Massachusetts Federal District Court Weighs in on the Existence of a Duty of Reasonable Care Between a Public School and a Student at Foreseeable Risk of Suicide

Massachusetts courts have not hesitated to recognize that public schools owe certain duties to their students. On July 1, 2024, the United States District Court for the District of Massachusetts issued a decision in Doe v. City of Northampton, No. 23-10358-MGM, adopting a Magistrate Judge’s report and recommendation relative to a Defendant City’s motion to dismiss and concluding that public schools owe a duty of care to a minor child who is at foreseeable risk of suicide.

This lawsuit arose out of the tragic suicide of a sixteen-year-old student enrolled in Northampton High School on January 30, 2020, which was allegedly the result of bullying and harassment. The Plaintiff parent sued the City of Northampton (“City”).[1] Among the Plaintiff’s allegations was a count for wrongful death under Massachusetts law (Count VIII). The City moved to dismiss the complaint in its entirety for failure to state a claim. The District Court referred the motion to dismiss to a United States Magistrate Judge for report and recommendation. On April 15, 2024, the magistrate judge issued a report. Regarding the wrongful death claim, the magistrate judge recommended that the Court deny the City’s motion. The City then objected.

Regarding the wrongful death claim the City raised three objections: (1) failure to present the claim to the City before filing suit, as required by the Massachusetts Tort Claims Act (the “MTCA”); (2) Massachusetts law does not recognize a duty of care between a student and a high school as alleged; and (3) the City is immune based on sovereign immunity. In its review the court used the applicable standard on a motion to dismiss – whether the complaint alleges sufficient facts that, if accepted as true, state a claim for relief that is plausible on its face. Applying this standard, the Court adopted the magistrate judge’s recommendation to deny the motion to dismiss the wrongful death count.

After finding that the acts alleged were sufficient to meet the presentment requirement and that an alleged safety plan entered into by the school were enough to find an exception to the specific reservation in the MTCA of sovereign immunity, the ruling turned to the City’s second objection. The Court noted that its application of Massachusetts state law requires using rules of substantive law announced by the state’s highest judicial authority or, on questions which that court has not addressed, making an informed prophecy of what that court would do in the same situation. Here, the magistrate judge relied on the closest analogous precedent, Nguyen v. Mass. Inst. of Tech., 96 N.E.3d 128 (Mass. 2018), which involved the suicide of a twenty-five year old graduate student. In Nguyen, the Supreme Judicial Court held that a university may be liable in certain circumstances when a student commits suicide. The Federal court concluded that the logic articulated in Nguyen applies with equal force to public schools and their students who are at foreseeable risk of suicide. As described in Nguyen, this duty exists when:

A student has attempted suicide while enrolled at the university or recently before matriculation, or has stated plans or intentions to commit suicide, in these circumstances suicide is sufficiently foreseeable as the law has defined the term, even for university non-clinicians without medical training.

The district judge noted that Nguyen recognized this duty even though the student was older than a high school student, who typically is between the ages of fourteen and eighteen, leading to heightened concerns regarding “immaturity and a need for protection.” The Court concluded that under Massachusetts law a public school owes a duty of reasonable care to a minor child when the school has actual knowledge of a previous suicide attempt, or when the school has actual knowledge that the student has stated plans or intentions to commit suicide, because in these circumstances a second suicide attempt is foreseeable.

The Court then analyzed the facts alleged in the complaint. The complaint asserted that the school district was aware that the student had previously attempted suicide in May 2019 and that this suicide attempt occurred while the student was enrolled at school and resulted in hospitalization. The complaint also alleged that the school district was aware of a subsequent investigation by DCF into the suicide attempt, as well as further expressions of suicidal intent in the fall of 2019. The Court adopted the magistrate judge’s recommendations and denied the motion to dismiss the wrongful death claim.

Although this decision only addresses allegations in a complaint and is not a final judgment in the case, it articulates circumstances which may establish a duty of care owed by a public school to a student who is at foreseeable risk of suicide.

If you have any questions about the content of this update, please contact us. We are pleased to assist School Districts with all issues related to student matters, including bullying and harassment and the protection of students.

This update is provided for informational purposes only and should not be considered legal advice.

[1]Under the Massachusetts Tort Claims Act, G.L. chapter 258, the “public employer” who may be sued for the actions of municipal school district employees is the municipality.

Liz Valerio and Nick Dominello Presented at 2024 MASC Summer Institute

On Friday, July 12th Liz presented at the 2024 Massachusetts Association of School Committees (MASC) Summer Institute. Liz hosted a workshop on preparing for collective bargaining. On Saturday, July 13, 2024 Nick hosted a workshop on challenges in collective bargaining.

