Chapter 222 of the Acts of 2012

Report
The Massachusetts Association of School Business Officials
Chapter 222 of the Acts of 2012
Student Discipline and Attendance
September 9, 2014
M AT T H E W W. M A C AV O Y, E S Q .
N U T TA L L & M A C AV O Y, P. C .
1020 PLAIN STREET
MARSHFIELD, MA 02061
781-837-7428
S N M E D L AW. C O M
Chapter 222 of the Acts of 2012
An Act Relative to Student Access to Educational Services and Exclusion from School
• Signed into law by Governor Patrick in August 2012.
• Effective July 1, 2014
•Purpose of the law
• Elimination of “Zero Tolerance” approaches to school disciplinary matters
• To establish uniform and consistent due process procedures for school discipline
throughout the Commonwealth.
• To ensure continued educational services for all students when subject to exclusion from
school.
• To encourage and facilitate monitoring of student absences and to prevent students from
dropping out of school.
Chapter 222 of the Acts of 2012
◦ 3 Major Provisions
1) Discipline
• Creates M.G.L. c.71, §37H¾, establishing specific procedural requirements for all suspensions
and exclusions for reasons other than those covered in section 37H (dangerous weapons,
controlled substances, and assaults on education staff) and section 37H ½ (felony complaint);
• Creates M.G.L. c.76, §21 requiring educational services to be provided to any student
suspended or excluded for more than ten (10) consecutive school days.
2) Pupil Absences
• Amends M.G.L. c.76, §1 to require districts to develop and implement a Pupil Absence
Notification Program for the purpose of reducing and responding to student absences.
3) Drop-out-Prevention
• Modifies M.G.L. c.76, §18 to expedite and formalize the process for responding to extended
unauthorized absences from school before a student can be considered to have withdrawn from
school.
Student Discipline
Applicable Federal and State Laws
Massachusetts Statutes
• M.G.L. c.71, §37H
• M.G.L. c.71, §37H ½
• M.G.L. c.71, §37H ¾ (as of 7/1/14)
• M.G.L. c.76, §17
• M.G.L. c.76, §16
• M.G.L. c.76, §21(as of 7/1/14)
Massachusetts Regulations
• 603 CMR 53.00
Federal Statutes
• The Individuals with Disabilities Education Act (IDEA)
• Section 504 of the Rehabilitation Act of 1973
Federal Regulations
• 34 CFR §300.530-537
M.G.L. c.71, §37H
•A Principal has authority to permanently expel a student for the following conduct:
• Possession of a dangerous weapon
• Principal’s determination
• Possession of a controlled substance (as defined in c.94C)
• Marijuana = controlled substance
• Alcohol ≠ controlled substance
• Assault on Staff
•Principal must conduct formal hearing at which:
• student has right to counsel (at private expense);
• to examine the evidence against the student;
• and to present evidence in own defense.
• Student may appeal decision in writing to the Superintendent within 10 calendar days.
M.G.L. c.71, §37H1/2
Felony Charges – Suspension
◦ Principal may suspend based on the issuance of felony
charges where the Principal determines that the student’s
continued presence would have a substantial detrimental
effect on the welfare of the school.
◦ Principal must provide written notice of charges and
basis for decision prior to imposition of suspension and
notice of appeal process.
M.G.L. c.76, §17
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.
* Effectively nullified by Chapter 222 of the Acts of 2012
M.G.L. c.76, §16
If a student is wrongfully excluded from school, the
student shall have the right to recover monetary
damages.
Educational Services during Disciplinary Exclusion
(until 7/1/2014)
• Regular Education Students
•
No entitlement to educational services during periods of disciplinary exclusion
• BOARD OF EDUCATION vs. SCHOOL COMMITTEE OF QUINCY,
415 Mass. 240 (1993)
• Students with Disabilities
• Special education students have always been entitled under federal law (IDEA) to
services necessary to provide free appropriate public education as of the 11th day of
exclusion in a school year
The New Discipline Statute - M.G.L. c.71, §37H3/4
• Establishes due process requirements for students subject to exclusion from school for non
37H and 37H ½ offenses.
• Applies to any offense that does not fall under 37H or 37H1/2.
• Requires the same level of due process as when excluding students under 37H and 37H
½.
• Requires Principals to implement alternative strategies prior to imposing a Long-Term
Suspension
• Limits exclusion of any student for a school rules violation to a maximum of ninety (90)
school days in a single school year.
• Effectively eliminates ability to expel students for non-37H or 37H1/2 offenses
• Allows for appeal of suspensions resulting in 10 or more days of suspension (in or out of
school) in a school year.
• Requires that districts notify DESE of all suspensions and exclusions of students.
New Discipline Regulations
603 CMR §53.00
• Apply to any offense that does not fall under 37H or 37H1/2.
