On December 14, 2022, a judge in the United States District Court for the District of Massachusetts issued a decision in Foote, et al. v. Town of Ludlow, et al., No. 22-30041 (2022) which has garnered significant attention in the media. The court dismissed a lawsuit filed by two parents who claimed that the Ludlow Public Schools violated the parents’ fundamental rights to make decisions about the upbringing of their children when school staff offered guidance about gender identity to two students, complied with the students’ requests to use alternative names and pronouns, and did not share information about the students’ preferences with their parents. Because the dismissal assessed whether the complaint stated a claim such that the case could proceed, the court was required to accept as true the allegations in the complaint.

The facts pertinent to the claim are complex but can be summarized as alleging that the school withheld information from the parents of two students regarding the students’ decisions about gender identity, the students’ use of preferred names and pronouns at school, and staff’s counseling of the students. The students at the time were ages eleven and twelve and were enrolled in middle school.

Assessing the parents’ claim as one involving their Fourteenth Amendment right to substantive due process, the court applied a standard which determines whether the school district’s actions were “so extreme and egregious as to shock the contemporary conscience” and exhibited a “‘stunning’ level of arbitrariness that goes beyond ‘[m]ere violations of state law.’” The court concluded that the facts alleged by the parents failed to meet this demanding requirement and dismissed the lawsuit. The parents have filed a notice of appeal requesting review of the decision by the Court of Appeals for the First Circuit.

While the court ultimately decided that the parents had failed to state a claim, it made a number of observations regarding the district’s handling of an issue that is likely to arise with increasing frequency in Massachusetts schools. The court recognized the tension between the competing interests that may be involved in assessing students’ rights and parental rights. It acknowledged that “Massachusetts laws and regulations regarding gender identity … establish a significant government interest in providing students with a school environment in which they may safely express their gender identities, regardless of their ages or the preferences of their parents.” The court noted that this policy is reflected in the “non-binding guidance” of the Department of Elementary and Secondary Education (“DESE”), “Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment”. The court observed that this guidance “emphasizes the importance of creating a safe and supportive environment for students and encourages schools to work with students to develop plans for use of preferred names and pronouns” and that “‘in the case of a younger student,’ DESE advises schools to create a plan with input from parents”, but added that “DESE has not defined younger students, other than by describing them as ‘not yet able to advocate for themselves.’”

Ultimately the court stated that the school district’s actions were “based on a flawed interpretation of the DESE Guidance and ignored the plain language advising that parents be informed after the student is advised that such communication will occur.” The court suggested that “a policy that facilitates communication between students and parents would be consistent with the DESE Guidance and its recommendation to avoid surprising students when informing parents about the matter.”

This decision illustrates the difficulties that will be encountered by school districts in this area when balancing the rights of students in choosing gender identity and the rights of parents in being informed about and being involved in these sensitive matters. The court did not explicitly mention the fact that the non-binding DESE guidance does appear to give more weight to a student’s independent right to make these decisions if the student has attained age 14/enrollment in the ninth grade:

“A student who is 14 years of age or older, or who has entered the ninth grade, may consent to disclosure of information from his or her student record. If a student is under 14 and is not yet in the ninth grade, the student’s parent (alone) has the authority to decide on disclosures and other student record matters.”

This aspect of the DESE guidance is based on the definition of an “eligible student” in the student record regulations, 602 CMR 23.01(1) and (2), under which the age/grade threshold determines whether the parent alone retains the student’s rights regarding records or those rights are held by both the parent and the student.

While we await the eventual outcome of the parents’ appeal, the Foote decision is most useful as a graphic illustration of the highly complicated and evolving character of this area of the law. Although the court concluded that the facts did not meet the exacting standard of the claim that was filed, school districts can face legal exposure if they fail to carefully navigate and balance the competing interests that inevitably will require a case-by-case analysis. That care may warrant communication with district counsel.

If you have any questions about the content of this update, please contact us. We are pleased to assist public and private schools with policy development and implementation.

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

Starting November 8, 2022, Massachusetts schools must take additional steps to re-engage students before using suspension and expulsion as disciplinary measures. As part of An Act Addressing Barriers to Care for Mental Health, St. 2022, c. 177, § 29, the Massachusetts Legislature amended M.G.L. c. 71, §37H ¾(b) to include new language relevant to student discipline. Pursuant to those changes, before suspending or expelling students, schools must consider ways to re-engage the student and, in certain circumstances, implement alternative remedies.

Prior to the amendment, subsection (b) only required that the decision-maker “consider ways to re-engage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.” The amendment expands these requirements. As a result, before suspending or expelling a student, the decision-maker must employ alternative remedies in response to a specific incident and document their use and results. The alternative remedies required by the law include but are not limited to: (1) mediation; (2) conflict resolution; (3) restorative justice; and (4) collaborative problem solving.

The amendment provides for limited exceptions to these requirements where: (1) such remedies are unsuitable to the specific incident or are counter-productive; or (2) the student’s continued presence in school would pose a specific, documentable concern about the infliction of serious bodily injury or other serious harm upon another person while in school. School districts must document the facts which support either of these exceptions.

