McGuireWoods associate Keisha Coleman took the rare step of providing pro bono counsel to a student facing suspension.
Although the student said he didn’t know it was fake and had an otherwise clean record, the school suspended him for five days as part of its zero-tolerance policy. It didn’t matter whether he knew or not, the school told his parents — it mattered that he had it at all.
“I happened to see a local news interview with the parents and the student,” said Coleman, a former high school literature teacher. “I couldn’t believe what I was hearing.”
She decided to offer the family pro bono counsel and went on to help get the suspension reversed and the student’s name cleared. According to Kaitlin Banner, deputy legal director at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, such pro bono work happens all too rarely in an education system where exclusionary discipline paves the way to a so-called “school to prison pipeline.”
“Attorneys don’t understand that this is happening, and parents and students don’t know their rights,” Banner said.
Coleman’s case drew local and national headlines, in part because of its sympathetic subject, a 12-year-old honor student named Christian Philon. He had received the $20 bill in question from his father, Earvin Philon, who had in turn received it from a Wendy’s drive-thru.
Neither father nor son said they had any idea the money was funny until a cafeteria worker marked it with a counterfeit pen.
Even after they filed a police report about unknowingly receiving the counterfeit bill, a disciplinary hearing officer decided that regardless of circumstance, the student had violated his the school district’s code of conduct that prohibits possession of fake currency. His suspension was actually increased to seven days, and the parents were told that their only shot at appeal would be in just two days.
That’s when Coleman stepped in, pointing out that the family didn’t even have a copy of the original disciplinary hearing’s transcript. She got the appeal moved back by two days, giving her enough time to put together a legal brief. In it, she argued the Henry County Board of Education had failed to follow Georgia statutes that require all policies be age-appropriate and designed to improve student learning.
“With that zero-tolerance policy, there was no possible way it improved student learning,” she told Law360. “There was no deterrent effect — the child had no clue it was counterfeit!”
Coleman also argued that the policy itself actually hampered learning because the school had removed a model student from his classroom. Banner agreed, pointing to research that has found the only thing suspensions are likely to predict are more suspensions.
“Suspensions and expulsions don’t really work,” she said. “If they helped, you’d think there’d be more people with just one suspension.”
She added that, in schools that often measure terms in stretches of nine weeks, a seven-day suspension can significantly hamper a student’s education. Some punishments can be much longer, stretching up to 90 days and even for the duration of the school year.
Another problem with these exclusionary discipline penalties is that they disproportionately affect children of color, like the student in Coleman’s case.
A 2014 policy guidance issued by civil rights divisions in the U.S. departments of Justice and Education cited national data showing African American students are more than three times as likely as their white peers to be expelled or suspended. More than half of those involved in school-related arrests are Hispanic or African American.
According to a ProPublica analysis of 2015-2016 federal data, the school district Coleman’s client attended was 2.4 times more likely to suspend black students as white students. Students at his school, Austin Road Middle School in Stockbridge, Georgia, missed a combined total of 593 days due to out of school suspensions, nearly double the district average.
In its 2014 guidance, the Obama administration had advocated for using exclusionary discipline as a last resort, threatening to “hold schools accountable” if policies were shown to disproportionately affect students of a particular race.
Some districts in states such as New Jersey, Connecticut and Virginia, took note by implementing restorative justice procedures instead. These can include group discussions around why harm was caused and what can be done to make amends.
But earlier this year, Secretary of Education Betsy DeVos rescinded the 2014 guidance on using exclusionary discipline as a last resort, citing concerns by some school superintendents that “by keeping some students in school, we are risking the safety of students.”
In Coleman’s case, however, there was little concern about the safety of other students. The Henry County Board of Education ultimately reversed her client’s punishment and cleared his record, though she expressed disappointment that it did not address its zero-tolerance policy for possessing counterfeit money.
School district representatives did not respond to a request for comment.
Coleman told Law360 that schools should have age-appropriate rules in place to avoid what happened to her client.
“This could have also applied to kindergarteners,” she pointed out.
She also noted that, had it not been for the family contacting the media, she would have never heard about the injustice.
“That’s another problem with zero-tolerance policies — not every child has parents who can go to bat like these parents did,” Coleman said.
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--Editing by Katherine Rautenberg.