by Joseph N. Schneiderman
On August 23, 2016, the Supreme Judicial Court held that a student who was unlawfully suspended under the felony suspension statute, G.L. c.71, §37H1/2, did not need to seek review of her suspension to pursue the statutory tort of unlawful exclusion from public school, G.L. c.76, §16. Goodwin v. Lee Public Schools, 475 Mass. 280 (2016). This victory for students’ rights offers an opportunity for the Legislature to take action to further stem the flow of children in the school to prison pipeline.
The Case and Holding
Katelynn Goodwin was a senior at Lee Middle and High School in the Berkshires. In late December 2011, the principal suspended Ms. Goodwin under the felony suspension statute because the Lee Police suspected her involvement in a weapons theft. There was one obvious problem, however: a felony complaint never issued against Ms. Goodwin. Indeed, the superintendent admitted that Ms. Goodwin “perhaps not been charged yet.” A misdemeanor complaint ultimately issued against her in April 2012 for receiving stolen property. The school offered to lift the suspension but refused to allow Ms. Goodwin to graduate with her class. Ms. Goodwin graduated alone through an online program in 2013.
In December 2014, Ms. Goodwin sued for damages. A judge of the Superior Court dismissed Ms. Goodwin’s complaint on the grounds that she failed to appeal her suspension within five days pursuant to the felony suspension statute’s administrative process. Ms. Goodwin timely appealed and the SJC allowed her application for direct appellate review.
A unanimous Court reinstated Ms. Goodwin’s complaint and agreed that her right to tort recovery for unlawful exclusion constitutes a separate and distinct remedy from seeking reinstatement to school. The Court recalled that the statutory tort of unlawful exclusion has existed since 1845, although there have been relatively few recent cases analyzing the claims. The felony suspension statute, enacted in 1994, authorizes a principal to suspend when: (1) a student is charged with or convicted of a felony; and (2) the student’s continued presence would have a substantial detrimental effect on the general welfare of the school. A student could appeal the suspension to the superintendent-but the school committee does not review suspensions under the felony suspension statute. 475 Mass. at 284-286, compare G.L. c. 76, §17.
The Court reasoned that the felony suspension statute was only “triggered ‘[u]pon the issuance of a criminal complaint charging a student with a felony.’” Goodwin, 475 Mass. at 287 (quoting §37H1/2). Because the principal suspended Ms. Goodwin without any felony complaint issuing against her, the suspension violated Section 37H1/2 and Ms. Goodwin did not need to pursue any administrative review before seeking damages. The Court also rejected the notion that the felony suspension statute precluded any recovery in tort. Instead, the statute simply provides an “additional, immediate, review of a decision to exclude them from school, with the goal of readmission.” Id. at 288. Ms. Goodwin thus deserved her day in court.
Goodwin marks an overdue moment of accountability for schools in the crisis of juvenile delinquency based school suspensions. Some felony charges decidedly warrant suspension to preserve school safety. See Doe v. Superintendent of Schools of Stoughton, 437 Mass. 1 (2002) (principal properly suspended a high school freshman charged with the rape of a primary school student on the same campus). There are many “felony” crimes, however, that should never warrant a suspension, absent aggravating circumstances.
Specifically, a felony constitutes “any offense punishable by imprisonment in the State Prison,” G.L. c. 274, §1. Therefore, a student who has a fake driver’s license faces suspension if the principal believes that having a fake license poses substantial detrimental effect to the general welfare of the school. G.L. c. 90, §24B (punishable by five years in state prison.) The sheer breadth of offenses that may trigger suspension has grave potential to thwart a child’s education and the command that allegedly delinquent children “shall be treated not as criminals but as children needing aid, encouragement of guidance.” G.L. c. 119, §53.
Between 1997 and 2011, principals suspended an average of more than 100 students per year under the felony suspension statute. Melanie Riccobene Jarboe, “Expelled to Nowhere”: School Exclusion Laws in Massachusetts, 31 B.C. Third World L.J. 343, 376 (2011). Courts tended not to review suspensions critically, despite “ample indication that principals [suspended] indiscriminately and [did not] carefully consider each case”, as the Commissioner of Education urged. Id. at 352, 360. Those suspensions inevitably flushed students into the school to prison pipeline. Id. at 349–51, 357, 365–69.
The review process is messy at best. A student or parent must request review in writing within five days.. Goodwin, 475 Mass. at 282, n.4. There is also no guidepost to judicial review, and certiorari becomes the only (default) option, which does not account for the best rehabilitative interests of a child. Doe, 437 Mass. at 5. An unlawful suspension may deprive a student of their future. See Commonwealth v. Mogelinski, 466 Mass. 627, 647-648 (2013), S.C., 473 Mass. 164 (2015). (“futurelessness” may overcome a child who endures a prolonged delinquency case.)
Finally, there is no freestanding right to counsel in suspension proceedings. And, unfortunately, “many parents often do not have the mindset, time, or means to pursue redress against the educational system…and the parents who do have the resources are often ostracized, frustrated, and unsuccessful.” Expelled to Nowhere, 31 B.C. Third World L.J. at 352.
Where Do We Go After Goodwin?
The Legislature has three concrete ways to build on Goodwin to spur continued accountability. First, the Legislature should limit suspensions only to when a student stands indicted as a youthful offender for a felony offense that involves infliction or risk of serious bodily harm. G.L. c.119, §54.
Second, as the Court implicitly suggested, the Legislature should create flexibility in the administrative review process and expressly establish procedures for judicial review to the Juvenile Court–which has a statutory mandate to further the best rehabilitative interests of children. G.L. c.119, §§1, 53.
Finally, the Legislature should create an independent right to appointed counsel in suspension hearings-with the right to commence the process for tort recovery for unlawful exclusion pursuant to the Massachusetts Tort Claims Act. These changes would ensure due process for students and further the goal of ending unlawful exclusions from education.
Joe Schneiderman has an appellate practice in Massachusetts and Connecticut with a particular affinity for and focus on juvenile delinquency and municipal law. Joe gratefully dedicates this article to: his mother Ro (who passed away three weeks after he filed Ms. Goodwin’s brief), as well as his dear friend, mentor, and teacher, Robert Kyff.