The school district must also implement school- or district-wide models to re-engage students in the learning process, such as positive behavioral interventions and support models or trauma sensitive learning models.  However, these models may not be considered as a direct response to specific incidents.

Since this amendment will take effect on November 8^th, school districts should develop processes of implementing alternative remedies to discipline, prepare ways to re-engage students in the learning process, and assess how to document the use and results of alternative remedies as well as circumstances where alternative remedies may not be employed. School districts should also notify all superintendents, principals, headmasters, and anyone likely to act as a decision-maker in a student discipline hearing of these changes in the law. It should be kept in mind that this amendment does not apply to discipline imposed under G.L. c. 71, §37H or under G.L. c. 71, §37H ½.

If you have any questions on the content of this update, please contact us. We are pleased to assist public and private schools in all matters related to student discipline, as well as provide strategies in documenting new requirements under this law.

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

Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2022 and Nicholas J. Dominello and Jennifer F. King have been named Massachusetts Rising Stars.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations. Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.

On September 6, 2022, the Supreme Judicial Court issued a decision in Mahan v. Boston Retirement Board, No. 13208 (2022), holding that the pension forfeiture provisions of G.L. c. 32, § 15(3) and (4) apply to an individual whose criminal activity occurs after the individual has retired from public service. The SJC’s conclusion means that criminal convictions involving an employee’s misappropriation of public funds and/or violation of the laws that apply to his office/position can result in the forfeiture of retirement benefits regardless of whether the individual is an active public employee at the time of the offense.

Mahan was a correction officer who, in August of 2000, sustained a knee injury while attempting to restrain an inmate involved in a fight. As a result of his injury, Mahan was initially unable to work and received accidental disability retirement effective in November 2003. Between 2003 and 2013, Mahan received a combination of workers’ compensation benefits, assault pay, and a disability retirement allowance. To demonstrate continued eligibility for the workers’ compensation benefits, Mahan certified every six months that he was not working. However, beginning in 2006, after his retirement and while completing certifications and collecting the benefits, he worked at a car dealership owned by his wife. After pleading guilty to one count of workers’ compensation fraud and one count of larceny, Mahan was ordered to pay over $300,000 in restitution to his former employer. Because of Mahan’s criminal convictions, the Boston Retirement Board then voted to revoke his retirement benefits pursuant to c. 32, § 15(3) and (4). Mahan appealed the decision, arguing that these sections did not apply to him since he did not commit his crimes until after he was retired and receiving benefits.

G.L. c. 32, § 15(3) stipulates that any “member” of the retirement system convicted of a criminal offense involving the funds of their public employer shall be ineligible to receive a retirement allowance until full restitution is made. § 15(4) makes any “member” convicted of a crime tied to their public office permanently ineligible for a retirement allowance. The SJC noted that G.L. c. 32, § 3 defines “member” to include both those who are currently employed as “members in service” and those who are “inactive” because they have retired and are receiving benefits. Consequently, the SJC concluded that the two forfeiture provisions apply to individuals who commit certain crimes after retirement as well as those who commit these crimes while actively serving as public employees.

The Mahan decision is important because it clarifies that retirees who commit crimes that fit the criteria in § 15 can forfeit their pension as a result, even if the criminal conduct did not occur until after retirement.

If you have any questions about the content of this update, please contact us. We are pleased to assist public and private employers with all matters related to retirement benefits.

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

On August 4, 2022, Governor Baker signed into law an act that limits certain impacts of the Supreme Judicial Court’s recent decision in Joseph O’Leary v. Contributory Retirement Appeal Board, No. 13229 (2022). The SJC concluded that payments made in lieu of vacation leave are not “regular compensation” for purposes of retirement calculations. The Legislature anticipated this result by amending General Laws c. 32 to ensure that certain employees continue to have these payments included in their retirement calculations. Still, employees who entered service recently and newly hired employees will not be able to have these payments included in their retirement calculations.

The Act, St. 2022, c. 147, adds a new section 106 to G.L. c. 32. For employees who are already retired and whose retirement benefits were calculated using amounts paid in lieu of vacation leave, the retirement allowance will remain the same and will continue to include such payments in regular compensation. For those employees who are not yet retired and who were in service as of May 1, 2018, payments made annually in lieu of vacation leave pursuant to a collective bargaining agreement, individual employment contract, written benefits or personnel policy, or municipal plan or ordinance/bylaw will be considered “regular compensation” for retirement purposes. These payments will continue to be treated as regular compensation, even if made after May 1, 2018, so long as: (1) the employee was in service as of May 1, 2018; (2) the payments are made pursuant to a CBA or other employment contract, written benefits or personnel policy, or ordinance/bylaw/plan that was in effect as of May 1, 2018; (3) the employee consistently participated in a program available to all similarly situated employees; (4) the payments were not made only in the final 3 years of employment for a member who joined the system prior to April 2, 2012 or the final 5 years for a member who joined after April 2, 2012; and (5) the payments were not made as a result of providing notice of retirement.

For any employee who was not in service as of May 1, 2018, payments made in lieu of vacation are not included in “regular compensation” for retirement purposes. In other words, the amendment does not affect these employees and the recent SJC decision in O’Leary, which found that payments made in lieu of vacation are not included in retirement calculations, controls.

If you have any questions about the content of this update, please contact us.

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