MANUAL FOR REPRESENTING CHILDREN AT CHICAGO PUBLIC SHOOLS EXPULSION HEARINGS

CHICAGO LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

CONTACTS: Paul Strauss (312) 630-9744 ext. 229 [email protected] Jessica Schneider – intakes and scheduling (312) 630-9744 ext. 231 [email protected]

Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. 100 N. LaSalle St., Suite 600 Chicago, IL 60602

JANUARY 2012

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Acknowledgements: This manual was written with reference to and by relying in many parts on the 2005 manual prepared by The Children’s Law Pro Bono Project of the Children and Family Justice Center of the Bluhm Legal Clinic of the Northwestern University School of Law. We are grateful for help in updating that manual from: Monica Mahan, Chicago Coalition for the Homeless; Beth Cunningham, Attorney, Law Project of the Chicago Coalition for the Homeless; and Monica Llorente, faculty member, Northwestern University School of Law Special thanks are due in particular to Miranda Johnson, Salisbury Clinical Fellow, Civitas ChildLaw Clinic, Loyola University Chicago School of Law.

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Table of Contents SECTION 1: POLICY AND SUMMARY OF THE EXPULSION PROCESS ........................................................... 6 A. Student Code of Conduct...................................................................................................................... 6 B. Written Reports of Violation of the Student Code of Conduct ............................................................ 7 C. Referral to the CPS Law Department .................................................................................................... 7 D. The Hearing........................................................................................................................................... 8 1. General Procedure ............................................................................................................................ 8 2. Witnesses .......................................................................................................................................... 9 3. Presentation of the Defense ........................................................................................................... 10 SECTION II: TAKING A CASE - INTAKE INFORMATION ............................................................................ 12 SECTION III: CLIENT INTERVIEW .............................................................................................................. 14 A. Preparing for a Client Interview.......................................................................................................... 14 1. Arrange First Meeting ..................................................................................................................... 14 2. Call to Confirm Meeting .................................................................................................................. 14 3. If Possible, Have the Student’s Parent and Guardian Obtain the Student’s School Records Before Your Meeting ...................................................................................................................................... 15 4. Language - Translator...................................................................................................................... 15 5 Prepare an Outline of Questions You Want to Ask .......................................................................... 15 B. At the Client Interview ........................................................................................................................ 17 1. Explain the Status of the Case ......................................................................................................... 17 2. Emphasize the Importance of Attending Meetings and the Hearing ............................................. 18 3. Set Up a Schedule of Contacts with Your Client ............................................................................. 18 4. Explain Your Role as Attorney – Confidentiality and Attorney-Client Privilege .............................. 18 5. Sign Retainer Agreement and Authorization for Release of Information....................................... 19 6. Guidelines for Minor Until the Expulsion Hearing .......................................................................... 19 7. Exchange contact information ........................................................................................................ 20 8. Conduct Two-part Interview ........................................................................................................... 20 SECTION IV: STUDENT WHO HAS OR APPEARS TO HAVE A DISABILITY .................................................. 24 SECTION V: EXTENSION OF TIME............................................................................................................. 25 SECTION VI: PLACEMENT IN ALTERNATIVE SCHOOL............................................................................... 26 SECTION VII: DISCOVERY ............................................................................................................................. 27 A. Ask Client to Bring Relevant Documents to First Interview................................................................ 27 1. Notice of Request to Expel .............................................................................................................. 27

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2. Misconduct Report.......................................................................................................................... 27 3. IEP Conference Reports .................................................................................................................. 27 4. Previous Misconduct Reports ......................................................................................................... 27 5. Grades and attendance ................................................................................................................... 28 B. Write Letter to Law Department Requesting Relevant Documents ................................................... 28 C. Call Law Department (773-553-1700) to Follow Up on Letter ........................................................... 28 D. Law Department Should Send Letter With Requested Information ................................................. 29 E. If Do Not Receive Every Document, Continue Writing ....................................................................... 29 F. Seek Documents from Other Sources ................................................................................................. 29 a)Child’s school ................................................................................................................................... 29 b) Outside Counselors ......................................................................................................................... 29 SECTION VIII: PRE-HEARING COMMUNICATIONS WITH LAW DEPARTMENT ........................................ 30 A. Gather Information from the Notice of Expulsion Hearing ................................................................ 30 SECTION IX: INVESTIGATION ....................................................................................................................... 31 A. Conduct an Interview with the Parent(s) and Child ........................................................................... 31 B. Interview Witnesses of the Incident ................................................................................................... 31 1. School Officials Associated with the Case ....................................................................................... 31 2. Resolution of the Case After Your Investigation ............................................................................. 32 SECTION X: PREPARATION OF WITNESSES AND EXAMINATIONS ........................................................... 33 A. Advice to Student, Parents and Witnesses ......................................................................................... 33 B. Direct Examination.............................................................................................................................. 34 C. Cross-Examination .............................................................................................................................. 35 D. Help on preparing witness examinations, opening and closing statements, and strategy in general. ................................................................................................................................................................ 35 SECTION XI: AT THE HEARING ..................................................................................................................... 36 A. Procedure ........................................................................................................................................... 36 B. Discussion About Agreed Outcome Before the Hearing..................................................................... 36 C. Defense case ....................................................................................................................................... 37 D. Opening and Closing Statements ....................................................................................................... 38 E. Rules of Evidence ................................................................................................................................ 39 F. Making a Recommendation ................................................................................................................ 40 SECTION XII: AFTER THE HEARING .............................................................................................................. 41

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SECTION XIII: APPEAL .................................................................................................................................. 43 APPENDIX .................................................................................................................................................... 44

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SECTION 1: POLICY AND SUMMARY OF THE EXPULSION PROCESS

A. Student Code of Conduct Students in the Chicago Public Schools (CPS) are subject to the disciplinary rules set out in the CPS Student Code of Conduct (SCC). The Student Code of Conduct is available on the CPS website at http://www.cps.edu/Documents/Resources/StudentCodeOfConduct/SCCEnglish.pdf. Officially, the SCC calls for a process in which disciplinary infractions are supposed to be viewed as opportunities for a learning experience and expulsion is to be imposed only as a last resort. According to early sections of the SCC,” Schools must proactively teach, reinforce, correct and supervise student behavior.” “ The Board expects school staff to intentionally describe and teach students the behaviors expected of them as learners in a safe, civil and respectful school. All staff shall be encouraged to proactively redirect student behavior and use minor misconduct as an opportunity to reteach or practice expected behaviors.” The SCC says, “Any discipline imposed should be instructional and corrective, and out-of-school suspensions should be used as a last resort, unless necessary due to the severity of a student’s misconduct.” And the point is repeated: “The disciplinary process set forth in this SCC is intended to be instructional and corrective, not punitive. Schools shall use out-of-school suspension as a last resort, unless mandated by the severity of the infraction.” The Student Code of Conduct collects various types of offenses and puts them into groups, ranging from Group 1 to Group 6, listing interventions and consequences for offenses in each group. Referral for expulsion results from offenses in Groups 5 and 6 – matter such as, e.g., offense 5-12, “Battery, or aiding or abetting in the commission of a battery, which results in a physical injury;” or offense 5-17, “Use or possession of illegal drugs, narcotics, controlled substances, `look-alikes’ of such substances, or contraband, or use of any other substance for the purpose of intoxication in school or at a school related function or before school or before a school related function;” or offense 6-1, “Use, possession, and/or concealment of a firearm/destructive device or other weapon or `look-alikes’ of weapons as defined in this Code, or use or intent to use any other object to inflict bodily harm.” Referral for an expulsion is mandatory for charges of student misconduct categorized as Group 6 offenses. For Group 5 offenses, the school administration has discretion about whether to make a referral for an expulsion hearing. For certain categories of offense, the SCC provides that school personnel may notify the police; for others, the SCC provides that school personnel must notify the police.

