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IF YOU THINK DEALING WITH THE PROSECUTION IS TOUGH; TRY DEALING WITH THE SCHOOL.

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As lawyers we have clients who have cases.  Most often we go to the courts with our clients’ cases and there we encounter a judge who can (hopefully) serve as the arbiter of reasonableness when confronted with ridiculous arguments put forth by the parties.  The process of litigation allows lawyers the opportunity to vanquish the obnoxious positions of our opponents using the judge or the jury.  We also begin with a clearly noticed set of rules which have come about (mostly) through the democratic process.

On the other hand, outside of a litigation setting, non-judicial process can be far more intimidating.  Without the presence of a (mostly) independent judge, schools are unfortunately mostly free to accept whatever absurd position is pushed by their own administrators.  The school’s rules are not as clearly drawn, and certainly did not come about through the democratic process.

This divergence presents itself frequently in the college town of Tallahassee.  Winning in court does notnecessarily mean winning with the client’s university.  Government sanctions can be avoided because of the presence of an independent judge and/or the availability of a jury trial.  However, school sanctions sometimes cannot be avoided where those protections are unavailable.

From Temecula, California we get a story of a teen who was reportedly duped into buying drugs for an undercover officer at his high school. http://reason.com/archives/2013/10/09/riverside-cop-tricks-autistic-teen-into  Pretty simple case, right?  That is until you read that (reportedly) the student was autistic, noticeably handicapped and suffering from bipolar disorder.  On top of these deficiencies, the young man was new to the school as his family had moved to the area from elsewhere.  Undercover police officers in the teen’s high school saw no problem targeting this young man in their sting.  He was arrested and charged with a crime after twice providing small quantities of cannabis to an undercover officer.  Other students arrested in the sting were likewise special needs students.  In addition to being arrested and charged, the student was expelled from his school.

In the court system, the young man was found not guilty.  On the other hand his school saw nothing wrong with his expulsion.  The young man missed his scheduled high school graduation.  His private attorney pursued the school district and had a judge eventually re-admit him to the school.[1]  However the district is appealing that order in claiming that its expulsion was appropriate.  The school district reportedly has a “zero tolerance policy” when it comes to drugs on campus.

School administrators have a deep affinity for the “zero tolerance policy” and they do not appear to be afraid to enforce those policies in the face of highly questionable factual scenarios.  ESPN.com ran a front page story last night about a high school senior who was suspended from her volleyball team and stripped of her captaincy for driving her drunk friend home from a party.

http://espn.go.com/boston/story/_/id/9826842/high-school-athlete-massachusetts-suspended-driving-drunk-friend

Even though the young woman committed no crime and was sober according to the police on the scene, she was punished by the school.

How can this happen?  Who is there to straighten-out the “zero tolerance” hacks at the local public schools?  When can the nice judge in the black robe to step in and impose reasonableness restrictions on the illogical arguments coming from the decision makers?

Without the requirements of a jury trial and a neutral judge; proceedings at the schools are only required to provide charged students with adequate notice and a reasonable opportunity to be heard.  The standard of proof in disciplining a student is not beyond a reasonable doubt but instead the preponderance of the evidence.

In those rare instances where the school’s decision is challenged in a court of law; the student is frequently limited to a demanding standard of review while pursuing an extraordinary writ.  The school inevitably claims that deference is owed to its’ decision making process because of its inherent “familiarity and expertise with the subject matter”.  Keep this expertise in mind the next time you read about a kid getting suspended/expelled for eating his pop tart into the shape of a gun.  Or the next time you hear the story of a 7-year-old getting suspended for pointing his pencil at another student.

http://www.foxbaltimore.com/template/cgi-bin/archived.pl?type=basic&file=/news/features/featured/stories/archive/2013/03/nLWYfkkW.xml#at_pco=cfd-1.0

http://www.fox43tv.com/news/local/suffolk/boy-who-held-pencil-like-gun-suspended

The underlying issue is that people in power routinely exercise horrible judgments.  These horrible judgments carry real, negative impact on others.  We spend a lot of time complaining about these issues in the criminal context where we’re guaranteed a judge and a jury.  In the non-criminal context, the absence of a judge and jury helps to allow for the horrible judgments to remain unchecked.

[1] The story notes that this is where the young man’s parents ability to hire a private lawyer set his case apart from the other students who were arrested at the same time.

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