Clinics

Year in Review

Summary of Work and Accomplishments

2010-2011

The Children’s Law Clinic at Duke Law School is in its tenth year of offering free legal services to at-risk, low-income children in Durham and the surrounding region. The Clinic continues to be a powerful learning opportunity for law students and a significant community resource. The Clinic opens between 80 and 100 cases per year. The cases provided law students a broad range of experiences from offering quick legal advice to engaging in more complex legal matters. Students enrolled in the clinic and serving as interns during the summer provide thousands of hours of free legal services to children who otherwise would have been without representation.

The Children’s Law Clinic specializes in cases involving special education for children with disabilities, appeals of school suspensions, and appeals of claims for children’s disability benefits (SSI claims). Many of the cases handled by the Clinic are referred by local pediatric medical providers engaged with us in the Medical-Legal Partnership for Children in Durham. This partnership involves an interdisciplinary collaboration between doctors and lawyers designed to provide more holistic care for children. In Durham, the Duke Children’s Law Clinic joined with Legal Aid of North Carolina, Duke Primary Care for Children, and Lincoln Community Health Center to create a synergistic partnership in which medical providers are trained to spot legal issues and the legal providers accept referrals from them.

Core Work of the Children's Law Clinic

The Clinic has two basic missions:

  1. to provide opportunities for law students to learn the practical skills they will need to effectively represent clients; and
  2. to provide high quality, free legal help to low-income children in the Durham region.

During the ten years the Clinic has existed, it has become highly specialized in representing children in disputes arising under the special education laws and the school discipline laws. Few lawyers in North Carolina practice in these areas, making the Clinic’s service a particularly critical community resource. The Clinic Director and the Supervising Attorney, both on the Duke Law faculty, are sought-after experts in these fields. Both the law students and their clients draw on this expertise for help in solving the issues faced by the children.

Special Education Advocacy

In their work as representing clients in special education cases, the Clinic law students are often profoundly shocked and saddened as they learn of the situations confronting their clients. Parents, with few financial resources and sometimes limited education of their own, recount the struggles they have faced in understanding the impairments that are interfering with their children’s learning and in navigating through the complexities of the special education system. Parents share the frustration of watching their children fall further and further behind because they are without the academic support they need.

To help these parents, and their children, the Clinic law students must quickly develop an array of skills. First, they must master the state and federal laws that require all school systems to provide appropriate educational services to disabled children in the least restrictive environment. Then, they must learn how the law can be applied in an individual situation, and determine what kind of advocacy – from informal to formal -- might generate the result the parent seeks for her child. At the same time, to engage in effective representation, the students must themselves learn about the disabilities that affect children’s learning and about the various educational approaches to children with disabilities.

This year, as in years past, the Clinic has been successful in advocating for children with disabilities to obtain significantly enhanced special education services. Collectively, the children represented by the clinic will receive thousands of hours of private tutoring and additional educational services as a result of legal action or negotiation undertaken by the Clinic. One student whose special education services were delayed by more than a year due to errors made by the school district will receive valuable tutoring to help him make better academic progress in the future. Several students who had been prevented from enrolling in school due when they were released from detention were allowed back in school as a result of the Clinic’s advocacy. The Clinic’s advocacy resulted in the initiation of special education services for several other students who had been denied those services by their school districts, which will result in academic support and remedial tutoring that could make the difference between the student earning a diploma instead of dropping out.

The Clinic was involved in policy work this year when, in response to a complaint the Clinic filed, a school district invited the Clinic to assist it in making changes to its approach to “Extended School Year Services," an entitlement of some special needs children who regress significantly during the summer. The Clinic student presented research and policy proposals to the district, which were accepted and formed the basis of positive changes in the district’s practices.

Representation in School Discipline Cases

School discipline cases involve children facing long suspensions from school. Despite the lack of any evidence that extended suspension from school is an effective discipline tool, school districts in North Carolina continue to increase the time children are excluded from education in response to rule violations. State statistics show that schools meted out more than 277,000 short-term suspensions (up to 10 days of exclusion at a time) and more than 3,300 long-term suspensions last year, leaving those children without access to education for months on end. African-American boys bear the brunt of the exclusions, further exacerbating the achievement gap and fueling what is known as the school-to-prison pipeline.

The Children’s Law Clinic represents long-term suspended students in hearings to try to reduce the amount of time those children are excluded from school. Especially when successful, this work is not only extremely gratifying for the law students, it gives them a rich learning opportunity. The law student’s work begins with investigating the grounds for the school suspension, finding and interviewing potential witnesses, and developing a theory of the case. The student then prepares an opening statement, direct and cross examinations, and a closing argument. If the initial due process hearing is unsuccessful, there are opportunities for written advocacy to the school superintendent and oral advocacy before the local board of education.

