NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12827
JANE DOE1 vs. WORCESTER PUBLIC SCHOOLS & others.2
Worcester. January 7, 2020. - April 28, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
School and School Committee, Enforcement of discipline,
Superintendent of schools. Injunction. Practice, Civil,
Preliminary injunction.
Civil action commenced in the Superior Court Department on
December 17, 2018.
A motion for a preliminary injunction was heard by J. Gavin
Reardon, Jr., J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Paige L. Tobin (Elizabeth F. Toner also present) for the
defendants.
Amy DiDonna for the plaintiff.
The following submitted briefs for amici curiae:
1 A minor, by her parent and next friend. The name is a
pseudonym.
2 Worcester school committee; superintendent and school
safety director of Worcester public schools; and principal and
assistant principal of Doherty Memorial High School.
2
Michael J. Long & Steven J. Finnegan for Massachusetts
Association of School Superintendents, Inc., & another.
Rhoda E. Schneider, Special Assistant Attorney General,
& Iraida J. Álvarez for Department of Elementary and Secondary
Education.
Peter A. Hahn for Committee for Public Counsel Services.
Sky Kochenour & Jenny C. Chou for Center for Law and
Education, Inc., & another.
BUDD, J. The plaintiff, Jane Doe, a student at a public
high school in Worcester, was suspended for 152 school days
after an assistant principal found a small amount of marijuana
and two makeshift pipes in the plaintiff's locker. When the
plaintiff appealed from her suspension to the superintendent,
the district's school safety director, acting as the
superintendent's designee, shortened the suspension to 112
school days. The plaintiff thereafter filed a complaint
challenging the delegation of the superintendent's statutory
authority to hear and decide the plaintiff's appeal. The
plaintiff also moved for a preliminary injunction seeking
immediate reinstatement to school, which was granted.
The defendants seek a reversal of that decision, arguing
that the motion judge erred in concluding that the plaintiff is
likely to succeed on the merits of her claim because the
relevant statute, G. L. c. 71, § 37H (d), permits the
superintendent to delegate responsibility for hearing and
3
deciding suspension appeals. We disagree, and therefore affirm
the judge's order.3
Background and prior proceedings. We summarize the facts
as alleged in the motion for a preliminary injunction and
attached affidavit. See Doe v. Superintendent of Sch. of
Weston, 461 Mass. 159, 160 (2011) (Weston). The facts of the
underlying offense are not contested. In late September of
2018, an assistant principal received reports that the area near
the plaintiff's locker smelled strongly of marijuana. The
assistant principal accompanied the plaintiff to her locker, at
which time the plaintiff admitted that she was storing items she
was not allowed to have in school. Searching the locker, the
assistant principal found and confiscated a small amount of
marijuana in a plastic container and two pipes made from plastic
water bottles. After holding an initial hearing, the school's
principal determined that the plaintiff had committed a
disciplinary offense and suspended her for the remainder of the
3 We acknowledge the amicus brief submitted by Center for
Law and Education, Inc., and Massachusetts Advocates for
Children; the amicus brief submitted by Massachusetts
Association of School Superintendents, Inc., and Massachusetts
Association of School Committees, Inc.; the amicus brief
submitted by the Committee for Public Counsel Services; and the
amicus letter submitted by the Department of Elementary and
Secondary Education.
4
school year -- 152 school days -- pursuant to the school's
disciplinary rules and G. L. c. 71, § 37H (a).4
The plaintiff exercised her right to appeal from what
amounted to an expulsion5 to the district's superintendent under
G. L. c. 71, § 37H (d). The school safety director for the
district, acting as the superintendent's designee, held the
appeal hearing and reduced the expulsion from 152 to 112 school
days, which allowed for the plaintiff's return to school at the
end of the third marking period of the school year.
Shortly after the appeal was decided, the plaintiff began
attending the only alternative public school available to her.
