by Janet P. Judge and Andrew E. Silvia
The newly enacted Massachusetts Equal Pay Act (“MEPA”)[i] may change the way colleges and universities in Massachusetts think about how they compensate the coaches of their intercollegiate sports teams.
Under preexisting federal law, courts and academic employers across the country have struggled to apply equal-pay concepts to male and female coaches of similar but gender-segregated sport teams (e.g., men’s versus women’s basketball) and coaches of very different sports teams (e.g., field hockey versus football). While few would argue against the principle that persons of different genders should receive equal pay for comparable work, the application of that concept has proven especially thorny in college and university athletic coaching, where pay differentials often are tied to the market value of the sport coached rather than the gender of the coach.[ii] Determining what constitutes comparable work between coaches of different genders when they are coaching different teams has proven to be a complicated legal task.
In practice, many schools have opted to forgo the time-consuming and complicated in-house analyses of comparable work across sports and have focused instead on market-based pay systems that determine compensation for coaches of particular teams based primarily on market data reflecting salaries paid to coaches of those teams at other colleges and universities. While not without controversy, courts have found this market-based pay system to be a “nondiscriminatory factor other than sex,” justifying certain pay differentials under federal pay-equity law. In the sports world, this has resulted in higher compensation, for example, for the almost exclusively male head and assistant coaches of men’s basketball and ice hockey, as compared to their women’s basketball and ice hockey counterparts, who may be male or female.[iii]
This has created an interesting legal issue in Massachusetts, where the newly enacted MEPA no longer permits schools to rely directly on market forces to justify a difference in pay between coaches of different genders performing comparable work, even though it would not prohibit the differential if those same coaches were of the same gender. As a result, schools should consider revisiting their compensation system to ensure compliance with the new law, either by identifying nondiscriminatory factors that justify disparate pay rates or by adjusting the compensation of individual coaches where such factors do not exist.
Equal pay for college coaches of different genders has historically been regulated by and subject to litigation under federal laws, including the federal Equal Pay Act (“EPA”), which prohibits employers from paying an employee less than employees of the opposite sex “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,” but allows employers to justify certain pay differentials based on “any other factor other than sex.”[iv]
The prevailing market-forces system arose from litigation under the federal statutes to justify disparities in pay between male and female coaches. It traces its roots back to two federal cases decided in 1994. In one, the Ninth Circuit Court of Appeals held in Stanley v. Univ. of So. Cal. that “an employer may consider the marketplace value of the skills of a particular individual when determining his or her salary.”[v] In the other, a federal district court in Minnesota in Deli v. Univ. of Minn.[vi] rejected the pay-equity claim of a female college coach who asserted that pay differentials based on market forces and tied to the gender of the team coached violated the EPA. In Deli, the court noted that the lower market rate for a female women’s gymnastics head coach as compared to the rates for male head coaches of certain men’s teams, including football, basketball, and hockey, was lawful as it was based on market rate analysis and thus fell within the EPA’s statutory exception. Essentially, the Deli court determined that the market rate, even if tied to the gender of the student-athlete coached (and not the gender of the coach), was a “factor other than sex” upon which the school reasonably relied in making its compensation determinations.[vii] The Deli court noted that the EPA “refers to discrimination based on the sex/gender of the claimant; not the gender of those supervised or served by the claimant.”[viii]
With these rulings, the Stanley and Deli courts provided precedential support for schools not to rely on a coaching position’s subjective skill, effort, responsibility, and working conditions, and instead base a coach’s compensation on objective market data, which generally placed a greater economic value on the coaching positions of certain high-profile men’s sports as compared to coaches of women’s and lower-profile men’s teams. As a result of Stanley, Deli, and subsequent cases like them, many colleges and universities have simply relied on market forces to justify the compensation of their coaches rather than developing and documenting an equitable compensation system grounded in nondiscriminatory job-related tasks and responsibilities. That might have to change in Massachusetts under the MEPA.
Coaching Compensation under the MEPA
The MEPA, which took effect on July 1, 2018, provides that “[n]o employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.”[ix] “Wages” are defined as including “all forms of remuneration,” including bonuses, commissions, paid time off, retirement plans, and any other benefits.[x]
Like the EPA, the MEPA defines “comparable work” as work that “requires substantially similar skill, effort, and responsibility and is performed under similar working conditions,” and provides that the job title or job description alone does not determine comparability.[xi] “Skill” includes the “experience, training, education, and ability required to perform the jobs.”[xii] “‘Effort’ refers to the amount of physical or mental exertion needed to perform a job.”[xiii] And “‘[r]esponsibility’ encompasses the degree of discretion or accountability involved in performing the essential functions of a job, as well as the duties regularly required to be performed for the job.”[xiv] According to the Massachusetts Attorney General’s interpretation, however, the MEPA’s “comparable work” standard is “broader and more inclusive than the ‘equal work’ standard of the federal Equal Pay Act.”[xv]
Any MEPA claim involving college coaches of different genders would face the threshold question of whether the coaches are performing comparable work. A female coach of the women’s basketball team who earns less than her male counterpart coaching the men’s basketball team, for example, might argue that both basketball coaches perform comparable work—they both coach the same sport, oversee a similar number of assistants, coach a comparable number of student-athletes, play the same number of games, and bear responsibility for rules compliance, recruiting, budget, and general program oversight. To justify a pay difference in accordance with MEPA on the grounds that the work is not comparable, the school would have to show that the men’s head coaching position requires differing skill, effort, or responsibility, or is performed under differing conditions. Otherwise, a school would have to show that one of the law’s carefully enumerated exceptions (which are discussed below) applies. Depending on the facts, a school may or may not be able to make either showing before a Massachusetts court. In an interesting twist, a male coach of the same women’s team would not be able to make a claim under the law, because if both coaches are male, there would not be a higher-paid employee of a different gender performing comparable work.
With respect to the threshold question of whether the two jobs referenced above—coach of the women’s basketball team and coach of the men’s basketball team—are “comparable work,” it is worth noting a February 2018 pay-equity decision, again by the Minnesota federal district court, in Miller v. Bd. of Regents of Univ. of Minn.[xvi] In Miller, the court found that under the federal EPA, the level of responsibility required of a Division I women’s ice hockey head coach was not comparable to that required of a Division I men’s ice hockey head coach because the men’s team “attracts vastly more attention, draws vastly higher attendance, and earns vastly more revenue than the women’s hockey team” and “the men’s hockey coach is under more pressure to win—and has more demands on his time—than the women’s hockey coach.”[xvii] The court determined that the additional pressure to win and the time demands imposed on the male coach of the men’s team constituted “a substantial difference in responsibility” that justified the pay differential.[xviii] In the Miller case, the court made this finding even where the two coaches had identical written job responsibilities and where the women’s program, which was coached by a woman, had significant success at the national level.[xix] Massachusetts courts have yet to consider such arguments regarding similar skill, effort, and responsibility under the MEPA.[xx]
In cases where two coaches are found to be performing comparable work under the MEPA, schools must then show that any pay disparity is the result of one of the following factors in order to justify the gender pay differential: (1) a system that rewards seniority with the employer; (2) a merit system; (3) a system that measures earnings by quantity or quality of production, sales, or revenue; (4) the geographic location in which the job is performed; (5) the education, training, or experience of the employee to the extent such factors are reasonably related to the job; or (6) travel, if it is a regular and necessary condition of the job.[xxi] Importantly, in order to rely on any of the first three permissible reasons, a school must be able to show that it has developed a compensation “system.”
The MEPA does not incorporate the EPA’s “any factor other than sex” provision and, while it authorizes pay differentials based on a system that measures earnings by quantity or quality of revenue, it does not permit simple reliance on “market forces” or “market rates” to justify differences in pay for comparable work among workers of different genders.[xxii] In assessing a pay-equity claim involving college coaches of different genders, the primary issues at stake will be whether they are performing comparable work, and if so, whether any of the six permissible factors described above apply. Based on arguments like those discussed in the case law described above, schools considering coaches’ compensation under the MEPA likely will focus on the ability of the men’s programs to generate sales or revenue at rates greater than the women’s programs. In order to do so, however, schools must be able to point to a compensation “system,” consisting of a plan, policy, or practice that is predetermined and predefined, which is used to make compensation decisions, and which is uniformly applied without regard to gender.[xxiii] This will require considerably more from schools than has been necessary to justify pay disparities under federal law.