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B. Written Reports of Violation of the Student Code of Conduct When a student is suspected of violating the Student Code of Conduct a process is typically followed to document the alleged offense. First, the administrators of the school file a Misconduct Report in the student’s personal file and an Incident Report in the school’s security file. The Misconduct Report is generally completed by the school disciplinarian or vice principal and signed by both the vice principal and the principal of the school. An example of a Misconduct Report is included in the Appendix, document 1. This Misconduct Report explains the school’s initial punishment determination, which could be, among other things, suspension, expulsion, referral to police, or in-school punishment. An Incident Report is generally completed by the security officers at the school and is kept in the school’s security file. Incident Reports are rarely made available to counsel for an expulsion hearing

C. Referral to the CPS Law Department After the child has received an initial suspension for a Group 5 or Group 6 offense (typically a 10-day suspension), the school administration can refer the case to the CPS Law Department to proceed with an expulsion. At this stage, the decision-making shifts to the Law Department representatives and their supervisors. All negotiation and litigation from this point proceeds with representatives of the Law Department. Though the child and his parent or guardian generally receive written notification by certified mail that expulsion proceedings have begun and that they have the right to counsel, most families cannot find or afford a legal representative. Also, school administrators and community leaders are ill-informed as to the finality of this hearing and rarely advise a parent that legal representation is important for these hearings. In the majority of CPS expulsions, parents and children have no legal counsel and generally represent themselves. Unfortunately, it is often the work of a legal representative that makes the difference in whether a child will be able to continue her education in a regular school. Notice to the child’s parent or legal guardian of the expulsion proceedings generally takes the form of a letter entitled “Notice of Expulsion Hearing” (see Appendix, document 2) accompanied by a “Notice of Request to Expel” which describes the alleged misconduct and the sections of the SCC that the child is charged with having violated. (See Appendix, document 3, for example.) As of January 2012, the CPS lawyer in charge of supervising matters related to expulsion hearings for CPS is: Esther C. Yahnig Assistant General Counsel Board of Education of the City of Chicago 125 South Clark Street, Suite 700 Page 7 of 44

Chicago, IL 60603 (773) 553-1713 Fax: (773) 553-1769 [email protected]

D. The Hearing 1. General Procedure

Expulsion hearings occur in small interview rooms in the CPS offices at 125 South Clark Street, on the 19th floor. All parties are seated around a small table in a room approximately 10 feet by 14 feet. It is a crowded setting – the student subject to expulsion charges will be sitting almost directly across a small table from witnesses charging her with misconduct. There is no room to stand and make statements or examine witnesses in the loud, expressive voice that might be used in a courtroom. A tape recorder in the middle of the table records every word by representatives. Copies of this recording are available by written request to the hearing officer following the hearing as the official record of the proceeding. No transcript is prepared unless the expulsion decision is appealed to a higher court following the proceeding. A child has a property right to an education that guarantees at least a minimal right to due process in these proceedings. See Goss v. Lopez, 419 U.S. 565 (1975). These proceedings begin with a summary statement by the hearing officer explaining who each of the parties are and that the hearing will be conducted under the hearing officer’s rules. After everyone is identified on the record, the Law Department representative is allowed to give a brief opening statement and present his case. The student’s representative can also make an opening statement at that time or may defer making an opening statement until the end of the Law Department’s case and the beginning of the student’s case. The Law Department representative conducts direct examinations of prosecution witnesses and the student’s representative is allowed to cross examine the witnesses as to any fact that is relevant to the hearing officer’s consideration, including mitigating factors. Attorneys and law students from the CPS Law Department act as prosecutors in expulsion hearings. Though employed by the CPS Law Department, expulsion hearing officers are designed to be objective fact-finders who are responsible for decisions regarding the admission of evidence at the hearing and for the preparation of a written recommendation as to whether the School Board should find that a violation of the SCC has occurred and what, if any, sanction should be given as a result. The hearing officer’s recommendation is made in writing approximately 2-6 weeks after the hearing. This recommendation is forwarded to the office of the Chicago Board of Education, but is not made available to the student, his family or the student representative. The Board generally issues a brief one paragraph decision indicating

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whether it will follow the hearing officer’s recommendation 4-12 weeks after the hearing has concluded. Expulsion hearings loosely follow the procedure of a criminal trial. However, unlike in a criminal trial there is more at issue than just the question of whether a child did what she is accused of. Other relevant inquiries include: a)

Did the student violate the rules and regulations of the Student Code of Conduct? The SCC lists specific offenses with legal terms defined in the index to the SCC. Only evidence will be considered which is relevant to the violations listed in the original letter providing notice to the family.

b)

What sanction should the student receive for this knowing violation of the SCC? While the maximum sanction available is expulsion for two years, a student could receive a shorter period of expulsion, time served for the suspension, and additional short suspension or required participation in a school counseling program while the student remains in his regular school. In addition, the student may also be recommended to the SMART program, a behavior management program and community service alternative. The hearing officer can consider aggravating or mitigating factors that would traditionally not be considered in a criminal trial until the sentencing phase. There is a set of important factors to be considered in mitigation, described below in Section XI, part C, describing the defense case.

c)

Did the student have notice that her behavior would violate the SCC? Each student is supposed to receive a copy of the SCC at the beginning of each school year putting them on notice of the rules they are expected to follow in school. If a student was not given notice of the SCC prior to the violation, it can be argued that he should not be sanctioned for failing to follow them.

2. Witnesses

There are some fundamental points that should be made with respect to witnesses: Neither side has advance notice of what witnesses will say at the hearing. The student’s representative can prepare based on the charges described in the Notice of Request to Expel and what can be learned about the student’s academic, attendance, and prior disciplinary history. But the lawyers on both sides need to be able to adjust their plan for cross-examination in the middle of the hearing, on the spot.

