Year in Review - Archive

Summary of Work and Accomplishments

2007-2008 Academic Year
2006-2007 Academic Year
2005-2006 Academic Year
2003-2004 Academic Year

2007-2008 Academic Year

In its sixth year of operation, the Children's Law Clinic at Duke Law School continues to be a powerful learning opportunity for law students and a significant community resource for low-income children with legal needs. The Clinic responded to 90 requests for legal assistance during the year, which provided law students a broad range of experiences from offering quick legal advice to engaging in lengthy litigation.

The Children's Law Clinic continues to specialize in cases involving special education for children with disabilities and school suspensions. This year, however, the Clinic also handled several child custody cases and children's claims for government benefits. Students provided more than 2,500 hours of free legal services to children who otherwise would have been without representation.

Many of the cases handled by the Clinic were referred to us 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: to provide opportunities for law students to learn the practical skills they will need to effectively represent clients and to provide high quality, free legal help to low-income children in the Durham region. During the six 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.

As special education lawyers-in-training, the Clinic students must develop a significant array of skills. First, they must master the Individuals with Disabilities Education Act, the federal law that requires all school systems to provide appropriate educational services to disabled children in the least restrictive environment. Then, they must learn how the law applies in any of a great number of situations, from informal advocacy to litigation. At the same time, the students must become familiar with the disabilities that affect children and the psychoeducational testing that dictates the types of special education services that children with disabilities need.

In school discipline cases, which involve children facing long suspensions from school, additional skills come into play. After learning the law that applies in school discipline cases, the students must work extremely quickly, because the child will usually have a due process hearing within a week of the initial meeting. Their work includes 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, witness examination and cross examination, 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 took on several custody matters this year for the first time. This foray into family law got several law students into the local courts, filing pleadings, engaging in negotiation and, in one case, handling a custody trial. The Clinic also took on a number of claims for children's Supplemental Security Income benefits. These cases require a highly complex analysis of a child's medical condition, a successful collaboration with the child's medical providers, and representation in the complicated appeal process developed by the Social Security Administration.

While they are learning the substance of the law and its context, the law students must also focus on basic lawyering skills. Each student in the Clinic must learn to conduct a sophisticated interview, which can be particularly challenging when the client is a child with autism, a language disability, or attention deficit disorder. The students must learn how to gather relevant information, investigate facts, analyze legal claims, and counsel clients. The law students enrolled this year advocated at school meetings, negotiated solutions with opposing counsel, represented clients in mediation, and prepared for and handled administrative hearings.

The Clinic students were successful on many fronts during this year. One special education case provided a particularly challenging opportunity for the students. It involved a high school girl with complex disabilities who was struggling in school. With the Clinic's advice, the girl's parent had been trying for more than a year to obtain special education services that would help her daughter succeed. When she was unsuccessful, she enrolled her daughter in a private reading program and requested reimbursement from the school system. One Clinic student spent a semester analyzing the potential legal theories and necessary evidence that was needed to support the claim. The next semester, two students were assigned to represent the girl and her mother in a "due process hearing" at the North Carolina Office of Administrative Hearings. The case lasted the whole semester, and gave the students the opportunity to fully develop a trial strategy, take and defend depositions, work with expert witnesses, respond to pre-trial motions, and engage in settlement negotiations. They also were fortunate to work with an experienced pro bono counsel whose firm paid the Clinic's litigation expenses. A favorable settlement was reached in the case just as the students were completing their semester. One of the students commented, "The twin elements of my Clinic experience - the reward and the challenge - operated together to make this semester feel unlike any other semester I've had."

Another special education case, one referred to the Clinic by one of our partners in the Medical-Legal Partnership, involved extensive negotiations and informal advocacy rather than litigation. The case was on behalf of nine-year-old "Sally" who was seeing a clinical psychologist at Duke. The parent told the psychologist how frustrated she was with the daughter's new school, because the teachers there said her daughter was not eligible for special services to help with her reading even though she was getting F's on her report card. The psychologist referred the family to the Children's Clinic, which took up advocacy for Sally. Armed with information obtained from her medical providers at Duke, the law students involved were able to make a powerful case that Sally indeed needed additional specialized services at school. Ultimately, the Clinic negotiated a broad array of special education services for Sally, who made dramatic improvements in school, as well as financial reimbursement for testing that had been done to prove the case. Her mother said, "I feel like a weight has been lifted off of both of us and I am so happy to finally see my daughter soar."

One the school discipline front, the Clinic had a number of successes, resulting in reduced suspensions for students who appealed the discipline imposed by the schools. For four students, their suspensions were reduced by more than 100 school days, which allowed them to pass their grades rather than having to repeat them the next year. In a few cases, the Clinic was not successful in mitigating the suspension, but nevertheless, the cases provided rich lawyering experiences for the law students involved. One student was able to fully develop a hearing strategy, conduct an administrative hearing, and then make an oral argument before the board of education. As he reflected on the experience, he had this to say: "This experience taught me that the law is not, as my grandparents think, an innately unethical profession full of cheaters who care only about making a buck from unwary clients. The law can be fulfilling, it can be about helping people get what they need, if that means only having their story told before an impartial decider. I look at what I did and what my colleagues in the Clinic did and cannot help but feel that we helped real people in real need."

Other law students in the Clinic were similarly insightful about the Clinic experience. Here are some of their comments:

"These are new shoes I'm wearing and every step I take in them is an accomplishment. Before taking a new step, I am nervous. Once I do, I recognize the importance and significance in taking such a step. This is the closest thing I have ever experienced to being an actual lawyer. I am excited about everything I learn and every small accomplishment is made bigger because I feel that I am building skills that I will need for the rest of my career."

