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SJC-11977

         KATELYNN GOODWIN    vs.   LEE PUBLIC SCHOOLS & others.1



          Berkshire.        March 10, 2016. - August 23, 2016.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                             Hines, JJ.2


School and School Committee, Enforcement of discipline.
     Education, Disciplinary matter. Practice, Civil,
     Dismissal. Administrative Law, Exhaustion of remedies.



     Civil action commenced in the Superior Court Department on
December 30, 2014.

     A motion to dismiss was heard by C. Jeffrey Kinder, J., and
a motion for reconsideration was considered by him.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Joseph N. Schneiderman for the plaintiff.
     David S. Monastersky for the defendants.
     Sky Kochenour & Jenny Chou, for Center for Law and
Education & another, amici curiae, submitted a brief.

     1
         Town of Lee; Jason P. McCandless.
     2
       Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
Justices Spina and Cordy participated in the deliberation on
this case prior to their retirements.
                                                                    2



    DUFFLY, J.    The plaintiff, Katelynn Goodwin, was a high

school student at the Lee Middle and High School in the town of

Lee (town) when she was suspended from school for conduct that

purportedly took place not on school grounds, pursuant to a

school policy, based on G. L. c. 71, § 37H1/2 (§ 37H1/2), which

provided that students who had been charged with felonies would

be suspended.    The principal ordered the suspension in the

mistaken belief that the plaintiff had been charged with a

felony, stealing, or being involved in the theft of, a firearm.

Ultimately, the suspension lasted for the entire final semester

of what would have been the plaintiff's senior year, and she was

unable to graduate with her class, but eventually obtained her

high school diploma.    She thereafter commenced this action in

the Superior Court against the Lee public schools, the

superintendent of the Lee schools, and the town.

    The question confronting the court is whether the judge

erred in allowing the defendants' motion to dismiss based on the

failure to exhaust the administrative remedies available under

§ 37H1/2.   We conclude that, because the tort recovery a student

may seek under G. L. c. 76, § 16, provides a separate and

distinct remedy from that available under § 37H1/2, a statute

that establishes an expedited process by which a student may
                                                                    3

seek readmission to school, the plaintiff was not obligated to

exhaust the statute's administrative remedies before pursuing a

tort claim under G. L. c. 76, § 16.

     Background.   The plaintiff was in her senior year of high

school when the principal of the Lee Middle and High School

temporarily suspended her on December 20, 2011.   The suspension,

which was to last through January 9, 2012, was based on a school

policy concerning students who had been charged with a felony.

The policy, apparently derived from the school's reading of

§ 37H1/2 (1),3 was included in the student handbook.   In a letter

sent to the plaintiff's mother on the day of the suspension, the

principal explained that her decision to suspend the plaintiff

was based on "charges brought against her by the Lee [p]olice,

including an alleged connection to weapons[] theft [a felony]."

In fact, no charges had been filed.   In April, 2012, more than

three months after imposition of the suspension, a complaint

issued from the Berkshire County Division of the Juvenile Court

Department charging the plaintiff with receipt of stolen

property under $250, a misdemeanor to which § 37H1/2 (1) does

     3
       General Laws c. 71, § 37H1/2 (§ 37H1/2), permits, but does
not require, a school principal or headmaster to suspend a
student who has been charged with a felony, for a length of time
that the principal or headmaster deems appropriate, if he or she
determines that the student's continued presence in the school
"would have a substantial detrimental effect on the general
welfare of the school." G. L. c. 71, § 37H1/2 (1).
                                                                     4

not apply.   The plaintiff was never charged with a felony.

    On December 21, 2011, the day after the plaintiff had been

suspended, the plaintiff's mother telephoned the superintendent

and asked him to lift the plaintiff's suspension, advising him

that no criminal charges had issued against her daughter.     That

same day, the superintendent sent a letter to the plaintiff's

mother stating that "we are keeping [the plaintiff] out of

school until the legal matter is clarified."   The superintendent

acknowledged in his letter that the plaintiff had "perhaps not

been charged yet."