First Circuit Affirms Decision Dismissing Free Speech Retaliation Claim by Teacher Based on Pre-Employment Social Media Posts

On June 28, 2024, the United Stated Court of Appeals for the First Circuit issued a decision in MacRae v. Mattos, No. 23-1817, affirming a District Court’s grant of summary judgment in favor of the defendants, Hanover Public Schools (the “District”) and two District administrators who were alleged to have retaliated against a teacher for exercising her First Amendment rights.

In September of 2021, the District employed Kari MacRae (“MacRae”), a resident of Bourne, as a teacher. Prior to her employment with the District, MacRae liked, shared, posted, or reposted six controversial memes regarding various issues about racism and diversity to her personal TikTok account at different points in 2021, including as recently as May 2021 when she was elected to the Bourne School Committee. These posts were brought to the District’s attention and, following an investigation, the District terminated MacRae on the basis that her continued employment would have a negative impact on student learning in light of her social media posts. Thereafter, in November of 2021, MacRae filed a lawsuit against the District and two District administrators asserting a single claim of retaliation under 42 U.S.C. § 1983 for allegedly retaliating against her for exercising her First Amendment rights. The defendants filed a motion for summary judgment, arguing that when applying the First Amendment retaliation framework for claims brought by public employees against their government employers, the defendants’ interest in preventing disruption to the learning environment outweighed MacRae’s First Amendment interest. The District Court granted the motion and MacRae appealed.

Generally, a claim that a government employer has retaliated against its employees for exercising First Amendment rights is assessed under the framework established by the Supreme Court in Garcetti v. Ceballos. Under the applicable three-part test, the court will consider: (1) whether the employee spoke as a citizen on a matter of public concern; (2) whether the government entity was justified in treating the employee differently from any other member of the general public, when balancing the interests of the employee against the interest of the employer; and (3) whether the employee’s protected speech was a substantial or motivating factor in the adverse employment action.

On appeal, MacRae claimed that her retaliation claim should not be analyzed under the Garcetti framework. Rather, she asserted the court should apply the framework for claims brought by private individuals against government entities. The court disagreed, explaining that the allegations at issue directly involved a government employer terminating its public employee for their speech, thus falling squarely into the Garcetti framework. Although the speech at issue occurred prior to MacRae’s employment with the District, the relatively short period of time between her posts and the start of her employment counseled in favor of applying the Garcetti framework. Accordingly, the court concluded that application of the Garcetti framework was proper.

Because for purposes of summary judgment the parties agreed that MacRae had satisfied steps (1) and (3) of the test, the court focused on step (2). MacRae argued that the Hanover defendants’ interests did not outweigh her First Amendment interest. Specifically, she asserted that the District’s mere prediction of disruption was insufficient to outweigh her interest in engaging in political speech and that the defendant’s prediction of disruption was unreasonable. The court disagreed. It reasoned that an employer need not show actual disruption/adverse effect under the Garcetti/Pickering test, but rather the potential to disrupt which must be based on a “reasonable” prediction in light of the facts. The court ruled that the defendants’ prediction of disruption in Hanover was “eminently reasonable”. It noted that MacRae’s TikTok posts in Bourne became the subject of substantial media coverage and that the Bourne schools became “embroiled” in controversy over those posts, which among other things had circulated in the schools and had, upset staff and students. The court held that the defendants could reasonably predict similar disruption in Hanover based on the Bourne events, enhanced by her more “student-facing” role in Hanover and the circulation of her posts in the Hanover schools resulting in the defendants’ concern about the impact on their LGBTQ+ students. The court noted that even MacRae conceded that some of her posts could be seen by those students as derogatory.

Finding nothing in the record showing that the defendants had acted based on their personal dislike or disapproval of the posts, as opposed to their concern that students taught by MacRae would not feel safe or comfortable learning from her, the Court concluded that the defendants had adequate justification for treating MacRae differently from any other member of the general public. Thus, the court affirmed the District Court’s grant of summary judgment.

The decision in MacRae v. Mattos is important because it illuminates the circumstances in which school officials may reasonably predict disruption of the school environment based on an employee’s social media posts, even where those posts have been made before the individual actually becomes employed by the school district.

These cases are intensely fact-specific and school officials who are concerned by the social media activities of an employee or prospective employee are wise to consult with counsel before taking action. We represent school districts with regard to a wide range of legal matters, including the speech rights of employees.

