On June 5, 2018, a Middlesex Superior Court judge issued an order enjoining the Natick School Committee from enforcing its public speak policy during meetings. While this order is not a final decision in the case and is binding only on the parties to that lawsuit, it may carry significance for other districts which have in place similar public comment rules for School Committee meetings.

The lawsuit was brought by parents of two unrelated former Natick students. They alleged that the Committee, its chair, and the interim Superintendent unconstitutionally restricted their speech during the “public speak” portion of Committee meetings. The plaintiffs requested, among other things, a preliminary injunction to prevent the school committee from enforcing its public speak policy and an order declaring that the school committee’s policy is unconstitutional.

The Committee’s policy bans (1) “improper” conduct and “defamatory” or “abusive” remarks and (2) complaints about individual school personnel or any member of the school community during the public speak period. These provisions are identical to the MASC model policy BEDH. The Committee invoked the policy during a January 2018 meeting, when one parent made comments during public speak that her child had been bullied. The Committee suspended the meeting and had the parent removed, later issuing her a no trespass order prohibiting her from attending the area where Committee meetings are held. The Committee later invoked the policy against the second parent in February and March 2018, after she commented during public speak that Natick Public Schools had created a retaliatory and hostile climate. The Committee then amended its policy to bar “vulgar language and ideas” and to authorize the Chair to stop a speaker if he/she becomes “disruptive as defined by the chair.”

The court applied the standard test to evaluate the plaintiffs’ request for an injunction, focusing on the most important, i.e., a likelihood of success on the merits. Under applicable First Amendment precedent (which the court applied to the plaintiffs’ claim under the cognate Massachusetts Declaration of Rights provision, Article 16), public bodies may establish “limited public forums,” which may be dedicated solely to the discussion of certain subjects. The court stated that the body may always impose “reasonable” rules which are “viewpoint neutral” for limited public forums. If, however, the rules are based on the content of the speech, they can only be upheld if they further a “compelling interest” and are “narrowly tailored” to serve that interest.

The court recognized that school committees have a compelling interest in protecting student and staff privacy, as well as in conducting orderly and efficient meetings. However, the court found that the committee’s policy actually restricted speech based on the viewpoint of the speaker and was “aimed to prohibit certain speech that is critical of the Natick Public Schools.” The policy’s prohibitions on improper, vulgar, and disruptive remarks vested too much discretion in the chair to silence speakers based on the particular views they expressed. Thus, the policy was overbroad. The court also noted that well-established case law in Massachusetts would invalidate the portion of the policy prohibiting “defamation” during public speak.

The Committee had argued that the Open Meeting Law gives public body chairs the authority to prohibit meeting disruptions, and that such authority was properly exercised in the case. The court disagreed, calling into question the possibility that the exercise of such authority might conflict with speakers’ state and federal free speech rights. The court made an interesting distinction between the portion of a meeting devoted to agenda items and the portion devoted to public speak. During discussion on agenda items, the chair can exercise authority over the meeting to prohibit a speaker from straying off topic or otherwise disturbing the order and efficiency of the meeting. The chair’s authority during the public comment portion, on the other hand, is far more limited. In other words, speech that is “disruptive” during discussion of agenda items is not necessarily “disruptive” during public speak. In this case, because the plaintiffs’ speech was school-related and delivered “in a calm manner” during public speak, the court found that it was not “disruptive”. Therefore, the chair did not have authority under the Open Meeting Law to restrict the speech.

Having found a likelihood of success, the court briefly assessed the other required elements for a preliminary injunction and ruled that they were satisfied. In its injunction order, however, the court recognized the sensitive nature of subject matters which might be discussed at Committee meetings and the need to protect the privacy of students and staff. The court therefore included an exception which bars naming or “otherwise identifying” individual staff or students during the public speak portion of meetings. It also stated that this exception is “for the purposes of temporary injunctive relief only.” Unfortunately, the court failed to expound on the precise meaning or parameters of this exception.

Although the court’s order is not “final” a provision in the General Laws authorizes an appeal to the Appeals Court from an interlocutory order granting an injunction, which would have to be filed within 30 days. Since the order has just been entered, we have no information as to whether the Committee intends to appeal. Given that the court’s analysis may have collateral consequences regarding standard public speak policies used by school committees and other municipal boards across the Commonwealth, we intend to monitor this case closely.

If you have questions about this decision, or about school law generally, please contact any of our attorneys.

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

Today, in Stahr v. Lincoln Sudbury Reg’l High Sch. Dist., the Massachusetts Appeals Court affirmed the dismissal of a former student-athlete’s claims against the Lincoln Sudbury Regional High School District for injuries sustained during a varsity field hockey practice. The court dismissed the claims based on its determination that they fit the exception in § 10(j) of the Massachusetts Tort Claims Act, G.L. c. 258 (the “Act”). The outcome in this case highlights the limits of public employer liability under the Massachusetts Tort Claims Act, particularly where the public employer is not the direct cause of the injury. It also serves to remind school districts of the importance of implementing and adhering to proper concussion protocols as required under G.L. c. 111, § 222, and 105 C.M.R. 201.00.