    On January 6, 2012, the principal wrote a second letter to

the plaintiff's mother, stating that the plaintiff would be

suspended from school, beginning on January 10, 2012, assertedly

pursuant to the provisions of § 37H1/2, "for the duration of all

criminal proceedings as a result of the issuance of criminal

complaints by the Lee Police against [her]."   Under

§ 37H1/2 (1), a student may be suspended from school "[u]pon the

issuance of a criminal complaint charging a student with a

felony . . . if [the] principal or headmaster determines that

the student's continued presence in school would have a

substantial detrimental effect on the general welfare of the

school."   The principal's letter also stated that the plaintiff

had the right to appeal from her suspension to the
                                                                   5

superintendent within five days of the effective date of the

suspension.    The plaintiff concedes that she did not formally

appeal to the superintendent (in writing) from her suspension.4

     The plaintiff subsequently acquired legal counsel and, on

April 26, 2012, sent a letter to the superintendent seeking to

have her suspension lifted.    A meeting was held on the

plaintiff's request on May 2, 2012, and the suspension was

lifted, based on the determination that the plaintiff could

return to classes because she was "not currently charged with a

felony," but that she would not be allowed to attend the

graduation ceremony with her classmates.    After learning that

she would not be able to attend graduation, the plaintiff

decided that she did not want to return to classes at the

school.   A written agreement apparently was reached concerning

how she would be able to complete the missed credits and obtain

her diploma.   The agreement provided, among other things, that

the plaintiff would receive tutoring at the town library, two



     4
       At the hearing on the motion to dismiss, the Superior
Court judge commented that imposing a five-day deadline on a pro
se plaintiff appeared "harsh." We observe that § 37H1/2 does
not provide a student who has been suspended or expelled the
right to request an extension of time in which to appeal, as
provided in other school discipline statutes, see, e.g., G. L.
c. 71, § 37H3/4 (e), and requires a parent (who may be
illiterate or unable to read and write in English) to make the
request in writing.
                                                                    6

hours per day, through the end of the school year on June 15,

2012.   The plaintiff then took classes through an online program

provided by the school, and ultimately graduated from high

school in the summer of 2013; she rejected the school's offer of

holding a graduation ceremony conducted for her alone.

    In December, 2014, the plaintiff commenced this action in

the Superior Court.   The plaintiff's complaint asserted that her

suspension was unlawful under § 37H1/2, because she had not been

charged with a felony, and sought compensation "for the grief

and stigmatization caused to the Plaintiff for not being

permitted to participate in her last year of school on school

grounds and in the rite of passage that is graduation."    The

defendants filed a motion to dismiss the complaint for failure

to state a claim upon which relief can be granted, arguing that

the plaintiff had not exhausted administrative remedies under

§ 37H1/2, and had not sought certiorari review under G. L.

c. 249, § 4.   In her opposition to the defendants' motion, the

plaintiff asserted that she was also entitled to damages under

G. L. c. 76, § 16, based on the same facts.   At a hearing on the

motion to dismiss, the judge heard arguments concerning both

claims.

    The plaintiff argued, and the defendants did not dispute,

that the plaintiff's approximately five-month suspension from
                                                                      7

school was unlawful.    The judge allowed the defendants' motion

to dismiss, however, on the ground that the plaintiff failed to

exhaust her administrative remedies under § 37H1/2 before filing

her complaint.    The judge's decision did not expressly address

the plaintiff's argument that she could pursue damages under

G. L. c. 76, § 16.   The plaintiff thereafter filed a motion for

reconsideration, in which she argued that the exhaustion

requirements under § 37H1/2 did not apply to her, and that she

had a separate and distinct right of action under G. L. c. 76,

§ 16.    The judge denied the motion, and the plaintiff filed a

timely appeal.    We allowed the plaintiff's application for

direct appellate review.

    Discussion.    We review the allowance of a motion to dismiss

de novo.   Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676

(2011), citing Harhen v. Brown, 431 Mass. 838, 845 (2000).      For

purposes of such review, we "accept[] as true the facts alleged

in the plaintiff['s] complaint and exhibits attached thereto,

and favorable inferences that reasonably can be drawn from

them."    See Burbank Apartments Tenant Ass'n v. Kargman, 474

Mass. 107, 116 (2016), citing Coghlin Elec. Contractors, Inc. v.

Gilbane Bldg. Co., 472 Mass. 549, 553 (2015).

    1.     Statutory provisions.   General Laws c. 76, § 16, which

has been in effect in essentially the same form since 1845, see
                                                                  8

St. 1845, c. 214, permits students who have been unlawfully

excluded from a public school to obtain monetary damages from

the relevant municipality.   The statute provides that any

student who has reached the age of eighteen, or a parent or

guardian of a student under the age of eighteen,

    "who has been refused admission to or excluded from the
    public schools or from the advantages, privileges and
    courses of study of such public schools shall on
    application be furnished by the school committee with a
    written statement of the reasons therefor, and thereafter,
    if the refusal to admit or exclusion was unlawful, such
    pupil may recover from the town or, in the case of such
    refusal or exclusion by a regional school district from the
    district, in tort . . . ."

