Education is a critical component of good citizenship and robust
participation in a democratic society. As we begin the 21st
century, the demands of the knowledge-based economy create an even
greater premium on education. But in Massachusetts, children in
general education can be excluded from school and denied all
educational opportunities for one youthful mistake.
Evidence suggests school exclusions are meted out
disproportionately and that those most affected are black/African
American and Hispanic/Latino students. Children excluded from
education suffer lifelong consequences. In this context, when and
how a school decides to exclude a child from public education
becomes an increasingly important access to justice question.
School exclusion is ineffective and detrimental. As the
educational stakes get higher, the need for procedural due process
protections increases. Given the potential harm and the attendant
due process implications, courts have a duty to ensure that every
child in the commonwealth has a genuine opportunity to access
Courts have recognized that education is a critical
component of good citizenship
The U.S. Supreme Court has described education as "the very
foundation of good citizenship."1 The Court cited the
nation's founders who "recognized that education was essential to
the welfare and liberty of the people."2 As the Court
recognized, "it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an
The Massachusetts Constitution also states the importance of
Wisdom, and knowledge, as well as virtue … being necessary for the
preservation of their rights and liberties … it shall be the duty
of legislatures and magistrates, in all future periods of this
commonwealth, to cherish the interests of literature and the
sciences, and all seminaries of them; especially … public schools
and grammar schools in the towns.4
The Supreme Judicial Court held that this language is not merely
aspirational; it "imposes instead a constitutional duty on the
commonwealth to ensure the education of its children in the public
Despite this recognition, state law allows a school district to
permanently deny students access to a public education for
misbehaving, with little recourse and few due process protections.
School committees have long had the ability to permanently exclude
students from their school district.
In 1993, the Massachusetts Legislature enacted the Education
Reform Act (the act), which expanded a school principal's authority
to exclude students for conduct that threatens the safety of
students and staff.6 The change meant that long-term and
permanent exclusion decisions are made at the school level, rather
than at the district level. The act's language gives school
administrators unfettered discretion to exclude
Subsequently, many school districts adopted zero tolerance
discipline policies. Zero tolerance policies create an inflexible
environment wherein a school imposes punishment based solely on
conduct, with little or no consideration of attendant circumstances
like intent. Zero tolerance policies expanded harsh punishment to
offenses that are not a threat to school safety.8
Massachusetts children can be permanently excluded from school
regardless of their age, and the school district has no obligation
to provide them with any educational services
thereafter.9 Once expelled, no other school district is
required to enroll a student,10 and there is no legal
obligation for a school to ever readmit the student or even
reconsider its decision.
The dearth of procedural protection afforded by the law itself for
a student raises serious due process concerns. The state statute
does not provide adequate guidance and school exclusion hearings
are not performed in any sort of uniform manner.11
A recent case in the District of Massachusetts highlights the need
for meaningful judicial review of a school's decision to
expel.12 The court enjoined a school district from
expelling a student under a zero tolerance policy.13 The
court held the policy violated the student's right to due
process.14 In its reasoning, the district court
recognized, "as the stakes get higher, the need for safeguards and
The Massachusetts courts defer to school administrators on
disciplinary decisions, but that deference has limits. Minimal
scrutiny should not mean the absence of scrutiny.16 When
school districts impose long-term or permanent exclusion with no
opportunity for review, the school district should meet a high
evidentiary burden and provide procedural protection, because
school exclusion can "seriously … interfere with later
opportunities for higher education and
When evidence is murky and facts disputed, "[t]he risk of error is
not at all trivial, and it should be guarded against if that may be
done without prohibitive cost or interference with the educational
In the years following the act, the Department of Elementary and
Secondary Education (DESE) - then known as the Massachusetts
Department of Education (DOE) - issued an advisory encouraging
schools to carefully consider the decision to exclude
students.19 The DOE noted the extraordinary nature of
school exclusion and the important steps schools should take to
ensure this punishment is used sparingly and
Yet, exclusions from Massachusetts schools dramatically increased.
In the 1992-93 school year, schools reported 983 school exclusions
(10 days or longer). Ten years later, schools reported 1,949 school
exclusions. By 2007-08, there were 4,201
As in earlier years, segments of the 2007-08 student population
received long-term exclusions at disproportionately high rates:
low-income students, special education students and
black/African-American and Hispanic/Latino students.22
Studies have shown that black/African-American and Hispanic/Latino
students nationwide are subjected to office referrals and
disciplinary consequences for less serious and more subjective
reasons than their classmates.23
Analysis of Massachusetts data suggests this is also true in the
commonwealth. As previously noted,24 the
disproportionate exclusion of black/African-American and
Hispanic/Latino students emerges when exclusion figures are
compared to the enrollment figures of these racial groups in
Massachusetts schools in 2007-0825 and increases for
lengthier exclusion periods.
