Children's Education Law Clinic
By Frances Presma/Photos: Don Hamerman
Children's Education Law Clinic Teaches Efficient,
Compassionate Problem Solving
When her 10th grader received a year long suspension for kicking a student in a school brawl last September, Sandra Jenkins* decided to challenge it.
“If the objective is to help kids develop better behavior, long term suspensions don’t work. They don’t help kids with their decision-making,” says Jenkins, a mother of six. “As a mother, I feel stability is key to children’s success. They shouldn’t be removed from a regular and familiar school setting unless they are truly dangerous.” Jenkins is quick to add that she would support anger management and decision-making classes for her son who, she says, admitted his part in the fight and apologized for it.
Jenkins called Duke’s Children’s Education Law Clinic for assistance. “I don’t have words to describe what a great resource it is,” she says of the Clinic. “We have been able to utilize all of the options available to us. Most parents don’t know they can do anything to challenge suspensions.”
Clinic Director and Clinical Professor Jane Wettach assigned Jenkins’ case to a third year law student, Jeremy Smith, who managed to get her son, Donald*, into an alternative school while the appeal was pending; by that time he had missed 20 days of school–in Jenkins’ view sufficient punishment for his act. Smith warned Jenkins that her chances of success were slim; the public school system’s rules regarding “multiple-on-one” fights strictly impose a year-long suspension. Jenkins says she appreciated his candor. “Jeremy has had Donald’s best interests at heart from the beginning. His letter to the school board was focused on Donald’s needs, his future, and the impact the suspension would have on him.”
In fact, the school board refused to lift the suspension at the last stage of administrative appeal, and Donald remains at the alternative school. Jenkins admits her disappointment. But she also found “a blessing in disguise” in the proceedings; Smith and Supervising Attorney Brenda Berlin were able to initiate an investigation into Donald’s poor academic performance, which showed he needed–and was entitled to–special education services to address a diagnosed impairment. Although he had benefited from special education throughout elementary and middle school, his “Individualized Education Plan” (IEP) was found to have been improperly discontinued when he entered high school. With the Clinic’s assistance, the school district agreed to provide Donald with a package of individualized education services that will compensate him for those he should have received.
Solving Problems With Kids In Mind
All North Carolina children with g-related disabilities have a right to an appropriate public education, says Wettach. That right is violated if those disabilities are not properly addressed or if students are improperly barred from their classrooms and schools. A substantial body of social science research, she says, indicates that frequent and long-term suspensions are more likely to encourage than curb anti-social behavior, and should only be used for those students who truly endanger their classmates.
In every case, Wettach makes sure her students understand the urgency of problem solving when something as fundamental as a child’s education is at stake. “Kids need help quickly. This Clinic is about achieving resolutions efficiently, compassionately, and competently.”
The Children’s Education Law Clinic has taken that approach to more than 240 cases on behalf of low-income families since it opened four years ago, its caseload dominated by special education and school discipline disputes or, like Donald’s, a combination of the two. In many cases, family, social, and economic issues compound the academic or behavioral problems children may be having in school. For this reason, says Wettach, Clinic students have to be especially vigilant to “drill down” into their clients’ stories through effective interviews, conduct thorough reviews of records, solicit school administrators’ versions of events, and filter information obtained through a deep, substantive understanding of the law.
One client told Philip Mirrer-Singer ’06 that middle school administrators were using her son’s learning disability as a justification for repeatedly suspending him. The boy had very poor grades and was labeled as “behaviorally and emotionally disabled.” Mirrer-Singer recalls questioning his client carefully to clarify what her precise objectives were in the case: to help her son do better in school or challenge the suspensions.
“I learned how to approach an interview so that you get the information you really need from the client. You often have to say, ‘leaving aside all your personal feelings about how the school handled the situation, what do you think is truly in the best interests of your child?’ You have to refocus the client, yet maintain rapport.”
When improving the boy’s academic performance proved the overriding goal, Mirrer-Singer initiated a series of meetings with his clients and school officials to work out an effective IEP and monitor follow- through. He was able to brainstorm strategies with Wettach and fellow students, as well as graduate students in education from nearby North Carolina Central University who had expertise with behaviorally and emotionally disabled children. Mirrer-Singer also worked to “diplomatically” address the underlying feeling of mother and son that they weren’t; being treated with respect by school administrators and teachers. “We encouraged them to interact with the child in a way that wasn’t simply directive, but that helped him understand why the school wanted him to act in a certain way. It was a highly collaborative approach.” It worked, says Mirrer-Singer; though “problems remained,” the child received fewer short term suspensions over the course of the semester.
Elizabeth Avore ’06 similarly had to “refocus” a client who was understandably frustrated by his 13-year-old daughter’s first-grade reading and math skills; although early testing had uncovered substantial cognitive and learning impairments, they went largely unaddressed for years by the state-run school she attended. Frustrated by the school’s lack of response to his repeated complaints and appeals, the father contacted the Clinic, wanting to sue the school and go public with his complaints.
“I impressed on him that the ultimate goal was to get his daughter the services she needed. Negotiating with the school was time consuming, but was going to yield the results she needed much faster than a lawsuit would,” says Avore, who will be joining the litigation department of Greenberg Traurig in New York. “I think ‘client management’ is a big thing I’m taking forward into practice.” The power of negotiation is another. “It’s easy to assume that litigation is the answer to a lot of problems, but in this case, negotiation worked best. In many ways we were demanding the same things as the parents had, but we knew the law, which strengthened our bargaining position.”
“We win disability cases with exceptional legal work. It is the ‘value added’ that we put into the case that is the key to success,” says Rice. In the process of reviewing a doctor’s affidavit, drafted by a student to support a benefits appeal, she points out that it has to precisely address myriad issues before an individual with HIV will be considered disabled by the Social Security Administration.