"Interviewing turned out to be a lot harder that I expected it to be. The questions I needed to ask didn't always come naturally and it was hard to figure out what to ask on the spot. After doing a few, though, I can see that I have definitely improved."

"Participating in the Clinic gave me the opportunity to use some of the skills that I have learned thus far in law school, to develop them, and to gain new skills as well. The simple act of having to read a statute, interpret it, and apply it to a client's case was exciting and challenging."

Although our theoretical law school classes can be interesting, I feel like lawyering is one of those things that I learn better from doing it - working with a set of facts and researching the law and figuring out what can be done for a client based on these things. I would recommend the Clinic to everyone in law school."

Outreach

The Children's Law Clinic engaged in several projects during the year to broaden its impact. It enhanced its website by creating two related sites. One focuses on the Medical-Legal Partnership, and provides the medical practitioners access to general information, training power-point shows on various legal issues that could be relevant to their patients, and a mechanism to refer patients to the Clinic. The site can be viewed at http://www.law.duke.edu/partnershipforchildren/ . The other focuses on school discipline. It provides extensive information to attorneys and to parents to assist them in preparing for and handling school suspension hearings. It can be viewed at http://www.law.duke.edu/childedlaw/schooldiscipline/.

Clinic director Jane Wettach spoke at several meetings and conferences during the year. In September, she participated in a clinical law conference at the University of Tennessee Law School, delivering a paper on "The Law School Clinic as a Partner in a Medical-Legal Partnership." In January, she was a member of the faculty at a national academy for administrative law judges that preside over special education cases. In March, she was a presenter at a conference on special education law for North Carolina school administrators. Also during the spring, she gave workshops at the annual meeting of the North Carolina branch of the International Dyslexia Association and at the Wake County Special Education Parent-Teacher Association.

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 100 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 four 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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2006-2007 Academic Year

The Children's Law Clinic at Duke Law School continued to strengthen its core activities during 2007, while at the same time embarking on a new path that has provided expansive opportunities for law students and crucial services for vulnerable children.

Duke law students enrolled in the Clinic this year advised and represented 65 children, most with significant disabilities, facing school suspensions, inadequate special education services, issues regarding school enrollment, denial of government benefits, and lack of family stability. The law students provided approximately 2,700 hours of free legal help to the Clinic's clients, all of which were closely supervised by the clinic faculty. Accounting for the supervision time, the Clinic provided more than $500,000 worth of free legal services to families that could not otherwise pay for representation. This is more than twice what it costs to operate the Clinic.

While actively engaged in education work, the Clinic initiated a new project this year - The Medical-Legal Partnership for Children in Durham - that broadened its client base and gave the student lawyers new avenues to develop their skills. As its name suggests, the Partnership involves an interdisciplinary collaboration between doctors and lawyers designed to provide more holistic care for children. In Durham, the Duke Children's Education 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: to provide opportunities for law students to learn the practical skills they will need to effectively represent clients and to provide high quality, free legal help to low-income children in the Durham region. During the five years the Clinic has existed, it has become highly specialized in representing children in special education law and school discipline law. 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.

As special education lawyers-in-training, the Clinic students must develop a significant array of skills. First, they must master the Individuals with Disabilities Education Act, the federal law that requires all school systems to provide appropriate educational services to disabled children in the least restrictive environment. Then, they must learn how the law applies in any of a great number of situations. At the same time, the students must become familiar with the disabilities that affect children and the psychoeducational testing that dictates the types of special education services that children with disabilities need.

In school discipline cases, which involve children facing long suspensions from school, additional skills come into play. After learning the law that applies in school discipline cases, the students must work extremely quickly, because the child will usually have a due process hearing within a week of the initial meeting. Their work includes investigating the grounds for the school suspension, finding and interviewing potential witnesses, and developing a theory of the case. The student will then prepare an opening statement, witness examination and cross examination, 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 results of this year's cases were impressive. The clinic represented ten children in school discipline cases. In nearly all, the long-term suspensions were reduced in length, so that the children were able to return to school anywhere from 40 to 300 days sooner than they would have been without the advocacy of the Clinic. Here are some examples of discipline cases the Clinic handled:

Seventh-grader P.R. called the Clinic himself to ask for representation when he was expelled from school for 365 days. His non-English speaking parents had been unable to effectively advocate for him with the school principal. The Clinic agreed to represent P.R. before the Board of Education. The Clinic's investigation showed that P.R. was expelled for his role in a bathroom prank which involved exploding a soda bottle in a toilet. Because of the loud noise produced, school officials concluded that he had brought a bomb to school. A vigorous investigation by the Clinic student revealed that the "explosion" was simply the noise of the bottle bursting (similar to a balloon popping). No dangerous explosives were involved. The investigation also revealed a sweet but immature boy who was not aggressive and posed no safely threat. The law student represented P.R. before the Board of Education, arguing that a much shorter suspension should have been imposed. The Board revised the punishment after the hearing, and P.R. was able to return to school after a two-month instead of a twelve-month removal.
Eighth grader H.M. was suspended for the entire school year because in the second week of school he was about to start a fight. Although the principal and other students averted any fight, so that no punches were thrown, the principal considered past offenses by the student in deciding that he should no longer be permitted to attend school. A clinic student represented him in a discipline hearing, arguing that the penalty was disproportionate to the offense. Following the hearing, before the superintendent review process was completed, the clinic student negotiated a placement for the student at an alternative school that specializes in turning kids around. The clinic also negotiated a plan of "compensatory education," which is personalized tutoring to help the student catch up on material missed while suspended. The student and parent were satisfied with this outcome and no further litigation was necessary.

In a significant number of cases involving children with special needs, the Clinic's advocacy resulted in the provision of life-changing services for the children. Following is an example of some special education matters handled by the Clinic.