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The student’s representative does not have the power to subpoena witnesses. Friendly witnesses have to be persuaded to come to support the student at the hearing. As described below, hearing officers tend to allow in hearsay testimony: signed, written statements from witnesses describing the student’s character and behavior are often allowed into evidence, even though those are hearsay statements. Prosecution witnesses generally fall into two categories: eyewitnesses and school officials. Eyewitnesses are teachers, administrators, students, parents or security officers who observed the student’s violation. School officials testify as to the student’s background, academic standing, history of behavior, and other factors relevant to the sanctions portion of the case. Evidence of the student’s background, academic standing, etc. is admissible because an expulsion hearing addresses the issue of sanctions or punishment, as well as whether the student violated the SCC. Objections to the hearsay nature of testimony and documents regarding the student’s history are generally respectfully overruled but worth making to limit excessive unreliable testimony by witnesses who have little first-hand knowledge of the incidents they are testifying about and to preserve the record for an appeal. In some cases, the school officials are testifying in both their official capacity and as eyewitnesses to the incident or to statements the student has made about the incident when he was questioned. The student representative may cross-examine the Law Department’s witnesses. Defense witnesses can include any factual witnesses that support the student’s version of events, as well as witnesses that can provide testimony relevant to the sanctions or mitigation portion of the hearing. Factual witnesses can include other students or school employees that you request to have present at the hearing. Mitigation witnesses, those who provide testimony relevant to the issue of sanctions, usually are the student and the student’s parent(s) or guardian(s). Teachers and other school employees can also give live or written testimony (as long as a live witness can provide the foundation for the absent witness’ signature). Neither the Law Department nor the student representative has the subpoena power that they would have in a court proceeding. Witnesses may be convinced to attend the hearing with a friendly request when the significance of the hearing is explained to them. While witnesses should not be compensated, arrangements can be made for their transportation. A student representative can also provide the witness with an explanatory letter for their school or employer, so that their absence from school or work is explained or excused. 3. Presentation of the Defense

When the Law Department representative has completed the presentation of her case, the defense can conduct direct examinations of the student’s own witnesses. The Law Department representative may conduct cross examinations of the student’s witnesses. The Law Department

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does not generally receive notice of the defense witnesses before the day of the hearing so they have rarely prepared cross examinations in advance. At the close of the defense case, it is very rare for the Law Department to do a rebuttal, though they are given the opportunity by most hearing officers. If the Law Department representative does offer a rebuttal, the student representative may cross-examine those witnesses and may call witnesses in response at the discretion of the hearing officer. Both parties are allowed to provide a closing statement for the hearing officer. Also, if he has not testified, the student may make an additional statement in his defense in the form of a summary statement, which is not subject to cross examination by the Law Department representative. After the testimony is complete, the hearing officer will not provide an opinion or even an indication of what her recommendation might be. Generally, no further communication with the hearing officer is necessary or appropriate after the hearing has been completed. The family and representative should be notified by CPS of the hearing results in writing.

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SECTION II: TAKING A CASE - INTAKE INFORMATION FROM THE LAWYERS’ COMMITTEE – CONFLICTS CHECK AND RETAINER AGREEMENT You will first learn about the possibility of taking an expulsion case when you receive a short summary of the case from the Lawyers’ Committee. The Lawyers’ Committee will do an intake interview and gather basic information before circulating notice of the case to potential pro bono counsel who may want to take the case. If you are interested in taking the case, you should contact the Lawyers’ Committee to get the student’s name and immediately do a conflicts check. The person to contact at the Lawyers’ Committee to get information at the intake stage is Jessica Schneider, [email protected], (312) 630-9744 ext. 237. Before you take a case, make sure you clear with your firm all necessary requirements for taking on the case as a pro bono matter. Once you have cleared the conflict check, call Jessica Schneider and ask her to send you complete intake information. Once you have received the intake information, set up your first interview of the client and client’s family. (See below on setting up the interview.) Before you meet with your client, prepare a retainer agreement. If you decide to take the case, you will want to review the retainer agreement with the client at your first meeting and have the retainer agreement signed then, formalizing the relationship. It is likely that your firm will have a retainer agreement that it wants you to use. If you want to see as an example of a retainer agreement for this kind of hearing, or if you have questions about what should go in the retainer agreement, contact Paul Strauss, [email protected], (312) 6309744 ext. 237. We can send you the retainer agreement that the Lawyers’ Committee uses in cases of this kind. There are three key points to be made about the retainer agreement: First, we believe that the best practice is to have the retainer agreement signed by both the student and the student’s parent or guardian. It is our belief that your client in this hearing is the minor student, not the student’s parents or guardian. However, because the student is a minor, the student cannot enter into a binding retainer agreement (contract) with you. We believe, therefore, that the retainer agreement should be signed by the parent/ guardian and should state, clearly, that the parent/guardian is retaining you to represent the student, who will be your client. For example, the retainer agreement that Page 12 of 44

the Lawyers’ Committee uses for these hearings identifies the student, at the beginning, as the “Client” and says: “STUDENT IS THE CLIENT” “Parent/guardian understands and agrees that the student is the party that is the Client of the Lawyers’ Committee and that is being represented by the Lawyers’ Committee. Parent/guardian is entering into this agreement to authorize and agree to Client’s retention of the Lawyers’ Committee.” Second, your retainer agreement should make it clear that you are undertaking this case on a pro bono basis. The student and student’s family will not be charged for any fees or costs. Third, in your discussions with the student and the student’s family and in the retainer agreement you should make it clear that you are only agreeing to represent the student with respect to the student’s expulsion hearing. In particular, you are not agreeing to represent the student with respect to any juvenile court proceedings. Many students and their families may not understand this unless you explain it. They may think that if you are the student’s lawyer, you are the student’s lawyer for all proceedings. Of course, if you want to represent the student in other proceedings and can do so we encourage you to do so. In your discussions with the student and the student’s family, it may become clear that the student has received special education services, or an IEP, or appears to have a learning, emotional or other form of disability that has not been addressed by CPS. That situation gives the student a series of additional rights that are not addressed here. If you believe the student presents a circumstance of that kind, do not have the client retain you for representation. Rather, call the Lawyers’ Committee to discuss the situation. Contact Paul Strauss, [email protected], (312) 630-9744 ext. 229.

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SECTION III: CLIENT INTERVIEW

The most important step to initiate your representation of a student facing an expulsion is to contact the client and parent and assure them that you will help them in this confusing and often unyielding process. This will set the tone for your relationship and the many difficult issues and decisions that will be shared by you both. Keeping open contact with your child client on a consistent basis is just as important as in any type of representation. Some argue it is even more essential when the client is a child.