    By contrast, § 37H1/2, enacted in 1994, see St. 1993,

c. 380, § 2, allows principals to suspend from school students

who have been charged with a felony, and sets forth an expedited

procedure by which a student may appeal from such a suspension.

It appears to be the only statute that permits suspension from

school for an act that occurred other than on school grounds.

Compare § 37H1/2 with G. L. c. 71, § 84, and G. L. c. 76, § 17.

Section 37H1/2 provides, in relevant part:

         "Notwithstanding the provisions of [G. L. c. 71, § 84,
    G. L. c. 76, § 16, and G. L. c. 76, § 17]:

         "(1) Upon the issuance of a criminal complaint
    charging a student with a felony . . . , the principal or
    headmaster of a school in which the student is enrolled may
    suspend such student for a period of time determined
    appropriate by said principal or headmaster if said
    principal or headmaster determines that the student's
                                                                    9

     continued presence in school would have a substantial
     detrimental effect on the general welfare of the school.
     The student shall receive written notification of the
     charges and the reasons for such suspension prior to such
     suspension taking effect. The student shall also receive
     written notification of his right to appeal and the process
     for appealing such suspension . . . ." (Emphasis
     supplied.)

G. L. c. 71, § 37H1/2.   As initially enacted as part of the

Education Reform Act of 1993, see St. 1993, c. 71, as amended by

St. 1993, c. 380, § 2, the statute stated that "no school or

school district shall be required to provide educational

services to" a student who had been expelled from school.5     In

2012, as part of significant changes to school disciplinary

policy designed to keep students in school, and to ensure that

exclusion from school is a last resort, see "An Act relative to

student access to educational services and exclusion from

school," House Doc. No. 4332 (2012), the statute was amended to

     5
       This provision of the Education Reform Act of 1993, which
was designed to enforce "zero tolerance" policies towards school
violence, authorized school principals, for the first time, to
exclude students from school. See Keep Kids in Class: New
Approaches to School Discipline, Massachusetts Appleseed Center
for Law and Justice at 4 (2012). See, e.g., Rashin and
Meschino, Long and winding road: The role of courts, zero
tolerance and school exclusion in Mass., Mass. Law. J. 22, 22
(May, 2011); Letter from Massachusetts Advocates for Children to
Governor Deval L. Patrick, in support of House Doc. 4332
entitled "H. 4332/An Act Relative to Students' Access to
Educational Services and Exclusion from School" (Aug. 6, 2012);
Massachusetts Advocates for Children, Keeping Kids in Class,
http://massadvocates.org/discipline/ [https://perma.cco/4C58-
Z3SH].
                                                                   10

its current form, allowing students suspended under its

provisions an immediate review by the superintendent of schools,

and affording such students numerous procedural protections.

See St. 2012, c. 222, § 3; D.A. Randall and D.E. Franklin,

Municipal Law & Practice § 22.38 (5th ed. 2006); T. Mela and A.

Klemas, Keeping Kids in School and Out of the Pipeline: Ensuring

Due Process and Chapter 222, Massachusetts Advocates for

Children (2013).

     Suspension as a result of a pending felony charge is an

exception to the general rule under G. L. c. 71, § 84, that

"[n]o student shall be suspended . . . for conduct which is not

connected with any school-sponsored activities."   As with the

ability to impose a suspension for conduct that is not school

related, the administrative review prescribed by § 37H1/2

differs significantly from the procedures set forth in other

provisions relative to review, for students who have been

suspended from school under other statutory provisions.6    If a


     6
       A student suspended under § 37H1/2 (1) is afforded
substantially greater procedural protections in seeking review
of a decision that the student be suspended than students who
have been suspended under other statutory provisions, including
commission of certain criminal offenses on school grounds. See
G. L. c. 71, § 37H3/4 (a). These protections include the right
to a hearing within eight calendar days of the suspension
(notice of request for a hearing within five days and a hearing
within three days of such notice), the right to have counsel and
a parent at the hearing and to present oral and written
                                                                  11

superintendent decides that a student suspended pursuant to

§ 37H1/2 should be afforded relief, the superintendent may,

inter alia, order reinstatement to the school the student had

been attending, shorten the period of suspension, or refer the

student to a different school or "alternate educational

program."   G. L. c. 71, § 37H1/2 (1).