J.M. is 13 years old with diagnoses of high-functioning autism, attention deficit hyperactivity disorder, and dyslexia. Although enrolled in the 7th grade, and having received special education services since kindergarten, he had never learned to read. Over a year's period of time, four students spent nearly 100 hours learning about J.M.'s problems and advocating for solutions. Ultimately, the Clinic was able to have J.M.'s reading evaluated by one of the state's foremost reading experts, and get a new education plan developed for him. He is currently receiving one-on-one reading instruction from a tutor trained in a research-based method designed to teach children with his disabilities how to read. Without the Clinic's intervention, J.M. would likely have entered adulthood as a non-reader.
BB is a nine-year-old nonverbal boy with profound mental retardation and autism. His mother saw that he was not getting appropriate services in the public school and that he was not making any progress. After trying to work with school personnel to make changes to BB's programming, she found a local private program that specialized in autism and enrolled him there. She came to the Clinic seeking representation in a claim for reimbursement of the private tuition, which is permitted by federal law. The Clinic represented the mother in mediation to attempt to reach a solution without litigation. A successful compromise was reached, which allowed the mother to be partially reimbursed for the private program. More than that, though, the school district hired a specialized consultant to help the teacher develop a much more successful classroom program for BB, and he was able to return to the public schools.

The law students in the Clinic are very tuned in to the skills they are developing. Here are some comments from recent Clinic students:

"Rarely does a law school course even mention the concept of strategy when dealing with application of the law in a litigation scenario. But in the clinic, I had the opportunity to develop a strategy from scratch, and even make modifications to that strategy mid-trial."
"These are new shoes I'm wearing and every step I take in them is an accomplishment. Before taking a new step, I am nervous. Once I do, I recognize the importance and significance in taking such a step. This is the closest thing I have ever experienced to being an actual lawyer. I am excited about everything I learn and every small accomplishment is made bigger because I feel that I am building skills that I will need for the rest of my career."
"Interviewing turned out to be a lot harder that I expected it to be. The questions I needed to ask didn't always come naturally and it was hard to figure out what to ask on the spot. After doing a few, though, I can see that I have definitely improved."
"Perhaps the most valuable thing I learned from this clinic is how to be the lawyer, the suit in the room."

Medical-Legal Partnership for Children

In 2007, the Clinic implemented a new program, the Medical-Legal Partnership for Children in Durham. Based on a national model of interdisciplinary, community lawyering, a medical-legal partnership joins doctors and lawyers together for the benefit of vulnerable children. The underlying premise of a medical-legal partnership is that impoverished children's health and well-being can be improved when non-medical obstacles are overcome. For example, if poor housing conditions are exacerbating a child's asthma, an attorney can sue the landlord to enforce habitability laws. If inadequate nutrition is stunting a child's growth, an attorney can represent the family in an appeal of a denial of Food Stamps. Many low-income families do not seek legal help for these and other problems. They do, however, often seek medical help for the health consequences that stem from the unresolved legal problems. If the families can get the help of an attorney quickly, with a referral from their pediatrician, the child's overall health and well-being can benefit.

Medical-legal partnerships encourage medical providers to refer patients to lawyers who will provide free legal help. In Durham, the partnership includes Duke Primary Care for Children, Lincoln Community Health Center, Legal Aid of North Carolina, and the Duke Children's Law Clinic. During its first year of operation, the legal team of the partnership offered an eight-session workshop series to the medical team, providing doctors with basic knowledge of the legal rights of low income families and an efficient referral system to free lawyers and law students who can provide legal advice and representation. In turn, the doctors and their staff referred nearly 40 families to the legal partners. The Children's Law Clinic handled 18 cases referred from the partnership, in the areas of special education, family law, and the law of government benefits.

A typical case referred by a medical provider was one involving a grandmother who had taken over care of her grandson with cerebral palsy because his mother was a substance abuser and not providing adequate care. The grandmother told the pediatrician that she was unable to enroll the child in school because she was not the legal custodian of the child and did not want to engage in a legal fight with her daughter over custody. The pediatrician referred the grandmother to the Clinic, which was able to assist the grandmother with a legal process that accomplished her goal of enrolling the child in school without having to create any family dissension that would have been detrimental to the child. In another case, a pediatrician referred a young patient with speech and hearing impairments after the patient was denied children's disability benefits. The Clinic is working with the doctor to develop the evidence that will be necessary to establish the child's eligibility for SSI (Supplemental Security Income) benefits, which will be of considerable help to the family and provide automatic Medicaid.

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, nearly 100 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. Three hundred and fifty families have directly benefitted from the work of the Clinic, and many more have indirectly benefitted 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.

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2005-2006 Academic Year

The 2005-2006 academic year was a milestone for the Children’s Education Law Clinic and the Duke Law clinical program. At the end of the Fall 2005 semester, Duke Law School completed construction on a 30,000 square foot addition to its existing building, including an entire floor devoted to the school’s legal clinics. The Children’s Education Law Clinic, together with the AIDS Legal Assistance Project, the Community Enterprise Clinic and the Low-income Taxpayer Clinic, now enjoys a carefully designed, light-filled office suite that finally reflects in architecture and technology of the first-class service that clients of the clinics have received for years. Through the double glass doors of the new suite, clients and law students find a state-of-the-art law firm equipped with beautiful new meeting and reception areas, private interview rooms, faculty offices, and spacious work areas with confidential file storage and computer stations for clinic law students.

The new space has greatly enhanced the work environment for CELC students and faculty; the ease of access for students may have been at least partially responsible for the fact that clinic students last semester performed more service hours on behalf of clients than ever before, logging an excess of 1,400 hours on behalf of clinic clients - almost 50% more than the required 100 hours per student. In fact, since its inception in January 2002, the Clinic has now well surpassed 10,000 hours of service on behalf of low-income school children. At $100 per hour, which is what law firms charge for the work of law student interns, that equates to $1 million worth of free legal services donated to the region!