The MEPA is a new statute, and the meaning of its provisions have yet to be interpreted by the Massachusetts courts. Whether the MEPA will have any real effect on pay equity in collegiate coaching remains to be seen. It may prompt schools to raise the compensation of female coaches of women’s teams. One certain implication of the statute is that Massachusetts colleges and universities that have traditionally relied on market-based factors to justify pay disparities between coaches of different genders will need to review their compensation models for compliance with the MEPA and may need to modify them. Some schools may find the need to completely revamp their compensation structure, while others may be able to adapt their current scheme to fit the parameters of the MEPA and its permitted factors. Schools may also consider conducting a pay-equity audit, as the MEPA provides a complete affirmative defense to employers who have conducted a good-faith, reasonable self-evaluation within the previous three years and before an action is filed against it, and have made reasonable progress towards eliminating any unlawful gender-based wage disparities revealed by the audit.[xxiv]
Janet P. Judge is a partner at Holland & Knight LLP where she co-chairs the Collegiate Sports group. Recognized by Best Lawyers as the 2019 Lawyer of the Year for Sports Law in Boston, Ms. Judge represents colleges and university clients on a wide variety of higher education matters.
Andrew E. Silvia is a litigation associate in Holland & Knight’s Boston office. He represents employers and educational institutions in all aspects of labor and employment law.
[i] M.G.L. c. 149, § 105A (2018).
[ii] For example, a recent study found that individuals surveyed generally agreed with the concept of wage equality, but the lowest level of agreement was with respect to individuals in sporting professions, including college coaches and professional athletes. Emily Dane-Staples, “Update in Attitudes Towards Wage Equality in Gendered Professions,” The Sport Journal, June 19, 2018, available at https://thesportjournal.org/article/update-in-attitudes-towards-wage-equality-in-gendered-professions/ (last accessed Jan. 4, 2019). The study participants provided qualitative responses that explained that revenue generation, profits, success, and other monetary reasons justified their more forgiving attitude towards wage inequality in the area of athletic coaches. Id.
[iii] While the coaches of men’s intercollegiate teams are almost exclusively male, the coaches of female intercollegiate teams are not almost exclusively female. Indeed, according to a recent NCAA article, more men than women are coaching women’s teams. Rachel Stark, “Where are the Women?” NCAA Champion Magazine, Winter 2017, available at http://www.ncaa.org/static/champion/where-are-the-women/ (last accessed Feb. 4, 2019).
[iv] 29 U.S.C. § 206(d). Litigators have also raised claims involving equal pay for college coaches under Title IX, which prohibits discrimination in any education program on the basis of sex, including in employment, recruitment, and distinctions in rates of pay, and Title VII, which prohibits gender discrimination in the terms, conditions, or privileges of employment. See 20 U.S.C. § 1681 (Title IX); 42 U.S.C. § 2000e-2(a)(1) (Title VII).
[v] Stanley v. Univ. of So. Cal., 13 F.3d 1313, 1322 (9th Cir. 1994) (“Unequal wages that reflect market conditions of supply and demand are not prohibited by the [federal Equal Pay Act]” (citing EEOC v. Madison Community Unit Sch. Dist. No. 12, 818 F.2d 577, 580 (7th Cir. 1987))).
[vi] Deli v. Univ. of Minn., 863 F. Supp. 958, 961 (D. Minn. 1994).
[vii] Id. at 960-61.
[viii] Id. at 961 (quoting earlier Seventh Circuit non-athletic case). The court further found that absent market justifications, the comparable work analysis also justified certain pay inequities where the comparators coached more student-athletes, supervised more staff, attracted greater crowds, brought in more revenue, and had additional responsibilities due to their team’s higher media profiles. Id. at 961-62.
[ix] M.G.L. c. 149, § 105A(b). Massachusetts’ previous equal-pay law, which was the first of its kind in the country when enacted in 1945, prohibited discrimination in the payment of wages “as between the sexes . . . for work of like or comparable character.” M.G.L. c. 149, § 105A (1945). “Comparable” work under that earlier version of the law came to be defined relatively narrowly by courts, effectively leaving Massachusetts’ law no stronger than the federal EPA enacted in 1963.
[x] M.G.L. c. 149, § 105A(b); Office of the Attorney General, An Act to Establish Pay Equity: Overview and Frequently Asked Questions, Mar. 1, 2018 (the “AG’s Guidance”) sec. 4, available at https://www.mass.gov/files/documents/2018/05/02/AGO%20Equal%20Pay%20Act%20Guidance%20%285-2-18%29.pdf (last accessed Feb. 4, 2019).
[xi] M.G.L. c. 149, § 105A(a).
[xii] AG’s Guidance sec. 3.
[xvi] Miller v. Bd. of Regents of Univ. of Minn., No. 15-CV-3740, 2018 WL 659851 (D. Minn. Feb. 1, 2018).
[xvii] Id. at *7.
[xix] See id. at *1, 7.
[xx] The most well-publicized case filed under the new MEPA involved a claim by the principal flutist in the Boston Symphony Orchestra that she was compensated significantly less than the principal oboist, who was male. The case settled in February 2019 without any judicial opinion, but it highlights the type of issues courts may be required to address—namely, were the female flutist and male oboist performing comparable work? Rowe v. Boston Symphony Orchestra, Inc., No. 18-02040D (Mass. Super.).
[xxi] M.G.L. c. 149, § 105A(b) (2018).
[xxii] AG’s Guidance sec. 5.
[xxiii] AG’s Guidance sec. 5.
[xxiv] M.G.L. c. 149, § 105A(d); AG’s Guidance sec. 10.
by Mason Kortz and Christopher Bavitz
In 2014, the Supreme Judicial Court of Massachusetts ruled in Commmonwealth v. Augustine, 467 Mass. 230 (2014) that, under the Massachusetts Declaration of Rights, police must obtain a warrant in order to access cell phone records that can reveal a single person’s location over an extended period of time. Last year, the United States Supreme Court reached the same conclusion under the Fourth Amendment in Carpenter v. United States,138 S. Ct. 2206 (2018). However, neither decision addressed the practice of so-called “tower dumps,” which involve access to a different type of location information–namely, the identity of all cell phones that were in a particular location at a particular time. This article addresses law enforcement use of tower dumps, providing a technical description, an examination of current law, and some thoughts on trends in widescale data collection efforts
Technical Overview: What Are Cell Tower Dumps?
A cellular network is composed of numerous fixed-location cell towers or “cell sites,” each of which covers three or more directional “sectors.” Whenever a cell phone sends or receives data over a cellular network, it connects to one of these cell sites. The network continually tracks which phones are connected to which sites and sectors at any given time. This information — called cell site location information or CSLI — can be logged by the cellular service provider and stored, in some cases for multiple years. Depending on the density of the cellular network in a particular location, CSLI can be used to track a phone’s location with precision varying from a few miles down to a single city block. Newer cellular technologies allow for even greater detail.
The historical CSLI at issue in Augustine and Carpenter could be defined as information on all of the cell sites that a particular device had connected to over a particular interval. The Supreme Court in Carpenter defined a cell tower dump, on the other hand, as “information on all the devices that connected to a particular cell site during a particular interval.” Carpenter, 138 S. Ct. at 2220. The following examples highlight the distinction between the historical CSLI (Scenario A) and tower dumps (Scenario B):
- SCENARIO A — Police are investigating a crime that took place between November 15 and 19, 2018. Officers have probable cause to believe Smith committed the crime. Smith claims to have been nowhere near the scene of that crime, but officers question his alibi based on eyewitness testimony and other evidence. Officers seek a warrant that would require Smith’s cell phone provider to turn over CSLI indicating the location of Smith’s phone between November 15th and 19th.
- SCENARIO B — Police are investigating a crime that took place at 2:00 pm on November 19, 2018 in the 100-block of Main Street. Officers have no indication as to the identity of the perpetrator. Officers seek warrants that require cellular service providers with towers in the area to turn over CSLI for all cell phones that contacted towers near 123 Main Street between 1:50 pm and 2:10 pm on November 19th.
A tower dump, by its nature, involves access to more users’ data than historical CSLI does; indeed, one federal district court has noted that “[a]ny order authorizing a cell tower dump is likely to affect at least hundreds of individuals’ privacy interests.” In the Matters of the Search of Cellular Telephone Towers, 945 F. Supp. 2d 769, 770 (S.D. Tex. 2013). That said, a typical tower dump is confined in the sense that it covers both a small area and a relatively short time period — often a few hours or even a few minutes. Thus, a tower dump reveals less about any given individual’s movements over a period of time than does historical CSLI.
