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SJC-11977
KATELYNN GOODWIN vs. LEE PUBLIC SCHOOLS & others.1
Berkshire. March 10, 2016. - August 23, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.2
School and School Committee, Enforcement of discipline.
Education, Disciplinary matter. Practice, Civil,
Dismissal. Administrative Law, Exhaustion of remedies.
Civil action commenced in the Superior Court Department on
December 30, 2014.
A motion to dismiss was heard by C. Jeffrey Kinder, J., and
a motion for reconsideration was considered by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Joseph N. Schneiderman for the plaintiff.
David S. Monastersky for the defendants.
Sky Kochenour & Jenny Chou, for Center for Law and
Education & another, amici curiae, submitted a brief.
1
Town of Lee; Jason P. McCandless.
2
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
Justices Spina and Cordy participated in the deliberation on
this case prior to their retirements.
2
DUFFLY, J. The plaintiff, Katelynn Goodwin, was a high
school student at the Lee Middle and High School in the town of
Lee (town) when she was suspended from school for conduct that
purportedly took place not on school grounds, pursuant to a
school policy, based on G. L. c. 71, § 37H1/2 (§ 37H1/2), which
provided that students who had been charged with felonies would
be suspended. The principal ordered the suspension in the
mistaken belief that the plaintiff had been charged with a
felony, stealing, or being involved in the theft of, a firearm.
Ultimately, the suspension lasted for the entire final semester
of what would have been the plaintiff's senior year, and she was
unable to graduate with her class, but eventually obtained her
high school diploma. She thereafter commenced this action in
the Superior Court against the Lee public schools, the
superintendent of the Lee schools, and the town.
The question confronting the court is whether the judge
erred in allowing the defendants' motion to dismiss based on the
failure to exhaust the administrative remedies available under
§ 37H1/2. We conclude that, because the tort recovery a student
may seek under G. L. c. 76, § 16, provides a separate and
distinct remedy from that available under § 37H1/2, a statute
that establishes an expedited process by which a student may
3
seek readmission to school, the plaintiff was not obligated to
exhaust the statute's administrative remedies before pursuing a
tort claim under G. L. c. 76, § 16.
Background. The plaintiff was in her senior year of high
school when the principal of the Lee Middle and High School
temporarily suspended her on December 20, 2011. The suspension,
which was to last through January 9, 2012, was based on a school
policy concerning students who had been charged with a felony.
The policy, apparently derived from the school's reading of
§ 37H1/2 (1),3 was included in the student handbook. In a letter
sent to the plaintiff's mother on the day of the suspension, the
principal explained that her decision to suspend the plaintiff
was based on "charges brought against her by the Lee [p]olice,
including an alleged connection to weapons[] theft [a felony]."
In fact, no charges had been filed. In April, 2012, more than
three months after imposition of the suspension, a complaint
issued from the Berkshire County Division of the Juvenile Court
Department charging the plaintiff with receipt of stolen
property under $250, a misdemeanor to which § 37H1/2 (1) does
3
General Laws c. 71, § 37H1/2 (§ 37H1/2), permits, but does
not require, a school principal or headmaster to suspend a
student who has been charged with a felony, for a length of time
that the principal or headmaster deems appropriate, if he or she
determines that the student's continued presence in the school
"would have a substantial detrimental effect on the general
welfare of the school." G. L. c. 71, § 37H1/2 (1).
4
not apply. The plaintiff was never charged with a felony.
On December 21, 2011, the day after the plaintiff had been
suspended, the plaintiff's mother telephoned the superintendent
and asked him to lift the plaintiff's suspension, advising him
that no criminal charges had issued against her daughter. That
same day, the superintendent sent a letter to the plaintiff's
mother stating that "we are keeping [the plaintiff] out of
school until the legal matter is clarified." The superintendent
acknowledged in his letter that the plaintiff had "perhaps not
been charged yet."