During the 2005-06 year, the Children’s Education Law Clinic helped 60 children with education matters. Fourteen of the cases involved students who were facing long-term suspension from school. A total of 1,000 school days were “saved” for those students when their suspensions were reduced as a result of the Clinic’s representation. Most of the rest of the cases involved special education matters. Harder to calculate, but equally profound, were the thousands of days of improved special education programming for disabled children that were offered due to the Clinic’s advocacy.

The Work of the Children's Education Law Clinic

The Children’s Education Law Clinic offers free legal services to poor children in the 12 school districts surrounding Durham and Duke University. Since opening its doors, the Clinic has served hundreds of children referred by social workers, mental health case managers, juvenile court counselors, legal aid and private attorneys, past clients, and even teachers and counselors within the schools. More than half of the callers to the Clinic meet our screening guidelines (i.e., they are within the income limits, the service area, and the case priorities) and are scheduled for appointments with law students. Law students — who are trained in a two-hour a week classroom seminar — are assigned to conduct initial intake interviews; most students have the opportunity to interview at least three new clients during a semester. Following the interview, the law student investigates the facts, which frequently involves collecting and analyzing complex psycho-educational and medical records. Then the parent is counseled about his or her concerns and a decision is made about further representation. This further representation could involve advocacy at school meetings, negotiation with school personnel or school system attorneys, representation at hearings before school administrators or school boards, or representation in an administrative or judicial forum.

Special Education

The majority of the Clinic’s cases involve special education issues. Special education cases involve enforcement of a federal law, the Individuals with Disabilities Education Act, which entitles each student with a disability to a free, appropriate public education in the least restrictive environment. Statistics show that children with learning-related disabilities are consistently falling behind their peers academically, and are the most likely to drop out of school or be pushed out by multiple disciplinary incidents. The Clinic takes cases in which children’s disabilities have not been properly identified, children have been inappropriately excluded from school or segregated into separate classrooms, or the educational programs offered by the schools have been inadequate to allow the child to make educational progress. The results, for children, have been universally positive, involving, at a minimum, increased time spent in school receiving instruction and more educational services specifically addressing the child’s disability.

The following case summaries represent some of the Clinic’s advocacy in the area of special education over the past year:

Denise began her life with a challenge most of us don’t face: she could barely see. Her parents got her special help early, and thought she was doing all right. She attended an educational program for the visually disabled through elementary school, but it gradually became apparent that she wasn’t keeping up with her peers. By the time her parents found the Children’s Education Law Clinic (after searching in vain to find an affordable attorney for several years), Denise was 13 years old with a 7-year-old educational level.

The Clinic approached Denise’s school with an inquisitive rather than a confrontational approach: to what, we asked, do you attribute her lack of academic progress? Surprisingly, the school personnel could provide no real answers; it was as if they hadn’t really noticed her academic deficits. A new administrator was willing to help us find out, however, and authorized payment for a number of expert evaluations. These evaluations revealed significant unrecognized learning disabilities and provided recommendations for specialized instruction that could potentially address the problems. At the urging of the Clinic, the school agreed to hire a one-on-one tutor for Denise in reading, and to incorporate a new math program into the curriculum for her. Although it’s taking time, Denise is thrilled with her new academic skills. In a thank-you letter to the Clinic, here’s what her father had to say:

Presently we are experiencing the joy of watching our child read, and do mathematics that she never thought she could do. Thank you all for the unbiased professionalism, integrity, and advanced knowledge of education law.
It’s difficult to imagine a life more difficult than Moses’. Born to an alcoholic mother in Mexico, he was abandoned as an infant. Although later adopted, his adoptive home was one of violence and poverty. By the age of three, Moses had already been hospitalized for threatening to harm his sister and kill himself. When we met Moses, at age nine, he had been abandoned again, this time by his adoptive mother, and had been in and out of mental institutions. His teachers at the local public school said they couldn’t deal with him, and sent him home, with 1-2 hours a week of home tutoring. In addition to depriving Moses of academic instruction and socialization with other children, this educational situation forced Moses’ father to stay home from his landscaping work, thus jeopardizing the family income. By the time the family’s mental health case manager contacted the Clinic for assistance, eviction proceedings had begun against Moses and his father.

Although Moses’ father did not speak English, the Clinic began a vigorous examination of Moses’ case, enlisting the assistance of a pro bono law student to aid with the translation of documents and conversations with Moses’ father. As a result of the Clinic’s advocacy, Moses immediately began receiving educational services for 10 hours a week and was eventually accepted into a specialized residential school for children with behavioral and educational needs like his. With Moses taken care of, his father returned to work and succeeded in saving their home.

School Discipline

Cases receiving priority at the Clinic are those school discipline cases in which a student is facing long-term suspension from school, which generally means from the date of the offense to the end of the school year, though in some cases can mean 365 calendar days. Based on our research that revealed that long periods of school suspension are virtually always detrimental to students and are rarely positive in terms of improved school behavior, the Clinic represents students who wish to appeal the imposition of a long-term suspension. This representation can involve a hearing before a teacher panel, a school superintendent, a school board, or state superior court. These hearings give law students experience with interviewing, fact investigation, witness preparation, direct and cross examination, oral argument, and occasionally brief writing. In several cases, the law students have negotiated successfully with principals and superintendents to reduce the length of suspensions or offer alternatives to suspension.