Prior to her expulsion, the plaintiff was an honors student with
no high school disciplinary record. She had been enrolled in a
merit-based program at her school with additional weekly classes
providing vocational training in nursing, her intended field.
Although the plaintiff was able to earn credits at the
alternative school to remain on track to advance to the next
4 General Laws c. 71, § 37H (a), provides in pertinent part:
"Any student who is found on school premises . . . in possession
of . . . a controlled substance as defined in [G. L. c. 94C],
including, but not limited to, marijuana, . . . may be subject
to expulsion from the school or school district by the
principal."
5 As discussed infra, the suspension of the plaintiff
constituted an expulsion for purposes of G. L. c. 71, § 37H,
because it was for longer than ninety school days. See 603 Code
Mass. Regs. § 53.02 (2015).
5
grade, the plaintiff's mother averred in an affidavit submitted
to the court that the level of instruction was below her grade
and ability level.
In December 2018, the plaintiff commenced a civil action in
the Superior Court against the Worcester public schools and
others,6 alleging among other things that by delegating the
appeal hearing and decision to the school safety director, the
defendants failed to comply with the procedure for appealing
from the expulsion set forth in G. L. c. 71, § 37H (d). The
plaintiff also filed an emergency motion for a preliminary
injunction seeking immediate reinstatement to her high school.
The judge granted the motion after a hearing, and the defendants
appealed from the judge's order reinstating the plaintiff. We
transferred the appeal to this court on our own motion.7
Discussion. "A party seeking a preliminary injunction must
show that success is likely on the merits; irreparable harm will
result from denial of the injunction; and the risk of
6 The suit also named the Worcester school committee, the
superintendent, the school safety director, the principal, and
the assistant principal as defendants.
7 The defendants represented at oral argument that the
superintendent would not reinstate the plaintiff's suspension
even if the preliminary injunction were overturned, rendering
the matter moot as to this plaintiff. We nevertheless address
the question because "the situation presented is 'capable of
repetition, yet evading review.'" Boelter v. Selectmen of
Wayland, 479 Mass. 233, 238 (2018), quoting Seney v. Morhy, 467
Mass. 58, 61 (2014).
6
irreparable harm to the moving party outweighs any similar risk
of harm to the opposing party." Weston, 461 Mass. at 164,
citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609,
616-617 (1980) (Cheney). In cases in which a public entity is a
party, a judge may also weigh the risk of harm to the public
interest in considering whether to grant a preliminary
injunction. Harris v. Commissioner of Correction, 409 Mass.
472, 474 (1991), citing Brookline v. Goldstein, 388 Mass. 443,
447 (1983). In allowing the preliminary injunction, the judge
adopted the plaintiff's reading of G. L. c. 71, § 37H (d), and
concluded that the plaintiff was likely to succeed on the merits
of her claim. He further concluded that the plaintiff would
suffer irreparable harm if not allowed to return to her high
school, and that such harm outweighed any risk of harm to the
defendants.8
"We review the grant or denial of a preliminary injunction
to determine whether the [motion] judge abused his [or her]
discretion, that is, whether the judge applied proper legal
standards and whether there was reasonable support for his [or
her] evaluation of factual questions." Commonwealth v. Fremont
8 In challenging the judge's decision, the defendants point
out that courts "have always accorded school officials
substantial deference in matters of discipline." Doe v.
Superintendent of Sch. of Stoughton, 437 Mass. 1, 5 (2002).
Although this is true, we note that the motion judge did not
rule on the disciplinary action taken against the student.
7
Inv. & Loan, 452 Mass. 733, 741 (2008), citing Cheney, 380 Mass.
at 615. As the question of the plaintiff's likelihood of
success turns on the judge's interpretation of G. L. c. 71,
§ 37H (d), we review that portion of the judge's decision on a
de novo basis. See Chin v. Merriot, 470 Mass. 527, 531 (2015).
See also Garcia v. Department of Hous. & Community Dev., 480
Mass. 736, 747 (2018), quoting Fordyce v. Hanover, 457 Mass.