On January 6, 2012, the principal wrote a second letter to
the plaintiff's mother, stating that the plaintiff would be
suspended from school, beginning on January 10, 2012, assertedly
pursuant to the provisions of § 37H1/2, "for the duration of all
criminal proceedings as a result of the issuance of criminal
complaints by the Lee Police against [her]." Under
§ 37H1/2 (1), a student may be suspended from school "[u]pon the
issuance of a criminal complaint charging a student with a
felony . . . if [the] principal or headmaster determines that
the student's continued presence in school would have a
substantial detrimental effect on the general welfare of the
school." The principal's letter also stated that the plaintiff
had the right to appeal from her suspension to the
5
superintendent within five days of the effective date of the
suspension. The plaintiff concedes that she did not formally
appeal to the superintendent (in writing) from her suspension.4
The plaintiff subsequently acquired legal counsel and, on
April 26, 2012, sent a letter to the superintendent seeking to
have her suspension lifted. A meeting was held on the
plaintiff's request on May 2, 2012, and the suspension was
lifted, based on the determination that the plaintiff could
return to classes because she was "not currently charged with a
felony," but that she would not be allowed to attend the
graduation ceremony with her classmates. After learning that
she would not be able to attend graduation, the plaintiff
decided that she did not want to return to classes at the
school. A written agreement apparently was reached concerning
how she would be able to complete the missed credits and obtain
her diploma. The agreement provided, among other things, that
the plaintiff would receive tutoring at the town library, two
4
At the hearing on the motion to dismiss, the Superior
Court judge commented that imposing a five-day deadline on a pro
se plaintiff appeared "harsh." We observe that § 37H1/2 does
not provide a student who has been suspended or expelled the
right to request an extension of time in which to appeal, as
provided in other school discipline statutes, see, e.g., G. L.
c. 71, § 37H3/4 (e), and requires a parent (who may be
illiterate or unable to read and write in English) to make the
request in writing.
6
hours per day, through the end of the school year on June 15,
2012. The plaintiff then took classes through an online program
provided by the school, and ultimately graduated from high
school in the summer of 2013; she rejected the school's offer of
holding a graduation ceremony conducted for her alone.
In December, 2014, the plaintiff commenced this action in
the Superior Court. The plaintiff's complaint asserted that her
suspension was unlawful under § 37H1/2, because she had not been
charged with a felony, and sought compensation "for the grief
and stigmatization caused to the Plaintiff for not being
permitted to participate in her last year of school on school
grounds and in the rite of passage that is graduation." The
defendants filed a motion to dismiss the complaint for failure
to state a claim upon which relief can be granted, arguing that
the plaintiff had not exhausted administrative remedies under
§ 37H1/2, and had not sought certiorari review under G. L.
c. 249, § 4. In her opposition to the defendants' motion, the
plaintiff asserted that she was also entitled to damages under
G. L. c. 76, § 16, based on the same facts. At a hearing on the
motion to dismiss, the judge heard arguments concerning both
claims.
The plaintiff argued, and the defendants did not dispute,
that the plaintiff's approximately five-month suspension from
7
school was unlawful. The judge allowed the defendants' motion
to dismiss, however, on the ground that the plaintiff failed to
exhaust her administrative remedies under § 37H1/2 before filing
her complaint. The judge's decision did not expressly address
the plaintiff's argument that she could pursue damages under
G. L. c. 76, § 16. The plaintiff thereafter filed a motion for
reconsideration, in which she argued that the exhaustion
requirements under § 37H1/2 did not apply to her, and that she
had a separate and distinct right of action under G. L. c. 76,
§ 16. The judge denied the motion, and the plaintiff filed a
timely appeal. We allowed the plaintiff's application for
direct appellate review.
Discussion. We review the allowance of a motion to dismiss
de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676
(2011), citing Harhen v. Brown, 431 Mass. 838, 845 (2000). For
purposes of such review, we "accept[] as true the facts alleged
in the plaintiff['s] complaint and exhibits attached thereto,
and favorable inferences that reasonably can be drawn from
them." See Burbank Apartments Tenant Ass'n v. Kargman, 474
Mass. 107, 116 (2016), citing Coghlin Elec. Contractors, Inc. v.
Gilbane Bldg. Co., 472 Mass. 549, 553 (2015).
1. Statutory provisions. General Laws c. 76, § 16, which
has been in effect in essentially the same form since 1845, see
8
St. 1845, c. 214, permits students who have been unlawfully
excluded from a public school to obtain monetary damages from
the relevant municipality. The statute provides that any
student who has reached the age of eighteen, or a parent or
guardian of a student under the age of eighteen,
"who has been refused admission to or excluded from the
public schools or from the advantages, privileges and
courses of study of such public schools shall on
application be furnished by the school committee with a
written statement of the reasons therefor, and thereafter,
if the refusal to admit or exclusion was unlawful, such
pupil may recover from the town or, in the case of such
refusal or exclusion by a regional school district from the
district, in tort . . . ."