The following represent some of the Clinic’s school discipline cases from the past academic year:

Narissa, a 12-year-old 6th grader, admits she gets mad easily. But she wants to be in school and learn. When she was goaded by another girl on her bus, she retorted in a way the girl found threatening. Because this was not the first time Narissa had failed to hold her tongue, school officials decided the appropriate punishment was suspension from school for the next eight months.

Narissa’s mother found her way to the Clinic to challenge the suspension. In doing its investigation, the Clinic learned that Narissa had been getting special education all her life until just before these discipline incidents. School personnel had recently determined that she no longer qualified for special education, although her academic skills were significantly below average. Convinced the termination of special education services was inappropriate, and that her misbehavior was not serious enough to merit the year-long suspension, the Clinic accepted her case. By the time it was closed, Narissa had re-qualified for special education, the suspension was withdrawn, she received more than 50 hours of on-one-one instruction to make up for her time out of school, and she was placed in a special short-term program for children who need more behavioral and academic support.
Bradley, a soft-spoken 17-year-old boy, had been receiving special education in a separate classroom from the 1st grade through middle school. However, when he entered high school, Bradley was forgotten by his school. Silently Bradley failed 9th grade two times, still not gaining the attention of anyone in the special education department, his teachers or the school administrators. But that all changed for Bradley in the Fall of his third year of high school. Suddenly, he was noticed. Not because he was struggling academically, but because of his minor involvement in a scuffle outside school while he and a group of friends were waiting to go home from school. Although Bradley admitted and apologized for his involvement in this incident, the school decided the best course of action was to kick him out of school for the remainder of the school year. In the course of doing so, school officials realized their error in not serving Bradley for 2+ years, but rather than offer him an apology and education, they illegally “exited” him from the special education program and continued in their efforts to exclude him from school.

By the time Bradley’s mother contacted the Clinic, Bradley had already been excluded from school and all educational services for more than 20 days. This quickly changed once the Clinic became involved. The Clinic was able to get Bradley an immediate placement in an alternative school. In addition, as a result of a plan negotiated by the Clinic involving summer school, tutoring, and special education support, Bradley will be able to graduate in June 2007 along with his classmates. Although the school carried through on its “suspension” of Bradley, Bradley’s mother now calls this decision a “blessing in disguise” as the Clinic was able to work with the district to craft a program for Bradley that not only helped catch him up to his peers, but put supports in place to ensure that he won’t be forgotten again.
Although state law allows principals free reign when meting out short-term suspensions (10 days or less) to students, the Clinic decided to challenge one principal’s execution of this authority when it infringed on students’ constitutional rights. On March 29, 2006 a group of Hispanic high school students organized a peaceful school walk-out to join the nationwide movement to protest the proposed changes to federal immigration laws. Approximately 30 students walked out of school in the middle of the day, and marched to the courthouse displaying signs expressing their views. The students left the campus between classes and did not disrupt any activities at school.

Many of the student protestors were enrolled in Civics class, in which they were learning how citizens can promote change through political action and participation in civic life. Nonetheless, rather than viewing the organized and respectful student protest as a catalyst for teaching about protest movements from history, the legislative process, and immigration policy, the principal decided to view the actions of the students as a cause for discipline and exclusion from school. As a result, he issued ten-day suspensions for all of them.

One student initially came forward wanting to challenge the legality of the suspensions. The Clinic wrote a demand letter to the principal, alleging that the suspension had violated the student’s constitutional rights. In response, the principal allowed the student to return to school. Hearing of that student’s success, a second student came forward asking for legal representation. At that point, the Clinic, in collaboration with the NC Justice Center, began preparing a lawsuit, alleging both due process and First Amendment violations. Upon being threatened with the lawsuit, the school officials agreed to end the suspensions of all thirty students who had been affected.

One law student involved in the case commented, “I felt very fortunate to be involved in this case. It was a great reminder of why I came to law school.”

Law Student Skill Development

The law students who participate in the Children’s Education Law Clinic have the opportunity to be a part of a functioning law office and engage in a range of tasks that will be required of them when they graduate. Each of them has the chance to practice interviewing, counseling, fact investigation, file organization and management, negotiation, and advocacy. They learn how important it is to understand the substance of a client’s case; many of them spend hours studying psycho-educational testing and learning about the characteristics of different disabilities so they can speak knowledgeably and effectively for their clients. Their self-confidence increases considerably as they interact with school principals, psychologists, parents, special education teachers, and administrators. Most importantly, perhaps, they gain valuable insights about themselves and what it means to be an attorney.

Clinic students reflect on their Clinic experiences in journals they keep during their Clinic participation. Here’s what one student said toward the end of the semester:

I have no doubt that my experience in the clinic has provided me with more educational and practical benefit than all the rest of the classes I’ve taken this semester combined. Not only have I learned a tremendous amount about the law and what it’s like to practice it, but the clinic has also renewed my enthusiasm for wanting to be a lawyer in the first place.

Community Education & Professional Collaboration

The Clinic has worked to establish itself as a center of expertise on special education and school discipline law. In recognition of this expertise, Clinic Director Jane Wettach has been invited to speak at numerous conferences on topics related to the legal rights of children in school. These have included the annual conference of the N.C. Chapter of the International Dyslexia Society, the annual meeting of the Juvenile Justice & Children’s Rights Section of the North Carolina Bar Association, and the Legal Aid of North Carolina Statewide Conference. In addition, she has provided training on special education and school discipline law at meetings of parents and other professionals throughout the Clinic’s service area, speaking to more than 350 people. She wrote an op-ed piece that was printed in the Raleigh News & Observer on school suspensions and was quoted on education issues by several local media outlets during the year.