Current State of the Law
The primary legal question concerning cell tower dumps is whether they require a warrant or, alternatively, can be obtained under the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d). If the warrant requirement applies, the government would need to show probable cause in order to obtain a tower dump. Section 2703(d) of the SCA, on the other hand, requires only “specific and articulable facts showing that there are reasonable grounds to believe that the contents of [the cell tower dump] are relevant and material to an ongoing criminal investigation.”
Proponents of the warrant requirement argue that individuals have a reasonable expectation of privacy in their location information and that cell tower dumps therefore fall within the ambit of the Fourth Amendment. Alternatively, they argue that even if cell tower dumps do not infringe on any one person’s privacy, the sheer number of data points collected with each dump constitute “dragnet surveillance,” which the Supreme Court has suggested may be unlawful.
The majority of courts to consider the question have rejected these arguments and held that a warrant is not required to obtain a cell tower dump. Many of these decisions rely on the third-party doctrine, which provides that an individual has no legitimate privacy interest — and, therefore, no Fourth Amendment protection — in information that he/she voluntarily discloses to a third party (in this case, that person’s cell phone service provider). Such courts have also noted that, although cell tower dumps collect information about a large number of subscribers, they often cover relatively limited time periods.
On the other hand, at least one United States Magistrate Judge has held that cell tower dumps implicate the Fourth Amendment and therefore require a warrant. See In re United States ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 930 F. Supp. 2d 698 (S.D. Tex. 2012) (denying § 2703(d) application to obtain tower dump, holding that warrant is required). The court expressly relied on an order extending Fourth Amendment protections to historical CSLI, a decision later reversed by the Fifth Circuit. By its nature, a cell tower dump includes information that turns out not to be relevant to the investigation in question, and the Magistrate Judge was concerned that the government had made no plans for how to handle or dispose of that information. Thus, the court declined to approve an application for a cell tower dump until both (a) it was supported by probable cause; and (b) the government presented a protocol for minimizing the intrusion into the privacy of technological bystanders.
Looking Ahead: Developments Post-Carpenter
Although the Court in Carpenter did not reach the question of cell tower dumps, its decision will certainly have an impact on this evolving body of law. In holding that a warrant is not required to obtain cell tower dumps, many lower courts have expressly relied on appellate decisions permitting warrantless access to historical CSLI. Carpenter has now abrogated those decisions. Historical CSLI and tower dumps raise different privacy concerns, though, so lower courts applying Carpenter and Augustine to tower dumps will still need to engage in an independent analysis of whether the information the government seeks would invade individuals’ reasonable expectations of privacy.
Carpenter set forth two important holdings. First, it limited the application of the third-party doctrine to historical CSLI on the grounds that the pervasiveness of cell phones (and the essentially invisible way in which they generate location information) rendered any disclosure of CLSI effectively non-voluntary. The application of this holding to tower dumps should be straightforward: because tower dump CSLI and historical CSLI are generated in the same fashion, it stands to reason that the third-party doctrine does not apply to either one.
Second, Carpenter made clear that the collection of seven days of historical CSLI infringes on a cell phone user’s reasonable expectation of privacy and, absent exceptional circumstances, requires a warrant. The application of this holding to cell tower dumps is less certain. While tower dumps implicate the privacy of far more people than access to historical CSLI does, they are arguably less invasive at the individual level. The Court in Carpenter declined to state whether there is some lower limit to the collection of CSLI below which a warrant is not required. The SJC in Augustine did reach this question, setting the limit at six hours of CSLI. However, the SJC was presumably thinking of six hours CSLI for a single person–not six hours of CSLI for everyone whose cell phone passed by a specific location in that time period. Thus, the analogy between historical CSLI and tower dump CSLI is imperfect.
Finally, because the Court in Carpenter did not address tower dumps, it did not reach the question of what to do with hundreds, perhaps thousands, of innocent bystanders’ location information. Regardless of whether the warrant requirement applies, future courts that address the question of cell tower dumps will need to consider how to craft — or ensure that government entities requesting CSLI craft — mechanisms to minimize potential privacy harms caused by these broad and far-ranging requests.
Warrantless tower dumps, widely approved up until recently, are now on uncertain footing. Tower dumps that cover more than a few hours without a warrant are questionable under Carpenter and almost certainly unlawful in Massachusetts under Augustine. Even narrower tower dumps raise questions due to the number of people affected, although courts may focus more on minimizing harm through search protocols than on the warrant requirement. Courts and practitioners should also keep in mind that, as both the Supreme Court and the SJC observed, the granularity and precision of CSLI continues to increase dramatically as new network technologies are rolled out. The arguments that prevailed in Carpenter and Augustine are likely to become even more compelling as the relevant technologies continue to evolve.
Mason Kortz is a Clinical Instructor at the Harvard Law School Cyberlaw Clinic, part of the Berkman Klein Center for Internet & Society. His areas of practice include electronic search and seizure, online speech and privacy, open records and government transparency, and the law of artificial intelligence.
Christopher Bavitz is the WilmerHale Clinical Professor of Law at Harvard Law School, Managing Director of the Law School’s Cyberlaw Clinic, and a faculty co-director of the Berkman Klein Center for Internet & Society.
by Jeffrey J. Pyle
Debates about free speech on campus have long centered on “speech codes”—overt policies that restrict constitutionally-protected speech deemed offensive to others. Groups such as the American Association of University Professors (AAUP), the American Civil Liberties Union (ACLU), and the Foundation for Individual Rights in Education (FIRE), consistently oppose such policies because, in the AAUP’s words, “On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.”
Speech codes, however, are not the only restraint on freedom of expression on today’s college campus. Public and private universities and state governments have adopted policies that pose a less direct but substantial threat to peaceful protest and debate on important issues. This article discusses two of them: the practice of charging student groups that invite controversial speakers to campus for security costs based on the likely reaction to the speech, and state anti-“Boycott Divestment Sanctions” legislation that applies to public universities.
- Security Fees Based on Likely Reaction to Speech.
In Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992), the Supreme Court struck down a Georgia county ordinance that permitted the assessment of security fees for demonstrations on public property. Under the ordinance, county administrators had discretion to impose higher fees for events featuring controversial speakers, based on the anticipated hostile reaction to the speech. This, the Court held, amounted to unconstitutional content regulation: “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Id., 505 U.S. at 134-35.
In recent years, courts have applied this principle to speeches on public university campuses. In Young America’s Foundation v. Napolitano, No. 17-CV-02255-MMC, Doc. 62 (N.D. Cal. Apr. 25, 2018), the University of California, Berkeley, billed $15,738 to a conservative group that had invited right-wing commentator Ben Shapiro to campus, allegedly to cover necessary security for the event. The relevant university policy adhered to Forsyth’s directive that the amount of the fee cannot be based on the likely reaction of hecklers. However, Berkeley failed to explain why it charged three times as much for Shapiro as it had charged for a different high-profile speaker, U.S. Supreme Court Justice Sonya Sotomayor. Accordingly, the Court denied Berkeley’s motion to dismiss the as-applied First Amendment challenge to the fee assessed on the conservative group.
Private universities, of course, are not legally bound by the First Amendment, but they still face the important policy question of whether to pass security costs onto organizers of campus events. Significant security costs will often be unaffordable to student groups, and a policy imposing them can sometimes work to prevent the exchange of ideas on campus. Such fee policy may also embolden persons seeking to shut down speech through threats of violence, thereby perpetuating the “heckler’s veto.” Accordingly, even private universities should craft their policies on this subject with regard for their impact on First Amendment principles.
- Anti-“Boycott Divestment Sanctions” Statutes
The First Amendment includes the right to organize boycotts that are intended to change government policy. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (holding that boycotts intended to “influence governmental action” are protected under the First Amendment). However, according to the National Coalition Against Censorship, at least 17 states have passed statutes that seek to penalize those who join the “Boycott Divestment Sanctions” (“BDS”) campaign, a movement that seeks to influence Israel’s policy toward the Palestinians through economic pressure. A Texas statute, for example, provides that any company wishing to contract with the state must certify that it “does not boycott Israel,” and will not do so during the term of the contract. See Tex. Gov’t Code Ann. § 2270.001 et seq.
The provisions of state anti-BDS statutes differ, but they generally apply by their terms to public universities, as to any other state institution. Last year, the University of Houston required an external speaker to pledge she would not support BDS before she could be paid for conducting a workshop on campus. She refused, and an administrator faked her signature to process payment. (The administrator later resigned.)