248, 256 (2010) (in review of preliminary injunction, judge's
conclusions of law "are subject to broad review and will be
reversed if incorrect").
1. Interpretation of G. L. c. 71, § 37H (d). "Our primary
goal in interpreting a statute is to effectuate the intent of
the Legislature" (citation omitted). Casseus v. Eastern Bus
Co., 478 Mass. 786, 795 (2018). Ordinarily, "[c]lear and
unambiguous language is conclusive as to legislative intent."
Commonwealth v. LeBlanc, 475 Mass. 820, 821 (2016). General
Laws c. 71, § 37H (d), provides in pertinent part:
"Any student who has been expelled from a school district
pursuant to these provisions shall have the right to appeal
to the superintendent. The expelled student shall have ten
days from the date of the expulsion in which to notify the
superintendent of his appeal. The student has the right to
counsel at a hearing before the superintendent."
The text of § 37H is clear: expelled students have a right to
appeal to, and have a hearing before, the superintendent.
8
Nowhere in § 37H does the Legislature indicate that the
superintendent may designate another to hear expulsion appeals.
The suspension of the plaintiff constituted an "expulsion"
for purposes of G. L. c. 71, § 37H. Although § 37H does not
define "expulsion," the Department of Elementary and Secondary
Education (department) has promulgated a regulation defining
"expulsion" as "the removal of a student from the school
premises, regular classroom activities, and school activities
for more than [ninety] school days, indefinitely, or
permanently, as permitted under [G. L. c. 71, § 37H or
37H 1/2]." 603 Code Mass. Regs. § 53.02 (2015). Because the
principal initially imposed a suspension of 152 school days, the
plaintiff was entitled under § 37H to appeal from her expulsion
directly to the superintendent, not a designee of the
superintendent.
In contrast, a neighboring provision, G. L. c. 71,
§ 37H 3/4, which allows for suspensions of up to ninety days for
less serious offenses, provides for an appeal before the
"superintendent or a designee" (emphasis added). G. L. c. 71,
§ 37H 3/4 (a), (e), (f). It is a well-established rule of
statutory construction that "where the [L]egislature has
carefully employed a term in one place and excluded it in
another, it should not be implied where excluded." Commonwealth
v. Gagnon, 439 Mass. 826, 833 (2003), quoting 2A N.J. Singer,
9
Sutherland Statutory Construction § 46.06, at 194 (6th ed. rev.
2000).
Here the distinction makes sense. The statutory framework
provides for appeals directly to the superintendent as a matter
of right for indefinite or permanent expulsions as a result of
certain serious offenses, including the possession of dangerous
weapons or controlled substances on school premises, § 37H (a);
assaulting school staff, § 37H (b); and felony charges or
convictions, § 37H 1/2. However, for less serious offenses, and
consequences, students are not guaranteed a hearing before the
superintendent him- or herself. G. L. c. 71, § 37H 3/4 (e). It
is logical and consonant with due process to afford students
greater procedural protections, as evidenced here by providing
for an appeal directly to the head of the school district rather
than a designee, for the most serious disciplinary sanctions.
See Goss v. Lopez, 419 U.S. 565, 584 (1975) ("Longer suspensions
or expulsions . . . may require more formal procedures").
The defendants contend that we should defer to the
department, the agency charged with assisting school districts
in developing and implementing public education programs. The
department has interpreted § 37H (d) to allow the superintendent
of a school district to delegate the appeal function, including
10
a long-term suspension or expulsion hearing, to another properly
designated school district official.9
Although we defer to an agency's interpretation "where the
statute is ambiguous and the interpretation is reasonable,"
Commonwealth v. Wimer, 480 Mass. 1, 5 (2018), that is not the
circumstance here. As discussed supra, § 37H (d) is not
ambiguous. Further, the department's interpretation would
require the addition of the phrase "or a designee" to § 37H (d).
