Doe v. Superintendent of Schools of Worcester

• Decision Date: 11 August 1995
• Parties: , 102 Ed. Law Rep. 781 Jane DOE 1 v. SUPERINTENDENT OF SCHOOLS OF WORCESTER & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1088

653 N.E.2d 1088

421 Mass. 117, 102 Ed. Law Rep. 781

Jane DOE ¹ v. SUPERINTENDENT OF SCHOOLS OF WORCESTER & others.²

Supreme Judicial Court of Massachusetts,

Worcester.

Argued March 7, 1995.

Decided Aug. 11, 1995.

S. Stephen Rosenfeld, Boston (Jane Quimby, with him), for plaintiff.

Elizabeth M. Sanning, Asst. City Sol. (David M. Moore, City Sol., and Diana H. Horan, Worcester, with her), for defendants.

Scott Harshbarger, Atty. Gen., and Norah M. Wylie, Asst. Atty. Gen., for the Com., amici curiae, submitted a brief.

Anthony J. DeMarco, Lynn, and Susan F. Cole, Boston, for Children's Law Center of Massachusetts and another, amici curiae, submitted a brief.

Eileen L. Ordover, for Center for Law and Education, amici curiae, submitted a brief.

Michael D. Weisman, Sara Miron Bloom, Boston, and Alan Jay Rom, Somerville, for Jami McDuffy and others, amici curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

The plaintiff, to whom we have given the pseudonym Jane Doe, appeals from a judgment, after a jury-waived trial, upholding her expulsion from school for at least one year, based on her possession of a lipstick case containing a one and one-quarter inch blade. We granted her application for direct appellate review. ³

In a memorandum of decision, the judge in the Superior Court recited the following facts about which there appears to be no controversy. During the first week of the 1993-1994 school year, in response to the Education Reform Act (Act), St.1993, c. 71, § 36, the school committee of Worcester (school committee) adopted a "Policy on Possession or Use of Weapons." That policy provided, in part, that:

"In order to protect the students of the Worcester Public Schools, any student who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon, including, but not limited to, a gun or a knife may be subject to expulsion from the school by the principal regardless of the size of the knife. For purposes of this policy, a dangerous 'weapon' includes, but is not limited to, a gun, knife [or other specified items]."

During that week, staff at North High School (North High) distributed copies of the "School Policies, Rules and Services" for North High and "Policies and Programs Handbook in the Worcester Public Schools 1993-1994" (handbooks). Both handbooks contained the "Policy on Possession or Use of Weapons." Each student at North High received a copy of the handbooks and was required to sign a form acknowledging receipt. In addition to the handbooks, at all relevant times there were signs posted in North High which informed students that possession of a gun or a knife in school may result in expulsion.

The plaintiff moved to Worcester from Tennessee in November, 1992, and entered the ninth grade at North High. She was given a copy of the handbooks and she signed a form acknowledging that she had received them. She saw the posted signs reminding students of the weapons policy. She understood that a student who brought a knife into school might be expelled.

The plaintiff's parents experienced financial difficulties on their arrival. In the spring of 1993, school officials filed a "51A report" of suspected child abuse when the plaintiff's mother was seen hitting the plaintiff during a softball game. In April, 1993, the plaintiff ran away from home for five days. After moving to Worcester she tried to cut her wrists three times.

The plaintiff's school work was adversely affected by her personal and family problems. Although her grades were good during her first semester at North High, they deteriorated thereafter and she had twenty-three unexcused absences during the 1992-1993 school year. During the first two quarters of tenth grade, her grades were C's, D's, and F's. She was suspended from school several times for leaving school without permission, triggering a false fire alarm, smoking violations, tardiness, and cutting class.

In October, 1993, the mother of the plaintiff's then boy friend gave her a regular-sized lipstick knife which, when twisted open, revealed a pointed, single edge, one and one-quarter inch blade. The blade was sharply pointed but the cutting edge was dull.

On November 4, 1993, the plaintiff tried to cut her left wrist, her third suicide attempt since moving to Worcester. There is no suggestion that she used the lipstick knife to cut her wrist. She bandaged her wrist herself and did not tell her parents. The next morning, she noticed the lipstick knife in her drawer and took it to school to show her friends. During fifth period study hall, she showed the lipstick knife to other students and allowed two other students to hold it.