By contrast, § 37H1/2, enacted in 1994, see St. 1993,
c. 380, § 2, allows principals to suspend from school students
who have been charged with a felony, and sets forth an expedited
procedure by which a student may appeal from such a suspension.
It appears to be the only statute that permits suspension from
school for an act that occurred other than on school grounds.
Compare § 37H1/2 with G. L. c. 71, § 84, and G. L. c. 76, § 17.
Section 37H1/2 provides, in relevant part:
"Notwithstanding the provisions of [G. L. c. 71, § 84,
G. L. c. 76, § 16, and G. L. c. 76, § 17]:
"(1) Upon the issuance of a criminal complaint
charging a student with a felony . . . , the principal or
headmaster of a school in which the student is enrolled may
suspend such student for a period of time determined
appropriate by said principal or headmaster if said
principal or headmaster determines that the student's
9
continued presence in school would have a substantial
detrimental effect on the general welfare of the school.
The student shall receive written notification of the
charges and the reasons for such suspension prior to such
suspension taking effect. The student shall also receive
written notification of his right to appeal and the process
for appealing such suspension . . . ." (Emphasis
supplied.)
G. L. c. 71, § 37H1/2. As initially enacted as part of the
Education Reform Act of 1993, see St. 1993, c. 71, as amended by
St. 1993, c. 380, § 2, the statute stated that "no school or
school district shall be required to provide educational
services to" a student who had been expelled from school.5 In
2012, as part of significant changes to school disciplinary
policy designed to keep students in school, and to ensure that
exclusion from school is a last resort, see "An Act relative to
student access to educational services and exclusion from
school," House Doc. No. 4332 (2012), the statute was amended to
5
This provision of the Education Reform Act of 1993, which
was designed to enforce "zero tolerance" policies towards school
violence, authorized school principals, for the first time, to
exclude students from school. See Keep Kids in Class: New
Approaches to School Discipline, Massachusetts Appleseed Center
for Law and Justice at 4 (2012). See, e.g., Rashin and
Meschino, Long and winding road: The role of courts, zero
tolerance and school exclusion in Mass., Mass. Law. J. 22, 22
(May, 2011); Letter from Massachusetts Advocates for Children to
Governor Deval L. Patrick, in support of House Doc. 4332
entitled "H. 4332/An Act Relative to Students' Access to
Educational Services and Exclusion from School" (Aug. 6, 2012);
Massachusetts Advocates for Children, Keeping Kids in Class,
http://massadvocates.org/discipline/ [https://perma.cco/4C58-
Z3SH].
10
its current form, allowing students suspended under its
provisions an immediate review by the superintendent of schools,
and affording such students numerous procedural protections.
See St. 2012, c. 222, § 3; D.A. Randall and D.E. Franklin,
Municipal Law & Practice § 22.38 (5th ed. 2006); T. Mela and A.
Klemas, Keeping Kids in School and Out of the Pipeline: Ensuring
Due Process and Chapter 222, Massachusetts Advocates for
Children (2013).
Suspension as a result of a pending felony charge is an
exception to the general rule under G. L. c. 71, § 84, that
"[n]o student shall be suspended . . . for conduct which is not
connected with any school-sponsored activities." As with the
ability to impose a suspension for conduct that is not school
related, the administrative review prescribed by § 37H1/2
differs significantly from the procedures set forth in other
provisions relative to review, for students who have been
suspended from school under other statutory provisions.6 If a
6
A student suspended under § 37H1/2 (1) is afforded
substantially greater procedural protections in seeking review
of a decision that the student be suspended than students who
have been suspended under other statutory provisions, including
commission of certain criminal offenses on school grounds. See
G. L. c. 71, § 37H3/4 (a). These protections include the right
to a hearing within eight calendar days of the suspension
(notice of request for a hearing within five days and a hearing
within three days of such notice), the right to have counsel and
a parent at the hearing and to present oral and written
11
superintendent decides that a student suspended pursuant to
§ 37H1/2 should be afforded relief, the superintendent may,
inter alia, order reinstatement to the school the student had
been attending, shorten the period of suspension, or refer the
student to a different school or "alternate educational
program." G. L. c. 71, § 37H1/2 (1).