These disciplinary measures result in an incredible amount of lost
instructional time. During 2009-10, Massachusetts students missed a
total of 199,056 days of school due to disciplinary
exclusions.26 Punishments resulted in 60,610
disciplinary removals, of which 46,356 were out-of-school
suspensions or expulsions.27
Research confirms the life-changing nature of exclusion
The American Psychological Association (APA) reported on the
negative effects of excluding a child from school, pointing out
that adolescents are psychologically immature.28
Preliminary studies of zero-tolerance policies raise concerns that
school exclusion "may create, enhance, or accelerate negative
mental health outcomes for youth by creating increases in student
alienation, anxiety, rejection, and breaking of healthy adult
The APA recommends that schools focus on keeping students in an
active learning environment, even students who create repeated
disciplinary problems.30 The APA also noted that 10
years of zero tolerance policies have not improved school
The American Academy of Pediatrics (AAP) echoed and affirmed the
APA's concerns.32 Out-of-school adolescents are more
likely to engage in harmful behaviors, and their risk of suicide
may be expected to increase.33 Moreover, the AAP stated,
"[t]he lack of professional assistance at the time of exclusion
from school, a time when a student most needs it, increases the
risk of permanent school drop-out."34
Meanwhile, the Rennie Center for Education Research & Policy
(the center) reported on the detrimental effects of disciplinary
exclusion within Massachusetts.35 Exclusion breaks
students' connection with their school, which has detrimental
academic, social and psychological consequences.36 The
center found that punishment by exclusion may not be
developmentally appropriate for adolescents because adolescents
lack neurological maturity, making them susceptible to temporary
lapses in judgment without due regard for potential
Despite these serious consequences, the center found that
disciplinary exclusion in Massachusetts is common. The center
analyzed these trends and concluded that exclusion may be overused
in Massachusetts schools:38 "The high rate of
out-of-school suspension is particularly troubling given findings
from national research that show out-of-school suspension is not an
effective deterrent for inappropriate behavior."39
Recently, the Massachusetts Graduation and Dropout Prevention and
Recovery Commission concluded that disciplinary policies are linked
to dropout.40 The commission characterized the
commonwealth's discipline policies as "outdated" and recommended
reform, such as ending permanent expulsion.41 It
recognized the peril of laws that allow school districts to
permanently exclude students, "thereby cutting off young people at
the moment they most need intervention."42
Students suffer the irreparable injury of
A separate study from the Rennie Center revealed that the
average Massachusetts high school dropout costs taxpayers more than
$275,000 over his or her lifetime,43 creating a
disparity of more than $450,000 between dropouts and graduates in
their lifetime fiscal impact on the Massachusetts'
Compared to high school graduates, students who drop out are less
likely to be employed and make less money annually,45
contributing to the poverty rate.46 They have higher
health care costs,47 are three-and-one-half times more
likely to be arrested, and more than eight times as likely to be
incarcerated.48 Across the country, 68 percent of state
prisoners have not received a high school diploma.49
Massachusetts taxpayers will continue to bear the cost for these
adults and their children throughout their
A recent American Bar Association (ABA) article compared excluding
a child from school to a lengthy prison sentence.51
Although "vastly different deprivations of a child's rights," the
article pointed out that both have consequential and long-lasting
effects on a child.52 At present, "[c]hildren who do not
finish school are essentially doomed to a life sentence of crime
We imperil our young people's future by creating barriers to
"'[F]orced ignorance, by failing … to provide a student with a
publicly funded education, is not a rational or appropriate remedy
for student misconduct regardless of the severity of such
misconduct.'"54 The DESE advisory counsels schools to
mete out punishment by exclusion sparingly. Social science research
from those working with children concludes that school exclusion
has significant, negative impacts on child development that can
fundamentally limit a child's lifelong prospects.
A recent government commission acknowledged that school exclusions
are linked to dropout and recommended ending permanent school
expulsion. Despite a duty to educate our children and evidence of
the racially disparate overuse of harsh discipline policies, a
dearth of procedural due process protection and minimal judicial
scrutiny of school exclusions continue.
Courts do have a role to play here. With appropriate due process
protections in place and overseen by the courts, we can work to
ensure that all children in the commonwealth, regardless of gender,
income or race, have a genuine opportunity to access public
1Brown v. Bd. of Educ., 347 U.S. 483, 493
2Wis. v. Yoder, 404 U.S. 205, 221 (1972)
(citing Letter from Thomas Jefferson to Joseph Cabell, Sept. 9,
1817, in 17 Writings of Thomas Jefferson 417, 423-424 (Mem. ed.
3Brown, 347 U.S. at 493.
4MASS. CONST. pt. II, ch. V, § II.
5McDuffy v. Sec. of Exec. Office of Educ., 415
Mass. 545, 551 (1993).
6The Act complies with the federal Gun Free School Act;
however, the Massachusetts law retains more discretion.
7M.G.L. c. 71, §§ 37H and 37H ½ were subsequently
amended to their current form.