This update is provided for informational purposes only and should not be considered legal advice.

U.S. Court of Appeals Affirms Denial of Student’s Preliminary Injunction in “There Are Only Two Genders” T-Shirt Case

In June, 2023, the federal District Court for Massachusetts declined to issue a preliminary injunction that had been requested by a student in L.M. v. Town of Middleborough, No. 1:23-cv-11111-IT. The student sought to enjoin the school defendants from enforcing the school dress code to prohibit the student wearing a T-shirt with the message “THERE ARE ONLY TWO GENDERS” while at school. The student claimed that this violated the student’s speech rights under the First and Fourteenth Amendments to the United States Constitution. The trial court ruled that an injunction should not be issued because the student’s claim had no likelihood of success on its merits. See our advisory dated June 27, 2023 for an account of the underlying facts. The trial court then entered final judgment. The student appealed to the United States Court of Appeals for the First Circuit and that court affirmed the decision on June 9, 2024 in L.M. v. Town of Middleborough, Nos. 23-1535, 23-1645.

The court’s analysis is detailed and comprehensive. The significant points are as follows. While the court affirmed the trial court’s judgment, it did so on more nuanced grounds. Essentially, the court balanced the speech rights of students in schools by recognizing that schools also have a duty to protect students while they are in school and to teach students of differing races, creeds and colors to engage each other in civil terms rather than in terms of debate that are highly offensive or highly threatening to others.

The appellate court ruled that school authorities may lawfully regulate passive and silently expressed messages that demean other students’ personal characteristics (race, sex, or sexual orientation) in order to prevent a material disruption of the classroom, a collision with the rights of other students to be secure and to be left alone, or both. The court relied on precedent to illustrate that the right to be left alone is a recognizable privacy interest that the administration has the right to protect from material interference. The court also relied on precedent holding that a school may even in some instances regulate passive messages expressed by students that have no specific target. The appellate court emphasized that regulation is permissible if the expression can reasonably be interpreted to demean one of the characteristics of a student’s personal identity, given the common understanding that such characteristics are “unalterable or otherwise deeply rooted” and that demeaning them “strike[s] a person at the core of his being”. The court ruled that the student’s T-shirt fell within this category because it demeaned the personal identity of transgender and gender-nonconforming students and it would be materially disruptive to the learning environment due to its negative psychological impact on those students. The court therefore held that school officials could lawfully bar wearing the shirt in school.

Last, the court closed its opinion by stating “[t]he question here is not whether the t-shirts should have been barred … [but] … who should decide whether to bar them — educators or federal judges.” The appellate court concluded that “we cannot say that in this instance the Constitution assigns the sensitive (and potentially consequential) judgment about what would make ‘an environment conducive to learning’ at [the school] to us rather than to the educators closest to the scene.”

Issues regarding student speech rights in schools, including wearing expressive apparel, are inherently fact sensitive, and decisions to permit or ban certain apparel will often require legal guidance.

If you have any questions about the content of this update, please contact us. We are pleased to assist school districts with all issues related to the rights of students, including speech/expression, as well as the speech rights of employees.

This update is provided for informational purposes only and should not be considered legal advice.

Appeals Court Clarifies the Three-Stage Burden Shifting Test in Cases Alleging Retaliation in Violation of G.L. Chapter 150E

In City of Newton v. Commonwealth Employment Relations Board (“CERB”), No. 23-P-455 (May 22, 2024), the Appeals Court has clarified the three-stage burden shifting test that applies in a case alleging retaliation for the exercise of protected rights by a union member where the claim relies on circumstantial evidence of the employer’s retaliatory motive. The clarifications provide important guidance for application of the test in future cases.

Succinctly stated, the union filed a charge alleging that a police officer had been transferred from a day shift in the traffic bureau to a night shift in the patrol division in retaliation for his union activities. After a hearing, the DLR hearing officer ruled that the union failed to meet its ultimate, third stage burden to prove that the police officer would not have been transferred “but for” his protected activity. The hearing officer determined instead that the city employer’s primary reason for the transfer was the officer’s unprofessional conduct in having a verbal altercation with a subordinate together with earlier performance issues.

On appeal by the union, the CERB reversed the hearing officer’s decision. The CERB ruled that the city had failed to meet its second stage burden of producing evidence of a nonretaliatory reason for the transfer. On appeal by the city, the Appeals Court reversed.

The court initially addressed, and rejected, the city’s argument that at the first, “prima facie” stage, the officer was required to establish a “good work record”. It held that this would amount to “an additional element of proof” to the existing first stage requirements that an employee show that they engaged in conduct protected by chapter 150E, that they “suffered some adverse action”, and that there is a “causal connection” between the protected conduct and the adverse action.