The Clinic was involved in several significant state-wide efforts related to school discipline. Clinic director Jane Wettach joined with attorneys at Legal Aid of North Carolina to represent two high school students suspended from school in Beaufort County. The case, ultimately decided by the North Carolina Supreme Court and reported in King v. Beaufort Co. Bd. of Educ., 364 N.C. 368, 704 S.E.2d 259 (2010), raised the issue of whether students have a state constitutional right to alternative educational services during a period of suspension. The justices concluded that the denial of education during a period of suspension was a denial of a constitutional right that could be justified only by significant and important reasons. While this conclusion was short of what the plaintiffs sought – a holding that a denial of education during a suspension should be subject to a “strict scrutiny” level of review – it nevertheless was an important victory for students across the state.

The Clinic was also involved in the complete overhaul of the school discipline statute in North Carolina. After lengthy negotiations in which the Clinic was a significant participant, the North Carolina General Assembly passed a new school discipline law in June 2011. Significant among the new provisions is a ban on a “zero tolerance’ approach to discipline, which mandates a predetermined penalty for a specific rule violation. As a result of the new law, school officials must take into account the circumstances of the violations and make an individualized decision regarding the appropriate penalty. The new law also provides for important due process protections for students facing a long-term suspension.

SSI Advocacy

As a result of the Clinic’s partnership with local pediatricians, the Clinic has significantly increased its representation of children seeking Supplemental Security Income (SSI) benefits. These benefits are awarded to severely disabled children living in very low-income families. An extraordinarily cumbersome and complex appeals process prevents many children from receiving this vital support. Representation by a skilled advocate can turn an initial denial into a successful claim, thus securing both retroactive and ongoing monthly benefits.

When assigned an SSI case, the Clinic student digs into a intricate evaluation process that requires an understanding of both the medical aspects of a child’s disability and the legal standards for determining disability. As children are constantly developing and changing, during an appeals process that can take as long as two years, the law students are often chasing a moving target. Their work involves painstakingly gathering and summarizing a child’s medical condition and then developing a theory that will persuade an administrative law judge that the child meets the published standards. Developing a good relationship with the child’s medical providers – a task made easier by the Medical-Legal Partnership – can enhance the representative’s ability to present important information to the judge that might not be apparent from only the medical records. These cases provide the law students an excellent opportunity to practice their writing skills, as many cases are won “on-the-record” when the judge reads a well-prepared memorandum of law on behalf of the applicant. Clinic students and their clients have been rewarded in these SSI cases, as nearly every case to have gone before a judge to date has resulted in a favorable decision.

Student Experience

As the law students participate in the Clinic, they not only develop the skills needed by practicing lawyers, but they gain great insights about themselves, the practice of law, and the legal system’s role in the lives of individuals. By keeping a journal of their experiences, the students regularly reflect on their work in the Clinic. Following are some of their observations:

Community Involvement

The Children’s Law Clinic maintains relationships in the larger community that enhance its work. Once again in 2011, the Clinic faculty hosted the Special Education Law Roundtable, a day-long gathering at Duke Law School of attorneys from around North Carolina that represent parents and children in special education cases. The clinic faculty frequently offer workshops to interested audiences on special education law. They have mentored several attorneys in this area of law, consulting on cases and sharing their expertise. The Medical-Legal Partnership for Children in Durham has fostered continued relationships with pediatric providers in the community. These relationships have made a meaningful difference in the representation of the Clinic’s clients and have provided the medical providers new insights into the legal barriers that affect their patients’ health. The Clinic participates in the statewide Special Needs Federation, an alliance of individuals and organizations dedicated to protecting and enhancing the rights of children with disabilities. At the national level, Clinic Director Jane Wettach and Supervising Attorney Brenda Berlin were invited to contribute chapters to a new textbook, Special Education Advocacy (Lexis Nexis) and Prof. Wettach was included on the faculty of a national academy that trains administrative law judges who handle special education cases.

Conclusion

The Clinic is committed to continuing with its dual core missions of providing individual representation to at-risk children and training law students in critical professional skills. Since the Clinic opened its doors, more than 150 law students have been exposed to the striking legal needs of children, and have contributed to meeting those needs while developing skills and exploring their own styles of lawyering. Over seven hundred families have directly benefited from the work of the Clinic, and many more have indirectly benefited from the community workshops and seminars offered, and the expertise of the Clinic faculty that is shared widely. The Clinic continues to be a highly valued resource for vulnerable children in our community as well as a rich training ground for the law students.

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