JANE DOE [Note 1] vs. WORCESTER PUBLIC SCHOOLS & others. [Note 2]

BUDD, J. The plaintiff, Jane Doe, a student at a public high school in Worcester, was suspended for 152 school days after an assistant principal found a small amount of marijuana and two makeshift pipes in the plaintiff's locker. When the plaintiff appealed from her suspension to the superintendent, the district's school safety director, acting as the superintendent's designee, shortened the suspension to 112 school days. The plaintiff thereafter filed a complaint challenging the delegation of the superintendent's statutory authority to hear and decide the plaintiff's appeal. The plaintiff also moved for a preliminary injunction seeking immediate reinstatement to school, which was granted.

The defendants seek a reversal of that decision, arguing that the motion judge erred in concluding that the plaintiff is likely to succeed on the merits of her claim because the relevant statute, G. L. c. 71, § 37H (d), permits the superintendent to delegate responsibility for hearing and deciding suspension appeals. We disagree, and therefore affirm the judge's order. [Note 3]

Background and prior proceedings. We summarize the facts as alleged in the motion for a preliminary injunction and attached affidavit. See Doe v. Superintendent of Sch. of Weston, 461 Mass. 159, 160 (2011) (Weston). The facts of the underlying offense are not contested. In late September of 2018, an assistant principal received reports that the area near the plaintiff's locker smelled strongly of marijuana. The assistant principal accompanied the plaintiff to her locker, at which time the plaintiff admitted that she was storing items she was not allowed to have in school. Searching the locker, the assistant principal found and confiscated a small amount of marijuana in a plastic container and two pipes made from plastic water bottles. After holding an initial hearing, the school's principal determined that the plaintiff had committed a disciplinary offense and suspended her for the remainder of the school year -- 152 school days -- pursuant to the school's

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

The plaintiff exercised her right to appeal from what amounted to an expulsion [Note 5] to the district's superintendent under G. L. c. 71, § 37H (d). The school safety director for the district, acting as the superintendent's designee, held the appeal hearing and reduced the expulsion from 152 to 112 school days, which allowed for the plaintiff's return to school at the end of the third marking period of the school year.

Shortly after the appeal was decided, the plaintiff began attending the only alternative public school available to her. Prior to her expulsion, the plaintiff was an honors student with no high school disciplinary record. She had been enrolled in a merit-based program at her school with additional weekly classes providing vocational training in nursing, her intended field. Although the plaintiff was able to earn credits at the alternative school to remain on track to advance to the next grade, the plaintiff's mother averred in an affidavit submitted to the court that the level of instruction was below her grade and ability level.

In December 2018, the plaintiff commenced a civil action in the Superior Court against the Worcester public schools and others, [Note 6] alleging among other things that by delegating the appeal hearing and decision to the school safety director, the defendants failed to comply with the procedure for appealing from the expulsion set forth in G. L. c. 71, § 37H (d). The plaintiff also filed an emergency motion for a preliminary injunction seeking immediate reinstatement to her high school. The judge granted the motion after a hearing, and the defendants appealed from the judge's order reinstating the plaintiff. We transferred the appeal to this court on our own motion. [Note 7]

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Discussion. "A party seeking a preliminary injunction must show that success is likely on the merits; irreparable harm will result from denial of the injunction; and the risk of irreparable harm to the moving party outweighs any similar risk of harm to the opposing party." Weston, 461 Mass. at 164, citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-617 (1980) (Cheney). In cases in which a public entity is a party, a judge may also weigh the risk of harm to the public interest in considering whether to grant a preliminary injunction. Harris v. Commissioner of Correction, 409 Mass. 472, 474 (1991), citing Brookline v. Goldstein, 388 Mass. 443, 447 (1983). In allowing the preliminary injunction, the judge adopted the plaintiff's reading of G. L. c. 71, § 37H (d), and concluded that the plaintiff was likely to succeed on the merits of her claim. He further concluded that the plaintiff would suffer irreparable harm if not allowed to return to her high school, and that such harm outweighed any risk of harm to the defendants. [Note 8]

"We review the grant or denial of a preliminary injunction to determine whether the [motion] judge abused his [or her] discretion, that is, whether the judge applied proper legal standards and whether there was reasonable support for his [or her] evaluation of factual questions." Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741 (2008), citing Cheney, 380 Mass. at 615. As the question of the plaintiff's likelihood of success turns on the judge's interpretation of G. L. c. 71, § 37H (d), we review that portion of the judge's decision on a de novo basis. See Chin v. Merriot, 470 Mass. 527, 531 (2015). See also Garcia v. Department of Hous. & Community Dev., 480 Mass. 736, 747 (2018), quoting Fordyce v. Hanover, 457 Mass. 248, 256 (2010) (in review of preliminary injunction, judge's conclusions of law "are subject to broad review and will be reversed if incorrect").