See Commonwealth v. Hamilton, 459 Mass. 422, 435-436 (2011) ("as
a matter of statutory construction, we cannot supply words the
Legislature chose not to include"); Commonwealth v. McLeod, 437
Mass. 286, 294 (2002) (same).
The defendants additionally assert that requiring
superintendents personally to handle appeals under § 37H would
be impractical. It is true that "we will not adopt a literal
construction of a statute if the consequences of doing so are
9 The defendants also point to a department regulation that
defines "superintendent" to mean "the chief executive officer
employed by a school committee or board of trustees to
administer a school system . . . or his or her designee
appointed for purposes of conducting a student disciplinary
hearing." See 603 Code Mass. Regs. § 53.02. However, the
department regulation in which this definition appears is
expressly limited in scope to "the minimum procedural
requirements applicable to the suspension of a student for a
disciplinary offense other than" the offenses and procedures
listed in G. L. c. 71, § 37H (emphasis added). See 603 Code
Mass. Regs. § 53.01(2)(a) (2015).
11
absurd or unreasonable, such that it could not be what the
Legislature intended" (quotation and citation omitted). Ciani
v. MacGrath, 481 Mass. 174, 178 (2019). However, the defendants
have not provided any evidence to support their contention that
the plain meaning of the statutory text would create absurd or
unreasonable consequences.10
2. Risks of harm. Noting that the plaintiff's separation
from the school already had spanned several months, the motion
judge concluded that unless the preliminary injunction was
granted, the plaintiff, an honors student who previously had
been enrolled in a merit-based program and had no disciplinary
record, would suffer irreparable harm. The plaintiff's motion
included an affidavit from the plaintiff's mother, who averred
to all of the facts underlying this conclusion, as well as the
fact that the only alternative school available to the plaintiff
was well below her instructional level.11 Based on the record
10The department presented data in its amicus letter
showing that in the 2018-2019 school year, Boston public schools
disciplined 147 students for weapons possession, 197 for
controlled substance possession, and 146 for assault pursuant to
§ 37H. The department did not indicate, however, how many of
those cases involved an expulsion or a suspension greater than
ninety days, and of those cases, how many involved an appeal.
Nor did the department provide data showing the amount of time
and resources spent on an average appeal.
11The defendants did not dispute these facts in their
opposition to the motion for a preliminary injunction or
attached affidavits or at the motion hearing. On appeal, the
12
before him, the judge had sufficient evidence for his
conclusion. Cf. Goss, 419 U.S. at 576, quoting Brown v. Board
of Educ., 347 U.S. 483, 493 (1954) ("'education is perhaps the
most important function of state and local governments,' . . .
and the total exclusion from the educational process for more
than a trivial period . . . is a serious event in the life of
the suspended child").
Finally, the judge concluded that the risk of irreparable
harm to the plaintiff outweighed any risk of harm to the
defendants, who asserted in their opposition to the preliminary
injunction that the school and its students would be harmed if
the plaintiff were allowed to return because she likely was to
reoffend.12 There was no abuse of discretion.
defendants contend for the first time that the plaintiff
"offered no evidence whatsoever" that she was an honors student,
that she participated in a merit-based program, and that she had
no prior disciplinary record. However, this argument ignores
the fact that the plaintiff's motion for a preliminary
injunction included an affidavit from the plaintiff's mother
averring to each of these facts.
12We note that although the judge was not required to
address specifically the public interest factor, the risk of
harm to the public interest here did not weigh against granting
the preliminary injunction. See Harris v. Commissioner of
Correction, 409 Mass. 472, 474 (1991). Indeed, as discussed
supra, ordering the plaintiff's reinstatement promoted the
public interest, as embodied by the Legislature's intent in
§ 37H, in affording expelled students enhanced procedural
protections.
13
Conclusion. A judgment is to be entered affirming the
grant of the preliminary injunction and remanding the case to
the Superior Court for further proceedings.
So ordered.