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SJC-12827

         JANE DOE1    vs.   WORCESTER PUBLIC SCHOOLS & others.2



         Worcester.         January 7, 2020. - April 28, 2020.

    Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                           & Kafker, JJ.


School and School Committee, Enforcement of discipline,
     Superintendent of schools. Injunction. Practice, Civil,
     Preliminary injunction.



     Civil action commenced in the Superior Court Department on
December 17, 2018.

     A motion for a preliminary injunction was heard by J. Gavin
Reardon, Jr., J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Paige L. Tobin (Elizabeth F. Toner also present) for the
defendants.
     Amy DiDonna for the plaintiff.
     The following submitted briefs for amici curiae:

     1 A minor, by her parent and next friend.      The name is a
pseudonym.

     2 Worcester school committee; superintendent and school
safety director of Worcester public schools; and principal and
assistant principal of Doherty Memorial High School.
                                                                  2


     Michael J. Long & Steven J. Finnegan for Massachusetts
Association of School Superintendents, Inc., & another.
     Rhoda E. Schneider, Special Assistant Attorney General,
& Iraida J. Álvarez for Department of Elementary and Secondary
Education.
     Peter A. Hahn for Committee for Public Counsel Services.
     Sky Kochenour & Jenny C. Chou for Center for Law and
Education, Inc., & another.


    BUDD, J.   The plaintiff, Jane Doe, a student at a public

high school in Worcester, was suspended for 152 school days

after an assistant principal found a small amount of marijuana

and two makeshift pipes in the plaintiff's locker.     When the

plaintiff appealed from her suspension to the superintendent,

the district's school safety director, acting as the

superintendent's designee, shortened the suspension to 112

school days.   The plaintiff thereafter filed a complaint

challenging the delegation of the superintendent's statutory

authority to hear and decide the plaintiff's appeal.    The

plaintiff also moved for a preliminary injunction seeking

immediate reinstatement to school, which was granted.

    The defendants seek a reversal of that decision, arguing

that the motion judge erred in concluding that the plaintiff is

likely to succeed on the merits of her claim because the

relevant statute, G. L. c. 71, § 37H (d), permits the

superintendent to delegate responsibility for hearing and
                                                                   3


deciding suspension appeals.   We disagree, and therefore affirm

the judge's order.3

     Background and prior proceedings.   We summarize the facts

as alleged in the motion for a preliminary injunction and

attached affidavit.   See Doe v. Superintendent of Sch. of

Weston, 461 Mass. 159, 160 (2011) (Weston).   The facts of the

underlying offense are not contested.    In late September of

2018, an assistant principal received reports that the area near

the plaintiff's locker smelled strongly of marijuana.     The

assistant principal accompanied the plaintiff to her locker, at

which time the plaintiff admitted that she was storing items she

was not allowed to have in school.   Searching the locker, the

assistant principal found and confiscated a small amount of

marijuana in a plastic container and two pipes made from plastic

water bottles.   After holding an initial hearing, the school's

principal determined that the plaintiff had committed a

disciplinary offense and suspended her for the remainder of the




     3 We acknowledge the amicus brief submitted by Center for
Law and Education, Inc., and Massachusetts Advocates for
Children; the amicus brief submitted by Massachusetts
Association of School Superintendents, Inc., and Massachusetts
Association of School Committees, Inc.; the amicus brief
submitted by the Committee for Public Counsel Services; and the
amicus letter submitted by the Department of Elementary and
Secondary Education.
                                                                   4


school year -- 152 school days -- pursuant to the school's

disciplinary rules and G. L. c. 71, § 37H (a).4

     The plaintiff exercised her right to appeal from what

amounted to an expulsion5 to the district's superintendent under

G. L. c. 71, § 37H (d).   The school safety director for the

district, acting as the superintendent's designee, held the

appeal hearing and reduced the expulsion from 152 to 112 school

days, which allowed for the plaintiff's return to school at the

end of the third marking period of the school year.

     Shortly after the appeal was decided, the plaintiff began

attending the only alternative public school available to her.