The Clinic faculty has continued to develop collaborative relationships with other professionals in the state that benefit both the law students and the Clinic’s clients. Clinic faculty and Duke Medical Center faculty “traded” lectures this year, with each presenting on areas of expertise that benefited the other. In March, the Clinic faculty hosted the third annual Special Education Law Roundtable, to which all the lawyers in the state practicing in the area of special education law were invited to share their experiences with one another and offer support. The Clinic continues to participate in the Special Needs Federation, a statewide coalition of organizations committed to supporting the rights of special needs children, and on the Juvenile Justice and Children’s Rights Council at the North Carolina Bar Association.

Future Plans

The Clinic is exploring the possibility of expanding its services and transforming its approach to our clients’ needs by developing a medical-legal partnership with several pediatric practices in Durham. Medical-legal partnerships, pioneered at Boston Medical Center and replicated throughout the country, bring lawyers and medical personnel together to promote the health and well-being of vulnerable children. Based on the premise that children’s health outcomes can be improved when non-medical obstacles in their lives can be overcome, a medical-legal partnership places lawyers in pediatric clinics to enhance patient access to legal solutions to those obstacles. For example, if a child’s chronic asthma is exacerbated by mold or other toxins in his apartment, a lawyer can take action against a recalcitrant landlord in a way a pediatric nurse cannot. If a child’s application for government benefits to stabilize income or health coverage is denied, an attorney is needed to negotiate the appeal process. If a child with a mental disability is not getting appropriate supports in school, and thus is spiraling downward, an attorney can intervene to navigate the special education system.

Together with Legal Aid of North Carolina, Duke Primary Children’s Care, and Lincoln Community Health Center, the Clinic is submitting funding proposals to gauge interest in developing such a collaboration. A positive response from potential funders could result in changes to be effective in January 2007.

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, 80 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. More than 250 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.

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2003-2004 Academic Year

The Children’s Education Law Clinic completed its second full year of operation in the 2003-04 academic year. During the year, twenty law students contributed a total of 2,400 hours of free legal work to the community; hundreds more hours were contributed by the Clinic director and supervising attorney. The Clinic has maintained its focus on its two equally important purposes: providing intensive, hands-on training for law students in the practical skills they will need as attorneys; and providing free, high quality counsel and representation to low-income children facing school-related problems. At the same time, it has moved toward becoming the central locus of expertise on legal issues involving special education and school discipline in North Carolina.

Highlights of the year include:

Counseling and representing 60 low-income children and their parents in school-related issues
Filing and winning the Clinic’s first case in state superior court
Arguing before the Boards of Education in three school districts
Hosting the first “Special Education Law Roundtable” for North Carolina attorneys
Presenting at four statewide conferences, six local workshops and seminars, and two radio programs

The work of the Children’s Education Law Clinic

The Children’s Education Law Clinic functions as a small community law office offering free legal services within an 11-county region surrounding Durham. As a result of relationships built since opening in 2002, clients are referred by social workers, mental health workers, juvenile court counselors, legal aid and private attorneys, past clients, and even teachers and counselors within the schools. More than half of the callers meet the Clinic’s screening guidelines (i.e., they are within the income limits, the service area, and the case priorities) and are scheduled for intake appointments. Law students — who are simultaneously being trained in a classroom seminar — are assigned to conduct initial interviews of the clients, generally the parent of the child involved. Most students have the opportunity to interview at least three new clients during a semester. Following the interview, the law student investigates the facts, which frequently involves analyzing complex psycho-educational records. Then the parent is counseled about her concerns and a decision is made about further representation. This further representation could involve advocacy at school meetings, negotiation with school personnel or school system attorneys, representation at a school board hearing, or representation in an administrative or judicial forum.

The cases taken on by the Clinic generally involve either special education issues, school discipline issues, or both. The following describes these areas in more detail:

Special Education

Special education cases involve enforcement of a federal law, the Individuals with Disabilities Education Act, which entitles each student with a disability to a free, appropriate public education in the least restrictive environment. Disputes may center on whether a child is eligible for special education services, the appropriate types or amount of services, or the setting for the child’s education. The process is designed for most disputes to be resolved by consensus at an “IEP” meeting, at which the child’s “individualized education program” is developed and reviewed. When disputes cannot be resolved through the IEP process, parents of a disabled child have the right to file for a “due process hearing.” In North Carolina, due process hearings are conducted by the N.C. Office of Administrative Hearings and are much like general civil trials.
These cases are typical of the special education cases the Clinic handled this past year:

The mother of nine-year-old Everett¹ contacted the Clinic because she felt her son’s school was not providing appropriate support services to her child. Everett had been diagnosed with Attention Deficit Disorder and a “borderline” IQ. (This means that he is a slow learner, but not mentally retarded.) Everett was struggling in school, particularly in math. He was qualified for special education services, but getting only 30 minutes per week of teaching by a special education teacher. After investigating the situation, a law student accompanied the parent to several IEP meetings and negotiated for additional diagnostic testing and additional services for Everett. The testing revealed an undiagnosed learning disability in math, which qualified Everett for additional services. Ultimately, the school agreed to increase the special education support from 30 minutes per week to four hours per week. Everett’s mother said she could see improvement almost immediately.
Austin’s mother contacted the clinic when Austin was in kindergarten. Austin is autistic and had been assigned to a “self-contained” classroom where he was with other autistic children all day. Because he needed modeling to speak, take turns, play appropriately, and engage in pre-academic skills, Austin’s mother requested that the school place him with typically-developing children for at least part of the day. Her request met with considerable resistance, even when Austin’s mother offered to pay for an aide to accompany Austin to the regular classroom. Regrettable animosity developed between the parent and the school. Several law students worked on the case over a period of months. The students examined the records, researched autism, and negotiated with school officials. After two contentious meetings, when it appeared that a due process hearing would be the only solution to the dispute, negotiations were again pursued, this time with success. Ultimately, Austin was moved to a new school where he was successfully integrated into a regular kindergarten class with ongoing support from the special educators. Austin’s mother reports that he had a great year in school and is making tremendous progress.

