News & Resources

CRA Proceedings: When Does a Child "Willfully" Fail to Attend School?

Earlier this year, the Massachusetts Supreme Judicial Court clarified when a child failing to attend school qualifies as a “Child Requiring Assistance” under the truancy provisions of Massachusetts General Laws Chapter 119, sections 21 and 39E-39I.  The underlying case, Millis Public Schools v. M.P., et al., Docket No. SJC-12384 (2018), involved a fifteen year old girl, M.P., who continuously failed to attend school due to a combination of physical and mental disabilities, including a severe bladder condition and autism. After M.P. was absent from school for approximately two months, the Millis Public Schools (Millis) filed a CRA Petition alleging that M.P. was habitually truant, which is a category under the CRA law defined as applying to “a school-aged child, not excused from attendance under the lawful and reasonable regulations of such child’s school, who willfully fails to attend school for more than [eight] school days in a quarter.”

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SJC Holds Public School Districts are Not Liable in Tort For Negligence Relating to Bullying

On February 27, 2018, the SJC held in Cormier, et al. v. City of Lynn, et al., SJC-12323 (2018), that defendants the City of Lynn, the Lynn Public Schools, and several public employees were not liable under the Massachusetts Tort Claims Act, G. L. c. 258, for claims arising from one public elementary school student being pushed down the stairs by another, resulting in his permanent paralysis. The student’s parents argued that the school district was negligent because staff had been informed about the bullying on multiple occasions but did nothing to stop it, eventually resulting in their son’s injuries. They also claimed that the school district had failed to implement its own anti-bullying policies. 

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DESE Clarifies Unresolved Issues for Foster Care Students

On January 18, 2018, the Massachusetts Department of Elementary and Secondary Education (“DESE”) issued guidance which clarifies the obligations of school districts for foster care students under the Every Student Succeeds Act (“ESSA”).  The guidance can be found here:[On%20January 18, 2018, the Massachusetts Department of Elementary and Secondary Education (“DESE”) issued guidance which clarifies the obligations of school districts for foster care students under the Every Student Succeeds Act (“ESSA”). The guidance can be found here: http:/ The guidance generally places significant burdens on school districts, although it did provide some helpful clarifications.].  The guidance generally places significant burdens on school districts, although it did provide some helpful clarifications. 

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Are Surveillance Videos Student/Education Records?

With the proliferation of surveillance cameras in schools and on school buses, video footage is increasingly being used by school districts in support of investigations into student disciplinary matters. In that context, school districts occasionally receive requests for a copy of surveillance tapes.  According to the Family Policy Compliance Office (“FPCO”), which has jurisdiction over the Family Education Rights Privacy Act (“FERPA”), surveillance tapes are not typically education records because they record an entire scene and are not intended to focus on any particular student.  As a result, they are generally not protected from disclosure as student records.  Depending on the circumstances, they may be protected from disclosure for other reasons under the Public Records Law.

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Students Kneeling During Patriotic Activities

Given professional athletes’ recent protests, kneeling and/or linking arms during the National Anthem, the question has arisen about students’ right to kneel and/or link arms during patriotic activities, such as the National Anthem or pledge of allegiance. 

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REMINDER: Public School Substance Abuse Prevention Policies Due October 28

As noted in our March 2016 Client Alert, as part of Massachusetts’ Omnibus Substance Abuse Legislation, there were several action items for schools. One of those action items was the requirement that all public schools must file their policies regarding substance use and prevention and educating students about the dangers of substance abuse with the Department of Elementary and Secondary Education (“DESE”). According to Commissioner Mitchell Chester’s September 16, 2016 Weekly Update, by October 28, 2016 all public schools (including charter schools and vocational-technical schools) must accomplish the following:

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Changes to the McKinney-Vento Homeless Assistance Act

On December 10, 2015, President Obama signed into law the Every Student Succeeds Act (“ESSA”), which amended the McKinney-Vento Homeless Assistance Act (“McKinney-Vento”).  The amended McKinney-Vento goes into effect on July 1, 2016, with a few exceptions.