Prior to her expulsion, the plaintiff was an honors student with

no high school disciplinary record.   She had been enrolled in a

merit-based program at her school with additional weekly classes

providing vocational training in nursing, her intended field.

Although the plaintiff was able to earn credits at the

alternative school to remain on track to advance to the next


     4 General Laws c. 71, § 37H (a), provides in pertinent part:
"Any student who is found on school premises . . . in possession
of . . . a controlled substance as defined in [G. L. c. 94C],
including, but not limited to, marijuana, . . . may be subject
to expulsion from the school or school district by the
principal."

     5 As discussed infra, the suspension of the plaintiff
constituted an expulsion for purposes of G. L. c. 71, § 37H,
because it was for longer than ninety school days. See 603 Code
Mass. Regs. § 53.02 (2015).
                                                                      5


grade, the plaintiff's mother averred in an affidavit submitted

to the court that the level of instruction was below her grade

and ability level.

     In December 2018, the plaintiff commenced a civil action in

the Superior Court against the Worcester public schools and

others,6 alleging among other things that by delegating the

appeal hearing and decision to the school safety director, the

defendants failed to comply with the procedure for appealing

from the expulsion set forth in G. L. c. 71, § 37H (d).     The

plaintiff also filed an emergency motion for a preliminary

injunction seeking immediate reinstatement to her high school.

The judge granted the motion after a hearing, and the defendants

appealed from the judge's order reinstating the plaintiff.     We

transferred the appeal to this court on our own motion.7

     Discussion.     "A party seeking a preliminary injunction must

show that success is likely on the merits; irreparable harm will

result from denial of the injunction; and the risk of


     6 The suit also named the Worcester school committee, the
superintendent, the school safety director, the principal, and
the assistant principal as defendants.

     7 The defendants represented at oral argument that the
superintendent would not reinstate the plaintiff's suspension
even if the preliminary injunction were overturned, rendering
the matter moot as to this plaintiff. We nevertheless address
the question because "the situation presented is 'capable of
repetition, yet evading review.'" Boelter v. Selectmen of
Wayland, 479 Mass. 233, 238 (2018), quoting Seney v. Morhy, 467
Mass. 58, 61 (2014).
                                                                     6


irreparable harm to the moving party outweighs any similar risk

of harm to the opposing party."    Weston, 461 Mass. at 164,

citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609,

616-617 (1980) (Cheney).    In cases in which a public entity is a

party, a judge may also weigh the risk of harm to the public

interest in considering whether to grant a preliminary

injunction.    Harris v. Commissioner of Correction, 409 Mass.

472, 474 (1991), citing Brookline v. Goldstein, 388 Mass. 443,

447 (1983).    In allowing the preliminary injunction, the judge

adopted the plaintiff's reading of G. L. c. 71, § 37H (d), and

concluded that the plaintiff was likely to succeed on the merits

of her claim.   He further concluded that the plaintiff would

suffer irreparable harm if not allowed to return to her high

school, and that such harm outweighed any risk of harm to the

defendants.8

     "We review the grant or denial of a preliminary injunction

to determine whether the [motion] judge abused his [or her]

discretion, that is, whether the judge applied proper legal

standards and whether there was reasonable support for his [or

her] evaluation of factual questions."    Commonwealth v. Fremont


     8 In challenging the judge's decision, the defendants point
out that courts "have always accorded school officials
substantial deference in matters of discipline." Doe v.
Superintendent of Sch. of Stoughton, 437 Mass. 1, 5 (2002).
Although this is true, we note that the motion judge did not
rule on the disciplinary action taken against the student.
                                                                     7


Inv. & Loan, 452 Mass. 733, 741 (2008), citing Cheney, 380 Mass.

at 615.   As the question of the plaintiff's likelihood of

success turns on the judge's interpretation of G. L. c. 71,

§ 37H (d), we review that portion of the judge's decision on a

de novo basis.   See Chin v. Merriot, 470 Mass. 527, 531 (2015).