The court then honed in on the first stage “adverse action” element. It held that this required an assessment of whether the officer suffered an adverse action as measured by the terms of the applicable collective bargaining agreement. Because the agreement provided that transfer to the night shift was accompanied by an increase in pay, the court concluded that the city and the union had negotiated the asserted disadvantages of the night shift; that there was no “objective material change” in the terms and conditions of the officer’s employment; and, therefore, that there was no “adverse action”. Accordingly, the employee’s case failed at the first stage of the test.

While unnecessary to its decision, the court also addressed the CERB’s conclusion that the city had not satisfied its second stage burden because it had not produced direct evidence of a nonretaliatory motivation. The court stated that the employer’s burden is one of production, not of persuasion, and that at this second stage the employer may rely on circumstantial evidence. It further stated that contemporaneous documentation of the officer’s altercation and his history of noncompliance with new traffic protocols, coupled with the hearing officer’s decision to credit the testimony of the employee who investigated the altercation and the lack of any evidence that this employee was motivated by antiunion animus, were sufficient to meet the city’s second stage burden. Acknowledging that the evidence could have resulted in the opposite inference given the timing of the officer’s union activity and his transfer as well as comments by the chief, the court stated that the resolution of “competing reasonable inferences” is not the task at the second stage.

This decision provides significant illumination of the three-stage test in chapter 150E retaliation claims that do not involve direct evidence of antiunion motivation. Obviously, these cases turn on their specific facts and legal advice should be sought in assessing a given claim.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to the collective bargaining relationship under chapter 150E.

This update is provided for informational purposes only and should not be considered legal advice.

Appeals Court Reiterates Vacation Time Accrued Under the Terms of a Contract is Protected by the Wage Act

On May 14, 2024, the Appeals Court issued a summary decision in Convey v. Commonwealth of Massachusetts & another, 22-P-930, holding that vacation time accrued under the terms of a collective bargaining agreement (“CBA”) constituted “wages” protected by the Wage Act and, therefore, could not be bargained away by the Union.

The plaintiff, an adult education teacher employed by the Department of Correction (“DOC”), was represented by a Union in labor negotiations with the defendants. Those negotiations culminated in a CBA (2016 CBA), which provided for a forty-week school year and a summer vacation. Prior to the expiration of the 2016 CBA and the start of the 2016 – 2017 school year, the union and the defendants executed a memorandum of understanding (MOU) eliminating the summer vacation time for the summer of 2017. The parties subsequently agreed to a new CBA (2017 CBA) that incorporated this change. In response, the plaintiff initiated an action on behalf of herself and similarly situated employees under the Massachusetts Wage Act (G.L. c. 149, §§ 148, 150) arguing that they had been denied earned wages due to them on a prorated basis from July 1 to September 6, 2017 – the period of the summer vacation. On cross motions for summary judgment, a judge of the Superior Court granted summary judgment for the defendants DOC and Commonwealth of Massachusetts.

After de novo review of the grant of summary judgment, the Appeals Court vacated the Superior Court judgment. The Appeals Court explained that the purpose of the Wage Act is to provide strong statutory protection for employees and their right to wages. The term “wages” includes holiday or vacation payments due to an employee under an oral or written agreement. While under G.L. 150E, unions are the exclusive representative of all employees for the purposes of collective bargaining, the statutory right to the timely payment of wages does not involve the collective rights of employees. The Appeals Court reasoned that in this case the plaintiffs completed the work required of them under the terms of the 2016 CBA, therefore, the vacation promised under the 2016 CBA became protected under the Wage Act as wages earned by them. The Wage Act expressly prohibits “special contracts,” which are contracts that require an employee to forfeit earned wages. Accordingly, the Union was not empowered to bargain away the plaintiff’s individual rights to vacation time. To the extent the Union abrogated the plaintiffs’ right to earned wages under the MOU and 2017 CBA, such agreements were unenforceable as a proscribed “special contracts.”

As a summary decision, Convey is not binding precedent, nevertheless it is an important reminder that under the Massachusetts Wage Act, vacation time due under a contract counts as “wages,” the individual rights to which cannot be forfeited by a Union during labor negotiations.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to compliance with the Wage Act.

This update is provided for informational purposes only and should not be considered legal advice.

Ann Marie Noonan Presents at MMHR HR101 Boot Camp

On Thursday, May 9, 2024 Ann Marie presented at the Massachusetts Municipal Human Resources (MMHR) Boot Camp. Ann Marie presented on Labor Law Updates.

