In this lesson we will review a number of federal and state laws or judicial decisions relating to the very broad space of student’s rights, focusing after an initial or discussion on residency and attendance, on free speech, discipline and religious issues.

Many districts attempt to enforce policies which condition student attendance in school on residence in a particular community. Recent statutory amendments to M.G.L. c. 76, §§5 & 6, effective in mid September of this year, allow schools to collect tuition from parents who live other than where their children attend school. Please check the link above and note the revisions listed by the legislation in Chapter 352 of the Acts of 200, section 33. 

Topics for this class do not relate to special education, §504 and discipline of special education students.

A summary of recent decisions follows with citations to the seminal case in the area, Teel v. Hamilton-Wenham, 13 Mass. App. Ct. 345 (1982).

In Lydia D., et al v. Thomas W. Payzant, Suffolk Superior Court Civil Action No. 035847, 2004 WL 1147450, May 20, 2004 the City of Boston excluded two pupils from Boston Latin School on the grounds that they did not reside in Boston. The students had enrolled as 7^th graders in September of that year after taking the entrance examination as nonresident students. Their invitation to enroll was conditioned on the establishment of residency in the City of Boston by the end of July 2003. They satisfied the initial requirements for establishing residency.

The students brought an action in Suffolk County Superior Court in December seeking a preliminary injunction barring BPS from excluding the students pending a decision on the merits. The preliminary injunction entered and the matter was scheduled for a final hearing on May 12, 2004.  On May 12, 2004, a different judge determined that Boston had relied on substantial evidence in concluding that the students were not residents, but that BPS had not provided sufficient notice to their parents prior to making the exclusion decision. The key issues to examine are:

1. Where do the students reside?
2. Superior Court proceedings – Certiorari and Residence Analysis
3. Due Process

These materials discuss student discipline under the provisions of Chapter 71, at The General Laws of Massachusetts website.

• Section §37H Policies regarding conduct of teachers and students
• Section §37H1/2 Delinquency complaints against students
• Chapter 76, Section 16 Children excluded from school; remedies
• Chapter 76, Section 18 Students permanently leaving school

These materials also assume a familiarity with basic principles of due process under Goss v. Lopez, 419 U.S. 565 (1975). Click the link to that case to review Goss or visit www.home.earthlink.net/~schoollaw/caselaw.html.

Statutory Overview - ERA After the ERA, section 37H authorized building principals and superintendents to expel from school a student who is

1. found on school premises in possession of a dangerous weapon or,
2. in possession of certain controlled substances, see sec. 37H(a), and,
3. any student who assaults a staff member on school premises or at school related events. See Sec. 37H(b).

Prior to taking such action, a student must be notified in writing of his/her right to a hearing at which counsel may be in attendance. The student and his or her counsel may present evidence and witnesses at such hearing. After a hearing the principal may suspend or expel the pupil.

The new state law has no effect on discipline of special needs students which will be addressed in a separate part of the course work.

After adopting the ERA in 1993, the legislature continued to distill its views on student discipline. A January 1994 law amended the ERA regarding student discipline. Its provisions withstood constitutional challenge in Doe v. Superintendent of Worcester, 421 Mass. 117 (1995). What follows is a brief summary of the amendments and discussion of some relevant issues relating to the Massachusetts law.

• Post ERA Ammendments;
• Judicial Interpretation - DOE vs Worchester; In a case arising directly under section 37H, the Supreme Judicial Court held that in the context of disciplinary proceedings, there is no fundamental right to attend school.
• Zero Tolerance; Join the Zero Tolerance discussion examine what policies are in place in your district relative to “Zero tolerance”; How are they working and what changes would you make to them?

The provisions of Chapter 71, §37H½ expand the options for schools wishing to impose discipline or students who are subject to pending criminal felony charges.

Informationally, a felony is defined in Chapter 274, Section 1 of the General Laws as a "crime punishable by death or imprisonment in the state prison...". Typically, State prison crimes are crimes for which the maximum punishment may involve incarceration for more than two and one half years. Other provisions of the General Law cloud what seems to be clear. General Laws Chapter 90F, Section 1, a law designed to implement Massachusetts laws parallel to Federal provisions relative to motor vehicle safety, defines a felony as "any offense under State or Federal law that is punishable by death or imprisonment for a term exceeding one year".

For school purposes, the one year rule appears to be defensible and may provide additional flexibility to administrators under unusual or serious circumstances: check with local counsel when in doubt.

1. Statutory Requirements MGL C71 §37H1/2
2. Process for expelling a student charged with felonious conduct.

These resent cases have defined administrative and student rights in the topics highlighted. Feel free to explore any or all of the brief (2 page) summaries of these court decisions. 

First Ammendment Cases:

• Bomb Threats
• Sexual Assault
• Inappropriate use of school computers

Recent Search and Seizure Cases Effecting Students:

• Search and Seizure of a person
• Search and Seizure Federal
• Search and Seizure State
• Interrogation by Administrators
• Police Department Relations

Freedom of Speech Issues:

• Dress Codes
• Free Speech - Religious Activities in Schools
• Religious Literature
• Prayer in Schools