The study hall teacher asked the plaintiff about the bandage on her wrist. She claimed that she had hurt herself falling, but another student told the teacher that the plaintiff had tried to cut herself. Another student interjected that the plaintiff should show the teacher the lipstick knife. She eventually did so, after initially denying that she had it.

The assistant principal at North High, Elizabeth Drake, suspended the plaintiff for five days for having a knife in her possession. Drake also called in the plaintiff's parents and arranged for them to see a psychiatrist that afternoon. The record contains a letter from the psychiatrist stating that, at that time, the plaintiff was not a threat to herself or to others. Thereafter, the plaintiff saw a social worker several times.

Notice was sent to the plaintiff's family that there would be a principal's hearing on November 16, 1993. The notice informed the family that the plaintiff was alleged to have violated the weapons policy and could be expelled. The notice also stated that she had a right to be represented by an attorney and to present evidence and witnesses on her own behalf.

At the hearing, the plaintiff testified that she thought the lipstick knife was a joke. The plaintiff's social worker testified that the plaintiff needed to be in school and that, in her opinion, the plaintiff had not thought of the lipstick knife as a weapon.

The principal, Robert Boule, decided to expel the plaintiff, effective November 22, 1993, because, in his opinion, she was a threat to the safety of students and staff at the school. His decision was based on several factors, including the fact that the plaintiff had recently attempted suicide on three occasions. He considered the lipstick knife to be a knife. He believed that, although the plaintiff was remorseful, she had knowingly violated the weapons rule.

The plaintiff's parents were notified by letter that the principal had decided in favor of expulsion and that the plaintiff would be ineligible for readmission until November 22, 1994. They appealed from the principal's decision, and a second evidentiary hearing was held before the superintendent, Dr. James L. Garvey. Superintendent Garvey upheld the expulsion. In making his decision, he considered the lipstick knife itself, the opinion of the plaintiff's social worker that the plaintiff was unstable, the plaintiff's disciplinary record, and her troubled family as factors favoring expulsion.

The city of Worcester does not provide alternative education for students who are expelled for weapons violations unless they are special education students, which the plaintiff was not. The plaintiff's mother, who is a substitute teacher, and a retired school teacher provided some tutoring to the plaintiff during her expulsion, but the family did not make significant efforts to pursue private alternative education options. According to an affidavit of the principal, the plaintiff was readmitted to school in November, 1994, into the tenth grade.

On appeal, the plaintiff argues that, in expelling her, the defendant school officials abused their discretion, acted outside their statutory authority, and violated her fundamental, constitutionally protected interest in a public education. She also argues that, if the court reads G.L. c. 71, § 37H, broadly enough to embrace the lipstick knife as a "dangerous weapon," then the statute is void for vagueness. The defendants contend that, because the plaintiff has now returned to school, the case is moot.

At the outset, we address the defendants' claim that this appeal should be dismissed because the issues involved are moot. The defendants argue that, because the plaintiff has been readmitted to school and is doing well, has been offered tutoring and counselling services by Worcester, and because her disciplinary record is required by law to be kept confidential, the remedies sought by the plaintiff in her complaint have been provided to her, and she no longer has any personal stake in the outcome of this case.

The plaintiff argues that the defendants' offer of tutoring and sessions with the school counsellor does not moot her claims. In addition, on February 13, 1995, the plaintiff filed a motion to strike from the record on appeal the contents of the addendum to the defendant's brief other than that part of the affidavit of Principal Boule documenting the readmission of the plaintiff to the Worcester public schools. The defendants seek to establish by this addendum that the plaintiff has returned to school, is doing well, and has been offered tutoring and counselling services by Worcester. The plaintiff argues that because the information in the addendum concerns events which happened since the judge rendered her decision and thus could not be part of the record, those materials are not properly before this court on review. We deny the motion. Affidavits are the proper way to raise a question of mootness. Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 532-533, 9 N.E.2d 570 (1937), and cases cited. We do not agree with the plaintiff's argument that, because the judge did not consider evidence which was...