by John R. Baraniak, Jr.
“What were you thinking?” As adolescents, we heard this from our parents. As parents, we ask our teenagers the same thing. Whether a young person’s poor choices are rooted in the brain’s incomplete development, as some scientists believe, or are the product of peer pressure, the reality is that teenagers sometimes make bad decisions. Most of us can recall making a bad decision or two ourselves when we were young.
The difference between then and now, however, is that today the repercussions can be much more serious. In the wake of Columbine, Newtown, and similar school-related tragedies, superintendents and principals understandably are concerned about school safety and sometimes jettison students whose misbehavior in the past would have been punished much less severely. Lest they be second-guessed for not acting forcefully enough, school officials are now more likely to exclude students from school, either suspending them for long periods or expelling them. In turn, the excluded students either fall impossibly behind in their studies or are unable to obtain any education whatsoever. Their lives are permanently altered. A high school diploma and college are now beyond their reach, and prison is a distinct possibility.
The numbers are staggering. During the 2009-2010 school year in Massachusetts public schools, 34,291 students were excluded from school for at least one day, 5,200 of them for 10 days or longer, and 219 of them expelled, including many permanently denied access to a public education. According to this data, from Keep Kids in Class: New Approaches to School Discipline, 2012, Massachusetts Appleseed Center for Law and Justice, these excluded children were disproportionately male, poor, Black and Hispanic, and special education students. The impact of exclusion can be devastating. An excluded child is more likely to eventually drop out of school and “placed at greater risk for delinquent behavior and subsequent incarceration when placed unsupervised on the streets of the community for days or weeks at a time.”
In response to this growing crisis, the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, led by Professor Charles Ogletree; the Center for Law and Education; and Choate Hall & Stewart, LLP, formed a unique collaboration four years ago in an attempt to break this “school to prison pipeline.” Since the collaboration began, Choate attorneys – litigators and non-litigators – have represented, pro bono, dozens of students facing exclusion in an attempt to return them to school and in many cases, to ensure that they receive the special education services to which they are entitled under the law. Many of these cases involve students with emotional or behavioral disabilities who are grossly under-serviced and then excluded for conduct that flows directly from their disabilities.
The cases can be emotionally challenging. The clients, young kids, are particularly vulnerable, and their parents are often without the financial means or experience to effectively advocate for their children. These parents often are unable to miss work to meet with school officials, face language barriers, and struggle under the weight of their child’s complex diagnosis. It’s easy to relate to their desire to want the best for their children. Will the child receive the services to which he is entitled? Will he be punished for his disability? Will he be permitted to finish high school? Go to college? Be able to support himself and live independently? The stakes could not be any higher.
One particularly memorable student was LB, an eighth grade honors student with an unblemished record who was excluded from school for an entire year because he took a pocket knife away from another student who was using it to threaten one of LB’s friends. LB’s offense? He didn’t immediately turn the knife over to school officials, but instead planned to do so at the end of his lunch period. The school cited its “zero tolerance” weapons policy as grounds for the exclusion of this model student. It made no difference that LB didn’t bring the knife to school and didn’t threaten anyone with it. In implementing a “zero-tolerance’’ weapons policy, it was enough for school officials that LB had “possessed’’ the weapon, even if only for a short time.
When I first met LB and his family, I was struck by how desperate he was to return to school. His entire family showed up at my office. His parents were from South America and spoke only limited English. Both worked long hours to support their family. LB’s older sister was in the honors program at UMass Amherst and had taken the semester off to tutor LB to make sure he did not fall behind while excluded from school. The family was committed to sending their children to college so that they could have a better life, and now this incident threatened to destroy LB’s future.
LB fought the suspension in federal court, and won. We chose federal, rather than state, court because federal law was more fully developed in school discipline cases. Federal District Court Judge Dennis Saylor, in granting LB’s motion for a preliminary injunction, ruled that the one-year suspension was so grossly disproportionate to any wrongdoing LB committed that it was not rationally related to any legitimate state purpose and therefore offended the U.S. Constitution’s guarantee of substantive due process. LB was reinstated in school, and his record was expunged. This was one of the first decisions in the country invalidating a zero-tolerance policy on constitutional grounds. The school district agreed to drop its inflexible zero tolerance policy and to give principals the discretion to decide future cases on their individual facts. Apart from these impacts, however, the decision was hugely important to LB and his family. He returned to school, his spotless record intact, and continued in the honors program. Their relief was palpable.
One of my partners had a similar experience, representing a 13-year-old Puerto Rican youth who had been out of public school for over five months. This client was a capable student with serious ADHD and emotional needs manifested through attention seeking behavior, panic attacks, and anxiety. Remarkably, the school did not carry over his Individualized Education Plan (IEP) from elementary to middle school and failed to provide special education programming and services to help him address his disruptive ADHD behavior for which he was routinely reprimanded. As a result, he dreaded going to school and missed a substantial number of days. He was constructively expelled from school, and he spiraled into severe depression. Choate appealed to the Bureau of Special Education Appeals the school’s failure to provide this student with the services to which he was entitled. We were able to obtain a very favorable settlement, placing the student in an alternative, therapeutic school and on an IEP that provided the special services he needs. The student thrived at his new school, and his demeanor entirely changed. Formerly a withdrawn, sullen boy reluctant to leave his house, he has transformed into an engaging teenager who is happy to go to school and participate in activities.
In another example, Choate represented a high school senior in an appeal to the superintendent of schools of his expulsion. The student had been accused of inadvertently bringing an unloaded pellet gun to school. According to the school’s allegations, the student was returning the pellet gun to a friend and had placed it in his coat pocket and forgotten about it when wearing the coat to school. At school, the pellet gun allegedly fell out of the student’s coat pocket and was discovered by a teacher. The student was expelled. At the appeal hearing, the firm successfully argued that the facts alleged, even if true, did not warrant the severe sanction of expulsion and pointed out various laws and policies school officials arguably had violated in handling the matter, including publicizing the student’s name. My colleagues were able to convince the superintendent to vacate the expulsion and permit the student to graduate with his class and to participate in the graduation ceremony. The student’s future college plans, temporarily derailed, are back on track.
In these cases, the children’s future prospects were vastly improved by zealous advocacy on their behalf. I’ve witnessed first-hand the difference merely having legal representation makes for these students – formerly dismissive and seemingly autocratic school officials, faced with the prospect of procedural and substantive due process and statutory challenges to their exclusion decisions, become much more amenable to finding a way to get the student back into school and back on course.
Principals and superintendents have a tough job safeguarding our children and our schools. But they also have an obligation to help all students, not just the well-behaved ones. Often it is the problem student who needs the school’s help the most. Teenagers will continue to make bad decisions. The response, however, cannot be simply to exclude them from school, sacrificing educational opportunity and young lives in the name of school safety. The student, his or her family, and society as a whole will be better off if everyone works together to ensure that students are excluded only as a last resort out of a genuine safety concern and not out of blind adherence to rigid school policy.
John Baraniak is a partner in the Securities Litigation, Major Commercial Litigation and Government Enforcement & Compliance Practice Groups at Choate, Hall & Stewart LLP in Boston and co-leader of the firm’s Pro Bono Program.