By Tom Maxim1
Section 37H1/2 should be narrowed for three reasons. First, it violates the privacy rights of juvenile delinquents under another Massachusetts statute.4 Second, it is broader than what the legislature intended. Third, it violates a rational basis challenge under equal protection and due process. Instead of applying the statute to nonviolent juvenile delinquents, courts must limit it to violent youthful offenders whose charges are connected with the school environment.
The broad application of section 37H1/2 violates the privacy rights of juveniles. Currently, its application requires disclosure of juvenile records to school administrations5 regardless of whether the student is an alleged juvenile delinquent6 or a youthful offender.7 However, another statute states that “cases of delinquency… shall be withheld from public inspection except with the consent of a justice of such court.”8 It is only “[t]he records of a youthful offender proceeding conducted pursuant to an indictment [that] shall be open to public inspection.”9 These statutes both address disclosure of juvenile records, and when “two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose.”10 Accordingly, felonies charged as cases of delinquency should not be shared with school administrations unless a justice consents.
Limiting section 37H1/2 to youthful offenders would be proper because the statute is meant to apply to only the most serious offenses. In 1994, the Massachusetts Department of Education (DOE) issued an advisory opinion on the statute.11 There, the DOE stated that it “was motivated by the perceived need to exclude several students charged with or convicted of serious violent felonies.”12 The Department recommended that principals reserve the exclusion power for such offenses.”13 Unofficial legislative history also supports this assertion. Although the legislative history is sparse, the State House News Service wrote about floor debates and discussions regarding the statute. According to the News Service, “[t]he bill was filed in… response to a court ruling that allowed a Billerica teen convicted of manslaughter to return to school even though he had been suspended.”14 The bill was “aimed at keeping violent kids out of public schools” and “to keep schools safe.”15 Given the legislative history, applying the statute to nonviolent felonious conduct is beyond the statute’s purpose.
Further, the statute is applied too broadly because schools and courts do not currently require a nexus between the charged conduct and the school, which ignores a DOE advisory opinion requiring a connection between the two.16 In its advisory opinion, the DOE stated that, “educational professionals should… make a reasoned determination whether the specific conduct underlying the felony charge or conviction can support the required finding that the student's continued presence would have a substantial detrimental effect on the general welfare of the school.”17 Further, another statute (“section 84”) states that “[n]o student shall be suspended, expelled, or otherwise disciplined… for conduct which is not connected with any school-sponsored activities.”18 Although section 37H1/2 was enacted “[n]otwithstanding the provisions of section eighty-four,"19 it did not repeal section 84.20 Reading the statutes harmoniously, the specific charged felonious conduct should have some nexus to the school’s welfare.
The requirement of a nexus between the charged conduct and the substantial detrimental effect on the welfare of the school also has Constitutional implications. Under an equal protection analysis, the unequal treatment of students charged with felonies fails a rational basis equal protection challenge.21 For statutes which do not imply a fundamental right or a suspect classification, the court “employ[s] the rational basis test.”22 However, the rational basis test is not toothless.23 “For due process claims, rational basis analysis requires that statutes ‘bear a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.’”24 Classifying students charged with felonies bears no substantial relation to the general welfare of the school because the charged conduct may have no relation—direct or indirect—to the school environment.25 The classification merely circumvents codes of conduct and lowers the required showing for suspending students charged with felonies. The courts have allowed principals to consider factors and behavior other than the charged conduct that does not rise to the level of a school code violation.26 The statute should apply only to youthful offenders whose charges have some direct or indirect nexus to the school environment.27
“For equal protection challenges, the rational basis test requires that ‘an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.’”28 With section 37H1/2, the harm is great and the classification does not serve the purpose of ensuring the welfare of the school when the charged conduct has no nexus to the school’s welfare. The harmful effects of school exclusion on students are well established.29 Students who are suspended or expelled are more likely than their peers to drop out of school.30 Higher rates of juvenile incarceration are also associated with suspension and school exclusion.31 Consequently, the statute would fail a rational basis equal protection challenge.
For the above reasons, courts and schools need to suspend the statute rather than the student. Students charged with nonviolent offenses having no discernible nexus to the welfare of the school should not experience the life-altering consequences of section 37H1/2.
1 Juris Doctor, Northeastern University 2013. This note benefitted greatly from discussions with the Honorable Judge Jay D. Blitzman and Marlies Spanjaard of Committee for Public Counsel Service.
