by Caiti A. Zeytoonian
In McLean Hospital Corporation v. Town of Lincoln, 483 Mass. 215 (2019), the Supreme Judicial Court (SJC) held that emotional and social skills-based education falls within the scope of a Massachusetts statute that exempts educational land uses from local zoning laws. The case reaffirms that the protection afforded to educational uses under that statute—G.L. c. 40A, § 3, commonly known as the “Dover Amendment”—extends beyond traditional forms of education and includes uses that provide therapeutic or rehabilitative support in addition to a primary educational purpose.
The Dover Amendment provides, in relevant part:
No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned or leased . . . by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. (emphasis added).
The law, enacted in 1950 in response to local zoning bylaws that prohibited religious schools within residential neighborhoods, was intended to provide special zoning status for religious and educational uses. Since the Dover Amendment’s inception, the SJC has interpreted the scope of “educational purposes” broadly. See, e.g., Fitchburg Hous. Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 (1980) (facility where formerly institutionalized adults resided while “being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources” qualified as educational use); Gardner-Athol Area Mental Health Ass’n v. Zoning Board of Appeals of Gardner, 401 Mass. 12 (1987) (residential facility where adults with mental disabilities would be taught “daily living, as well as vocational skills, with the goal of preparing them for more independent living” served a primary educational purpose). These interpretations of the Dover Amendment were consistent with the SJC’s longstanding tradition of taking a broad view of the notion of ‘education’:
Education is a broad and comprehensive term. It has been defined as “the process of developing and training the powers and capabilities of human beings.” To educate, according to one of Webster’s definitions, is “to prepare and fit for any calling or business, or for activity and usefulness in life.” Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.
Mt. Hermon Boys’ Sch. v. Town of Gill, 145 Mass. 139, 146 (1887) (emphasis added). The McLean Hospital decision can be viewed as the latest in a long line of cases continuing this tradition.
The SJC’s Decision in McLean Hospital
The plaintiff, McLean Hospital (“McLean”), purchased land in the town of Lincoln for the purposes of developing a residential skills-based program for adolescent males with “emotional dysregulation,” known as the “3East Program” (the “Program”). Despite receiving initial approval for the Program’s development by Lincoln’s building commissioner, McLean faced opposition from Lincoln residents, who challenged the program before the local zoning board of appeals (the “ZBA”). Upon review, the ZBA decided that the Program was “medical or therapeutic,” as opposed to “educational,” in nature, and, thus, did not qualify for exemption from the town’s zoning laws under the Dover Amendment. McLean filed an action in Land Court to challenge the ZBA’s decision. Finding in favor of the ZBA, the Land Court judge held that the proposed use of land was not “for educational purposes,” due primarily to the fact that the Program focused on “therapeutic” inward-facing life skills rather than “educational” outward-facing life skills.
On appeal, the SJC considered whether the Program, which was “designed to instill fundamental life, social, and emotional skills,” qualified as “educational” for purposes of Dover Amendment protection. McLean, 483 Mass. at 217. Ultimately, the Court concluded that the proposed program and its skill-based curriculum, “although not a conventional educational curriculum offered to high school or college students,” fell “well within the ‘broad and comprehensive’ meaning of “educational purposes” under the Dover Amendment.” Id. at 216 (citation omitted).
The SJC reached this conclusion by applying a two-pronged test: (1) whether “the bona fide goal” of the use can reasonably be described as “educationally significant;” and (2) whether “the educationally significant goal [is] the primary or dominant purpose for which the land or structures will be used.” McLean, 483 Mass. at 220 (citing Regis College v. Weston, 462 Mass. 280, 286 (2012)) (internal quotation marks omitted).
Applying the first prong, the SJC considered the various aspects of the Program’s curriculum, which was to employ a “highly structured, nationally recognized, dialectical behavior therapy approach to attempt to develop social and emotional skills in students with severe deficits in these skills” and to feature a curriculum “taught in an experiential manner by specialists in clinical education.” McLean, 483 Mass. at 217, 219. The Program was to consist of instruction and practice in social and emotional skills focused in: (1) mindfulness and ability to pay attention; (2) emotional regulation; (3) development and maintenance of interpersonal relationships; (4) distress tolerance; and (5) validation, which the SJC described as “well-established areas where prior research has shown that training can be very effective.” Id. at 218. Ultimately, the SJC found that the Program would qualify as educationally significant, thereby upholding the longstanding notion that a program that instills “a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process” within the meaning of the Dover Amendment. Id. at 221 (emphasis in original) (citation omitted).
Applying the second prong, the SJC rejected the Land Court’s characterization of the Program as predominately therapeutic, explaining that a skills development program does not lose its primary educational purpose simply because “the particular competencies taught also may be therapeutic, rehabilitative, or remedial of an underlying condition.” Id. Notably, the SJC rejected the defendants’ contention that the Program was not educational due to the presence of a psychiatrist on staff and the fact that “participants may be a threat to themselves or others, in light of some of their histories of thoughts of suicide or self-injurious behaviors.” Id. at 223. As the SJC explained, the concepts of education and rehabilitation are not mutually exclusive, and “an attempt to sever that which is educational from that which is therapeutic is ordinarily a rather futile exercise.” Id. at 225. Moreover, the SJC rejected the lower’s courts distinction between outward-facing and inward-facing life skills:
Both inward-facing and outward-facing types of skills, even assuming they can be meaningfully parsed in this manner, are part of “the idea that education is the process of preparing persons ‘for activity and usefulness in life’” and thus protected as a significant educational purpose under the Dover Amendment . . . . We also decline to adopt the judge’s parsing of distinctions between a “therapeutic” program to teach inward-facing life skills and an “educational” program to teach outward-facing life skills.
Id. at 224-25 (citations omitted).
Implications of the McLean Decision Moving Forward
Advocates for persons with disabilities have celebrated McLean as a significant victory in the fight towards securing equal access to education for all. The decision confirms that a determination of whether a proposed use has an educationally significant purpose should focus on the program itself, rather than the type of student participating in the program. In so doing, McLean makes it clear that education with a therapeutic purpose and education with a traditional academic purpose are both valid and meaningful forms of education that are equally entitled to benefit from the Dover Amendment.
While McLean has widely been regarded as a decision concerning specialized education for persons with disabilities, the case has important implications for traditional education as well. As public school curriculums continue to evolve towards the inclusion of emotional and behavioral learning, McLean should be viewed as a significant and powerful reminder of what our jurisprudence has long understood to be true: All students must be learners – not just of arithmetic and spelling – but of the capacity to behave and interact with self-awareness, self-regulation, and empathy for others. The SJC has long held that education is a “broad and comprehensive” term. Thus, the importance of McLean does not lie in the creation of new legal precedent, but in the deliverance of an impetus to align society’s understanding of what it means to educate a human being with that of our courts.
Caiti A. Zeytoonian is an Antitrust & Competition associate at Morgan, Lewis & Bockius LLP. She represents and advises clients in connection with federal and state government antitrust investigations, civil and criminal antitrust litigation, and antitrust compliance issues.