Massachusetts Tort Claims Act

Under the Act, public employers – including school districts – may be held liable for injuries caused by the negligent or wrongful acts or omissions of a public employee acting within the scope of their employment. Despite the general rule, there are several exceptions in the Act that shield public employers from liability in certain situations.

Under one common exception, a district generally can’t be held liable for its actions (or lack of action) to prevent or diminish the consequences of a harmful condition or situation where the district did not “originally cause” the harmful condition or situation. See G.L. c. 258, § 10(j). This exception often comes into play when an injury is caused by a third party, such as another student. The question then becomes whether the district “originally caused” the condition or situation that led to the injury.

When does a school district “originally cause” a condition or situation?

Under Supreme Judicial Court precedent, the district has to take some “affirmative action” that “materially” contributes to creating the harmful condition or situation. See Cormier v. Lynn, 479 Mass. 35 (2018). The courts won’t hold a district liable if its action is too attenuated or if the district simply failed to prevent a harmful situation from arising.

The Stahr Case

In Stahr, the Lincoln Sudbury girls’ varsity field hockey team participated in a practice drill introduced and supervised by an alumna player acting as a volunteer coach. The players were not warned or instructed as to techniques that could endanger other players prior to the drill. During the drill, a student was struck in the face by a teammate’s field hockey stick. The head varsity coach was present on the field but was not actively supervising at the time. The blow knocked out two of the student’s teeth, caused her to lose consciousness, and resulted in a concussion.

The student’s family argued that the head coach’s decision to allow an untrained volunteer coach to supervise a new drill was the “original cause” of the student’s injury. The court disagreed, finding that the head coach’s decision was too attenuated from the actual collision that directly caused the injury. The court also refused to hold the district liable for the coaches’ alleged “lack of supervision” and “inadequate instruction” prior to the drill. Both were omissions, not affirmative acts. As such, the court likened the student’s claim to “an attempt to hold the [district] liable for failing to ensure [the student’s] safety during field hockey practice.”

The family also argued that the district was negligent in its failure to implement and follow a concussion protocol as required by G.L. c. 111, § 222, and 105 C.M.R. 201.00. After the impact, the head coach failed to take any steps to mitigate the effects of a possible concussion and did not notify the student’s parents of the proper protocol to follow in the event of a suspected concussion. The student did not receive her concussion diagnosis until five days later. Upon her return to school, she was not placed on a graduated reentry plan and her academic performance suffered over an extended period of time. She ultimately withdrew from the district.

The court held that the district could not be held liable for its failure to implement and adhere to proper concussion protocols as required by Massachusetts law. Because the failure was an omission, as opposed to an “affirmative act,” it could not be considered the “original cause” of the injury. Similarly, because the failure was an omission, it could not be classified as a “negligent intervention.”

Massachusetts Interscholastic Athletic Head Injury Law

Even though the school district could not be held liable in this case, the facts demonstrate why it is imperative that schools comply with the requirements set forth in the G.L. c. 111, § 222, and its implementing regulations located at 105 C.M.R. 201.00.

The regulations require all schools to have policies and procedures in place governing the prevention and management of sports-related head injuries. Such policies must have provisions including, but not limited to:

1. annual training in the prevention and recognition of sports-related head injuries;
2. instructions to coaches, athletic trainers, and volunteers to teach form, techniques, and skills and promote protective equipment use to minimize sports-related head injury;
3. procedures for reporting head injuries or suspected concussions sustained during extra-curricular athletic activities to the school nurse and licensed athletic trainer;
4. procedures for identifying a head injury or suspected concussion, removing an athlete from practice or competition, and referring for medical evaluation; and
5. procedures for the development and implementation of post-concussion graduated reentry plans to school and academic activities.

See 105 C.M.R. 201.006(A). If you have any questions about these requirements, or about school law generally, please contact any of our attorneys.

 

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

 

On April 25, 2018, the federal district court for the District of Massachusetts issued an order dismissing several claims against the Town of Stoughton, the Stoughton Public Schools Superintendent, and the Stoughton High School Principal. Those claims were brought by a former student who alleged that she was subjected to illegal sexual harassment by a teacher who groomed and abused her during her junior and senior years. The plaintiff asserted that, by allowing this to occur, the school district and its employees violated their statutory duties to protect her from harm, including duties pursuant to Title IX of the Civil Rights Act of 1964.