8Rennie Center for Education Research & Policy, Act
Out, Get Out? Considering the Impact of School Discipline Practices
in Massachusetts 3 (2010), available at
9Bd. of Educ. v. School Comm. of Quincy, 415
Mass. 240, 245 (1993).
10See MASS. GEN. LAWS ch. 71, §§ 37H-37H1/2
11See Eric Blumenson & Eva S. Nilsen, One
Strike and You're Out? Constitutional Constraints On Zero Tolerance
In Public Education, 81 WASH. U. L. Q. 65, 69 n.20
12LB v. O'Connell, No. cv-40124 Excerpt Mot.
Hr'g Tr., ECF No. 15 (D. Mass. Aug. 6, 2009) (granting student's
motion for a preliminary injunction).
13Id. at 5-6.
14Id. at 22.
16See Doe v. Superintendent of Schs. of
Stoughton, 437 Mass. 1, 5 (2002) (noting substantial deference
to school officials in matters of discipline) (citing Doe v.
Superintendent of Schs. of Worcester, 421 Mass. 117, 132 (1995)
(applying rational basis review to school officials' decision to
17Goss v. Lopez, 419 U.S. 565, 575 (1975)
(requiring minimum procedure protections for students facing
long-term exclusion from school).
18Id. at 580.
19Robert V. Antonucci, Massachusetts Commissioner of
Education, Advisory Opinion On Student Discipline (Jan. 27, 1994),
21Mass. Dept. of Elementary & Secondary Education,
22See Act Out, Get Out, supra note 810, at 14-15.
23Id. at 18; see also Russell J. Skiba et al.,
Race Is Not Neutral: A National Investigation of African
American and Latino Disproportionality in School Discipline,
40 SCHOOL PSYCHOLOGY REVIEW 85, 86 (2011).
24Mass. Dept. of Education, Student Exclusions in
Massachusetts Public Schools: 2002-03 2 (2004) available at
25Disproportional Exclusion in 2007-08 Enrollment data
is available at
The exclusion data was obtained from DESE by Massachusetts
Appleseed pursuant to a freedom of information act request.
26Jen Vorse Wilka, 2010 SSDR Data-Initial Analysis, at
1 (2010) (describing preliminary findings from ESE's Student Safety
and Discipline Report for 2009-10 school year).
27Id. at 8.
28American Psychological Association, Are Zero
Tolerance Policies Effective in the Schools? An Evidentiary Review
and Recommendations, 63 American Psychologist 852, 855
29Id. at 856.
30Id. at 858.
31Id. at 860.
32American Academy of Pediatrics, Policy Statement:
Out-of-School Suspension and Expulsion, 112 Pediatrics 1206, 1207
(2003) (reaffirmed 122 Pediatrics 450 (2008)).
35See Act Out, Get Out?, supra note 22.
36See Act Out, Get Out?, supra note 22, at
37See Act Out, Get Out?, supra note 22, at
38See Act Out, Get Out?, supra note 22, at
39See Act Out, Get Out?, supra note 22, at
40MASSACHUSETTS GRADUATION AND DROPOUT PREVENTION AND
RECOVERY COMMISSION, MAKING THE CONNECTION (2009).
41Id. at 21.
43Rennie Center for Education Research & Policy,
Meeting the Challenge: Fiscal Implications of Dropout Prevention in
Massachusetts 1 (2011) (describing "disturbing societal costs" of a
student's failure to finish high school).
45Andrew Sum et al., Boston Youth Transitions Task
Force and Boston Private Industry Council, An Assessment of the
Labor Market, Income, Health, Social, Civic and Fiscal Consequences
of Dropping Out of High School: Findings for Massachusetts Adults
in the 21st Century, 13 (2007) available at
46Id. at 42.
47Id. at 57.
48Fight Crime, Invest in Kids, School or the Streets:
Crime and America's Dropout Crisis 2 (2008) available at
50See Sum, supra note 45, at 81.
51Sarah Biehl, School Expulsion: A Life Sentence?,
CHILDREN'S RIGHTS LITIGATION, Spring 2011, at 2 (ABA Section of
Litigation Children's Rights Litigation Committee). In 2009, the
American Bar Association stated that schools should provide full
procedural protections when a school seeks to exclude a student
from his or her educational program. See Recommendation and Report,
2009 A.B.A. H.D. 118B.
52See Biehl, supra note 51, at 2 (citing
Graham v. Florida, 130 S. Ct. 2011, 2026-27 (2010)).
53Id. at 5.
54Maureen Carroll, Comment, Educating Expelled
Students After No Child Left Behind: Mending an Incentive Structure
That Discourages Alternative Education and Reinstatement, 55
UCLA L. REV. 1909, 1921 (2008) (quoting Cathe A. v. Doddridge
County Bd. of Educ., 490 S.E.2d 340, 345 (W. Va. 1997) (quoting
trial court decision)).