Class of Their Own: Law of School

Labor Day. For many in Massachusetts it means one thing only: back to school to learn a lot of stuff, most of it useful, some not so much.

But one thing they don’t teach you is that classrooms and lecture halls are governed by their own set of laws, and students, whatever their age or grade level, are subject to a different legal system than those on the “outside.”

In order for a student to get justice, it helps to know how the system works. After all, knowledge is power - or so they say.

‘Especially harsh laws’

There was a time when, if a student did something wrong, he was sent to the principal’s office. If he did something really wrong, he might be suspended or expelled. But in 1974, the U.S. Supreme Court case Goss v. Lopez established that an American’s right to due process extends to the public K-12 school system. That meant that students could no longer be banished from school without an opportunity to defend themselves.

“The most basic fundamentals of due process include a hearing where evidence is presented against you, notice in advance, and the right to prepare witnesses,” explains Peter A. Hahn, a Cambridge attorney who represents students in school disciplinary cases.

After Goss, public schools in Massachusetts instituted disciplinary procedures that today include hearings, lawyers, witnesses, evidence and appeals, just as in a real court of law. In Boston, the elaborate rules governing the system are outlined in the Boston Public Schools’ Code of Discipline; other municipalities have their own codes.

But school disciplinary systems have little else in common with civil and criminal courts. Instead of jail time and fines, the major punishments meted out in the public school justice system are suspension and expulsion, the latter being a long absence that can sometimes mean permanent eviction from the school system.

“In Massachusetts, we have especially harsh laws,” says Amy M. Reichbach, a lawyer with the American Civil Liberties Union of Massachusetts who works on education issues. “Once a child is expelled, no other Massachusetts school has to take them.”

Joanne S. Karger, an attorney with the Center for Law and Education, agrees that the stakes can be high. “If the student is expelled …, no school or school district in the state is required to provide the student with educational services,” she says.

Because expulsion is so serious, students have an automatic, constitutional right to a hearing, to which they can bring a lawyer to represent them. In many school districts, including Boston’s, students can also request hearings to contest suspensions, but according to Bryna G. Williams, a lawyer with the EdLaw Project, they do so rarely.

“I’ve been to suspension hearings, but not very often,” she says. “Generally, people are concerned about getting an attorney when a student faces expulsion.”

‘Not so impartial’

A public-school hearing is a lot like a trial. The proceeding is often tape-recorded, and the student’s lawyer can call witnesses. A student who doesn’t like the outcome of a hearing typically can have his case reheard by a higher authority, usually the school superintendent.

In expulsion hearings in Boston, students are even warned that any statements they make can be used against them later in a court of law.

But unlike legal proceedings in the “real world” that are decided by a judge or jury, the person making the decision about a student’s fate is a school administrator - often the same person who ordered the punishment in the first place.

“Oftentimes, the principal is going to be the one making the determination,” Reichbach says, “which makes him not necessarily so impartial.”

The use of evidence in school proceedings is also handled differently. In criminal and civil courts, there are elaborate rules that determine what evidence can and cannot be used during a trial. In public-school hearings, those rules don’t necessarily apply.

“In Boston, it says in the code that the building administrator is obligated to follow the procedures and the code of discipline, which includes the inadmissibility of hearsay evidence,” Williams says. “But there are just so many [rules of hearsay], and they’re really complicated. Also, the courts have said that [school administrators] are not obligated to know all of them.”

This means that if a student doesn’t have a lawyer looking out for his legal interests, inadmissible evidence might be used to determine his fate.

There is one way for a student to bring a discipline case before a tried-and-true legal authority - by appealing the case to the Superior Court, where a judge will review the superintendent’s decision.

But “it’s very rare that it happens,” says Hahn, who has never had a case make it that far up the ladder.

Even if a case does reach the court system, he adds, it’s unlikely that a school’s decision will be overturned.

“Judges have relatively little control over the decision-making of public schools and school officials when it comes to discipline,” he notes. “Public schools in Massachusetts are given a lot freedom to discipline students, and the standards are not cut-and-dried. The point is that it’s very difficult to overturn a school’s decision once it’s made.”

Real-world legal issues and school discipline matters are becoming intertwined, lawyers add. Teachers can press charges against their students, as one recently did in Taunton when a 10-year-old student drew a picture of her with a bullet hole in her head.