“It’s extremely challenging to acquire expertise and understanding of a particular client’s medical condition and situation, have an intelligent conversation with a doctor, and then draft an affidavit for the doctor to sign off on.” Doing so involves skills that are “totally relevant” to practice, adds Rice. “Students learn evidence–what can a witness, lay or expert, say, how to lay a foundation for the evidence, and how to provide concrete detail to support conclusions that the witness is making.”
Every opportunity a student has to open their mouths and advocate something is an important training moment. Having that experience in a supervised setting is wonderful.
- Ann Majestic '82
Julie Riewe ’99 says that in her work as an investigator in the enforcement division of the Securities and Exchange Commission she puts to daily use skills she first learned during a semester in the AIDS Legal Project, handling disability appeals, among other matters.
“It was there I learned how to conduct an investigation–how to be persistent, track down the client, the doctors, and whoever else we needed to help build a record, and then take that information and translate it into a persuasive piece for a court. That’s exactly what I do now in conducting investigations and making recommendations to the Commission as to whether or not it should bring an action, based on the facts.” Riewe further credits her clinical semester with teaching her the importance of taking ownership of her cases. “I learned quickly that you have to be proactive. You can’t be waiting for someone to tell you what to do.”
Focusing On Negotiation And Mediation
“We never go into a case assuming that we will sue a school district. We always try to solve problems through negotiation and mediation,” says Berlin.
“When an IEP process breaks down it’s usually because a relationship has broken down — oftentimes the relationship between the parent and the school. We try to figure out what the root of the problem is and help mend that relationship, so that when we step out the parent can continue to advocate on the child’s behalf. Sometimes we’re just acting as a translator, articulating the parent’s position in a way the school can understand, and then negotiating a suitable solution.”
Nancy Spencer, director of legal compliance for the Wake County Public School System’s special education services, often finds herself across the table from Clinic students and supervisors, yet commends their work, noting that students come to meetings well prepared and clearly committed to their cases.
“For the most part, we work very well together. We service 18,000 exceptional children and 140 schools, and it’s hard for us to know [everything]. They have brought cases to our attention that I’m very grateful they did.” There are times, she adds, “When we have to agree to disagree.”
Those sentiments are echoed by Ann Majestic ’82, who heads the education law practice at Tharrington Smith in Raleigh, representing many of North Carolina’s largest school boards and districts, including Wake County’s. Majestic says she appreciates and shares the Clinic’s approach of “striving for solutions.”
“We have been able to come up with constructive solutions to the disagreements between schools and parents,” says Majestic, adding that she never welcomes litigation and disputes against the school system. Still, she commends the Clinic’s “great service” in representing families of lesser means.
“In my practice over the years, most of the parents of special education students who have brought complaints were middle- or upper-middle class. Poor students make up a good portion of special education students, so I think it’s wonderful that there’s a place for them to turn.”
As an alumna, Majestic appreciates the training the Clinic offers students in negotiation and advocacy.
“Every opportunity a student has to open their mouths and advocate something is an important training moment. I fear students heading to big firms after graduation may spend a long time before they step up, stand up, and advocate something in an adversarial setting. Having that experience in a supervised setting is wonderful.”
Training Effective Advocates
That is exactly what Heather Holloway ’05 got with a case she handled throughout her third year of law school. Her client, a high school senior, was found to have homemade firecrackers in his car during a routine traffic stop; first charged by Raleigh police with possessing weapons of mass destruction, the charges we eventually reduced to possession of pyrotechnics.
Although the events occurred off campus and during the summer while school was not in session, the young man, an honor student, faced permanent expulsion from school. Holloway handled his family’s challenge of the expulsion through the school system’s administrative hearings and appeals, eventually filing an appellate brief to North Carolina Superior Court, at which point the case settled on terms that would allow the boy to compete his high school education.
“I handled every phase of the litigation process as a student, which was an amazing experience,” says Holloway, who won a national award from the Clinical Legal Education Association for her representation. She quickly ticks off the skills she gained from the experience: how to “command the room” and take control in the hearing; how to build a case and preserve a record for appeal; how to examine and cross-examine witnesses; how to structure oral arguments; how to craft a persuasive appellate memorandum; and how to negotiate a settlement in her client’s best interests. Of enormous value, she says, was learning to establish rapport with her clients.
“I was nervous going into our initial meeting. I wasn’t sure if they were going to be able to relate to me and trust me, and I wanted make sure I could relate to them and trust them. Unless they told me every relevant detail, I wasn’t going to be able to effectively litigate on his behalf.”
After strategizing an approach with Wettach and Berlin, Holloway eased into the interview by making conversation, “showing them that I really cared about them, and wasn’t just treating them as a ‘case.’ After that we got into anything and everything — his case, his background, and family life. As the case progressed, that strong bond of trust really served us well,” Holloway observes. “If your clients don’t trust you, they won’t tell you everything, and if they don’t, you can’t effectively represent them.”
Her Clinic experience gave her a head start in her current clerkship for the New York Supreme, Appellate Division, Fourth Department, says Holloway.
“Among other things, I came into this job knowing how to write a 40-page document on law and fact for a judge’s review, which is what I do every day in writing reports and recommendations.”
Holloway has the highest praise for the supervision she got from Wettach and Berlin, and a lasting appreciation for the Clinic’s service to the community.
“Parents come into the clinic afraid to navigate the school system, afraid to advocate on their children’s behalf. They don’t know the proper services they can legally demand to just get the basic education they are entitled to. Jane, Brenda, and the Clinic students give them a voice, providing them with knowledge and information to help them navigate. It’s an amazing service that the Clinic provides to the area, and amazing experience for Duke Law students as well.”