2. Motion to dismiss. As a preliminary matter, and
notwithstanding the defendants' assertions to the contrary, we
note that the plaintiff's claim under G. L. c. 76, § 16, is
properly before us. Although the complaint did not expressly
identify G. L. c. 76, § 16, as the statute under which the
plaintiff sought damages for her unlawful exclusion from school,
the plaintiff's complaint alleged facts, which, taken as true
for the purpose of a motion to dismiss, satisfy each element of
that statute. She alleged that she had been unlawfully excluded
from school, and that the reasons proffered by the school for
her exclusion were in violation of § 37H1/2, a statute which
permits suspension only "[u]pon the issuance of a criminal
complaint charging a student with a felony." Moreover, she
stated explicitly in her opposition to the defendants' motion to
dismiss that she also was seeking damages under G. L. c. 76,
testimony, and the right to a written decision within five
calendar days after the hearing. See § 37H1/2 (1).
12
§ 16, and defense counsel addressed this claim at the hearing on
the motion. Although it would have been preferable for the
plaintiff to have sought to amend her complaint, failure to do
so is not fatal in this context. See Sullivan v. Chief Justice
for Admin. Mgt. of the Trial Court, 448 Mass. 15, 21 (2006)
(plaintiff's complaint should be allowed to proceed if plaintiff
demonstrates possibility of entitlement "to any form of relief,
even" if theory upon which plaintiff appears to rely "may not be
appropriate"). As the plaintiff's tort claim under G. L. c. 76,
§ 16, was before the judge, and was fully briefed by the parties
in their filings in this court, we address it here.
The crux of the defendants' argument is that because the
plaintiff failed to exhaust the administrative remedies set
forth in § 37H1/2, she may not avail herself of the tort remedy
available under G. L. c. 76, § 16. The plaintiff maintains
that, because she was not charged with a felony, either before
the suspension or at any point thereafter, see § 37H1/2, she was
not required to exhaust administrative remedies under a statute
that did not authorize her suspension, and that, in any event,
G. L. c. 76, § 16, provides a suspended student a parallel and
distinct avenue for relief. We agree.
The plain language of § 37H1/2 (1) states that its
provisions, and imposition of the suspension it permits a
13
principal or headmaster to impose, are triggered "[u]pon the
issuance of a criminal complaint charging a student with a
felony." This language necessarily implies that, unless a
criminal complaint charging a student with a felony has been
issued, a student may not be excluded from school under the
statute.
As stated, it is undisputed that on December 20, 2011, when
the plaintiff was suspended temporarily, and on January 10,
2012, when she was suspended indefinitely,7 no criminal
complaints charging her with a felony had issued. Moreover, the
superintendent's letter of December 21, 2011, and the
principal's letter on January 6, 2012, make clear that both were
aware that no criminal charges of any sort had been filed.
Therefore, because the plaintiff's suspension under § 37H1/2 was
in violation of the statute, she was not required to exhaust the
administrative remedies provided under that statute (appeal to
the superintendent) before seeking review of that suspension in
the Superior Court.8 The judge erred in allowing the defendants'
7
In the circumstances here, the plaintiff's suspension for
an indefinite period of time ("for the duration of all criminal
proceedings") "in effect amounted to a permanent exclusion"
within the meaning of G. L. c. 76, § 16. See Jones v.
Fitchburg, 211 Mass. 66, 68 (1912).
8
Because the plaintiff has graduated from high school, any
remedy that she could have been afforded under § 37H1/2 is now
14
motion to dismiss on this ground.
The judge did not explicitly address whether the failure to
exhaust administrative remedies under § 37H1/2 prevents the
plaintiff from seeking damages under G. L. c. 76, § 16.
Nonetheless, in light of his allowance of the motion to dismiss,
we assume that the judge also concluded that the failure to
exhaust remedies under § 37H1/2 was fatal to the plaintiff's
tort claim under G. L. c. 76, § 16.