School Discipline

Cases receiving priority in the school discipline area are those in which a student is facing long-term suspension from school, which generally means from the date of the offense to the end of the school year, though in some cases means 365 calendar days. Based on our research that revealed that long periods of school suspension are virtually always detrimental to students and are rarely positive in terms of improved school behavior, the Clinic represents students who wish to appeal the imposition of a long-term suspension. This representation can involve a hearing before a teacher panel, a school superintendent, a school board, or state superior court. These hearings give law students experience with fact investigation, witness preparation, direct and cross examination, oral argument, and occasionally brief writing. In several cases, the law students have negotiated successfully with principals and superintendents to impose shorter suspensions or provide alternatives to suspension.

The following represent some of the Clinic’s school discipline cases:

Darrell’s grandmother and legal guardian was referred to the Clinic when her grandson was facing suspension from the third week of school through the end of the school year. A ninth-grader, Darrell had been caught up in a group fight that occurred on a Friday evening off campus. Although the fight involved boys from the same high school, there was no fighting either before or after this incident at the school itself. Nevertheless, the school officials decided the tensions among the boys might make their way back to the campus, and thus the boys should be prohibited from attending school for the rest of the year. The Clinic took on representation after Darrell and his grandmother had been unsuccessful in appeals to a teacher panel and to the superintendent. A Clinic student prepared and made an oral argument on Darrell’s behalf before the board of education, but the Board upheld the suspension. The next appeal was to state superior court. The case was briefed and argued in superior court by a third-year law student, facing a well-established law firm representing the school board. The judge ruled for Darrell, accepting the Clinic’s argument that the school board had overstepped its authority by disciplining a student for an off-campus event when there was no evidence of any related disruption on the school campus or at any school-related activity. The school system was ordered to remove the suspension from Darrell’s record and provide him the opportunity to make up his missed credits.
Jamal was facing long-term suspension for a verbal confrontation with a school administrator when he and his mother contacted the Clinic. A senior, Jamal was only three credits from high school graduation, and this suspension would have either delayed his graduation or encouraged him to drop out of school altogether. A factual investigation showed that there were many disputed facts, and witnesses interviewed by the law student representative suggested that the school administrator might have significantly overstated the seriousness of the confrontation. A Clinic student represented Jamal in a hearing before a teacher panel, which involved direct and cross examination, as well as an opening statement and a closing argument. Although the teacher panel supported the long-term suspension, the Clinic appealed further on Jamal’s behalf to the superintendent. The superintendent, upon reviewing the record of the hearing, reversed the principal’s decision to long-term suspend, and Jamal was permitted to return to school and finish out his high school career.

School Discipline & Special Education

Among the most challenging cases faced by the Clinic are those involving children with disabilities who have behavioral problems. Children with autism, attention deficit hyperactivity disorder, bi-polar disorder, adjustment disorder, and other behavioral and emotional diagnoses often cannot conform their behavior to expected school standards. Principals, however, are reluctant to exempt them from the usual school rules. Yet the federal law promises that children whose behavior is a symptom of their disability should not be punished for their behaviors. To that end, schools must conduct “manifestation determination reviews” before any child with a disability is long-term suspended to determine if the behavior subject to school suspension is a “manifestation” of the child’s disability. This review, held at the school, is often a contentious meeting, and one at which advocacy can often turn the tide. The decision made by school personnel at the review is an appealable decision; should the parent wish to appeal, legal representation is necessary.

The Clinic has found that children at the intersection of special education and school discipline are often the most vulnerable, at risk children. They frequently come from extremely troubled backgrounds with parents who are absent or have limited parenting abilities. Excluding these children from school can catapult them into juvenile crime, exacerbate their emotional problems, or encourage them to drop out of school altogether. The Clinic’s advocacy has made a significant difference in the outcomes for many of our clients. Following are some examples:

Chantelle was a 16-year-old freshman in high school when she was referred to the Clinic. She was facing a five-month long suspension from school for stealing three sodas from the school canteen. The Clinic student who took on the case learned these facts about her: Chantelle was living in a group home, separated from her mother who was in a drug rehabilitation program. She had learned to steal food when she was about eight years old, the only way that she had to feed herself and her three younger siblings, because her mother sold their Food Stamps to support her drug habit. Although labeled as having a learning disability, she was in no special education classes and was failing in school, as she had done before. She frankly admitted to her law student representative that she couldn’t read and often slept through class. There was no question in anyone’s mind that if this suspension were carried out, she would never return to school, and could easily follow her mother’s footsteps into a life of drug addiction and poverty. Aggressively represented by her Clinic representative, Chantelle’s suspension was reversed. She was assigned to a new school and given one-on-one tutoring in reading. A year later, she remains in school, continues to get specialized instruction in reading, and has made significant academic progress.
When the Clinic was contacted about Ramon, he was living in a group home for teens and attending high school. He is mentally disabled and has attention deficit hyperactivity disorder. He was facing a long-term suspension recommendation from the principal because he had cursed at and allegedly threatened an assistant principal when being disciplined for being at the wrong place at the wrong time. The Clinic agreed to represent Ramon at his “manifestation determination review.” After the decision had been reached that Ramon’s actions were indeed a manifestation of his disabilities, the school proposed that he be removed from the school setting regardless of this determination. It proposed that he be placed on “homebound instruction” because of his inability to behave appropriately at school. This would involve a teacher visiting Ramon at his home for two hours per week and reviewing work sheets with him. Otherwise, he would get no instruction. Ramon’s law student representative argued strongly against that option, pointing out that it would not provide Ramon the “free, appropriate public education” he was entitled to. Apparently understanding the Clinic’s willingness to file a due process appeal should the homebound placement be made, the school officials backed down and withdrew the homebound proposal. Ramon returned to school without incident and was able to continue working on his academic goals.