• “The purpose of 603 CMR §53.00 is:
(a) To limit the use of long-term suspension as a consequence for student misconduct
until other consequences have been considered and tried as appropriate;
(b) To promote engagement of a student's parent in discussion of the student's
misconduct, and options for responding to it;
(c) To assure that every student who is expelled or suspended, regardless of the reason
for suspension or expulsion, has the opportunity to receive education services to make
academic progress during the period of suspension or expulsion; and,
(d) to keep schools safe and supportive for all students while ensuring fair and
effective disciplinary practices.
Definitions
603 C.M.R. § 53.02
•In-School Suspension - Removal of a student from regular classroom activities, but not from the school premises, for no more
than 10 consecutive school days, or no more than 10 school days cumulatively for multiple infractions, in a school year.
• Removal from extracurricular activities or school-sponsored events, or both, shall not count as a removal.
• If placed in In-School Suspension for more than 10 days, such a suspension shall be considered a long-term suspension.
•Short-Term Suspension - Removal of the student from the school premises and regular classroom activities for 10 consecutive
school days or less.
•Long-Term Suspension - Removal of the student from the school premises and regular classroom activities for more than 10
consecutive school days, or more than 10 school days cumulatively for multiple disciplinary offenses in any school year.
•Expulsion - Removal of a student from the school premises for more than ninety (90) school days, indefinitely, or permanently, as
permitted under G.L. c. 71, §§37H or 37H½.
•Written Notice: Written correspondence sent hand-delivery, certified mail, first-class mail, email to an address provided by the
parent for school communications, or any other method of delivery agreed to by the Principal and the parent.
In-School Suspension
603 C.M.R. § 53.10
May impose In-School Suspension up to 10 days in a school year provided the student has the opportunity to
make academic progress during the In-School Suspension.
The Principal must:
1) Inform the student of the disciplinary offense charged and provide the student with the opportunity to
respond.
2) If the Principal determines that the student committed the offense, the Principal must inform the student
of the length of the In-School Suspension.
3) Provide oral notice (on the same day) to the parents of the Principal’s determination and the length of
the In-School Suspension. The Principal must also make reasonable efforts (at least two telephone calls)
to invite the parents to a meeting to discuss the student’s academic performance and behavior, strategies
for student engagement, and possible responses to the behavior.
4) On the day of the In-School Suspension, Principal must deliver written notice to the parents of the basis
for and length of the in-school suspension and inviting the parents to meet to discuss the student’s
behavior if such a meeting has not already occurred.
Out-of-School Suspension -Written Notice
• Principal may not impose an out of school suspension as a consequence for a disciplinary offense
without first providing the student and the parent with oral and written notice and the opportunity to
be heard.
• For all suspensions, the written notice must include:
• Identification of the alleged disciplinary violation; the basis for the charge; the potential
length of the student’s suspension; the opportunity for the student to be heard and the parent
to participate; date, time and location of the hearing; notice of right to have translation
services if needed to participate in the hearing.
• If the student is potentially subject to Long-Term Suspension (more than consecutive or
cumulative 10 days), the notice must also include:
• Notice of opportunity to review records; right to be represented by counsel; right to produce
witnesses and to present an explanation of the incident; right to cross-examine witnesses
presented by the district; and the right to request that the hearing be audio recorded by the
Principal. 603 C.M.R. § 53.08(3).
•Notice may be by email.
Emergency Removals
603 C.M.R. 53.07
•Principal may remove a student temporarily (up to 2 school days) when:
• A student is charged with a disciplinary offense and, in the Principal’s opinion, the
student’s continued presence in the building poses a danger to persons or property,
or would substantially and materially disrupt the order of the school and if there is
no alternative available to alleviate the danger or disruption.
• Principal must:
• Make immediate and reasonable efforts to orally notify the student and the student’s
parent of the emergency removal and of the reason for the need for emergency
removal, and the notice requirements for short-term suspension, including written
notice.
• Make “adequate provisions” for the student’s safety and transportation.
• Conduct a hearing within 2 school days .
Principal’s Hearings
603 CMR 53.08
•Short-Term Suspension Hearing:
• Principal must provide the student and parents (if present) with the opportunity to dispute the charges and to
present information, including mitigating facts, for the Principal to consider in determining whether remedies and
consequences other than suspension may be appropriate.
•Long-Term Suspension Hearing
• In addition to the rights afforded in a short-term suspension hearing, Principal must provide the student and
parents with:
• The opportunity to review the student’s record and the documents upon which the Principal may rely at the
hearing;
• The right to be represented by counsel or a lay person of the student’s choice, at the student’s/parent’s expense;
• The right to produce witnesses on his or her behalf and to present the student’s explanation of the alleged
incident;
• The right to cross-examine witnesses presented by the school district;
• The right to request that the hearing be recorded by the Principal, and to receive a copy of the audio recording
upon request.