A. Preparing for a Client Interview 1. Arrange First Meeting

Remember that you are hoping to address the child client directly as often as possible. If you communicate by letter, this may require you to use appropriate language and terminology. We recommend you keep your contact as personal as possible, preferring telephone contact with written confirmation. In making a decision as to where to meet your client for the interview, keep in mind that you want the client to be as comfortable as possible so that she will feel free to share information with you. If your client is currently in school and not on suspension, make sure to schedule the meeting after school hours. 2. Call to Confirm Meeting

In arranging meetings, remember that your student client and his family may not have the resources and experience that make it easy to come downtown to meet at your office. Paying for and arranging transportation downtown may be difficult. For a meeting that will be held at your office. a) Confirm the family’s transportation plans and directions. b) Confirm who will accompany the minor. c) Ask parent and client to bring any paperwork they have that is relevant to the list of issues in the client interview section.

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3. If Possible, Have the Student’s Parent and Guardian Obtain the Student’s School Records Before Your Meeting

When you set up the first meeting with the student and her family, ask the parent or guardian to go the student’s school ahead of time, in person, and ask for a copy of the student’s file. The parent or guardian should receive, at a minimum, the student’s attendance records, report cards/ grades, Misconduct Reports, and any IEP reports. (An IEP report is described below.) The family should bring those records with them to your initial meeting.

4. Language - Translator

Many families in Chicago speak mostly Spanish at home and at work. If you believe any member of your client's family will have trouble communicating with you in English and you do not speak Spanish yourself, you should try to arrange for someone to translate for you, using the resources of your firm. CPS is supposed to provide a translator, but it may be wise not to rely on the translator that CPS provides. Your translator does not have to be certified – a paralegal from your office or reliable family member may be used. If you cannot arrange for a translator, please let us know and we will try to help you find someone who can translate for you. 5 Prepare an Outline of Questions You Want to Ask

Here are some important issues to consider while you are preparing for your interview:

a) Establishing Trust

In many instances, you will come from a very different financial, ethnic, or cultural background than your client. Also, you are offering a free service with which most clients will not be familiar. These factors can make it very difficult for your client to trust you. Remember this when you are initiating a relationship with your client. It is usually advisable to be as open and honest with your client as possible. These children may have been involved with the system before or may have friends who have, so they will understand and appreciate you candor and honesty. Furthermore, take an interest in your client. Your client will be more likely to trust you if he feels you are concerned about him and what happens to him. Asking questions about other aspects of his life (what he likes to do for fun, who he hangs out with, etc.) can go a long way and make him more comfortable.

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b) Getting Facts

This initial interview will be the basis for case investigation. Prepare questions that will be sure to uncover all information related to the facts of your client's case. c) Parent Relations

Parents should accompany their children to your client interview. While they should not be a part of the confidential fact-gathering interview, they are often necessary sources of information for the background portion of the interview. Be sure to establish a relationship with the family. It is important that both client and parent understand your role and responsibilities as well as their own. Also, parents can have relevant information for your case preparation because they are usually contacted by school officials following an incident and informed about the school’s position. Sometimes it is the parent or guardian who is the only person that can provide any insight as to what the opposing witnesses will say in their testimony. It is important to try to establish a relationship with the child’s parents that will help you to guide the parent to control his or her emotions at the hearing. Anything dealing with one’s child and one’s child future is extremely stressful. Your parent may want to lash out at the hearing in an angry outburst or with emotional accusations. Establish a relationship with the parent so you can guide the parent to provide the best presentation to present the child’s case in the best possible light at the hearing. d) Confidentiality and One-on-One Client Interview

(Discussed below) e) Client's Interests

As with any kind of representation, it is important to establish the client’s goals and the limits of the representation. For example, as noted above, you should explain that your representation is only for the pending expulsion case, and any further matters will require a re-examination of the client agreement. f) Previous Use of Community-based Programming

This information should be gathered in preparation for the sanctions/mitigation portion of your hearing. A client’s involvement with community or church groups could help you identify witnesses that would give the hearing officer favorable information to consider. Live or written testimony in support of these activities can be helpful.

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g) After-school activities

This is also information that may be pertinent to the sanctions portion of the hearing. Be sure to get contact information for any mentors, coaches, or other community leaders with whom the child has had positive interaction. It is always a good idea to speak to these witnesses to learn their opinions, encourage them to testify at the hearing, and/or to request a written letter documenting their opinion for consideration by the hearing officer. Information about community-based programming and after-school activities may be relevant to the mitigation factors described below in the section on the defense case at the hearing. Those mitigation factors, and addressing them, are crucial to the outcome of your case. h) Interest in Employment or Future Education

It is also important for the hearing officer to know about your client’s interest in initiating and resuming positive activities after the resolution of a case. While your child client may not have considered these issues before, it is important to get him thinking about them and encourage him to be open about ideas and hopes he has for his future. This will affect your client’s performance at the hearing and may have a significant lasting effect on him following your involvement with the child and his family.

B. At the Client Interview A client interview should be an exchange of information between you and your client. There will be a lot of information you need to gather from her and her family. There will also be a lot of information that you will need to share with her to make sure that she and her family are knowledgeable and comfortable with the strategies you are taking on their behalf. The following categories of information should be shared at a client interview. They are not provided in any particular order. The organization and prioritization of these points is a strategy choice for you to make guided by your judgment and the level of understanding exhibited by your client and her family. 1. Explain the Status of the Case

Explain the documents you received from the Law Department and the current status of the case to your client. Just going through each of the letters the family has received notifying them of the upcoming expulsion can set them at ease. Also, they may not have seen the Misconduct Report and may need an explanation of what that means and that it

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only represents the school’s version of the facts. Be sure to consider the age of the child as you offer advice and guidance. Remember that the incident that has resulted in an expulsion hearing may have also led to legal proceedings for the client and his family in other realms such as juvenile court, housing court, immigration proceedings, etc. From the beginning of your relationship, be sure to clarify the responsibilities that you will and will not be handling with regard to this client’s legal needs. This will avoid confusion in the future. Because, in some cases, the children you are representing will also be facing criminal prosecution for the same matters that led them to the expulsion proceeding, it may be necessary to clarify the different roles of the attorneys and courts in which the child and family will appear. In particular, you may need to distinguish your role from the role of the attorney (most likely a Public Defender) handling the child’s case in delinquency or adult criminal proceedings. 2. Emphasize the Importance of Attending Meetings and the Hearing

Your client is just a child and may not be accustomed to the acceptable business practice of attending meetings on time, explaining cancellations in advance, returning phone calls, keeping in touch with your legal representative, etc. Remember that you are teaching the child and his family how to relate with legal professionals, while you are relying on the family to practice those good habits. 3. Set Up a Schedule of Contacts with Your Client

Sometimes the best way to develop your relationship with your client is to encourage frequent contact with them to help you get to know each other. One possible method is to set up a schedule of weekly phone or personal contact to keep in touch with what events are occurring in your client’s life that may affect her success at the expulsion hearing. Remember that your client may not have regular access to a phone so make arrangements for frequent contact accordingly. Consider using alternative forms of communication. Text messaging may be a good way to communicate. 4. Explain Your Role as Attorney – Confidentiality and Attorney-Client Privilege