2 Mass. Gen. Laws ch. 71, § 37H1/2 (2012).
3 See Doe v. Superintendent of Sch. of Stoughton, 767 N.E.2d 1054, 1056 (Mass. 2002) (upholding a suspension where “the principal considered John's first quarter grade report and disciplinary record.”).
4 Mass. Gen. Laws ch. 119, § 60A (2012).
5 See Memorandum of Understanding, between Natick Public Schools & Natick Police Department, available at http://www.natickps.org/NatickHigh/Documents/Memorandum%20of%20Understanding(1).pdf.
6 A “juvenile delinquent” is “a child between seven and seventeen who violates any city ordinance or town by-law or who commits any offence against a law of the commonwealth.” Mass. Gen. Laws ch. 119, § 52.
7 A “youthful offender” is “a person who is subject to an adult or juvenile sentence for having committed, while between the ages of fourteen and seventeen, an offense against a law of the commonwealth which, if he were an adult, would be punishable by imprisonment in the state prison, and (a) has previously been committed to the department of youth services, or (b) has committed an offense which involves the infliction or threat of serious bodily harm in violation of law,” or distributes a firearm. Mass. Gen. Laws ch. 119, § 52 (2012).
8 Mass. Gen. Laws ch. 119, § 60A (2012) (emphasis added).
9 Mass. Gen. Laws ch. 119, § 60A (2012) (emphasis added).
10 Commonwealth v. Lightfoot, 463 N.E.2d 545, 547 (Mass. 1984).
11 Robert v. Antonucci, Advisory Opinion On Student Discipline, Mass. Dep’t of Elementary & Secondary Educ. (Jan. 27,1994), available at http://www.doe.mass.edu/lawsregs/advisory/discipline/AOSD1.html.
14 State House News Service Reports, June 28, 1993. Available at the State House Library.
16 Antonucci, supra note 11.
18 Mass. Gen. Laws ch. 71, § 84 (2012).
19 Mass. Gen. Laws<, data-preserve-html-node="true"/span> ch. 71, § 37H1/2 (2012).
21 Because the argument that a minimally adequate education is a fundamental right, subject to strict scrutiny analysis, has already been made in Melanie Riccobene Jarboe, Note, “Expelled to Nowhere": School Exclusion Laws in Massachusetts, 31 B.C. Third World L.J. 343 (2011), this article focuses on the rational basis challenge.
22 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 960 (Mass. 2003).
23 Murphy v. Comm’r of Dep’t of Indus. Accidents, 412 N.E.2d 1149, 1158 (Mass. 1993).
24 Goodridge, 798 N.E.2d at 960.
25 Mass. Gen. Laws c. 71, § 37H1/2.
26 See Doe v. Superintendent of Sch. of Stoughton, 437 Mass. 1, 3 (2002) (upholding a suspension where “the principal considered John's first quarter grade report and disciplinary record”).
27 Although the statute fails a rational basis test when applied to most delinquency cases, there is a stronger case for a rational relation when applied to youthful offender cases.
28 Goodridge, 798 N.E.2d at 960 (quoting English v. New England Med. Ctr., 541 N.E.2d 329, 429 (1989)).
29 Hon. Jay D. Blitzman, Access to Justice in Juvenile Court, 93 Mass. L. Rev. 230 (Fall 2010); Act Out, Get Out?: Considering the Impact of School Discipline Practices in Massachusetts, Rennie Ctr. Educ. Res. & Pol’y 4 (2010), available at http://renniecenter.issuelab.org/resource/actoutgetoutconsideringtheimpactofschooldisciplinepracticesinmassachusetts (citing one study finding that sophomores who dropped out of school had been suspended at a rate of three times that of peers who stayed in school.); Ruth B. Ekstrom et al., Who Drops Out of High School and Why? Findings from a National Study, 87 Tchr. C. Rec., 356, tbl. 1 (Spring 1986) (showing that exclusion from school is one of the top three reasons for dropping out).
30 Terry Keleher, Racial Disparities Related to School Zone Tolerance Policies, Testimony to the U.S. Commission on Civil Rights, Feb. 18, 2000, available at http://www.arc.org/content/84/36/.
31 Russell Skiba et al., “Consistent Removal: Contributions of Discipline to the School-Prison Pipeline,” Paper presented at the School-to-Prison Pipeline Conference, The Civil Rights Project, May 16–17, 2003, at http://www.civilrightsproject.ucla.edu/research/pipeline03/Skibbav3.pdf. CPPreport 2007revised (98-235) 10/10/07 12:26 PM Page 213214 Children’s Defense Fund.