    2.   Motion to dismiss.   As a preliminary matter, and

notwithstanding the defendants' assertions to the contrary, we

note that the plaintiff's claim under G. L. c. 76, § 16, is

properly before us.   Although the complaint did not expressly

identify G. L. c. 76, § 16, as the statute under which the

plaintiff sought damages for her unlawful exclusion from school,

the plaintiff's complaint alleged facts, which, taken as true

for the purpose of a motion to dismiss, satisfy each element of

that statute.   She alleged that she had been unlawfully excluded

from school, and that the reasons proffered by the school for

her exclusion were in violation of § 37H1/2, a statute which

permits suspension only "[u]pon the issuance of a criminal

complaint charging a student with a felony."   Moreover, she

stated explicitly in her opposition to the defendants' motion to

dismiss that she also was seeking damages under G. L. c. 76,



testimony, and the right to a written decision within five
calendar days after the hearing. See § 37H1/2 (1).
                                                                   12

§ 16, and defense counsel addressed this claim at the hearing on

the motion.   Although it would have been preferable for the

plaintiff to have sought to amend her complaint, failure to do

so is not fatal in this context.   See Sullivan v. Chief Justice

for Admin. Mgt. of the Trial Court, 448 Mass. 15, 21 (2006)

(plaintiff's complaint should be allowed to proceed if plaintiff

demonstrates possibility of entitlement "to any form of relief,

even" if theory upon which plaintiff appears to rely "may not be

appropriate").   As the plaintiff's tort claim under G. L. c. 76,

§ 16, was before the judge, and was fully briefed by the parties

in their filings in this court, we address it here.

     The crux of the defendants' argument is that because the

plaintiff failed to exhaust the administrative remedies set

forth in § 37H1/2, she may not avail herself of the tort remedy

available under G. L. c. 76, § 16.   The plaintiff maintains

that, because she was not charged with a felony, either before

the suspension or at any point thereafter, see § 37H1/2, she was

not required to exhaust administrative remedies under a statute

that did not authorize her suspension, and that, in any event,

G. L. c. 76, § 16, provides a suspended student a parallel and

distinct avenue for relief.   We agree.

     The plain language of § 37H1/2 (1) states that its

provisions, and imposition of the suspension it permits a
                                                                  13

principal or headmaster to impose, are triggered "[u]pon the

issuance of a criminal complaint charging a student with a

felony."   This language necessarily implies that, unless a

criminal complaint charging a student with a felony has been

issued, a student may not be excluded from school under the

statute.

     As stated, it is undisputed that on December 20, 2011, when

the plaintiff was suspended temporarily, and on January 10,

2012, when she was suspended indefinitely,7 no criminal

complaints charging her with a felony had issued.   Moreover, the

superintendent's letter of December 21, 2011, and the

principal's letter on January 6, 2012, make clear that both were

aware that no criminal charges of any sort had been filed.

Therefore, because the plaintiff's suspension under § 37H1/2 was

in violation of the statute, she was not required to exhaust the

administrative remedies provided under that statute (appeal to

the superintendent) before seeking review of that suspension in

the Superior Court.8   The judge erred in allowing the defendants'



     7
       In the circumstances here, the plaintiff's suspension for
an indefinite period of time ("for the duration of all criminal
proceedings") "in effect amounted to a permanent exclusion"
within the meaning of G. L. c. 76, § 16. See Jones v.
Fitchburg, 211 Mass. 66, 68 (1912).
     8
       Because the plaintiff has graduated from high school, any
remedy that she could have been afforded under § 37H1/2 is now
                                                                  14

motion to dismiss on this ground.

    The judge did not explicitly address whether the failure to

exhaust administrative remedies under § 37H1/2 prevents the

plaintiff from seeking damages under G. L. c. 76, § 16.

Nonetheless, in light of his allowance of the motion to dismiss,

we assume that the judge also concluded that the failure to

exhaust remedies under § 37H1/2 was fatal to the plaintiff's

tort claim under G. L. c. 76, § 16.