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Transgender Students' Rights

On May 13, 2016, the United States Department of Education’s Office for Civil Rights (“OCR”) and the United States Department of Justice (“DOJ”) issued a Dear Colleague Letter reinforcing their prior interpretation that Title IX of the Education Amendments of 1972 (“Title IX”) and its implementing regulations prohibit discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.  OCR and the DOJ informed school districts that as a condition of receiving Federal funds, a school district must adhere to the Dear Colleague Letter.

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Ensuring The Accessibility of School District Websites

The United States Department of Education’s Office for Civil Rights (“OCR”) is receiving hundreds of complaints across the country about the accessibility of public schools’ websites for individuals with disabilities.  It is, accordingly, investigating school districts’ compliance with applicable Federal laws as they relate to school websites and applicable policies.  The Boston OCR office, which has jurisdiction over Massachusetts school districts, has previously investigated and found compliance concerns with the website of a Massachusetts school district.  The Federal District Court in Massachusetts has refused to dismiss a complaint against Harvard University that it violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 by not having an accessible website.   

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DESE Makes Use of Electronic Restraint Reporting Form Optional

In November, 2015, this office issued an Education Client Alert concerning a new, electronic Restraint Reporting Form posted by the Department of Elementary and Secondary Education (“DESE”). On January 5, 2016, the Department updated it guidance and determined that public education program’s use of the Restraint Reporting Form will be optional. However, public education programs will still be required to annually submit all of the information reflected in the Restraint Reporting Form spreadsheet.

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DESE Mandates Method of Reporting and Submitting Physical Restraint Data

On January 1, 2016, the revised regulations on physical restraint in public education programs, 603 CMR 46.00, will become effective.  On November 19, 2015, In anticipation of new requirements under these regulations, the Department of Elementary and Secondary Education (“DESE”) posted a new, electronic Restraint Reporting Form designed to log individual instances of restraint and track program restraint data on a linked spreadsheet.

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Massachusetts Supreme Judicial Court Vacates Judgment Finding That Settlement Agreements Placing Students In Private Special Education Placements Are Public RecordsNew Education Alerts Page

In a decision in favor of the Weston Public Schools, the Supreme Judicial Court found that settlement agreements between a public school and parents of students who require special education services are exempt from the definition of public records under both the statutory and privacy exemptions to the public records law. This decision vacates a prior decision from the Superior Court.

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DESE Publishes Guidance to Changes in Physical Restraint and Time-Out

On approximately July 31, 2015, the Department of Elementary and Secondary Education (“DESE”) published additional guidance on the implementation of physical restraint and time-out under the revised regulations at 603 CMR 46.00 et seq. Although the revised regulations are not effective until January 1, 2016, DESE has indicated that schools are strongly encouraged to begin working towards implementation in the fall of the 2015-2016 school year.

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Neponset Valley Chamber of Commerce: Labor & Law Employment Update

MHTL attorneys Katherine Hesse and Kier Wachterhauser will be presenting information regarding important legal issues and developments in the Labor & Employment field at a Neponset Valley Chamber of Commerce (NVCC) event on Thursday, November 15th.  These presentations will include a comprehensive overview of major legislative/regulatory/case law developments, as well as best practices in navigating issues such as marijuana in the workplace and sexual harassment.

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Legal Updates

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Supreme Judicial Court Issues Important Decision Protecting Employers – Back Pay Awards Do Not Constitute “Wages” Under the Wage Act and Thus Are Not Subject To Trebling

In a recent decision, the Massachusetts Supreme Judicial Court (“SJC” or “Court”) declined to classify a court-ordered “back pay” award as “wages” under the Massachusetts Wage Act (“Wage Act”).   In response to a request for briefs from the Court, Murphy, Hesse, Toomey & Lehane, LLP (MHTL), on behalf of its public and private clients, submitted an amicus brief, supporting the defendant employer’s position.   The Greater Boston Chamber of Commerce and the New England Legal Foundation also submitted amici briefs.  This decision – a significant victory for employers – has far-reaching consequences and helps to protect employers from punitive and excessive penalties in many employment contexts.  Had the case been decided for the plaintiffs, it could have had significant ramifications for employers, extending the punitive damage scheme under the Wage Act (strict liability, treble damages, attorneys’ fees, individual liability, etc.) to a myriad of different employment contexts.

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