Anti-BDS statutes are of doubtful constitutionality even outside academia. Koontz v. Watson, C.A. No. 17-4099-DDC-KGS, Doc. 15 (D. Kan. Jan. 30, 2018) (issuing preliminary injunction against Kansas anti-BDS statute). Within the academy, their application would frustrate the free interchange of ideas by depriving students of the ability to hear speakers—on any subject—who happen to support the BDS movement, or who on principle object to signing pledges as a condition of speaking. The AAUP recently released a statement condemning any requirement that academic speakers sign anti-BDS pledges, while reiterating its opposition to all academic boycotts, including those against Israel. At the very least, states with such laws on the books should clarify that they have no application in the academic context.
* * *
To protect free speech on campus, universities must do more than foreswear speech codes. They must also ensure that other policies governing campus life do not impinge on the interchange of ideas “that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–09 (1969).
Jeffrey J. Pyle is a partner in the Media and First Amendment Practice Group at Prince Lobel Tye, LLP in Boston, Massachusetts. As a high school student, Jeffrey and his brother brought a successful challenge to his school district’s speech code. Pyle v. School Committee of South Hadley, 423 Mass. 283 (1996).
by M. Bradford Bedingfield
In December 2017, Congress changed the tax laws in a number of ways that affect incentives for individuals and businesses to make charitable contributions. Pub. L. 115-97 (Dec. 22, 2017) (Tax Cuts and Jobs Act of 2017) (“Act”). A variety of studies published since the new law was enacted predict an overall drop in 2018 charitable giving of as much as $22 billion (down about 5 percent from 2017 levels), and reports from the first two quarters of 2018 do appear to show a significant drop in charitable giving compared to 2017. While many attribute this drop to the Act, opinions differ on whether the changes in legal tax incentives are truly driving, or will drive, changes in charitable giving patterns. So what incentives changed beginning 2018, and how might those changes affect decisions whether and when to give to charity?
Changes in Tax Incentives
The Act increases certain incentives for charitable giving, and decreases others. However, all of the changes described below – other than the reduction in the corporate income tax rate – are temporary, and, barring further action from Congress, will expire at the end of 2025.
Standard Deduction. Most accounts of the impact of the Act focus on the increase in the standard deduction – from $6,300 to $12,000 for single filers and $12,600 to $24,000 for married and joint filers – which, along with the elimination or diminution of many itemized deductions, will convert many taxpayers from itemizers (those who itemize their deductions, and forego the standard deduction) to non-itemizers (those who instead claim the standard deduction, foregoing the ability to take itemized deductions). This change matters because the income tax charitable deduction is an itemized deduction, and therefore provides no tax benefit whatsoever to those who claim the standard deduction. Because each taxpayer chooses either to claim the standard deduction or to itemize, those who claim the standard deduction get no tax benefit from charitable contributions. Studies have estimated that more than 20 million taxpayers will convert from itemized to non-itemized filers this year as a result of the Act.
While the increase in the standard deduction clearly will change tax incentives for charitable giving, it is unclear to what extent that change will affect actual charitable giving. Many taxpayers make charitable gifts regardless of whether they will receive a tax benefit, and it is unclear the extent to which the value of that deduction actually encourages or discourages people from supporting causes that are dear to them. The effect of this change may also vary dramatically depending on the state in which a person resides. Taxpayers in states like Massachusetts are likely to have other significant itemized deductions, such as state and local taxes (despite the new $10,000 cap on those deductions) and mortgage interest (despite new limitations on deductibility of interest from certain home equity loans), meaning that they are more likely to remain as itemizers..
Furthermore, a strategy known as “bunching” can provide a work-around for the impact of the increase in the standard deduction on charitable tax incentives. Imagine that a single taxpayer gives $10,000 to charity per year and has no other itemized deductions. That $10,000 per year provides no tax benefit, as the donor is better off just taking the $12,000 standard deduction instead. But if the donor instead gives $50,000 once every five years (and nothing in other years), the donor can file as an itemizer in the “on” year (claiming a $50,000 itemized deduction), and as a non-itemizer in the “off” years (claiming the $12,000 standard deduction in each of those years). While this “bunching” strategy will provide some incremental tax benefit for those who otherwise would fall below the standard deduction threshold, it will also create a certain “lumpiness” in charitable giving patterns, and the lumpiness is likely to be back-loaded if donors, choosing to wait to see more precisely how the Act’s changes will affect their personal returns, give their $50,000 in later years rather than in the first year after the new changes.
Lower Taxes. Most taxpayers will find that they are paying taxes at a lower aggregate federal tax rate than before. This reduction in tax rates generally makes the income tax charitable deduction less valuable – because there is less tax liability to offset – even for individuals who itemize their deductions. (It also makes the charitable deduction less valuable for corporations, which now pay income tax at 21%, reduced from up to 39% before the Act). Whether, and how much, this decrease in the “value” of the tax deduction will affect charitable giving is debatable. In fact, some tout this as a change that may spur an increase in charitable giving, to the extent that lower taxes may increase cash available for charitable giving.
Estate Taxes. Federal estate taxes have been virtually eliminated for all but a very small number of taxpayers, as the federal estate tax exemption amount has increased to over $11 million per person (or over $22 million per married couple). Many fear that this will likewise reduce estate tax incentives to leave property to charity. However, the extent to which changes in the estate tax will affect the disposition of donors’ assets on death is likewise open to debate. The fact that donors are paying less in estate taxes might in fact increase charitable bequests, especially where donors (for non-tax reasons) choose to leave the residue of their estates to charity. Furthermore, because many states continue to have their own estate or inheritance taxes (especially in New England, the northern Midwest states, and the Pacific Northwest), donors in those states are less likely to change estate plans already optimized to minimize state estate taxes, many of which include charitable gifts as part of that optimization.
Ticket Rights. One minor decrease in tax incentives (although a significant one for many college football fans) is that Congress has eliminated the partial charitable deduction previously available for gifts to colleges and universities in exchange for priority rights to buy season tickets. In anticipation of this change, many colleges encouraged ticket holders to “pre-fund” their ticket-related contributions at the end of 2017. Otherwise, it is unlikely that this change will have a significant impact on charitable giving as a whole – as a graduate of a large, Southern state university, I am quite certain that, for most college sports fans, the incentives of securing priority season ticket rights far outweigh any reduced tax incentives.
While the general consensus is that the net effect on tax incentives for charitable giving is negative, the Act provided some minor boosts to charitable tax incentives.
Elimination of Pease Limitations. Prior to the Act, the so-called “Pease” limitations reduced certain itemized deductions, including certain charitable gifts, for high-income taxpayers, and thus potentially reduced the tax effectiveness of certain charitable gifts for those taxpayers. The Pease limitations have been suspended under the Act, which may provide a modest boost in tax incentives. On the other hand, it was never clear how much of an effect the Pease limitations actually had on charitable giving patterns, and so the effect of this change is likewise uncertain.
Increased AGI Limit for Cash Gifts. The primary “boost” to tax incentives for charitable giving relates to the percentage of a donor’s adjusted gross income (AGI) that may be deducted each year. Previously, donors could deduct up to 50% of their AGI for cash gifts to public charities (non-cash gifts, and gifts to so-called “private foundations,” are subject to less favorable AGI limits). Gifts in excess of this AGI limit are not deductible in the year of the gift, but may be deducted in future years, for up to five years.
The Act increased the AGI limit for cash gifts to public charities from 50% to 60%, potentially allowing certain donors to enjoy higher income tax deductions more quickly. However, because of the rather complicated way in which this increase was integrated into the existing tax code, the higher 60% AGI limit is available only when a donor is relying solely on gifts of cash to public charities, and not gifts of stock or other assets (or any gifts to private foundations), to make up that 60% amount. Many donors who give that much of their annual income are likely to have low-basis stock or other property, and the tax benefits of giving low-basis stock (namely, avoiding capital gains tax on the stock’s appreciation) to public charities significantly outweighs the benefit of this increased AGI limitation. In other words, on balance, most donors will still effectively be capped at the lower 50% of AGI limit. Although it is too early to know for certain, it seems likely that very few taxpayers will see any practical benefit from this increase.
Good or Bad for Charitable Giving?