See also Garcia v. Department of Hous. & Community Dev., 480

Mass. 736, 747 (2018), quoting Fordyce v. Hanover, 457 Mass.

248, 256 (2010) (in review of preliminary injunction, judge's

conclusions of law "are subject to broad review and will be

reversed if incorrect").

    1.    Interpretation of G. L. c. 71, § 37H (d).   "Our primary

goal in interpreting a statute is to effectuate the intent of

the Legislature" (citation omitted).   Casseus v. Eastern Bus

Co., 478 Mass. 786, 795 (2018).   Ordinarily, "[c]lear and

unambiguous language is conclusive as to legislative intent."

Commonwealth v. LeBlanc, 475 Mass. 820, 821 (2016).   General

Laws c. 71, § 37H (d), provides in pertinent part:

    "Any student who has been expelled from a school district
    pursuant to these provisions shall have the right to appeal
    to the superintendent. The expelled student shall have ten
    days from the date of the expulsion in which to notify the
    superintendent of his appeal. The student has the right to
    counsel at a hearing before the superintendent."

The text of § 37H is clear:   expelled students have a right to

appeal to, and have a hearing before, the superintendent.
                                                                      8


Nowhere in § 37H does the Legislature indicate that the

superintendent may designate another to hear expulsion appeals.

    The suspension of the plaintiff constituted an "expulsion"

for purposes of G. L. c. 71, § 37H.   Although § 37H does not

define "expulsion," the Department of Elementary and Secondary

Education (department) has promulgated a regulation defining

"expulsion" as "the removal of a student from the school

premises, regular classroom activities, and school activities

for more than [ninety] school days, indefinitely, or

permanently, as permitted under [G. L. c. 71, § 37H or

37H 1/2]."   603 Code Mass. Regs. § 53.02 (2015).   Because the

principal initially imposed a suspension of 152 school days, the

plaintiff was entitled under § 37H to appeal from her expulsion

directly to the superintendent, not a designee of the

superintendent.

    In contrast, a neighboring provision, G. L. c. 71,

§ 37H 3/4, which allows for suspensions of up to ninety days for

less serious offenses, provides for an appeal before the

"superintendent or a designee" (emphasis added).    G. L. c. 71,

§ 37H 3/4 (a), (e), (f).   It is a well-established rule of

statutory construction that "where the [L]egislature has

carefully employed a term in one place and excluded it in

another, it should not be implied where excluded."     Commonwealth

v. Gagnon, 439 Mass. 826, 833 (2003), quoting 2A N.J. Singer,
                                                                    9


Sutherland Statutory Construction § 46.06, at 194 (6th ed. rev.

2000).

    Here the distinction makes sense.    The statutory framework

provides for appeals directly to the superintendent as a matter

of right for indefinite or permanent expulsions as a result of

certain serious offenses, including the possession of dangerous

weapons or controlled substances on school premises, § 37H (a);

assaulting school staff, § 37H (b); and felony charges or

convictions, § 37H 1/2.   However, for less serious offenses, and

consequences, students are not guaranteed a hearing before the

superintendent him- or herself.   G. L. c. 71, § 37H 3/4 (e).    It

is logical and consonant with due process to afford students

greater procedural protections, as evidenced here by providing

for an appeal directly to the head of the school district rather

than a designee, for the most serious disciplinary sanctions.

See Goss v. Lopez, 419 U.S. 565, 584 (1975) ("Longer suspensions

or expulsions . . . may require more formal procedures").

    The defendants contend that we should defer to the

department, the agency charged with assisting school districts

in developing and implementing public education programs.   The

department has interpreted § 37H (d) to allow the superintendent

of a school district to delegate the appeal function, including
                                                                  10


a long-term suspension or expulsion hearing, to another properly

designated school district official.9

     Although we defer to an agency's interpretation "where the

statute is ambiguous and the interpretation is reasonable,"

Commonwealth v. Wimer, 480 Mass. 1, 5 (2018), that is not the

circumstance here.   As discussed supra, § 37H (d) is not

ambiguous.   Further, the department's interpretation would

require the addition of the phrase "or a designee" to § 37H (d).

