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.

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.

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.