The defendants argue that the language of § 37H1/2 evinces
a legislative intent to require a student to exhaust the
administrative remedies set forth in that statute before
pursuing a tort claim under G. L. c. 76, § 16. In the
defendants' view, the introductory language of § 37H1/2 creates
an additional requirement for any student who has been suspended
under that statute before that student may pursue a claim under
G. L. c. 76, § 16. That language provides:
"Notwithstanding the provisions of [G. L. c. 71, § 84,
G. L. c. 76, § 16, and G. L. c. 76, § 17,] . . . [u]pon the
issuance of a criminal complaint charging a student with a
felony . . . , the principal or headmaster of a school in
which the student is enrolled may suspend such student for
a period of time determined appropriate)."
moot. That statute does not provide for recovery of damages,
and monetary damages are not available from a school absent an
explicit waiver of sovereign immunity. See Kelly K. v.
Framingham, 36 Mass. App. Ct. 483, 488-489 (1994)
15
The defendants' understanding of the statute appears to
rely on a misconstruction of the statutory language
"notwithstanding" in § 37H1/2, which they contend imposes a
restriction on otherwise available means by which to seek money
damages for students who have been charged with a felony. We do
not agree. Under its ordinary meaning, the word
"notwithstanding" does not mean, as the defendants' argument
necessarily would imply, eliminating or setting aside otherwise
available remedies. Rather, it means that even where those
other remedies exist, students suspended under the terms of this
provision are entitled to an additional, immediate, review of a
decision to exclude them from school, with the goal of
readmission. See, e.g., Black's Law Dictionary 1231 (10th ed.
2014) (defining "notwithstanding" as "[d]espite; in spite
of [e.g.,] notwithstanding the conditions listed above, the
landlord can terminate the lease if the tenant defaults").
In enacting this provision, the Legislature intended to
ensure that students who have been suspended as a result of
felony charges have an opportunity for immediate review of such
a suspension, and to continue with their public education as
expeditiously as possible. We discern no legislative intent to
16
take away methods of obtaining financial redress.9 Rather,
§ 37H1/2 is plainly designed to afford suspended students an
immediate opportunity to have their suspensions lifted and to be
readmitted to school, to have their suspensions shortened, or to
be admitted to alternate educational programs. By contrast, the
payment of damages as allowed under G. L. c. 76, § 16, provides
a student, who very likely is a minor, no relief from the
immediate deprivation of a free and appropriate public
education.
Thus, contrary to the defendants' assertions,10 nothing in
9
"Data show that a student being suspended or expelled is a
strong precursor to him or her dropping out of school, which
leads to far-reaching consequences for the student, the
community, and taxpayers. The bill aims to curb the overuse of
suspension and expulsion -- jointly known as school exclusions -
- as a disciplinary tactic other than as a last resort. The
ultimate goal is to keep kids in school, actively engaged in
learning, and severing the school to prison pipeline." Letter
from Massachusetts Advocates for Children to Governor Deval L.
Patrick, in support of House Doc. 4332, supra.
10
The defendants maintain further that the plaintiff's
claim under G. L. c. 76, § 16, must be dismissed because she did
not obtain a statement from the school committee of the reasons
for her suspension before seeking relief under that statute.
This contention is contrary to the legislative purpose in
enacting the statute, and inconsistent with its plain language.
The statutory language obligates the school committee to provide
a suspended student with a written statement of reasons for the
suspension, on request by the student; it does not mandate that
the student obtain such a list from the school committee before
pursuing an appeal. Rather, the statement of reasons provides a
suspended student a right to obtain information. While a
suspended student may use the statement of reasons to support a
17
the language of § 37H1/2 precludes a student who has been
suspended under that statute from seeking to pursue a tort
remedy under G. L. c. 76, § 16, without having first pursued or
prevailed on appeal of a decision ordering the student's
suspension under § 37H1/2.11 The defendants' motion to dismiss
therefore should not have been allowed.
Conclusion. The judgment allowing the defendants' motion
to dismiss is reversed. The matter is remanded to the Superior
Court for further proceedings consistent with this opinion.
So ordered.
claim that the exclusion was unlawful, recovery in tort is
permissible, without any statutory prerequisite, "if the refusal
to admit or exclusion was unlawful." See G. L. c. 76, § 16.
Here, it is undisputed that the exclusion was unlawful, and a
statement to that effect by the school committee, which had no
involvement in the superintendent's decision to affirm the
suspension, would add nothing more to establish the reasons for
the plaintiff's unlawful exclusion.
11
Although, in some circumstances, the failure to exhaust
administrative remedies seeking readmission to school might be
relevant to a mitigation of damages, the two statutes afford
separate and independent remedies.