“One thing that people are consistently surprised about is how closely schools and police work together,” says Hahn. “Some school districts are criminalizing school-based behavior that used to be dealt with internally.”

As an example, Karger points to the case of a student who had no discipline record yet was expelled after a Swiss Army pocketknife fell out of his backpack, which he explained he had been using during a weekend camping trip with his father.

“Another example is a student, who had been severely teased by her peers, being expelled for shoving another student and being charged not with fighting or a violation of a school rule, but rather with assault and battery.”

Harvard: unfair and callous?

Once a student makes it to college, the stakes change.

The majority of universities in the Boston area are private, which give them almost unlimited discretion over how they discipline their students. Instead of being governed by education laws, the relationship between students and private colleges are seen in the legal realm of contract law, not the more fundamental right to due process to which public school students are entitled.

The bad news is that there is no fundamental right to attend a private school. The good news, however, is that at a private school, the worst punishment a student usually faces is getting kicked out.

“Private schools have their code of discipline, but they don’t have the same obligations [as public schools],” Williams says. “They don’t have to educate anyone they don’t want to. They may have a procedure that seems like justice to a certain extent. But, for example, Catholic schools don’t have to educate people who aren’t Catholic.”

Different private schools have different legal systems. At Harvard University, disciplinary issues are heard by a panel of administrators and professors. At Boston University, that responsibility falls to the University Board on Student Conduct. At the University of Massachusetts in Boston, a public school, the Joint Discipline and Grievance Committee steps in to review cases.

Like a judge and jury, these quasi-judicial bodies hold hearings and issue decisions about the fate of students. Most allow students to be represented by lawyers, though this varies on a school-by-school basis. But again, the formal rules used in public courts don’t apply there.

“No reasonable person would expect private colleges to have disciplinary systems offering all of the procedural rights and protections found in a court of law,” says Harvey A. Silverglate, a Cambridge-based lawyer who has represented students before Harvard’s Administrative Board.

But, Silverglate says, some college disciplinary boards are more just than others. Harvard, for example, does not allow students to serve on its disciplinary body, essentially ensuring that a student does not get a fair trial in front of a jury of his peers, Silverglate says.

“Harvard’s Administrative Board stands out nationally not only in its utter unfairness and callousness to its students, but, more startlingly, in the irrationality of its fact-finding procedures and the hubris displayed by those who administer the system,” he contends. “It is no wonder that Harvard is in the minority of campuses that do not allow students to serve on its ad board, because few students could be found who would be so unaffected by facts as are the administrators who run the board. It is a disgrace.”

Unsavory tactics

Even outside the classroom, students in Massachusetts aren’t necessarily treated the same as others over the age of 18.

Across the city of Boston, for example, neighborhoods are objecting to apartments that house large groups of college students, which, they say, are loud, dirty and disruptive. To address the problem, last year the Boston City Council passed a rule that barred more than four undergraduate students from living together in a single apartment. In March, Boston’s zoning board approved the new rule, sparking a legal battle over students’ rights to rent.

This is the first time anyone in Massachusetts has specifically targeted students as a group, says Boston attorney Stephen A. Greenbaum. He is representing landlords and students who are opposing the new regulation and is currently fighting the amendment in the Land Court. He expects that the litigation over the issue will not be resolved until well past September.

Because the legal battle is ongoing, students looking to rent together this fall need to be aware that the city may try to intervene in their housing decisions halfway through the year, Greenbaum says.

“What I’ve been telling people is … how in the world is the city going to enforce this?” he says. “The city can’t ask the schools for the status of students, and students have no obligation to disclose their status. The minute [the city] tries to do anything like forcing disclosure, they’re going to run into some very serious privacy issues, both state and federal.”

Practically, that means that as long as college students keep their mouths shut, any number can live together without fear of getting the boot.

But Greenbaum says that he expects the city to try other measures to crack down on what it sees as rowdy hordes of students invading its peaceful neighborhoods this fall.

“I fully expect the city to attempt some less-savory tactics, as it did in the late 1990s when [it obtained] civil search warrants to go in and count beds to determine the number of unrelated people living together,” he says. “I am certainly expecting that, come September, I’m going to be very busy.” {EXA}