On April 28, 2020, the Supreme Judicial Court of Massachusetts (SJC) issued a decision regarding the delegation of a superintendent’s statutory authority to hear a student’s appeal from a principal’s decision under M.G.L. c. 71, § 37H.

In Doe v. Worcester Public Schools, SJC-12827, a student in the Worcester Public Schools was suspended for 152 school days after a hearing before the principal pursuant to the district’s student disciplinary rules and M.G.L. c. 71, § 37H. The student appealed the principal’s decision pursuant to M.G.L. c. 71, § 37H. The school safety director, the superintendent’s designee, conducted the appeal hearing and reduced the suspension to 112 school days.

The plaintiff student brought a lawsuit against the district, arguing that the district violated M.G.L. c. 71, § 37H(d) by designating the school safety director to hear the student’s appeal of the principal’s decision. The plaintiff student argued that a disciplinary hearing pursuant to M.G.L. c. 71, § 37H must be held by the superintendent, not their designee.

In interpreting M.G.L. c. 71, § 37H, the SJC noted the statute is clear: “expelled students have a right to appeal to, and have a hearing before, the superintendent.” In comparison, the SJC examined M.G.L. c. 71, § 37H ¾ which explicitly permits a superintendent or a designee to hear an appeal of a principal’s decision. The SJC reasoned this statutory distinction “makes sense” because M.G.L c.71, § 37H may result in a permanent expulsion for serious offenses (i.e. assault on school staff, possession of a dangerous weapon, possession of a controlled substance), whereas discipline under M.G.L. c. 71, § 37H ¾ results from less serious offenses. The SJC held that granting students the ability to appeal directly to the superintendent when facing discipline for serious offenses under M.G.L. c. 71, § 37H provides these students greater procedural protections.

The Massachusetts Department of Elementary and Secondary Education had previously provided an interpretation of M.G.L. c. 71, § 37H that permitted districts to delegate the appeal duties. The SJC rejected this interpretation.

In summary:

• Disciplinary appeals under M.G.L. c. 71, 37H (assault on school staff, possession of a dangerous weapon, possession of a controlled substance) should be heard directly by the superintendent.
• Disciplinary appeals under M.G.L. c. 71, 37H ½ (felony complaint or conviction), while not addressed by this decision, contain the same statutory language as M.G.L. c. 71, § 37H, and should be heard directly by the superintendent.
• Disciplinary appeals under M.G.L. c. 71, 37H ¾ may be heard by the superintendent, or a designee.

If you have questions or concerns about this issue, or about school law generally, please contact us.

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

Yesterday, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related guidance to address the issue of employers testing employees for COVID-19.

Specifically, the EEOC opined that “…employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

In line with the above guidance, employers should:

• Ensure that tests are accurate and reliable (this may require reviewing guidance from the U.S. Food and Drug Administration (“FDA”) or the Centers for Disease Control and Prevention (“CDC”) on what constitutes accurate and reliable testing);
• Consider the possibility of false-positives and false-negatives from testing;
• Require that employees observe infection control practices in the workplace; and
• Be aware that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.

However, employers should not:

• Disseminate the identities of individuals who have tested positive for COVID-19 to the workplace;
• Ask potential new employees to be tested for COVID-19 until a conditional offer of employment has been made;
• Use testing as a substitute for infection control practices and regular sanitization of the workplace; and
• Discriminate in the manner in which employee COVID-19 testing is conducted (ex. measuring body temperatures for some, but not all, employees).

An employer may ask employees screening questions about COVID-19 symptoms and may measure employees’ body temperatures before beginning work. However, if an employer chooses to ask questions about symptoms or measure body temperatures, the employer must do so of all employees. The questioning and temperature measuring cannot be limited to certain employees. Furthermore, if an employee exhibits symptoms of COVID-19 while at work, the employer may send the employee home.

Our office will continue to monitor federal and state guidance and legislation for further developments related to COVID-19. If you have any questions, please contact us.

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

Today, Governor Charles D. Baker announced that Massachusetts private and public schools will remain closed though the end of the 2019-2020 school year due to the COVID-19 pandemic.

