place, so long as services are provided.  However, for all other conduct, the Statute requires administrators to avoid imposing a long-term suspension (i.e., more than ten days, consecutively or cumulative in a school year, whether in-school or out-of-school) until other consequences have been considered and tried as appropriate; provides for appeal of such long-term suspensions to the Superintendent; and imposes a maximum length of ninety days for such suspensions.   

Short-Term Suspension:  Perhaps of most far reaching impact on public schools, the Statute also increases the due process rights of students and their parents for short-term suspensions (i.e., ten days or fewer in a school year).   The Statute requires that prior to the student's removal from school, the administrator must provide to both student and parent a detailed written notice of the charges and an opportunity for an informal hearing. 

Debate Regarding Emergency Removal:   In recognition of the need for immediate removal of a student from school in some instances, the Proposed Regulations as published for public comment on January 29, 2014, allowed an exception to the advance parental notice and hearing for a short-term Emergency Removal if the student's continued presence was deemed to pose a danger to persons or property or to cause material disruption to the order of the school.   Unfortunately, the Proposed Regulations published with the Board's agenda for final vote on April 29, 2014 deleted the provision on material disruption thus retaining danger as the only basis for Emergency Removal.  Given the importance of addressing the needs of all students for both a safe and orderly learning environment, Attorney Rebecca Bryant of the Education Group at SCM took a leadership role in attending the Board meeting on April 29 to advocate for reinstatement of a disruption provision.  The Education Group at SCM acknowledges and appreciates the Board's April 29 decision to include such a provision in the Final Regulations.  

Updating Handbooks:   The new Statute and Regulations change the legal landscape of student discipline in Massachusetts.  Schools officials are encouraged to review the Regulations in their entirety and to work with their school attorneys to update polices and student handbooks to reflect these changes.  The Education Group at SCM stands ready to advise and assist local school districts with this process as needed.   

Click here for the regulations.