Public Education: A Right Entitled to All

January 19, 2015

By: Brandon Pierce

Today was the day: Kevin’s first day of school.  Ten years old, gifted, and sitting with his pencil in hand—Kevin was ready.  The teacher came before the class and gave the instructions for the first assignment:

Gawd muwrein!  I clike fund ans he book? If topher largetwen to climbegan.  What limse anders plast forh.”

One fact I forgot to mention is that Kevin didn’t speak English.  He didn’t even speak Spanish, or any other well-known language in the United States.  Kevin was from a small Guatemalan village where one of over fifty ancient Mayan languages was spoken.  But there he was, in his first American classroom, receiving his American education.

Kevin is one of the over 68,000 unaccompanied minors that have entered the United States illegally since October 2013.  In November 2014, the U.S. Department of Education issued a fact sheet that outlines the basics about the illegal, unaccompanied minors’ rights.  As detailed in the fact sheet, once these minors have been apprehended in the U.S., they are put in the Department of Health and Human Service’s (HHS) custody.  While in HHS custody, the children are sheltered in government centers where they receive educational services.  Most children, like Kevin, are released into the United States under the custody of a family member or legal guardian (known as a ‘sponsor’).  While in the guardian’s care, these children attend classes in public schools, often times without knowledge of the English language.  But who would allow such a thing?  The United States Supreme Court would!

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America: Home of the Educated

“Denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage.” – Justice Marshall (Plyler v. Doe)

In June 1982, the U.S. Supreme Court Justices held in Plyler v. Doe that no state should constitutionally deny any person a free public education on account of his immigration status.  Put simply, undocumented children have the same right to a public education as U.S. citizens.

This issue arose out of restrictive Texas education laws.  With regard to undocumented children, Texas education laws mandated that the state: (1) withhold funds otherwise meant for educating children who were not “legally admitted” into the United States and (2) deny enrollment to those children in Texas public schools.

What did it mean to be “legally admitted” in the United States?  Pursuant to state policy, a person was legally admitted if he: (1) presented documentation demonstrating he was legally present in the United States, or (2) federal immigration officials confirmed such documentation was in the process of being obtained.  Ultimately, a group of students from Mexico that did not satisfy the “legally admitted” criteria filed a lawsuit to challenge the Texas education laws.  The case eventually made its way to the U.S. Supreme Court.  There, Texas’s education laws were held unconstitutional.

The Court based its rationale on the Fourteenth Amendment to the U.S. Constitution.  More specifically, the Court referenced a provision referred to as the “Equal Protection Clause.”  That clause states, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”  Therefore, unaccompanied children in the United States are entitled to public education.

New York State of Mind

Give me your tired, your poor, your huddled masses yearning to breathe free…”                          – Emma Lazarus

Let us consider New York City (NYC): the proverbial gateway into America’s land of opportunity.  For the 2014-15 academic school year, NYC public schools have enrolled over 2,000 unaccompanied minors.  Like Kevin, many of these children have never had one English language course.  To combat this dilemma, NYC schools have implemented the English Language Learners (ELLs) program.  ELLs is a bilingual program that promotes the social and academic development of students who have recently arrived to the U.S. without proficient English skills.  Devora Kaye, NYC’s Department of Education spokeswoman, endorses such progressive actions, reaffirming the Court’s decision in Plyler v. Doe.  She asserts the department’s belief that “every child has a right to a great education, and we are committed to providing children who have escaped violence with the academic foundation and access to services that they need to establish a path to long-term achievement.”

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By contrast, not all of New York’s actions have shown a general consensus toward the notion of “education for all.”  New York Civil Liberties Union (NYCLU) reviewed approximately 20 percent of the state’s school districts.  Within those districts, the NYCLU discovered that the majority has assembled arduous barriers for undocumented students, thus, potentially preventing their enrollment.  Consider this: seventy-three New York school districts require birth certificates for enrollment.  (Nineteen of those districts require the “original” birth certificate.)  In response, the NYCLU urged state education officials to formulate a model universal enrollment form and list of permissible evidentiary documents.  This is meant to develop uniformity within the state’s education system.

What Does This Mean for Other Children like Kevin?

Analysts are certain that more unaccompanied children are coming, but what is unclear is how they will be welcomed.  This dilemma must be met with an unwavering commitment to U.S. values and standards.  Equality and justice have long been the staple of America’s uniqueness.  If we deny those considerations to all mankind, then we have given up our uniqueness in the world.  In sports language, we have forfeited.  In war language, we have surrendered.  In scientific language, we have become neutral.  In short, we have compromised our national value.  Let us reclaim our true selves through equality and justice because education is a right entitled to all!


Actual Justice

January 8, 2015

By: Kevin Friley and Cynthia Vogler, Criminal Justice Clinic Members

Most law schools require students to take courses in criminal law and criminal procedure in order to graduate.  What is not required is clinical experience. Clinical experience develops the actual skills required for lawyering. Criminal law teaches you the elements of common crimes, such as the mens rea and actus reus of crimes.  However, it does not teach you how the details of the incident and the nuances of each situation can change the perception of those elements.  Criminal procedure teaches the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution.   Illegal searches, defective warrants, and failure to advise of Miranda rights are all the red flags we are taught to look for.  While this information is undoubtedly important, the procedural aspect that will most likely help your client is the one you learn in the courtroom, not in the classroom. These applications in the field are something you can learn through clinical experience.

