Before you suspend me, can I call a lawyer?
With the principal as the prosecutor and six teachers as the jury, the scene was a little like "Law and Order" meets "Boston Public."Skip to next paragraph
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Facing sexual-harassment allegations in this "quasi-judicial" setting, Nic Roberts, then a high school junior, says a key player was missing: his own lawyer.
Eventually punished for a suggestive comment and gesture when he and his classmates were paired off to play Scrabble, Roberts, an ROTC member, left his Asheville, N.C., high school after a long-term suspension and finished at a military school.
Mr. Roberts is now in his mid-20s, married, and taking college classes. He's also the central figure in a North Carolina Supreme Court case. At issue: whether his right to due process under the Constitution's 14th Amendment was violated when his lawyer was forced to sit in the hall during the school disciplinary hearing.
As zero-tolerance policies have multiplied, high school and even college careers have been on the line for students across the country.
The North Carolina decision, expected this spring, will become part of a growing body of case law that explores issues ranging from students' constitutional rights to the question of whether errant teens should be provided with public defenders if they can't afford a lawyer.
"Other jurisdictions are going to be looking at this decision to try to decide which way they should be going," says Asheville attorney Paul Bidwell, who represents Roberts.
Today, a classroom crime has far more ability to darken a student's future than a decade ago, experts say. And while most schools try to do right by all their students, the emerging debate over the role of lawyers indicates a new reality in school discipline.
"Students all across the country are facing grave consequences - being kicked out, having their entire futures jeopardized - from what happens in school disciplinary hearings," says Alex Koroknay-Palicz, the president of the National Youth Rights Association in Washington. "They need all the constitutional protection they can get."
If the judges rule in Roberts's favor, it will be the first time a state high court has affirmed a student's right to have a lawyer at a disciplinary hearing. In 2001, the Indiana Supreme Court struck down a similar case on the basis that having lawyers at every hearing would create an undue "fiscal burden" on school districts. And a ruling in a 1986 Missouri case found that a hearing for sexual harassment had met the minimum burden for due process - even though the student did not have a lawyer present.
About half the states already allow lawyers at disciplinary hearings. But school districts find that their presence sometimes gums up an already overburdened bureaucracy.
"We recently had one student who came to a suspension hearing with a lawyer, two court reporters, and an entourage of witnesses," says Ann Majestic, a Raleigh attorney who represents school districts.
Lawyers have no place in suspension hearings, some school officials say, because these are designed to get to the truth of what happened informally - and to take into account the interest of the entire school.
"It's a bad idea to have attorneys involved at these early hearings," says Allan Root, a lawyer for the Buncombe County schools in Asheville. In most districts, including Buncombe, lawyers are allowed at appeals hearings.
Even many lawyers agree that it would be best if schools were lawyer-free zones. But new zero- tolerance rules have changed the situation so much that lawyers are now becoming a necessity, some experts say.
Instead of suspension hearings being altruistic interventions, new standards for students' behavior have intensified proceedings and created "extraordinarily adversarial" situations, Mr. Bidwell says.
In one Virginia town, police came to a family's house to investigate a "shooting incident." It turned out their third-grader had gotten into trouble for shooting a spit wad through a straw - which the school had reported to the police.
In a recent New Jersey case, several third-graders are facing criminal charges for playing cops and robbers on a playground with papier-mâché pistols.
And in Virginia, a recent case involved a high school boy who had taken a knife away from a suicidal girl - only to be suspended after the knife was found in his locker.
"Things have kind of gotten out of control, and the lesson here for kids is that authority is unreasonable, and that there is no forgiveness for even the slightest mistake," says John Whitehead, the president of the Rutherford Institute, a conservative legal group in Charlottesville, Va.
If the North Carolina court rules that students have a right to bring in attorneys, it could create a "slippery slope," says Mr. Root. School districts eventually may be put in the position of providing public defenders to poor students.
North Carolina Supreme Court Justice Mark Martin brought that issue up at the recent hearing in Raleigh. He was concerned about the prospect of rich students having an unfair advantage because of access to lawyers, with poor students going largely undefended.
In Durham, N.C., which sees about 120 long-term suspension cases a year, the number of hearings attended by attorneys is "woefully small," says Mark Trustin, a local classroom-law expert. Many times, he says, schools discourage parents from bringing their own attorneys or witnesses.
"I think there are a lot of families who, if they could afford a lawyer, would choose to have one," says Len Rieser, codirector of the Education Law Center in Philadelphia.