It is too early to know whether the Act will result in more or less charitable giving. Many popular strategies for saving taxes by making charitable gifts – for example, making gifts of appreciated property, or direct charitable IRA rollovers – remain effectively unchanged. For many taxpayers, the effects of the Act may not become evident until they see their first tax returns in 2019, and it may not be until then that they start to consider changing their charitable giving strategies. While it does appear that giving is down in 2018 (compared to 2017), this could be attributable to a number of things. For example, 2017 was a record year for charitable giving, in part because many tax advisors urged donors to make large charitable gifts at the end of 2017, at least in part to offset the higher 2017 tax rates. A corresponding drop in charitable giving in early 2018 might be a natural consequence of the fact that many taxpayers effectively pre-funded their anticipated 2018 contributions at the end of 2017. Other taxpayers may be temporarily holding off on giving in anticipation of “bunching” contributions in later years, or may otherwise be delaying the timing of their gifts, even if they intend to maintain past levels of giving in the aggregate.
At the end of the day, it is likely that only a particular subset of donors who will be significantly affected by these changed tax incentives. Donors who were non-itemizers before these changes are likely to remain so, and will see no meaningful change in tax incentives for charitable giving. Conversely, donors who previously were itemizers and, because of significant other itemized deductions, will remain so, still have plenty of incentives to find tax-efficient ways to reduce the burden of income or estate taxes by making charitable gifts. Anecdotal discussions with charitable giving and estate planning professionals indicate no significant shifts in donor interest in long-term charitable giving, including planned giving, among filers already likely to itemize. However, donors who are in that intermediate space between itemizing and not itemizing should take a close look at their particular tax profiles and consider “bunching” and other strategies to allow them to maximize the impact of their income tax charitable deductions over the long term under the Act.
 On September 28, 2018, the House of Representatives passed a series of bills, together dubbed “Tax Reform 2.0,” that would make these changes permanent, but as of this article, there appears to be no movement in the Senate in that regard.
 House Bill 6760, 115th Cong. (2017-2018) (Protecting Families and Small Business Tax Cuts Act of 2018), part of the “Tax Reform 2.0” initiative passed by the House on September 28, 2018, would expand the ability of taxpayers to take advantage of the higher AGI threshold – however, it is unclear whether the Senate intends to participate in “Tax Reform 2.0,” or whether this provision might make its way into some other bill with bicameral support.
Brad Bedingfield is counsel at Hemenway & Barnes LLP. Brad works extensively with nonprofit organizations, navigating tax, regulatory, and governance matters, guiding charities and other nonprofits through formation, reorganizations, mergers, affiliations, and dissolution, and advising on innovative use of charitable assets, including social impact bonds and other forms of impact investing.
by Marlies Spanjaard
Even if you haven’t heard the term “school-to-prison pipeline,” you probably know what it describes: The national trend by which students are funneled out of the public schools and into the juvenile and criminal justice systems. Instead of getting the education they need, generations of our state’s most vulnerable children have been pushed out of the classroom and into jail by schools with inadequate educational programs and zero tolerance disciplinary policies and practices. Suspension or expulsion from school can play a major role in pushing students into this pipeline. Unfortunately, these types of exclusions have increased dramatically in the last fifty years across the country. Massachusetts is no exception. Since the 1970s, schools have experienced a massive shift in how they respond to misbehavior in the classroom. The suspension rate for all students has nearly doubled, with students of color and students with disabilities incurring exclusion at an even greater rate. In Massachusetts, 17% of all incidents involved low-income Black or Latino students receiving special education, a rate that is estimated to be 10 times greater than their enrollment. See http://lawyerscom.org/wp-content/uploads/2014/11/Not-Measuring-up_-The-State-of-School-Discipline-in-Massachusetts.pdf.
In 2012, the Legislature enacted G.L. c. 71, § 37H¾, the first law to address school discipline reform in almost twenty years. The legislature sought to address distressingly high rates of exclusions and provide education services for children who are excluded.
Unlike the preexisting §§ 37H and 37H½, the new § 37H¾ provides procedural protections for students receiving both short term and long term suspensions – short term being under 10 days and long term being 10 days or more. Reflecting current research and best practices demonstrating that school exclusion is harmful to children and should be a last resort, § 37H¾: (1) requires that the decision maker, typically the school principal, exercise discretion, consider ways to reengage the student, and avoid any long term exclusion until other non-exclusionary alternatives have been tried; (2) prohibits a student’s exclusion for non-serious offenses from exceeding ninety days in a single school year; and (3) requires school districts to provide educational services to students who have been excluded from school for more than 10 days in order for them to make academic progress during the period of their exclusion. (Prior to the law, a non-special needs student excluded from school had no right to any educational services).
Now, four years into the implementation of § 37H¾, much still remains to be done to address the school to prison pipeline in Massachusetts. Massachusetts is heralded as having the best public schools in the nation, but access to this system is not equitable. Massachusetts schools continue to have high suspension and expulsion rates; racial disparities in exclusions continue to be higher than the national average; and the academic services offered to excluded students continue to vary greatly in quality. Massachusetts must do better, and this article suggests four ways that it can do so.
Provide Robust Procedural Protections for Students Facing Even Short Term Exclusions
First, § 37H¾ provides few procedural protections for students receiving short term suspension – defined as suspensions that are less than 10 days. Under the current law, students who are excluded for less than 10 days receive the opportunity to be heard, but there is no requirement that a parent be present. While the regulations require the principal to articulate the basis for the charge and to allow the student to present mitigating circumstances, this rarely happens. Often, a school official informs the student of his suspension while face-to-face, or by calling his parent. There is also no mechanism for appealing short term suspensions to the superintendent, so these determinations are often final.
Even a short term suspension can drastically impact the student’s achievement. Each day of exclusion is a missed day of instruction, and can lead students to fall behind. See https://www.civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/summary-reports/suspended-education-in-massachusetts-using-days-of-lost-instruction-due-to-suspension-to-evaluate-our-schools. Furthermore, a student who is excluded is left to spend his days out of school without any structure or support, which significantly increases his chances of engaging in delinquent behavior and finding himself in court. Given that students facing exclusion are often already struggling academically and emotionally, exclusion, even for a short duration, can have a tremendous impact. Providing robust procedural protections for students facing even short term exclusions would ensure that we are taking the opportunity to address student challenges at their root, rather than waiting until things have already progressed to the point where a student is facing a long term exclusion or expulsion
Clarify The Robust Procedural Protections For Student Facing Exclusion Under Sections 37H And 37H½
Second, § 37H¾ regulates the school’s response to misbehavior that the state has defined as “non-serious exclusions.” Sections 37H and 37H½ in contrast, regulate the school’s response to misbehavior involving weapons, drugs, assault on educational staff, and any felony charges or convictions. Under the current statutory scheme, students who are being disciplined for allegations of non-serious behaviors under § 37H¾ have more robust protections delineated than students who are facing more serious allegations and consequences under §§ 37H and 37H½. The result in practice is that students facing the serious allegations are often not afforded the appropriate due process because it is not specifically delineated in the statute, although it is supported by the case law. This discrepancy in the statutory scheme is difficult to square with the research demonstrating that exclusion for both “non-serious” and “serious” offenses equally impacts student achievement. Requiring additional procedural protections does not prevent schools from implementing serious disciplinary consequences if the principal determines such consequences are warranted; they simply require the school to take steps to ensure that the offense occurred and was committed by the student being disciplined, and to hear the whole story including mitigating circumstances before imposing very serious and potentially life altering consequences. The law should be amended so that it is clear that students who are facing discipline under §§ 37H and 37H½ are entitled to all of the procedural protections received by students facing discipline under § 37H¾.
Limit The Authority Of Principals To Exclude Students For Out Of School Conduct
Third, the provisions of § 37H½ that allow exclusion of a student who has a pending felony charge or conviction upon the principal’s determination that the student’s continued presence would have a detrimental effect on the school’s general welfare sweeps too broadly. Although the layperson thinks of “felonies” as charges such as murder or manslaughter, § 37H½ has been used to exclude students charged with felonies reflecting normal adolescent behavior, such as riding in the backseat of a car that turned out to be stolen, fighting, or stealing an iPhone. The law gives principals the discretion to exclude a student based solely on the existence of a criminal charge. Principals are educators, not judges. They are not trained to make these determinations, and are often being asked to decide a student’s fate with limited information. In fact, the information a principal has is sometimes obtained in violation of student privacy protections as juvenile court proceedings are confidential.
Further, available data illuminate a serious problem with disparities in both race and disability status of the young people who face juvenile court charges. Massachusetts is one of the few states that allow this type of exclusion based solely on an allegation, despite the notion that one ought to be presumed innocent until proven guilty. Barring a complete removal of a principal’s ability to exclude based on a mere allegation, the statute should be amended to reflect the Department of Elementary and Secondary Education’s 1994 advisory, which said that § 37H½ should only be used for serious violent felonies. One approach could be to align § 37H½ with the Youthful Offender Statute.