Law Student Skill Development

The law students who participate in the Children’s Education Law Clinic have the opportunity to be a part of a functioning law office and engage in a range of tasks that will be required of them when they graduate. Each of them has the chance to practice interviewing, counseling, fact investigation, file organization and management, negotiation, and advocacy. They learn how important it is to understand the substance of a client’s case; many of them spend hours studying psycho-educational testing and learning about the characteristics of different disabilities so they can speak knowledgeably and effectively for their clients. Their self-confidence increases considerably as they interact with school principals, psychologists, parents, special education teachers, and administrators. Most importantly, perhaps, they gain remarkable insights about themselves and what it means to be an attorney. One student put it this way:

This Clinic enabled me to understand in a deeper way what it means to be a professional. In particular, dealing with difficult clients — with shifting stories, emotional highs and lows, or whatever else could arise — taught me that practicing law often requires a lot of translation. . . . The need arises to bridge the communication gap between the parent and school in a way that is not condescending and that allows the parent to believe that it is, in fact, his or her story that is being told, and not the lawyer’s.

In addition to learning skills and developing professionalism, many law students are tremendously inspired by the work of representing poor children. One student, somewhat discouraged by her law school experience, said that working in the Clinic allowed her to believe there was a place for her as a lawyer. Another student said that her Clinic experience gave focus and definition to what had been only a vague notion that she wanted to help children as a lawyer. Yet another, noting her reinforced commitment to public interest law, commented about the Clinic’s clients, “If we didn’t fight for them, I just couldn’t figure out who else would.”

Community Education

In addition to individual representation, the Clinic engages in community education statewide about special education and school discipline law. Since the inception of the Clinic, the clinic director and supervising attorney have given more than 30 presentations on such topics as “Resolving Special Education Disputes,” “The Legal Rights of Disabled Children in School,” “School Discipline,” and “Advocating for Children with Disabilities.” This past year, Clinic Director Jane Wettach was invited to speak at the annual conference of the N.C. Branch of the International Dyslexia Society; at a statewide symposium on The Individuals with Disabilities Education Act; at the annual meeting of the N.C. Association of Women Attorneys; and at several statewide meetings of Legal Aid of North Carolina. In addition, she was the guest on “The State of Things,” a radio show of WUNC in Chapel Hill, and on “The Legal Eagle,” a radio show of WNCU in Durham, speaking about school discipline law. Both faculty members regularly provide phone advice to community professionals — social workers, case managers, psychologists, juvenile court counselors, and attorneys — who have questions about special education and school discipline law.

In March 2004, the Clinic faculty hosted the first “Special Education Law Roundtable.” Virtually all the attorneys in North Carolina who routinely represent children in special education cases gathered for an all-day meeting at Duke Law School to share strategies, brainstorm about common issues, and exchange helpful information. Approximately 20 attorneys participated and asked the Clinic to continue the Roundtable on at least a semi-annual basis.

Future Plans

The Clinic is fully enrolled for the fall semester and we plan to continue representing clients in our priority areas of special education and school discipline. The Clinic’s services have become a valuable community resource and we receive many requests for the work we do. As the only law office in North Carolina specializing in special education and school discipline law that represents children, the Clinic is becoming an important statewide center of expertise. This creates opportunities to host conferences or develop publications, particularly as the law changes.

Having worked with 160 clients, the Clinic faculty has begun to understand some of the systemic issues facing children in school. Thus, we are engaging in various conversations and exploring opportunities to address some of these issues collectively rather than individually. This may occur by collaborating with other groups that have similar interests to advocate for policy change, or through direct legal action. One of the issues that is particularly troubling is the use of “homebound instruction” for disabled children who are discipline problems. In these cases, children who have behavior problems are not suspended from school, but are “placed” at home and provided very limited instruction (from two to five hours per week is typical.) The Clinic is exploring possible avenues for challenging this practice. In addition, the Clinic is interested in challenging the legal theory — which is controlling in North Carolina — that a child can “waive” his or her right to a public education by violating school rules.

On another front, the Clinic is pursuing some collaborations that have the potential to enhance the work of the Clinic and the services it provides. One possibility is that a Duke psychology graduate student will be assigned to the Clinic as a practicum site. This arrangement would give the law students a consultant with whom they could confer about psycho-educational issues raised by the cases and could potentially result in some referrals of Clinic clients to experts at Duke.

The Clinic is likewise pursuing a joint project with The Durham Center, the local mental health center. We envision a program in which Clinic staff would regularly train mental health case managers about special education and school discipline and particularly about how to recognize when a client should be referred for legal services. The Clinic would then routinely accept referrals when made from the mental health case managers. At the same time, Clinic representatives would have the ability to refer clients for mental health services if they appeared to be needed.

Conclusion

In the two and a half years the Children’s Education Law Clinic has been in existence, it has grown into a thriving program with both law student and community support. It has filled a gap in the legal services available locally for low-income families, as area Legal Aid offices do not have attorneys with expertise in school law. At the same time, the Clinic has become a center of expertise in this area, providing training and advice to lawyers, other professionals, and parents throughout the state. Finally, it has added to the clinical education opportunities at Duke Law School, giving law students a chance to develop all the skills encouraged by the Duke Blueprint: to engage intellectually, act ethically, lead effectively, serve the community, build relationships, strive for personal growth, explore multicultural perspectives, and practice professionalism. We are pleased to have reached this point, and plan for continued growth and improvement.

1 The names of the children and some of the identifying facts have been changed to protect the privacy of the Clinic’s clients.