    The defendants argue that the language of § 37H1/2 evinces

a legislative intent to require a student to exhaust the

administrative remedies set forth in that statute before

pursuing a tort claim under G. L. c. 76, § 16.   In the

defendants' view, the introductory language of § 37H1/2 creates

an additional requirement for any student who has been suspended

under that statute before that student may pursue a claim under

G. L. c. 76, § 16.   That language provides:

         "Notwithstanding the provisions of [G. L. c. 71, § 84,
    G. L. c. 76, § 16, and G. L. c. 76, § 17,] . . . [u]pon the
    issuance of a criminal complaint charging a student with a
    felony . . . , the principal or headmaster of a school in
    which the student is enrolled may suspend such student for
    a period of time determined appropriate)."



moot. That statute does not provide for recovery of damages,
and monetary damages are not available from a school absent an
explicit waiver of sovereign immunity. See Kelly K. v.
Framingham, 36 Mass. App. Ct. 483, 488-489 (1994)
                                                                   15

    The defendants' understanding of the statute appears to

rely on a misconstruction of the statutory language

"notwithstanding" in § 37H1/2, which they contend imposes a

restriction on otherwise available means by which to seek money

damages for students who have been charged with a felony.     We do

not agree.   Under its ordinary meaning, the word

"notwithstanding" does not mean, as the defendants' argument

necessarily would imply, eliminating or setting aside otherwise

available remedies.   Rather, it means that even where those

other remedies exist, students suspended under the terms of this

provision are entitled to an additional, immediate, review of a

decision to exclude them from school, with the goal of

readmission.   See, e.g., Black's Law Dictionary 1231 (10th ed.

2014) (defining "notwithstanding" as "[d]espite; in spite

of [e.g.,] notwithstanding the conditions listed above, the

landlord can terminate the lease if the tenant defaults").

    In enacting this provision, the Legislature intended to

ensure that students who have been suspended as a result of

felony charges have an opportunity for immediate review of such

a suspension, and to continue with their public education as

expeditiously as possible.   We discern no legislative intent to
                                                                  16

take away methods of obtaining financial redress.9   Rather,

§ 37H1/2 is plainly designed to afford suspended students an

immediate opportunity to have their suspensions lifted and to be

readmitted to school, to have their suspensions shortened, or to

be admitted to alternate educational programs.   By contrast, the

payment of damages as allowed under G. L. c. 76, § 16, provides

a student, who very likely is a minor, no relief from the

immediate deprivation of a free and appropriate public

education.

     Thus, contrary to the defendants' assertions,10 nothing in



     9
       "Data show that a student being suspended or expelled is a
strong precursor to him or her dropping out of school, which
leads to far-reaching consequences for the student, the
community, and taxpayers. The bill aims to curb the overuse of
suspension and expulsion -- jointly known as school exclusions -
- as a disciplinary tactic other than as a last resort. The
ultimate goal is to keep kids in school, actively engaged in
learning, and severing the school to prison pipeline." Letter
from Massachusetts Advocates for Children to Governor Deval L.
Patrick, in support of House Doc. 4332, supra.
     10
       The defendants maintain further that the plaintiff's
claim under G. L. c. 76, § 16, must be dismissed because she did
not obtain a statement from the school committee of the reasons
for her suspension before seeking relief under that statute.
This contention is contrary to the legislative purpose in
enacting the statute, and inconsistent with its plain language.
The statutory language obligates the school committee to provide
a suspended student with a written statement of reasons for the
suspension, on request by the student; it does not mandate that
the student obtain such a list from the school committee before
pursuing an appeal. Rather, the statement of reasons provides a
suspended student a right to obtain information. While a
suspended student may use the statement of reasons to support a
                                                                   17

the language of § 37H1/2 precludes a student who has been

suspended under that statute from seeking to pursue a tort

remedy under G. L. c. 76, § 16, without having first pursued or

prevailed on appeal of a decision ordering the student's

suspension under § 37H1/2.11   The defendants' motion to dismiss

therefore should not have been allowed.

     Conclusion.   The judgment allowing the defendants' motion

to dismiss is reversed.   The matter is remanded to the Superior

Court for further proceedings consistent with this opinion.

                                    So ordered.




claim that the exclusion was unlawful, recovery in tort is
permissible, without any statutory prerequisite, "if the refusal
to admit or exclusion was unlawful." See G. L. c. 76, § 16.
Here, it is undisputed that the exclusion was unlawful, and a
statement to that effect by the school committee, which had no
involvement in the superintendent's decision to affirm the
suspension, would add nothing more to establish the reasons for
the plaintiff's unlawful exclusion.
     11
       Although, in some circumstances, the failure to exhaust
administrative remedies seeking readmission to school might be
relevant to a mitigation of damages, the two statutes afford
separate and independent remedies.