Of particular importance is the court’s order dismissing the Title IX claim against the Town (based on the acts of the school employees). To succeed on a Title IX claim, the plaintiff had to show that: (1) she was a student subject to harassment based on sex that was sufficiently severe and pervasive to create an abusive educational environment; and (2) an official who at a minimum had authority to address the alleged discrimination and to institute corrective measures on the student’s behalf had actual knowledge of the discrimination and failed to adequately respond or was deliberately indifferent to it.  The plaintiff’s complaint alleged that the Principal had actual knowledge of the abuse when another student reported to her that the teacher was providing the plaintiff with special treatment that she was spending excessive time with the teacher, and that on one occasion the plaintiff had left the school in the teacher’s vehicle.  The Principal allegedly initiated an investigation that involved questioning the plaintiff and the teacher, and it did not result in a finding of abuse.

The court noted that a showing of actual knowledge under Title IX requires that a defendant be deliberately indifferent to “known acts” of harassment or discrimination even applying the lenient rules for evaluating complaints the court found that this complaint failed to adequately allege that the Principal had “actual knowledge” of the abuse. The court ruled that allegations about the report to the Principal regarding special treatment, that the plaintiff was spending excessive time with the teacher, and that she was seen getting into the teacher’s vehicle did not amount to known acts of harassment or discrimination sufficient to establish the actual knowledge required by Title IX.  Consequently, the court dismissed the plaintiff’s Title IX claim against the Town. (It dismissed Title IX claims against the individuals because Title IX does not authorize such claims).

While this case shows the stringent requirements necessary to establish a school district’s culpable knowledge under Title IX, school districts should keep in mind that even in this case the facts were apparently enough to trigger an investigation by the school (albeit one that may have been superficial). Failure to so in light of a report indicating that harassment may be occurring could itself trigger liability. Moreover, the court did allow a claim to proceed against the Principal under the federal Civil Rights Act, 42 U.S.C. §1983 because the allegations showed that she had constructive knowledge of a grave risk of harm but failed to take “sufficient, easily available measures to address the risk”.

If you have any questions regarding the content of this update, or any other questions regarding school law generally, please contact us.

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

On April 24, 2018, the Supreme Judicial Court held in Doe No. 1 v. Secretary of Education (SJC-12275) that students who attend public schools in Massachusetts are not constitutionally entitled to attend charter schools.  Five students filed a complaint in Superior Court challenging G.L. c. 71, § 89(i), which caps the number of all charter schools in the state (with the exception of “Horace Mann II” schools) and also caps the funding that commonwealth charter schools receive.  The plaintiffs alleged that the statutory caps violate both the education clause and the equal protection clause of the Massachusetts Constitution.  The Superior Court dismissed the complaint and the students appealed.

Under the statute, there is a cap of 120 total charter schools allowed in the Commonwealth. No more than 72 of those schools may be “commonwealth charter schools,” which operate independently of the school district where they are located but still receive funding from that district.  In addition, the statute provides that the funding from the sending district to commonwealth charters may not exceed 9% of the district’s net school spending; unless the sending district is in the lowest 10% of performing districts statewide, in which case the funding limits are raised to 18%.  (The other type of charter school, a Horace Mann charter, must be approved by the school district and the bargaining unit in which it is located, and receives funding as determined by the district.)

On appeal, the court first decided that the plaintiffs had sufficiently asserted a justiciable controversy and their right to bring their claims. It then addressed the merits of those claims.

The plaintiffs attend schools that are subject to the 18% cap and have been unable to obtain spaces in charter schools through a lottery process. They alleged that the education they are receiving is constitutionally inadequate under the education clause, which imposes a duty on the Commonwealth to educate all children.  The plaintiffs claimed that this deprivation is caused by the charter school cap, which prevents them from attending a better-performing school and thereby receiving a constitutionally adequate education.  The court disagreed, ruling that while the plaintiffs may be receiving an inadequate education at the moment, they would need to demonstrate that the Commonwealth had failed to fulfill its duty to educate all of its children and that the Commonwealth’s public education plan does not offer reasonable assurance of an opportunity for an adequate education.

Alternatively, the plaintiffs alleged that the charter caps violate the equal protection clause of the Massachusetts constitution because they create two classes of children: those guaranteed to receive the opportunity for an adequate education because their districts provide one, and those in failing districts that rely on the charter lottery system for the prospect of an adequate education. The court rejected this claim as well.  It held that because the charter caps did not significantly interfere with any fundamental right to an education or target a suspect class, the court would not evaluate the statute by applying “heightened scrutiny.”  Instead the court decided that the statute could be upheld so long as it was rationally related to the furtherance of a legitimate state interest.  Noting that charter school funding affects the funding available to the district’s traditional public schools, the court concluded that the caps further the interests of students who do not attend charter schools by limiting the funding impact on their schools and serve as an effort to allocate educational funding among the Commonwealth’s students.  The court therefore held that the caps further a legitimate state interest and satisfy the “rational basis” test.

Obviously, this case has importance for school districts in Massachusetts which must annually wrestle with school budgets and enrollment issues. The court noted that charter schools and the caps continue to be a source of public debate in and outside the Legislature.  School districts are well-advised to keep abreast of developments.

If you have any questions regarding the content of this update, or any other questions regarding school law generally, please contact us.

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