1. Interpretation of G. L. c. 71, § 37H (d). "Our primary goal in interpreting a statute is to effectuate the intent of the Legislature" (citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786, 795 (2018). Ordinarily, "[c]lear and unambiguous language

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is conclusive as to legislative intent." Commonwealth v. LeBlanc, 475 Mass. 820, 821 (2016). General Laws c. 71, § 37H (d), provides in pertinent part:

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

The text of § 37H is clear: expelled students have a right to appeal to, and have a hearing before, the superintendent. Nowhere in § 37H does the Legislature indicate that the superintendent may designate another to hear expulsion appeals.

The suspension of the plaintiff constituted an "expulsion" for purposes of G. L. c. 71, § 37H. Although § 37H does not define "expulsion," the Department of Elementary and Secondary Education (department) has promulgated a regulation defining "expulsion" as "the removal of a student from the school premises, regular classroom activities, and school activities for more than [ninety] school days, indefinitely, or permanently, as permitted under [G. L. c. 71, § 37H or 37H 1/2]." 603 Code Mass. Regs. § 53.02 (2015). Because the principal initially imposed a suspension of 152 school days, the plaintiff was entitled under § 37H to appeal from her expulsion directly to the superintendent, not a designee of the superintendent.

In contrast, a neighboring provision, G. L. c. 71, § 37H 3/4, which allows for suspensions of up to ninety days for less serious offenses, provides for an appeal before the "superintendent or a designee" (emphasis added). G. L. c. 71, § 37H 3/4 (a), (e), (f). It is a well-established rule of statutory construction that "where the [L]egislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded." Commonwealth v. Gagnon, 439 Mass. 826, 833 (2003), quoting 2A N.J. Singer, Sutherland Statutory Construction § 46.06, at 194 (6th ed. rev. 2000).

Here the distinction makes sense. The statutory framework provides for appeals directly to the superintendent as a matter of right for indefinite or permanent expulsions as a result of certain serious offenses, including the possession of dangerous weapons or controlled substances on school premises, § 37H (a); assaulting

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school staff, § 37H (b); and felony charges or convictions, § 37H 1/2. However, for less serious offenses, and consequences, students are not guaranteed a hearing before the superintendent him- or herself. G. L. c. 71, § 37H 3/4 (e). It is logical and consonant with due process to afford students greater procedural protections, as evidenced here by providing for an appeal directly to the head of the school district rather than a designee, for the most serious disciplinary sanctions. See Goss v. Lopez, 419 U.S. 565, 584 (1975) ("Longer suspensions or expulsions . . . may require more formal procedures").

The defendants contend that we should defer to the department, the agency charged with assisting school districts in developing and implementing public education programs. The department has interpreted § 37H (d) to allow the superintendent of a school district to delegate the appeal function, including a long-term suspension or expulsion hearing, to another properly designated school district official. [Note 9]

Although we defer to an agency's interpretation "where the statute is ambiguous and the interpretation is reasonable," Commonwealth v. Wimer, 480 Mass. 1, 5 (2018), that is not the circumstance here. As discussed supra, § 37H (d) is not ambiguous. Further, the department's interpretation would require the addition of the phrase "or a designee" to § 37H (d). See Commonwealth v. Hamilton, 459 Mass. 422, 435-436 (2011) ("as a matter of statutory construction, we cannot supply words the Legislature chose not to include"); Commonwealth v. McLeod, 437 Mass. 286, 294 (2002) (same).

The defendants additionally assert that requiring superintendents personally to handle appeals under § 37H would be impractical. It is true that "we will not adopt a literal construction of a statute if the consequences of doing so are absurd or unreasonable, such that it could not be what the Legislature intended" (quotation and citation omitted). Ciani v. MacGrath, 481 Mass. 174, 178 (2019). However, the defendants have not provided any

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evidence to support their contention that the plain meaning of the statutory text would create absurd or unreasonable consequences. [Note 10]

2. Risks of harm. Noting that the plaintiff's separation from the school already had spanned several months, the motion judge concluded that unless the preliminary injunction was granted, the plaintiff, an honors student who previously had been enrolled in a merit-based program and had no disciplinary record, would suffer irreparable harm. The plaintiff's motion included an affidavit from the plaintiff's mother, who averred to all of the facts underlying this conclusion, as well as the fact that the only alternative school available to the plaintiff was well below her instructional level. [Note 11] Based on the record before him, the judge had sufficient evidence for his conclusion. Cf. Goss, 419 U.S. at 576, quoting Brown v. Board of Educ., 347 U.S. 483, 493 (1954) ("'education is perhaps the most important function of state and local governments,' . . . and the total exclusion from the educational process for more than a trivial period . . . is a serious event in the life of the suspended child").

Finally, the judge concluded that the risk of irreparable harm to the plaintiff outweighed any risk of harm to the defendants, who asserted in their opposition to the preliminary injunction that the school and its students would be harmed if the plaintiff were allowed to return because she likely was to reoffend. [Note 12] There was no abuse of discretion.

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Conclusion. A judgment is to be entered affirming the grant of the preliminary injunction and remanding the case to the Superior Court for further proceedings.

So ordered.