Principal’s Written Decision:
Short-Term Suspension
603 C.M.R. §53.08(2)(c)
• Notice of the disciplinary determination must be in writing and must include:
• the reasons for the determination;
• the type and duration of suspension; and
• notice of the opportunity to make up assignments and such other school work
as needed to make academic progress during the period of removal.
•If the student is in grades K-3, the principal must, before the Short-Term
Suspension takes effect,:
• Send the copy of the written determination to the Superintendent and
• Explain the reasons for imposing an out-of-school suspension.
Long-Term Suspension
Alternatives
• Prior to imposing a long-term suspension under 37H3/4, a Principal “shall
consider ways to reengage the student in learning and avoid long-term
suspension from school as a consequence until alternatives have been tried.
Alternatives may include the use of evidence-based strategies and programs
such as mediation, conflict resolution, restorative justice, and positive
behavioral interventions and supports.”
603 C.MR. §53.05
Principal’s Notice of Decision
Long-Term Suspension
603 CMR §53.08(3)(d)
• If the Principal decides to impose a Long-Term Suspension, the written notice of the
determination must:
• Identify the offense, the date of the hearing, and the participants at the hearing;
• Set out the key facts and conclusions reached by the Principal;
• Identify the length and effective date of the suspension, as well as the date of return
to school;
• Include notice of the opportunity to receive education services during the period of
exclusion;
• Inform student of the right to appeal and the process for making such an appeal; and
• Include notice that the suspension will remain in effect unless reversed on appeal.
Appeals to Superintendent
603 CMR 53.09
•A student has the right to appeal:
• Any Long-Term Suspension imposed by the Principal
• Any Short-Term Suspension that will result in the student’s suspension for more than 10 cumulative
school days in a single school year
• Any In-School Suspension that will result in a student’s In-School Suspension for more than 10
cumulative school days in a single school year
•The student and parents have five (5) calendar days from the effective date of the
suspension to appeal
• Must be granted an extension of seven (7) calendar days upon request.
•Superintendent must conduct appeal hearing within three (3) school days
• Must provide student with all of the rights provided at the Principal’s hearing and must audio-record
the hearing.
• Superintendent’s decision is final.
Disciplinary Limitations
•Except for students who are charged with §37H or §37H1/2
offense, no student may be placed on Long-Term Suspension for
one or more disciplinary offenses for more than ninety (90) school
days in a school year beginning with the first day that the student
is removed from school.
•Except for students who are charged with §37H or §37H1/2
offense, no Long-Term Suspension may extend beyond the end of
the school year.
Education Services and Disciplinary Removal
• M.G.L. c.76, §21
• Any student serving a suspension “shall have the opportunity to make up
assignments, tests, papers and other school work as needed to make academic
progress” during his or her period of removal from the classroom or school.
• The student and parent must be informed of this opportunity when the
suspension is imposed.
• Applies to all suspensions and exclusions under §37H, §37H1/2 and
§37H3/4. (In-School Suspension, Short-Term Suspension and Long-Term
Suspensions)
Academic Progress and Educational Services
603 C.M.R. §53.13
•Suspensions of (10) consecutive school days or less
• Must provide student with opportunity to earn credits, make up assignments, tests, papers, and
other school work as needed to make academic progress during the period of his or her removal
from the classroom or school.
•Suspensions of more than ten (10) consecutive school days
◦ Must provide the student with the opportunity to receive educational services that will enable the
student to make academic progress towards state and local graduation requirements, including the
opportunity to complete assignments, homework, quizzes, exams, papers, projects and to earn
course credit.
◦ The services that will be made available to such students must be detailed in a school-wide
Education Services Plan.
Education Service Plans
603 C.M.R. 53.13
School-wide Education Service Plan must provide:
• A listing of the educational services that will be made available to students who are
excluded from school for more than 10 consecutive days.
• Examples: direct tutorial programs, night school, alternative school,
collaborative school programs, online learning
• “Educational services shall be based on, and be provided in a manner
consistent with, the academic standards and curriculum frameworks
established for all students under G.L. c. 69, §§1D and 1F.”
• A description of the process for notifying parents and students of the services to be
made available and for arranging for the services to be provided.
Educational Services and Academic Progress
Exclusions of more than 10 consecutive days
• Upon selection of an alternative educational service by the student and
parent or guardian, the school must facilitate and verify enrollment in
the service. M.G.L. c.76, §21.
• Transportation?
• If the student moves to another school district during the period of
exclusion, the new district shall either admit the student or provide
educational services through the school’s Education Services Plan.
M.G.L. c.76, §21.