Be sure to tell the minor and her parents about the importance of the attorney-client relationship. This is a very unique situation because the child, though not of adult age, is the client and directs the objectives of the litigation. Client and parent must understand their respective roles. This may be difficult for a parent to understand because it means that you will have confidential conversations with their child and you will instruct the child not to share the contents with his parent. Though you will certainly be cooperating with the parent(s), the confidential communication between you and your client (the

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minor) must be respected. Because many of your clients will have never experienced a professional attorney-client relationship, setting the parameters and rules of your relationship is very important. The confidentiality of attorney-client communication is an essential component of a good relationship with your client. This explanation should be initiated at this stage and continued throughout your representation. Remind your client that neither the attorney nor the client may share privileged information with others in order to preserve it. 5. Sign Retainer Agreement and Authorization for Release of Information

a)

Review the retainer agreement with the child and parent/guardian and have the child and parent or guardian sign the retainer agreement, as described above.

b)

Obtain a signed release to gather confidential information on behalf of your client from institutions such as schools, social security, the Department of Children and Family Services (DCFS), etc. A sample release form is included in the Appendix, document 4.

6. Guidelines for Minor Until the Expulsion Hearing

The expulsion hearing officer may consider a student’s behavior before and since the incident that resulted in the expulsion proceedings. Sometimes it is a good idea to remind your client of some ground rules which, if followed, will be sure to avoid any more negative reports at his expulsion hearing: Do not get into any altercations or fights! No communication with others suspended for the same incident. No communication with the victim. Attend school – don’t have attendance issues. Do not hang out with friends who are likely to get into legal trouble. Get off Facebook or any other social media! Do not communicate about the incident or any conflict with the victim on Facebook or any other social media. If you have any information or comments about the victim or the incident or other people involved on Facebook or any other social media take them down.

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7. Exchange contact information

Give parents and client a card to contact you and tell them to carry it at all times. It may be a good idea to provide your cell phone number as well as your office number. In return, get phone numbers from the child and parents. Get multiple numbers, including the phone numbers of other people who can help you contact the child and parents, if necessary. Explain to the minor that he has a lawyer now. So if your client gets into any other trouble with the law, he should not make statements to anyone until he calls the number you have provided. Give your clients the 24 hour hotline number of First Defense Legal Aid, an organization that provides legal representation at police stations at any hour of the day or night. This can be convenient if your client cannot contact you for some reason. The number is 1-800-LAW-REP-4. 8. Conduct Two-part Interview

It is usually most efficient to speak with the minor and his parents at the same initial meeting so that you can start to build relationships, gather information, and gain the client’s trust by showing your client that your efforts on their behalf will be in cooperation with their family and community. We suggest the topics be divided in the bifurcated interview according to the following categories: a) Meeting with Minor and Parent

Background information - home, community and previous addresses - other family members in the home - family history and siblings - recent important events - cooperation with lawyers between now and hearing date - relationship with teachers and school officials pending the hearing - any history with state agencies (Department of Children & Family Services, Private Agencies) - history of arrests or delinquency cases in the Juvenile Court School Information - status in school (alternative school, returned to school, etc.) - history of any behavioral issues and when/why they began

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- suspensions, expulsions, etc. - grades and attendance - any academic problems in school - contact names for helpful teachers, counselors, principal, etc. - special education status (if applicable) - whether student has ever received a special education evaluation or had an Individualized Educational Plan (I.E.P.) - previous attendance and participation of parents/guardians in conferences In your conversation, talk about who is who at the school. Ask the parent(s) in particular, what is their relationship with the school? Is it a good relationship? A bad relationship? What problems have there been? Who is likely to show up at the hearing? Has the parent been told anything about what the school’s reaction to the incident is, or what punishment the school intends to ask for? Facts of Incident - when parent/guardian received notification of expulsion - parent/guardian's access to minor during incident - parent/guardian’s familiarity with victim(s) and co-defendants - who parent/guardian spoke with following incident - substance of conversations with school officials after incident Sanction/ Mitigation Issues - after-school activities - home life - community/church group activities - relationship with parents, siblings, etc. - list of adults with whom they have contact - gang activity, drug habits, etc. - hobbies and interests - college and/or career goals - medical or psychological history (counseling, hospitalizations, etc.) - lessons learned as a result of the incident - any changes in behavior following the incident - willingness of both parent and student to participate in SMART program (see below) - willingness to make restitution

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b) Meeting with Minor Alone

Facts of incident - detailed description and time line of events - relationship with others who were suspected of involvement - relationship to alleged victim - previous interaction with victims and witnesses Social media -does the student have a Facebook or twitter account? -is the student “friends” on Facebook with the victim or anyone involved in the incident? -is there anything on Facebook about the victim or others? If so, take it down! ----threats on Facebook are an offense for which a student may be expelled. Treatment by police (if applicable) - existence and circumstances of any statements made - contact with parents - contact with youth officer - physical treatment by police - interaction with school official Post-Incident Facts - contact with related parties since arrest - follow-up investigation by school - community rumors about the event Sanction/Mitigation Issues - after-school activities - home life - community/church group activities - relationship with parents, siblings, etc. - adults who have contact (including teachers or others with positive opinions) - college and/or career goals - gang activity, drug habits, etc. - delinquency or probation history - lessons learned as a result of the incident - any changes in behavior following the incident - willingness to participate in counseling or S.M.A.R.T. program (see below) - willingness to make restitution

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(This is an intentional repeat from the section with the parent present.)

Veracity of the client is essential. A child may not understand the importance of being truthful to her lawyer, an adult. Remember that trust may still be an issue at this and every stage. Question any aspects of the client’s version of facts that seem unreliable or difficult to prove, but do your best to remind the child that the purpose of your questioning is only to prepare the best case possible.

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SECTION IV: STUDENT WHO HAS OR APPEARS TO HAVE A DISABILITY Students who have a learning, emotional or other form of disability have special rights that change the nature of the expulsion process. At the intake stage, the Lawyers’ Committee intends to screen out those cases and send them to agencies that specialize in handling cases for children with disabilities. However, as you work with your client, you may discover that he or she has a disability that was recognized by CPS – the client has an IEP, for instance. Or you may discover that the client has had such difficulty learning that it appears that the client has a learning disability that should have been recognized by CPS. You also may discover that your client has mental health diagnoses (e.g. bipolar disorder, ADHD, or Post Traumatic Stress Disorder) or a traumatic life history. Such diagnoses and/or trauma combined with behavioral problems in school may suggest that the student has an emotional disability that should have been assessed by CPS in order to determine the impact on the student’s learning. In that event, there are actions that need to be taken that are not covered in this manual. If you find yourself in this situation, contact the Lawyers’ Committee: Paul Strauss, [email protected], (312) 630-9744.