U.S. Department of Education Publishes New Title IX Regulations Requiring Policy Updates and Training

Last month, the U.S. Department of Education (“DOE”) released new Title IX regulations that will go into effect on August 1, 2024.  These regulations require training and changes to school district policies and procedures regarding sexual harassment. Among the changes are:

The new regulations more broadly define the conduct that may be investigated by a school district. Previously, the regulations contained a narrow definition of “sexual harassment.” Now, the regulations are using the term “sex-based harassment” to trigger obligations under Title IX. Sex-based harassment includes: (1) sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, gender identity and sexual orientation and other sex-based conduct; (2) quid pro quo requiring the participation of unwelcome sexual conduct; (3) a hostile environment that is subjectively and objectively offensive and is so severe or pervasive that it limits/denies a person’s ability to participate in/benefit from an educational program or activity; and (4) sexual assault (as defined by a federal uniform crime reporting system).

While school districts in Massachusetts have always been obligated to investigate and respond to allegations that fall under the term “sex-based harassment”, these changes now require that they be investigated pursuant to Title IX regulations and its investigation process. Moreover, the new regulations lower the standard to prove a hostile environment, changing from “severe and pervasive” to “severe or pervasive.”

Investigator Model
Previously, the Title IX regulations required that the Title IX Coordinator, investigator and decisionmaker roles all be fulfilled by separate individuals. The new regulations allow school districts to utilize a “single-investigator” model allowing the same individual to fulfill all of these roles. However, individuals involved in these roles must be trained and free of bias.

Supportive Measures for Special Education Students
If a student has either an individualized education program (“IEP”) or 504 plan and is involved with an investigation falling under Title IX, the Title IX Coordinator must consult with one or more members of the student’s Team to ensure compliance with the IEP/504 throughout the investigatory process.

Response to Allegations
Previously, “actual knowledge” of sexual harassment triggered a school district’s obligation under Title IX. Going forward, the new regulations have lowered this standard, so that a school district which has knowledge of conduct that reasonably may constitute sex discrimination in a program/activity must respond promptly and effectively with next steps.

Moreover, complaints no longer need be written and signed – if a request can be objectively understood as a request to investigate and make a determination as to whether sex discrimination occurred, the school district has an obligation to respond to the request.

Complaint and Investigation Process
Unlike the previous regulations which required complainants to be presently participating in a school district’s program or activity, now complainants may file complaints of sex-based harassment even if they have left the program.

Moreover, school districts are still required to have reasonably prompt timeframes for major stages of an investigation, but no longer need to follow specific timeframe requirements (i.e., 10 days for parties to inspect documents). Rather, parties are entitled to an equal opportunity to access evidence and respond.

Off-School Conduct
The prior regulations did not permit school districts to investigate, pursuant to Title IX, off-school conduct that was not school-sponsored or outside of the United States. The new regulations expand the type of off-school conduct that can be investigated pursuant to Title IX, obligating school districts to investigate sex-based hostile environment claims even when some of the conduct alleged to contribute to a hostile environment occurred outside of the school district’s programs or activities.

Burden of Proof
A school district must now state in its complaint process the standard of proof that will be used to evaluate evidence. The school district may use a preponderance of the evidence standard (lower threshold) or a clear and convincing standard (higher threshold).

Pregnancy Protections
The Title IX regulations now require that school districts afford certain rights to pregnant students and employees. As to students, school districts must ensure that pregnant students are notified of how to contact the Title IX Coordinator, as well as receive information about reasonable modifications, potential leaves of absence, and available lactation spaces. As to employees, school districts must provide reasonable time and space for lactation purposes and may not take adverse action against an employee on the basis of sex as it relates to the employee’s parental, family or marital status, status as a family wage earner, or current, potential or past pregnancy or pregnancy-related conditions.

Policy Review and Training
School Committees will need to update their policies to conform to the new law which goes into effect on August 1st and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding the new regulations, please contact any of our attorneys.


This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

Nick Dominello to Present at 2024 COSA School Law Seminar

On Thursday, April 4, 2024 Nick will present at the 2024 Council of School Attorneys (COSA) School Law Seminar in New Orleans. Nick will be presenting a workshop on collective bargaining.

Liz Valerio Presents at MMA Monthly Meeting

On Wednesday, March 27, 2024 Liz presented at the Massachusetts Mayor’s Association (MMA) Monthly Meeting. Liz will be hosting a workshop on collective bargaining.