DESE, Study of the Cost of Implementing the New
Student Discipline Law • DESE estimated the total annual cost of an instructional program meeting the
law’s requirements to range from $32,103.00 to $300,131.00, depending on the
program model.
• This worked out to be an estimated $1,890 to $8,559 per pupil.
• The estimates include only costs for academic and instructional services.
• Program models (Fall River on campus tutoring program, Springfield’s IAES
program, and North Adam’s online learning program)
• Programs surveyed ranged in intensity from a few hours per week to a full-day program
and served different numbers of students.
• The DESE study is available at:
http://www.doe.mass.edu/research/reports/201311StudentDisciplineLawCost.pdf
Funding
• “Instructional costs” associated with providing alternative education services are
“eligible” for reimbursement, “subject to appropriation” under the special education
circuit breaker statute at M.G.L. c. 71B, §5A.
Instructional costs shall include:
1) The salary of educational personnel;
2) Salary of related services personnel;
3) Costs of specialized books, materials or equipment;
4) Tuition costs;
5) Consultant costs;
6) Instructional costs of extended or year programs.
Instructional costs shall NOT include:
1. Transportation costs;
2. Administrative or overhead costs;
3. The costs of adapting classrooms or materials that are
used by more than one student;
4. The costs of fringe benefits of personnel employed by
the school district; and
5. The costs associated with development of the education
service plan or service coordination for student.
Unfunded Mandate?
The State Auditor’s Assessment
On January 31, 2013, State Auditor Susan Bump issued an analysis of the cost of complying with
Chapter 222 of the Acts of 2012 with regard to the provision of alternative educational services to
students who have been suspended or expelled for ten consecutive days or more. Auditor Bump
found:
1.
The Chapter 222 alternative educational services requirements “will clearly effect substantive
change in the obligations of school officials” not imposed previously by statute or case law.
2.
The c.71B, §5A funding provided for in Chapter 222 is insufficient to satisfy state mandated
funding requirements.
Additional Sources of Funding
Massachusetts FY15 Budget (c.165 of the Acts of 2014)
Provides a total of $246,140.00 for a statewide alternative education
grant program to provide alternative educational services in
accordance with Chapter 222 of the Acts of 2012. (7061-9614)
Student Discipline Data
Reports to the DESE
603 CMR 53.14
•School districts must collect and annually report data to the DESE regarding all In-School
Suspensions, Short-Term Suspensions, Long-term Suspensions, Expulsions, and Emergency
Removals, student accessing of alternative education services, and such other information as may
be required by the Department.
•Principals must periodically review discipline data by selected student populations, including but
not limited to race and ethnicity, gender, socioeconomic status, English language learner status,
and student with a disability status. The Principal must assess the impact of such disciplinary
action on selected student populations.
•In the fall of each year, the DESE must publish an analysis and report of student discipline data
disaggregated by district and school, and by selected student populations, included but not limited
to race and ethnicity, gender, socioeconomic status, English language learner status, and student
with a disability status.
Chapter 222 of the Acts of 2012
Student Attendance
Pupil Absence Notification Program: Requires school districts to establish a “Pupil
Absence Notification Program” to ensure that schools notify parents if their child is
absent from school and the school has not received notification of such absence from
the parent within 3 school days.
•Each school district is also required to have a policy of notifying parents if their child
has 5 or more unexcused absences in a year or if the child has missed 2 or more
classes due to absence for 5 days or more.
•The policy shall provide for the Principal to make a reasonable effort to meet with the
parents of a child who has 5 or more unexcused absences for the purposes of
developing action steps to improve the student’s attendance.
Chapter 222 of the Acts of 2012
M.G.L. c.76, §18 – Disenrollment
Current law:
◦ An administrator from the school the student has last attended must send
notice within ten (10) school days from the student’s 15th consecutive absence
to the student’s parent. District must offer to meet with the student and parent
before the student can be considered to have permanently withdrawn from
school.
Effective July 1, 2014
◦ An administrator from the school the student has last attended must send
written notice within a period of five (5) school days from the student’s 10th
consecutive absence to the student and parent.
M.G.L. c.76, §18 (
)
as amended
•The written notice must:
• Offer at least 2 dates and times for an “exit interview” between a team of personnel
and the student and parent(s) to occur within ten (10) school days;
• Include contact information for scheduling an “exit interview;”
• Indicate that the parties must agree on a date and time for the “exit interview;”
• That the interview date may be extended at the request of the parent, but not more
than 14 days;
•Exit Interview Team:
• Principal, guidance counselor, teachers, attendance officer and other relevant school
staff.
•During the “exit interview,” the student must be given information about the detrimental
effects of early withdrawal from school, the benefits of a high school diploma, and
alternative programs and services available to the student.

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