Governor Baker stated that remote learning will continue in all districts. Governor Baker also stated that DESE will soon be launching a remote learning initiative and advisory group, both to increase remote learning tools. Jeffrey C. Riley, the Commission of the Department of Elementary and Secondary Education (DESE) stated that DESE will release additional guidance regarding remote learning and reopening schools later this week.

We will continue to monitor federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

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

On March 27, 2020, the federal government passed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act responsive to the current COVID-19 epidemic.  The Act affords economic relief to individuals, small businesses, hospitals and public health facilities, food security efforts, state and local governments, and education.

State and Local Governments

The Act designates funding to state and local governments for COVID-19 response programs, as well as direct financial aid for government entities which may run out of cash due to a high number of COVID-19 cases.

Economic Relief for Businesses

The Department of the Treasury can provide forgivable loans and investments to businesses.  We expect more information to follow as to the process by which businesses will be able to apply for such loans.

The Act also established a tax credit for businesses that are closed or suffering in order to keep workers on payroll.  The credit covers up to fifty percent (50%) of payroll on the first $10,000 of compensation, including health benefits, for each employee.

Insurance Coverage

The Act requires private insurance plans to cover COVID-19 treatments and vaccines, and to make all testing for COVID-19 free of charge.

Economic Payments for Individuals and Families

The Act offers payments to single and married couples as follows:

Individuals with an adjusted gross income of $75,000 or less are entitled to a one-time cash payment of $1,200.  For individuals with an adjusted gross income of $75,000 to $99,000, this amount decreases.  Individuals with an adjusted gross income greater than $99,000 are not entitled to a payment.

Married couples with an adjusted gross income of $150,000 or less are entitled to a one-time cash payment of $2,400.  For married couples with an adjusted gross income of $150,000 to $198,000, this amount decreases.  Married couples with an adjusted gross income greater than $198,000 are not entitled to a payment.

Individuals and married couples with children under the age of seventeen (17) years old are entitled to a payment of $500 per child.

The adjusted gross income is based on either 2018 or 2019 tax filings – whichever is most recent.

Unemployment Benefits

Under the Act, states may enter into an agreement with the federal government permitting individuals receiving unemployment benefits to receive an additional payment of $600 each week.  If such an agreement is reached, it will expire no later than July 31, 2020.

Food Assistance

The Act provides additional funding for food banks, the Supplemental Nutrition Assistance Program and the Child Nutrition Program.

Education

The Department of Education will suspend payments due on federal student loans until September 30, 2020.  Additionally, employers may provide up to $5,250 in tax-free student loan repayment benefits.

Additionally, students forced to drop out of school as a result of COVID-19 will not have time away from school deducted from lifetime limits on subsidized loan and Pell grant eligibility, and will not be asked to pay back grants or aid they have already received.

Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

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

Pursuant to Governor Charles D. Baker’s March 25, 2020 order which requires all schools in the Commonwealth to remain closed until May 4, 2020, many districts are opting to engage in remote learning. While remote learning is an essential and helpful tool, it also poses unique challenges to school districts.

Many districts and their educators are concerned about violating federal copyright law when providing online resources to their students, including reading books through mediums such as Facebook Live or Zoom, or photocopying a book and distributing it to students. In response to these concerns, many publishers have modified their copyright policies. Those publishers can be found here:

https://www.schoollibraryjournal.com/?detailStory=publishers-adapt-policies-to-help-educators-coronavirus-covid19

Federal copyright law is violated when an individual uses an exclusive right without authorization from the individual or company that owns the rights. However, there is a four-factor test that may allow a teacher or district to engage in what would otherwise be considered a copyright violation, through the “fair use” exemption. The factors are:

• The purpose and character of the use;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the work as a whole; and
• The effect of the use on the potential market for or value of the copyrighted work.

See 17 U.S.C. §107.

Whether use is considered “fair” is a judgment made on a case-by-case basis and is a fact-intensive inquiry. It is also important to remind students and their families that they are also at risk of violating federal copyright law.

Districts should require all students and families engaged in remote learning to sign an agreement in which students and families agree to not record, reproduce or disseminate content. Please contact us if you would like assistance in drafting or reviewing such an agreement.

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