See Commonwealth v. Hamilton, 459 Mass. 422, 435-436 (2011) ("as

a matter of statutory construction, we cannot supply words the

Legislature chose not to include"); Commonwealth v. McLeod, 437

Mass. 286, 294 (2002) (same).

     The defendants additionally assert that requiring

superintendents personally to handle appeals under § 37H would

be impractical.   It is true that "we will not adopt a literal

construction of a statute if the consequences of doing so are




     9 The defendants also point to a department regulation that
defines "superintendent" to mean "the chief executive officer
employed by a school committee or board of trustees to
administer a school system . . . or his or her designee
appointed for purposes of conducting a student disciplinary
hearing." See 603 Code Mass. Regs. § 53.02. However, the
department regulation in which this definition appears is
expressly limited in scope to "the minimum procedural
requirements applicable to the suspension of a student for a
disciplinary offense other than" the offenses and procedures
listed in G. L. c. 71, § 37H (emphasis added). See 603 Code
Mass. Regs. § 53.01(2)(a) (2015).
                                                                    11


absurd or unreasonable, such that it could not be what the

Legislature intended" (quotation and citation omitted).     Ciani

v. MacGrath, 481 Mass. 174, 178 (2019).     However, the defendants

have not provided any evidence to support their contention that

the plain meaning of the statutory text would create absurd or

unreasonable consequences.10

     2.   Risks of harm.   Noting that the plaintiff's separation

from the school already had spanned several months, the motion

judge concluded that unless the preliminary injunction was

granted, the plaintiff, an honors student who previously had

been enrolled in a merit-based program and had no disciplinary

record, would suffer irreparable harm.    The plaintiff's motion

included an affidavit from the plaintiff's mother, who averred

to all of the facts underlying this conclusion, as well as the

fact that the only alternative school available to the plaintiff

was well below her instructional level.11    Based on the record


     10The department presented data in its amicus letter
showing that in the 2018-2019 school year, Boston public schools
disciplined 147 students for weapons possession, 197 for
controlled substance possession, and 146 for assault pursuant to
§ 37H. The department did not indicate, however, how many of
those cases involved an expulsion or a suspension greater than
ninety days, and of those cases, how many involved an appeal.
Nor did the department provide data showing the amount of time
and resources spent on an average appeal.

     11The defendants did not dispute these facts in their
opposition to the motion for a preliminary injunction or
attached affidavits or at the motion hearing. On appeal, the
                                                                  12


before him, the judge had sufficient evidence for his

conclusion.   Cf. Goss, 419 U.S. at 576, quoting Brown v. Board

of Educ., 347 U.S. 483, 493 (1954) ("'education is perhaps the

most important function of state and local governments,' . . .

and the total exclusion from the educational process for more

than a trivial period . . . is a serious event in the life of

the suspended child").

     Finally, the judge concluded that the risk of irreparable

harm to the plaintiff outweighed any risk of harm to the

defendants, who asserted in their opposition to the preliminary

injunction that the school and its students would be harmed if

the plaintiff were allowed to return because she likely was to

reoffend.12   There was no abuse of discretion.




defendants contend for the first time that the plaintiff
"offered no evidence whatsoever" that she was an honors student,
that she participated in a merit-based program, and that she had
no prior disciplinary record. However, this argument ignores
the fact that the plaintiff's motion for a preliminary
injunction included an affidavit from the plaintiff's mother
averring to each of these facts.

     12We note that although the judge was not required to
address specifically the public interest factor, the risk of
harm to the public interest here did not weigh against granting
the preliminary injunction. See Harris v. Commissioner of
Correction, 409 Mass. 472, 474 (1991). Indeed, as discussed
supra, ordering the plaintiff's reinstatement promoted the
public interest, as embodied by the Legislature's intent in
§ 37H, in affording expelled students enhanced procedural
protections.
                                                                13


    Conclusion.   A judgment is to be entered affirming the

grant of the preliminary injunction and remanding the case to

the Superior Court for further proceedings.

                                   So ordered.