Clinical experience prepares you for lawyering in a way that a classroom cannot.  All of the factors that come into play when you are dealing with real people, real crimes, and real life cannot be replicated in a traditional educational setting.  The fear and anxiety that settles upon you in a courtroom when your client’s fate hangs in the balance is indescribable. Although in the Criminal Justice Clinic, we represent clients charged only with misdemeanors, these crimes can result in jail time, significant costs, and a criminal conviction that could forever damage their career and educational opportunities.

Procedurally, the defense attorney and the client are at the mercy of the prosecutor, who wields a significant amount of power.  The prosecutor decides what charges to bring initially and what charges to dismiss.  The prosecutor also controls the docket, thereby controlling the procedures of the courtroom. In a law school classroom, you are not taught the intricacies and responsibilities of each of these players in the criminal courtroom.

Although criminal law and procedure are essential courses for understanding basic legal concepts, real-world advocacy extends well beyond burdens of proof and the statutory schemes professed in the classroom.  As aforementioned, the roles played by others within the justice system are frequently glossed over in the classroom but are often the keys in successfully resolving cases.  Simply put, the personalities and motivators of the arresting police officer, the prosecutor, and the judge can prove just as important in defending a client as the governing statute or Constitutional provision.

Our first case of the semester had an interesting fact pattern, to say the least.  The client, Joan English,[*] was in her early twenties, unemployed, with a history of minor mental issues.  On the day Ms. English was taken into custody, the police had been dispatched several times.  Ms. English was having one of those days where everything just gets to you.  Everyone has had one of those days, when your friend from high school gets your dream job; your relationship with your boyfriend ends unexpectedly; everything is just going wrong.  That was Ms. English’s day.  She decided to go out for a bicycle ride.  She was weaving in and out of traffic, acting erratically, and several people called the police to report her strange behavior.

Ms. English returned home.  However because of her erratic behavior, the police encouraged her mother to have her committed.  This process involved going to the magistrate’s office and having an involuntary commitment order entered, as Ms. English’s mother felt she was a danger to herself and had no choice.  An involuntary commitment is a civil process as opposed to a criminal one.  In this case, Ms. English was committed to Carolinas Medical Center.  Before her mother could do that, Ms. English left her home again, this time to go to a retail shopping area.  She stole a basket assortment of candies, which she later discarded in the parking lot.  The police were again dispatched regarding Ms. English’s bizarre behavior.

The police officers came upon Ms. English in the retail parking lot and engaged her in conversation.   Ms. English’s mother completed the necessary paperwork at the magistrate’s office and the officers were instructed to pick up Ms. English and deliver her to the local hospital.   Ms. English was told she was not going to jail, but instead going to a mental hospital to get help.  The officers tried to handcuff her and she stiffened up.   Eventually, the officers did get the handcuffs on her and then attempted to put Ms. English in the police car.  Ms. English refused to comply, stiffening her body and resisting being put into the car.  The officers did succeed in getting Ms. English into the car and to the hospital without any injury or further incident.  Ms. English was in the local hospital for eleven days.  She attended therapy sessions that included coping skills and anger management, and was provided medication for her diagnosed mental illness.  Upon her release, Ms. English continued outpatient care and therapy.   Ms. English was arrested after her release for the charges of larceny and resisting a public officer, stemming from the incidents on the day of her commitment to the hospital.

In the English case, the characteristics of the arresting officer and two district attorneys ultimately determined when and how the case was disposed of.  From the outset, the client and her family expressed an understanding that the arresting officer was sympathetic towards her situation. A brief conversation with the officer on the client’s trial date confirmed this.  The officer understood that Ms. English had been experiencing some degree of mental distress at the time of the crime, and that her actions were likely the result of that distress rather than any criminal intent.  In this respect, the officer believed a criminal penalty would not benefit Ms. English.  The officer, without being prompted, stated that he was not opposed to dismissing the case.  When Ms. English’s case was ultimately dismissed, the assistant district attorney (ADA) deferred to the officer before making this decision.

Had this police officer not been compassionate and legitimately concerned with what was best for Ms. English, the case would have proceeded to trial.  The officer could have easily stood his ground and contended that Ms. English’s actions were within the meaning of the relevant statutes and that she should submit to the consequences of her actions.  Instead, the officer was thoughtful and understood what was best for Ms. English.  He wasn’t concerned with which actions were legal and which were illegal, he was concerned with the best outcome for the parties involved.  This is what justice is really about, rather than harsh, indifferent results that can fracture peoples’ lives.

Prosecutors and police officers play a substantial role in when and how a case is disposed, as prosecutors have a great deal of discretion.  How a particular prosecutor chooses to exercise her discretion can influence the outcome of a case far more than a statute or fact.  For instance, some prosecutors are focused primarily on efficiency in an effort to dispose of more cases, and thereby make quick decisions based solely upon the nature of the charge itself.  Others, however, are interested in the smaller details of the crime and are more invested in what outcomes are just.  We were fortunate Ms. English had a thoughtful prosecutor and police officer, both of which led to a just result.  Redefining justice as more than seeking a conviction and exacting a pound of flesh can be the first step in a serious dialogue with communities about the true meaning of justice.

[*] The name has been changed to protect the confidential attorney-client relationship.


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