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SECTION V: EXTENSION OF TIME When you first start the process to take a case, there is likely to be a hearing date scheduled in the very near future, leaving you with two weeks or less to prepare (depending on how soon the parents contacted the Lawyers’ Committee). Do not panic. The student’s family can request a continuance and the first such request will be routinely granted. That request has to come from the family, not from you. The parent(s) should understand that when they call to ask for a continuance, they should not say they have a lawyer, they should say they don’t have one yet and are looking for a lawyer. (That will be true, because at that early stage you will not yet have signed a retainer or committed to representing the client.) To request a continuance, the family should call Brenda Perez, at (773) 553-1700. When the family gets a continuance, it will be set for a date by CPS, not necessarily on a date that works well for you. Write a letter to the CPS law department stating that you will be representing the client (entering your appearance), and asking for a continuance, explaining why one is needed. You may also call Brenda Perez and explain the situation and try to get CPS to agree to a date that works. If the client has a juvenile court case related to the incident, contact the client’s public defender. You do not want the expulsion hearing to go forward before the juvenile court case. If the hearing is set for a date before the juvenile court case you will have to request a continuance of the expulsion hearing to a date after the juvenile court case is heard. You do not want testimony from the expulsion hearing to be available to be used in the juvenile court proceedings.

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SECTION VI: PLACEMENT IN ALTERNATIVE SCHOOL

School Status Before the Hearing The Student Code of Conduct requires children to stay in their regular school placement while an expulsion hearing is pending. However, CPS can make an exception to this rule for children whom they believe will be disruptive to the educational process of the school. There is a CPS policy that, if agreed by the Law Department, region office, and school, a child can be removed because it has been determined that the child is a danger to himself or others. This process has not been challenged in the courts and is generally used against children who are unrepresented. Whether your client has been transferred to an alternative school or remains in her regular school, it is important that she attend school and demonstrate a good record of both attendance and behavior. Additional problems or poor attendance will be used against her at her hearing. Good attendance and behavior can be used by you at the hearing to show that your client is not disruptive or a danger to others and has reformed her conduct since the incident at issue.

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SECTION VII: DISCOVERY A. Ask Client to Bring Relevant Documents to First Interview Ask client to bring any relevant documents to the first interview, including: 1. Notice of Request to Expel

The Notice of Request to Expel is usually a letter from the Chicago Public Schools to the student and parent that explains to parents the facts which are the basis for CPS moving to expel the student. 2. Misconduct Report

The parent may or may not have been provided a copy of this document at the time you take over the case. Often a parent can obtain this document by going to the school and requesting a copy before your first client interview. 3. IEP Conference Reports

It is very, very important to know if the student has had special education services or an IEP. An IEP is a conference of school personnel with the student’s parents to discuss whether the child has special needs and should receive extra educational services. As described below, if a student has had an IEP or special education services, or looks like a student who perhaps should have had such services, it dramatically changes the nature of the case and the defenses that can be offered. In that case you should immediately contact Paul Strauss at the Lawyers’ Committee, [email protected], (312) 630-9744 ext. 229. 4. Previous Misconduct Reports

The Law Department representative will generally introduce any and all previous reports of Level 5 or Level 6 offenses by the child within the past year as evidence relevant to the sanctions portion of the hearing. A parent should have access to these documents from the school even without the assistance of an attorney. The parent may have also saved copies of the reports from when the incident occurred. If the parent does not have them, you can obtain them from the CPS Law Department itself. (See below for requesting records from the CPS Law Department.)

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5. Grades and attendance

All your child client’s grades from the current academic year and information about attendance will be presented by the Law Department as aggravating evidence to be considered towards the sanctions issues in the hearing. Remember that this evidence can often be accounted for because of absences due to the suspension or expulsion. As described above, the parent/guardian should go the child’s school and request the child’s records, including grades and attendance records, before your first meeting, and should bring those records to your meeting.

B. Write Letter to Law Department Requesting Relevant Documents Immediately after you begin to represent the student, you should write a letter to the CPS Legal Department requesting production of documents. This letter should ask for the documents listed in the section above and any other documents that the CPS Law Department intends to use as exhibits. Because the Law Department rarely assigns a prosecutor or hearing officer until a few days before the hearing, these requests should be directed to the supervisors of expulsions at the Law Department, Esther Yanig, whose contact information is listed immediately below. A sample request letter is included in the Appendix, document 5.

C. Call Law Department (773-553-1700) to Follow Up on Letter Follow-up calls to try to get documents should be directed to the CPS expulsion supervisor at (773)553-1700 if, upon request, no individual prosecutor has been assigned. As of December 2011, the supervisors for the expulsion hearings is Esther C. Yahnig Assistant General Counsel Board of Education of the City of Chicago 125 South Clark Street, Suite 700 Chicago, IL 60603 (773) 553-1713 Fax: (773) 553-1769 [email protected] The CPS law department attorney to contact about scheduling and continuances is Brenda Perez [email protected]

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D. Law Department Should Send Letter With Requested Information E. If Do Not Receive Every Document, Continue Writing All written communication with the CPS Law Department can be entered as exhibits at the hearing or in a pre-hearing motion documenting your discovery issues. You can document the discovery path by making these documents exhibits for consideration by the hearing officer in support of an argument that the student did not receive minimal due process and that you were unable to sufficiently prepare a defense. These documents will serve to preserve the record for an appeal should one be necessary.

F. Seek Documents from Other Sources There may be other ways to obtain relevant documents and information. Such information includes: a)Child’s school

The school may have documents that the child or the CPS Law Department do not possess because they are not forwarded to the Law Department until the day of the hearing. As discussed above, the child’s parent or guardian should go to the school in person and ask for a copy of all record’s in the student’s personal file. b) Outside Counselors

If a child is involved in other programs outside of the school, the teachers, coaches or counselors from these programs may make excellent witnesses as to the mitigation portion of the hearing. (See the discussion of mitigation factors below, in the section on the defense case at the hearing.) If it is not convenient for these witnesses to appear in person, signed letters of praise will suffice. Be sure the parent or student can authenticate the document or verify the signature. Testimony or written statements from these witnesses may be crucial in convincing the hearing officer that this is a student who has promise of being a productive citizen and deserves a chance to remain in school. Testimony or written statements from these witnesses may be crucial in convincing the hearing officer that this is a student who has promise of being a productive citizen and deserves a chance to remain in school.

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SECTION VIII: PRE-HEARING COMMUNICATIONS WITH LAW

DEPARTMENT A. Gather Information from the Notice of Expulsion Hearing The Notice of Expulsion Hearing should list the date, time and place of the hearing. Have your client call the CPS Law Department (773-553-1700) to ask to reschedule the hearing to a later date. As noted above in Section V, asking for an Extension of Time, this request has to come from the parent, not from you. The parent should say that she is trying to arrange for representation, not that she already has representation. Brenda Perez the person in charge of scheduling. After the parent(s) get a continuance, CPS will set the hearing for a date that may not be convenient for you. Send CPS/ Brenda Perez a letter with notice that you are appearing for the client and asking for a continuance to a date that will give you enough time to prepare. Try calling and sending subsequent letters explaining the need for a continuance.