The Youthful Offender statute, G.L. c. 119, § 54, allows prosecutors in circumstances where they feel a child has committed a serious offense to indict a child as a youthful offender, subjecting them to treatment as an adult. The statute applies to: youth who have previously been committed to DYS or are accused of causing or threatening serious bodily harm, or any charge involving a gun. If the statue focuses on the realistic threat to school safety, those who are alleged to have committed minor, non-violent crimes will be excluded at a lower rate. Furthermore, youthful offender cases are open to the public, which would allow everyone the opportunity to have the same information and wouldn’t incentivize the disclosure of confidential information currently protected by the juvenile court.
Limit The Definitions Of “Assault” And “Weapon” Under Section 37H.
Finally, § 37H should more clearly define the terms “assault” and “weapon.” Section 37H defines “weapon” in a way that explicitly includes guns and knives, but is otherwise vague. This has permitted principals to expand the definition of “weapon” to sometimes comical levels, such as a case in which a student was excluded under § 37H for possessing a paperclip. Similarly, “assault,” which also is not definite under § 37H, has sometimes been applied to include a “menacing” look from a student, unintentional contact with a teacher, or contact made with a teacher by a kindergartener during a tantrum.
Changing § 37H to clarify that all the elements of an “assault” must be present before expulsion, including specific intent and imminent harm, would lower exclusions. Currently, a broad spectrum of actions may be considered an “assault,” including unintentional acts or acts where there was no actual threat of harm. Further, the definition of “weapon” should be changed to match the federal definition of “dangerous weapon” under 18 U.S.C. § 930: A “device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.” A school could still short term suspend students under § 37H ¾ for any item banned in their student handbook, but this change would limit the amount of students permanently excluded. These simple changes will reduce exclusions and keep students in the educational environment they so desperately need.
Section 37H¾ has significantly improved school discipline practice in Massachusetts, but much remains to be done. Some schools are excluding upwards of 50 percent of their student body each year. Students of color are still suspended at much higher rates than their white counter parts. By adopting the changes suggested above, Massachusetts can continue to improve on the progress already made. Massachusetts has long been at the forefront of progressive approaches to student misconduct, recognizing students as individual children in need of compassion and support rather than bad apples that need to be pushed out. By amending our laws to reflect the above changes, Massachusetts can continue to play a role as a leader in the field.
Marlies Spanjaard, MSW, JD, is the Director of the EdLaw Project, a statewide education advocacy initiative housed within the Youth Advocacy Division of the Committee for Public Counsel Services. She is a recognized expert on education law and school-to-confinement pathways. A passionate and dedicated advocate for vulnerable youth in Massachusetts, her work focuses on increasing education advocacy among the juvenile and child welfare bars to ensure children are supported to succeed in school and stay out of the court system.
School Discipline Law, Ch. 222 of the Acts of 2012: Effective Application and Challenges with Ongoing ImplementationPosted: October 4, 2018
by Liza Hirsch and Janine Solomon
Brief History of School Discipline Reform in Massachusetts
In Massachusetts and nationwide, one of the most commonly used responses to students who exhibit misbehavior is to exclude them from school, effectively depriving them of education. While out-of-school suspension has been used in schools as a form of discipline since the 1960s, it was not until the 1990s, during the era of “tough on crime” and zero tolerance policies, that out-of-school suspension became a widespread approach for addressing minor misbehavior. In keeping with this trend, the Massachusetts legislature enacted the Education Reform Act of 1993 which provided principals with broad authority to exclude students from school. Researchers began to express concern that exclusion from school not only did not improve children’s behavior, it actually made it more likely that those students would misbehave and accrue additional suspensions. Moreover, research began to demonstrate that students of color and students with disabilities were more likely to be suspended from school. Over time it has become increasingly clear that children who are repeatedly excluded from school face devastating consequences: they are less likely to reach learning milestones and more likely to fall behind, repeat grades, drop out of school and not graduate, and/or have contact with the criminal justice system, pushed into a trajectory known as the “school-to-prison pipeline.”
In response, Massachusetts Advocates for Children (MAC) joined with other concerned advocates to form the Education Law Task Force (ELTF). After years of advocacy by ELTF, State Representative Alice Wolf, and other advocates, An Act Relative to Student Access to Educational Services and Exclusion from School (Chapter 222 of the Acts of 2012)  was enacted and took effect in 2014. The law created new due process and data reporting requirements for school districts regarding the exclusion of students from school for minor misbehavior. The underlying principle of the law is to make exclusion from school a last resort, especially for all but the most serious offenses. Districts are required to provide notice and a hearing prior to an out-of-school suspension, absent emergency circumstances. The law also requires all students who are excluded from school to have access to assignments, quizzes and tests, and for students who are long-term suspended or expelled to receive tutoring, online coursework or other alternative education services. The law and regulations additionally require the Massachusetts Department of Elementary and Secondary Education (DESE) to collect disaggregated school discipline data from school districts, post the data, analyze the data, and provide support to schools that exclude high numbers of students or disproportionately suspend students of color or students with disabilities.
Current Implementation and Challenges
Advocacy by the ELTF and others was essential not only to the passage of the law, but to its implementation. The ELTF provided substantial input into the implementing regulations, by submitting draft regulations, commenting on the proposed regulations, and testifying to the Board of Elementary and Secondary Education. Today, four years into the implementation of Chapter 222, the ELTF, through its Chapter 222 Coalition, has grown and continues to collaborate with DESE regarding the implementation of the law. Since the law took effect, DESE has posted school discipline data disaggregated by district and school for the 2014-15, 2015-16 and 2016-17 school years. The data show some improvement in lowering the rates of suspension, especially in the first year of the law’s implementation. Some schools and districts have made meaningful changes to lower the rates of suspension, while others have not demonstrated improvement. The data also show that while suspension rates have decreased for students of color and students with disabilities, both groups continue to be suspended at higher rates than their peers.
In adherence with the regulations, DESE has established a process for identifying schools and districts that demonstrate overreliance on suspension and/or disparate rates of suspension by race, ethnicity, or disability. These schools and districts participate in the Rethinking School Discipline Professional Learning Network (PLN), a forum in which educators and administrators can learn with and from each other, reflect on their own school discipline data, and draft action plans which aim to reduce reliance on exclusion as a form of discipline. The plans include approaches for promoting positive school climate and implementing positive behavioral supports and alternatives to suspension such as restorative justice. The ELTF has provided input into the action plan templates and offered feedback regarding the process through which schools and districts are selected for participation in the PLN.
In addition to efforts to implement Chapter 222, DESE is working to foster whole school culture change through implementing the statute titled, the Safe and Supportive Schools Framework, which offers guidance for districts to develop school cultures based on support rather than exclusion of students. As part of this law’s implementation, DESE has worked in collaboration with MAC’s Trauma and Learning Policy Initiative to provide PLN participants with professional development opportunities on how to create safe and supportive schools.
Although the initial years of implementation of Chapter 222 have yielded positive efforts by many schools and districts to reduce reliance on suspension and to address disparities by race, ethnicity, and disability, there continue to be implementation challenges. The integrity of data reporting by schools and districts is of utmost importance to ensure the fidelity of the law’s implementation, yet attorneys representing parents and students continue to observe the underreporting of suspensions by many school districts. One common practice by school districts involves calling parents to ask them to pick up their child due to misbehavior, without adhering to due process requirements or documenting the exclusion as a suspension. This unlawful practice, often utilized repeatedly by schools, is a burden to parents, even to the point of causing job loss.
A further challenge is the lack of resources at both the state and local levels to implement the law. DESE has limited capacity to identify and provide support to all of the schools and districts in need, and while many schools and districts recognize the need to reduce reliance on suspension, they lack the resources, training, and in-classroom modeling needed to effectively implement alternative practices. Even when schools attempt to implement alternatives for managing challenging student behavior, without a cohesive and coordinated approach, these initiatives are often not sustainable. Reducing school exclusion in a meaningful way requires the implementation of alternatives (e.g., restorative justice) and whole school culture change to create an environment that is inclusive, equitable, safe, and supportive of all students. Effective models incorporate the role of trauma in learning, address the individual needs of students with disabilities, and account for the influence of institutional racism and racial bias in disciplinary practices.
The ELTF/Chapter 222 Coalition looks forward to continued collaboration with DESE to: (1) ensure meaningful oversight and accountability for all schools and districts that are not in compliance with the law; and (2) ensure teachers and school leaders have the training and support to reduce suspensions through alternative practices and whole school culture change. By virtue of Chapter 222, in conjunction with the Safe and Supportive Schools Framework, Massachusetts is well positioned to be a national leader in reducing reliance on school exclusion and keeping our most vulnerable students in school and engaged in learning.