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SECTION IX: INVESTIGATION The gathering of information is difficult because you do not have subpoena power to gather documents so other methods of gathering information are important. Though the client interview can be a central source of case information, other interviews are also very important.

A. Conduct an Interview with the Parent(s) and Child Your investigation starts with a through interview of the parent(s) and child, discussed above in Section III, covering the client interview. To the extent you have not gathered all the information listed in that section in your first interview, or you believe there may be additional information that will come out with another meeting, by all means schedule that meeting and conduct that interview. People often remember and will tell you additional information when they talk through events a second time.

B. Interview Witnesses of the Incident You may try to interview the child’s classmates or the child’s siblings/relatives – but the value of those interviews is debatable. You should remember that you are dealing with minors: you should attempt to interview them only with the permission of their parent/guardian. Talking to other students may give you a better idea of what actually happened at the incident, which will be helpful. But getting another student to actually appear at a witness at the hearing is difficult. You don’t have subpoena power to compel a student to appear as a witness. You would have to convince the student’s parent(s) to allow the student to miss school to appear as a witness and would probably need to arrange transportation to get the student downtown to the hearing. And testimony from another student may be unreliable. The student may be untruthful because she wants to aid someone she thinks is popular, or cool; she may feel threatened or coerced into testifying. If she testifies and is caught in a lie, she may herself be subject to discipline. In sum, these witnesses may be valuable, but approach them with caution. 1. School Officials Associated with the Case

You may think about trying to contact and talk to school personnel about the incident. The CPS Law Department is likely to take the position that they represent all school employees and that those employees cannot be contacted without going through counsel. Furthermore, trying to directly contact a teacher or administrator may get only antagonize the person you want to talk to. However, on the day of the hearing, while you are waiting, you may see school teachers or administrators waiting to testify. Ask the prosecutor if she minds if you talk to them. If the

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prosecutor agrees, tell them that the prosecutor has said it is okay to talk and see if they will talk to you. You may get useful information before the hearing begins. 2. Resolution of the Case After Your Investigation

In some rare cases, it may become clear to you after your investigation that there simply is no case against your client – CPS has got the wrong person; your client simply was not involved, or your client may simply be too young (age 8, e.g.) to make expulsion a reasonable possibility. In those cases it may be worth contacting the CPS law department supervisor for these hearings, explain the situation, and try to get the charges dismissed without a hearing. The CPS law department supervisor for these hearings is Esther Yanig, (773) 553-3137, [email protected]

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SECTION X: PREPARATION OF WITNESSES AND EXAMINATIONS Preparing parents and other witnesses can make a big difference in how comfortable they feel during the hearing and how good an impression they make to the hearing officer. It is essential to take the time to prepare them in person and as thoroughly as possible. The greatest concern about giving advice to parents and other witnesses is not to appear to be patronizing. The following is a complete list of topics you may want to cover. Your judgment and ability to assess your relationship with the child, his family and the rest of his environment should govern how and whether each of the pieces of advice is appropriate.

A. Advice to Student, Parents and Witnesses The following is advice that you should consider give to your client and his or her family. 1. Prepare emotionally. An expulsion hearing may involve some very difficult issues. It is often difficult to hear people say negative things about you or your children, especially things that you know are not true. Take the time you need the day before and the day of to calm down and do what you can to keep from reacting to people saying these difficult things. You should impress on your client and her family: if she loses her temper, responds angrily, demonstrates resentment, refuses to make eye contact with the hearing officer, or uses gang terms in her speech, she may convince the hearing officer by that alone that she should be expelled. To remain in school, the student and her family need to keep calm and cool. Self-control for the parent may be even more difficult than it is for the child. Anything that effects one’s children is likely to raise blood pressure and a fighting instinct. Work hard to build a relationship of trust with the parent and make sure she understands that she should not shout out, or object angrily, or shake her head, or mutter – she will hurt her child’s chances. She needs to remain controlled. The time to talk will come and when objections and arguments need to be made you, the lawyer, will make them, firmly, on behalf of your client. 2. Dress conservatively. Tell the child and her parent(s) or guardian that it is important to dress in conservative clothes. No baggy pants. No hats. No gang colors. If the student has a school uniform, he should wear the school uniform. 3. Be on time. Arrive at the Chicago Public Schools building with enough time to go through security and prepare for the hearing. Sometimes a line at the check in center can make you

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late to appear for the hearing. The Law Department representative may inform the hearing officer if you or your child are the cause of the delay of the hearing.

B. Direct Examination Direct examination of your client and witnesses is likely to be the most important part of your case. It is the point at which your client gets an opportunity to explain herself, to tell her side of the story, and to make an impression. It is very likely that it is in hearing your client’s testimony and in observing her behavior that the hearing officer will decide whether or not she is the type of student who can stay in school without being dangerously or excessively disruptive. There is an old adage in trial work: in direct examination the witness should be the star; in crossexamination the lawyer should be the star. In direct examination, your job is to step back and let the witness present herself. Ask simple questions that move the narrative along, e.g.: “What happened next?” “What did she say?” “What did you say in response?” “Then what happened?” Direct testimony won’t be effective, however, unless the witness knows what to say when she is asked, “What happened next?” That means you have to practice, repeatedly, until your witness is able to tell her story smoothly and effectively, presenting her case in the best light. A judge or jury isn’t surprised if a witness struggles on cross-examination – after all, she is being asked questions by a lawyer who is trying to trip her up. But a client shouldn’t fumble when she is being asked questions by her own lawyer. So she needs to be prepared to answer questions, knowing where she is going and what comes next. This only comes from practice. This it the hardest and most important part of preparing for trial – you need to practice direct testimony, over and again. Direct testimony is the time for your client not only to tell her side of the story about the event but also, perhaps most important, to cover the mitigation factors listed below in the description of the defense case, at the hearing. Your client should be prepared to say good things about herself. Despite all this discussion of direct testimony, there are some cases where you will not want your client to testify at all. Those are cases where there is not a dispute about what happened and your client’s self-presentation is so bad that she will only hurt herself by talking. If your client is going to harm her case by testifying, don’t have her testify. These hearings run at a reasonable pace, allowing you to take notes of what witnesses are testifying to. (For direct testimony of your witnesses, you will probably have to rely on your outline of what you planned to have the witness testify to.) You should keep notes on the direct and cross-examinations of all witnesses to record relevant information to include in your summation at the close of the hearing.