 Kirsten L. Allman, and John R. Slate. “School Discipline in Public Education: A Brief Review of Current Practices.” International Journal of Educational Leadership Preparation 6.2 (2011): n2 (citing, Hochman, S. R., & Worner, W. (1987). In-school suspension and group counseling: Helping at-risk students. NASSP Bulletin, 71, 93-97; Sauter, B. (2001). Rethinking the effectiveness of suspensions. Reclaiming Children and Youth, 9, 210-217; Ambrose, M., & Gibson, M. (1995). Does suspension work? NEA Today, 13, 39; & Costenbader, V. K., & Markson, S. (1998). School suspension: A survey of current policy and practices. NASSP Bulletin, 78, 103).
 Townsend, Brenda L. “The disproportionate discipline of African American learners: Reducing school suspensions and expulsions.” Exceptional children 66.3 (2000): 381-391; Krezmien, Michael P., Peter E. Leone, and Georgianna M. Achilles. “Suspension, race, and disability: Analysis of statewide practices and reporting.” Journal of Emotional and Behavioral Disorders 14.4 (2006): 217-226.
 The ELTF is a statewide group of attorneys, advocates, young people, and organizers, convened by MAC, working to address educational issues facing low-income children in Massachusetts. The ELTF pays particular attention to school discipline, and successfully advocated for the passage of Chapter 222.
 Mass. Gen. Laws ch. 71, §§ 37H, H ½ and H ¾ (2014).
 For a more comprehensive summary of the history of the passage of Chapter 222, see, Tom Mela, “How We Won School Discipline Reform in Massachusetts,” Schott Foundation for Public Education, available at http://schottfoundation.org/blog/2014/07/23/how-we-won-school-discipline-reform-massachusetts.
 Prior to the enactment of this law, children expelled from school were not legally entitled to receive an education from a public school in the Commonwealth.
 Moreover, in April 2018, the Massachusetts Legislature enacted the statute, “An Act Relative to Criminal Justice Reform” which includes several provisions applicable to schools, including the requirement that school-based arrests, criminal citations, and court referrals be reported to DESE for publication in a “like manner” as school discipline (e.g. disaggregated by race, disability, and gender).
 Mela, supra.
 Mass. Gen. Laws ch. 69, § 1P (2014).
Liza Hirsch is a staff attorney with Massachusetts Advocates for Children where she represents families in school discipline and special education matters.
Janine Solomon is Managing Attorney/Senior Project Director of Massachusetts Advocates for Children. She is a co-chair of the Education Law Task Force.
by Phil Catanzano
For several years, higher education institutions, both in Massachusetts and nationally, have faced student populations with increased mental and emotional health needs. In response, many of these institutions have provided additional resources to their clinical and counseling services centers and encouraged novel approaches to assist students who may be in crisis, such as threat assessment teams and coordinated care across different health care providers on and off campus. While clinical and legal approaches to these issues vary between institutions, the worst imaginable scenario for a campus community arises when these mental and emotional health issues result in suicide.
Until recently, Massachusetts post-secondary institutions had relied primarily upon the legal principles set forth in Mullins v. Pine Manor College, a seminal legal opinion from the Massachusetts Supreme Judicial Court (“SJC”) that laid the groundwork for the duties institutions owe their students given the unique aspects of an often all-encompassing campus life. While Mullins arose in a context other than student suicide, lower courts frequently applied it in a range of cases focused on liability and institutional responsibility in other contexts. In May, the SJC placed itself squarely back in the discussion with its decision in Nguyen v. MIT, 479 Mass. 436, 96 N.E.3d 128 (2018), holding that a university may be liable in certain circumstances when a student commits suicide. The Nguyen case also spoke directly to the duty of non-clinicians, who often play critical roles in helping at-risk students navigate the higher education environment.
I. The University-Student Relationship
Absent a clear duty of care, the general rule is that there is no duty upon individuals to take affirmative steps to protect others. When colleges and universities are involved, however, there are certain circumstances where a “special relationship” has evolved with students that requires institutions to exercise reasonable care to keep students safe from foreseeable conduct that occurs while they are engaged in activities that are part of the institution’s curriculum or related to its delivery of educational services or benefits.
Massachusetts was critical in this jurisprudential evolution to a special relationship for higher education institutions, primarily through the SJC’s holding in Mullins v. Pine Manor College. In Mullins, a student was abducted from her dorm in the middle of the night by an individual trespassing on the campus. She was then sexually assaulted on another part of campus over an extended period of time. Following a review of the then-current state of the law, the SJC held that there existed a duty upon the institution to ensure student safety to a reasonable degree and that the institution had not satisfied that duty. The court reasoned that “[t]he threat of criminal acts of third parties to resident students is self-evident, and the college is the party which is in the position to take those steps which are necessary to ensure the safety of its students.” The SJC concluded that “[c]olleges must…act to use reasonable care to prevent injury to their students by third persons whether their acts were accidental, negligent, or intentional.” Importantly, Mullins only addressed harm by others and physical security measures.
While the doctrinal impact of Mullins was seismic on campus, it remained unclear how far the duty extended when institutions are confronted with different forms of dangerous behavior. Massachusetts courts subsequently struggled to define the extent to which colleges and universities were obligated to protect students from harm. Given the individualized contexts in which these questions commonly arise – e.g., violence on campus, student mental health issues, drug overdoses, or suicide – it has been difficult for courts to apply a consistent analytical framework to assess liability. Against this backdrop, the SJC granted review in Nguyen and considered the question of whether, and under what circumstances, a university could be liable when a student commits suicide.
II. Nguyen v. Massachusetts Institute of Technology
Han Duy Nguyen (“Nguyen”) was a twenty-five year old graduate student at MIT when he committed suicide on June 2, 2009. Nguyen, 96 N.E.3d at 131-32. Nguyen had a history of mental health problems and two prior suicide attempts (in 2002 and 2005) when he was an undergraduate student at a different university. Id. at 146. He consulted with at least nine private mental health professionals, totaling more than ninety in-person visits from July 2006 through May 2009. Id. at 134. None of these professionals, including one who saw Nguyen forty-three times between 2006 and 2008, believed that he was at imminent risk of committing suicide. Id. Nguyen’s last appointment with a professional care giver was just five days before he would tragically take his own life. Id. at 135.
Nguyen’s father sued MIT in 2011, alleging that MIT’s negligence caused Nguyen’s death. After reviewing cross-motions for summary judgment, the Superior Court held that MIT was not liable for Nguyen’s negligence claim. Nguyen appealed, and the SJC heard the case on direct appellate review in 2017.
In its closely watched opinion, the SJC concluded that there are circumstances where a university has a duty of care to take reasonable measures to prevent a student’s suicide. Id. at 142-143. The court first recognized that there is no general duty of care to prevent another from committing suicide. Id. at 139, 144. The court then examined whether the special relationship between a university and its students imposes additional duties regarding suicide prevention. In particular, the SJC discussed several factors that have traditionally been used to “delineate duties in tort law” to determine “whether a duty to prevent suicide falls within the scope of the complex relationship that universities have with their students[.]” Id. at 142. These factors include:
- Whether the institution could reasonably foresee being expected to take affirmative action to protect the student;
- Whether there was “reasonable reliance by the [student on the institution], impeding other persons who might seek to render aid;”
- The “degree of certainty of harm” to the student;
- The “burden upon the [institution] to take reasonable steps to prevent the injury;”
- Whether there is mutual dependence between the student and the institution “involving financial benefit to the [institution] arising from the relationship;”
- Whether there would be “moral blameworthiness” for the institution’s failure to act; and
- The “social policy considerations involved in placing the economic burden of the loss on the [institution].”
Id. (internal citations omitted).
The SJC then applied these factors to the university-student relationship in the context of student suicide. The court reasoned that, in cases where the university has actual knowledge of prior suicide attempts or present suicidal ideations, many of these factors weigh in favor of creating a duty of care between the university and the student. In such cases, the student’s suicide “is sufficiently foreseeable as the law has defined the term, even for university non-clinicians without medical training.” Id. at 144. Moreover, students, particularly those living in dormitories, rely on universities for assistance and protection, and universities are “in the best, if not the only, position to assist.” Id. The gravity of the resulting harm – the death of a student – must also be considered along with the probability of the harm. Id. And while the burden that such a duty would impose on universities may be substantial, “so is the financial benefit received from student tuition.” Id. Finally, the SJC indicated that a university would be morally blameworthy for “failing to act to intervene to save a young person’s life when it was within the university’s knowledge and power to do so.” Id. For these reasons, the SJC concluded, universities have a legal duty to take reasonable measures to prevent student suicide in certain circumstances.
The SJC next attempted to define the scope of that duty. According to the SJC, a university “has a duty to take reasonable measures under the circumstances to protect the student from self-harm.” Id. at 143. “Reasonable measures” the court explained, “will include initiating its suicide prevention protocol.” Id. at 145. Alternatively, if no such protocol exists, reasonable measures include “arranging for clinical care by trained medical professionals or, if such care is refused, alerting the student’s emergency contact.” Id. In emergency situations, reasonable measures may also include contacting police, fire, or emergency medical personnel. Importantly, and as discussed below, the SJC extended this duty to non-clinicians, but then limited that duty.
In sum, the standard that the SJC created in Nguyen involves two distinct inquiries: (1) whether the duty of care is triggered by actual knowledge of prior attempts or present suicidal ideation; and (2) where a duty is triggered, whether the university satisfied its duty by taking reasonable measures to prevent the student’s suicide. The SJC concluded that MIT owed no such duty in the case at hand because “Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation.” Id. at 146. Moreover, Nguyen was “a twenty-five year old adult graduate student living off campus, not a young student living in a campus dormitory under daily observation.” Id. Even if the duty was triggered, the SJC added, MIT and the individual defendants did not breach this duty because Nguyen repeatedly rejected the services offered by the institution. See id. at 146-47.
III. Implications of Nguyen v. MIT
Above all, the holding in Nguyen generally incentivizes proactive suicide prevention and intervention measures by increasing the risk of liability for institutions that fail to react appropriately to clear warning signs. To minimize liability and protect students, institutions are well advised to develop robust suicide protocols in conjunction with health care professionals and legal counsel. In fact, the Nguyen decision suggests that one factor the courts will look to in assessing whether a duty of care was satisfied is whether the institution has a behavioral response protocol, e.g., threat assessment teams or similar, and whether it was triggered by the underlying facts. The SJC also seemed to indicate that courts will defer to reasonable suicide prevention protocols adopted and implemented by institutions.
Another important implication of Nguyen is the SJC’s expansion to non-clinicians of the duty to prevent suicide, but also the SJC’s corresponding limitation on the reasonable expectations for such non-clinicians in these difficult scenarios. As the SJC made clear, suicide is often unforeseeable and unpredictable. Nguyen’s history itself demonstrates this point: even with numerous visits right up until a week before his death, none of the medical professionals who treated Nguyen could foresee his suicide. While most institutions have some groups of trained clinicians on campus to assist with student suicide, the majority of individuals on campus who develop close relationships with students and may learn of troubling information are not clinicians, e.g., faculty, administrators, graduate and undergraduate student-employees. The Nguyen decision is a clear reminder that all individuals who work with students should be trained to some extent regarding risk factors and appropriate responses to indications of serious mental health concerns that may lead to suicide, but it also indicated that such non-clinicians could often satisfy this duty by referring the concern to a trained clinician who could work with the student as part of a protocol or a unified care team. Again, colleges and universities will be best served to develop clear policies and roles, keeping in mind the different ways that people on campus interact with students and the different resources available in difficult situations. Institutions should assess their current staffing and ensure that their clinical resources are appropriate for their population, while also ensuring that their non-clinical staff are trained as well as possible with regard to potential indicators of challenging behaviors, when to report concerns, and to whom such concerns should be reported.
Finally, despite its careful and thorough approach, the Nguyen decision leaves open several important questions. For example, Nguyen indicated that the duty of care is triggered “[w]here a university has actual knowledge of a student’s suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student’s stated plans or intentions to commit suicide[.]” Id. at 142-143 (emphasis added). Through this lens, what suffices as a suicide attempt? Is it limited to failed efforts at suicide, or does it encompass past instances of ideation or planning or even behaviors like self-harm that, while serious, may not always evolve to a risk of suicide? Further, what constitutes “recently before matriculation,” given that the SJC concluded that one year was too long in Nguyen? Do the plans have to be stated to an institutional official, or must the university act upon hearsay and other third-party reporting? If the latter, will this create additional reporting responsibilities, similar to what is in place when a report of a sexual assault is received by an institution? And what obligation do undergraduate or sending schools have when a student presents with concerning behavior on their campus but then matriculates to another school, either as the result of a transfer or a subsequent degree opportunity?
In conclusion, the SJC is again leading a national discussion with regard to the scope of institutional liability for student safety on campus. Given Massachusetts’s status as a major center of higher education, other jurisdictions will likely be confronted with similar issues in the near future. While these issues will be debated, the SJC has provided an early salvo by creating a framework in Nguyen. It will not be the final word regarding institutional liability for suicide in higher education.
 See generally, American College Health Assoc., National College Health Assessment II (Spring 2017) (in an extensive assessment surveying over 63,000 college students, it was found that, in the past 12 months, 51% of surveyed students felt that “things were hopeless,” 61% of surveyed students felt “overwhelming anxiety,” and 10% of surveyed students had “seriously considered suicide”).
 While the notion of in loco parentis is commonly used in the primary and secondary education systems, that relationship has evolved in the post-secondary system. See generally, Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40(a) (2012) (“Duty Based on a Special Relationship with Another”); Dall, J., “Determining Duty in Collegiate Tort Litigation: Shifting Paradigms of the College-Student Relationship,” 29 Journal of College and University Law 485 (2003)
 See Mullins, 389 Mass. at 49-50.
 Id. at 51.
 Id. at 54 (internal citations omitted).
 See, e.g., Bash v. Clark University, No. 06745A, 2006 WL 4114297, 22 Mass. L. Rptr. 84 (Mass. Super. Ct. Nov. 20, 2006) (granting the University summary judgment while concluding that it did not have a duty to prevent a student from overdosing on illicit drugs in a university controlled dorm room); Shin v. MIT, No. 020403, 2005 WL 1869101, 19 Mass. L. Rptr. 570 (Mass. Super. Ct. June 27, 2005) (denying MIT summary judgment on grounds that several MIT officials had sufficient information about a student who committed suicide such that special relationship existed between the university and student).
 The doctor who met with Nguyen during his final meeting noted that Nguyen “did not say anything that sounded imminently suicidal or hopeless,” discussing instead career options and a subsequent appointment. Nguyen, 96 N.E.3d at 135.
 The court’s conclusion that there was no breach even if a duty existed appears inconsistent with its earlier holding that if a student refuses care and treatment, reasonable care requires the university to notify the student’s emergency contact. See id. at 145.
 See id. at 143, quoting Pavela, Questions and Answers on College Student Suicide: A Law and Policy Perspective 8–9 (2006) (“The main obstacle to better suicide prevention on campus is underreaction…) (emphasis in original).
 See also Lannon et. al., “Students Who Pose a Risk of Self Harm: Individualized Assessments, Leave, and Conditions for Return,” National Association of College and University Attorneys, Annual Conference materials (June 24-27, 2018) (discussing best practices in the context of recent policy statements and decisions issued by the U.S. Department of Education’s Office for Civil Rights).
 Compare Nguyen, 96 N.E.3d at 144 (“[n]onclinicians are also not expected to discern suicidal tendencies where the student has not stated his or her plans or intentions to commit suicide”); id. at 146 (“[the limited duty] recognizes that nonclinicians cannot be expected to probe or discern suicidal intentions that are not expressly evident”), with id. at 145 n. 20 (“[f]or university-employed medical professionals, the duty and standards of care are those established by the profession itself”).
 See id. at 147 n. 21 (discussing the difficulty, even among trained professionals, in assessing the imminence of the risk of suicide).
 California is already revisiting college and university liability. In Regents of University of California v. Superior Court, the California Supreme Court concluded that universities have the duty to “take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety … while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.” 413 P.3d 656, 673-74 (Cal. 2018). The plaintiff in Regents was a student that was stabbed several times during class by a student whom the University knew to be potentially dangerous. Id. at 662. The court emphasized that the duty is “limited” because “it extends to activities that are tied to the school’s curriculum but not to student behavior over which the university has no significant degree of control.” Id. at 669 (emphasis added).
Phil Catanzano is Senior Counsel at Holland & Knight, LLP, where he counsels colleges and universities on a range of legal and policy issues. He would like to thank Paul Lannon for his guidance, expertise, and invaluable feedback in drafting this article.