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C. Cross-Examination After each witness testifies, the Law Department representative will have the opportunity to cross examine them. The Law Department representative can question your witness about anything related to their direct examination testimony. The following advice can often be effective: 1. Remain calm, speak slowly, and give the same attention to their questions as on direct examination. 2. Be as honest as you can be and that you take a moment to consider each and every question before you answer it. 3. If the student’s lawyer has any concern about the legality of the question, he or she will object to the question (speak to the hearing officer about it) before you begin answering and you should not answer unless and until your lawyer tells you to answer. 4. If you do not understand a question that anyone asks you, just ask for it to be repeated or rephrased so that you can understand it. 5. Keep your voice up and look in the eye of the person that is speaking with you. It is worth telling your client and other witnesses that on cross-examination the hearing officer will look at whether you are struggling and fighting with the lawyer who is questioning you. If you answer directly, calmly, admitting what you need to admit, it looks like you are winning – the opposing counsel hasn’t led you to lose your cool and you haven’t denied or tried to avoid being truthful. If you argue back, struggling and fighting to avoid admitting what you eventually have to admit, it gives the impression that you are losing – you are fighting to avoid telling the truth. So in answering questions on cross-examination, try to answer directly and calmly, without losing your cool. If you do that, you will win that stage of the proceedings.

D. Help on preparing witness examinations, opening and closing statements, and strategy in general. As you prepare for your hearing, you may want suggestions and advice about what topics to cover in your witness examinations, and how to organize your examinations. At the same time, you may want to talk about opening and closing statements, or the strategy you are taking with respect to your case as a whole. Please call the Lawyers’ Committee to talk over these issues – don’t hesitate to call! You should contact Paul Strauss, [email protected], (312) 630-9744 ext. 229.

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SECTION XI: AT THE HEARING A. Procedure The procedure at hearings is very relaxed. Because students and parents are rarely represented, the Law Department personnel are accustomed to conducting the hearing in a very informal manner. The Law Department representative may not be as thoroughly trained in trial technique and the rules of evidence as you might expect. Therefore, the hearing officer will generally only enforce the evidentiary rules which are properly raised by either party and may assist the party who is having difficulty complying by rephrasing questions, asking additional questions himself, or advising counsel as to how to proceed in compliance with the evidentiary guidelines. The CPS Law Department schedule approximately 20 expulsion hearings each school day causing a very hectic schedule for hearing officers and Law Department representatives. This can cause a very chaotic atmosphere and delays in initiating your hearing. It is important to keep in mind that witnesses for both sides are instructed to come to the waiting area at the CPS building on the 19th floor. This may mean that your student and the witnesses against him are sitting in the same small area while the Law Department is doing final preparations and preparing documents. Be sure to advise the client that he or she should not talk with these witnesses. However, you may speak with the witnesses if they are willing at that point. This can occasionally be a good way to get a conversation going about alternatives to expulsion.

B. Discussion About Agreed Outcome Before the Hearing The CPS Law Department representatives exercise little discretion in whether or not to proceed with an expulsion once a notice has been sent to a family. However, the prosecutor and the school have leeway about what level of punishment they may ask the hearing officer to impose. You may want to talk to the prosecutor before the hearing and see if you can reach an agreement about what both sides will ask for. An expulsion of as much as two years is theoretically possible. But a much less severe punishment may be imposed, including no expulsion, expulsion for only time already served, expulsion for only a semester, or referral to the SMART program. It is the general policy of the CPS to offer first-time, non-violent offenders a settlement agreement that the student attend the SMART Program (Saturday Morning Reach-Out and Teach Program). This is a counseling and education program run by CPS that requires students to attend eight Saturday morning sessions. A parent or guardian must also attend two of the sessions. The decision about whether to offer this option is up to the individual prosecutor assigned to your hearing. If the prosecutor decides not to offer this Settlement Agreement option, you have the opportunity to take up the issue with the office supervisor.

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Before negotiating to try to get your client in the SMART program, make sure the student wants that alternative and is willing to complete the program, and that the student’s parent or guardian is willing to attend the two required sessions. The SCC provides that a student who is recommended to attend the SMART program in lieu of expulsion but who fails to successfully complete the program shall be expelled. Regardless of the Law Department Representative’s recommendation, the hearing officer always has the option of deciding that the SMART program is the best sanction for a violation of the SCC.

C. Defense case The key to preparing a successful defense is to simultaneously prepare for the mitigation portion of the hearing as you prepare for the facts stage. The Student Code of Conduct (SCC) specifically provides that "school officials must consider all mitigating circumstances" and defines mitigating factors to include, but not be limited to, the following factors: "the student’s age, health, maturity, and academic placement; the student’s prior conduct and record of behavior; the student’s willingness to acknowledge misconduct; the level of parent/guardian cooperation and/or involvement; the student’s willingness to make restitution; the seriousness of the offense; and the student’s willingness to enroll in a student assistance program." CPS Code of Conduct (Sept. 15, 2011), at 10. A set of five mitigating factors are also set forth in a case entitled Robinson v. Oak Park & River Forest High Sch., 213 Ill.App.3d 77 (1st Dist. 1991), which serves as the guide for determining whether a school district has abused its discretion in expelling a student. These factors are:       

1. "the egregiousness of the student's conduct; 2. the history or record of the student's past conduct; 3. the likelihood that such conduct will affect the delivery of educational services to other children; 4. severity of the punishment; and 5. the interest of the child." Id. at 82. You can use these factors to make the argument that, even if the hearing officer were to find that your client committed the alleged infraction of the SCC, he or she can still find that expulsion is not an appropriate remedy for that infraction or that any expulsion should be for a shorter period of time than the two year maximum. Remember, if you think some punishment is going to be imposed, you can ask and argue for a lesser punishment – the SMART program,

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time served, a single semester of expulsion, e.g. The choice is not simply between two extremes, no expulsion or a two-year expulsion. Because not all hearing officers or prosecutors may be familiar with the sets of mitigation factors listed above, it may be useful to bring a copy of the Robinson case and the CPS Code of Conduct to the hearing and to be prepared to cite to them specifically if you plan to rely on them in your closing statement or in case there are any objections to testimonial or documentary evidence that you intend to offer on one or more of the mitigation factors. At the hearing, the SCC infraction and mitigation phases of the hearing will be heard simultaneously. Therefore, each witness may be questioned on both of these topics. Use the organizations of your examinations and the use of a headlining technique to communicate to the hearing officer the purpose of the testimony being offered in each of these categories Usually the child and parent will be called as witnesses in the hearing. Both can give essential persuasive information about all the topics listed in the SCC in reference to mitigation including: - student’s interest in remaining in school - student’s interest in using their education in the future - student saying he or she is sorry for the misbehavior, if it occurred - improvement in student’s conduct since the event - parents’ cooperation with school officials in the past - parental support for related issues at home - relationship between parent and student

D. Opening and Closing Statements Preparation of an opening statement and a summation or closing will improve your advocacy at an expulsion hearing. Before the hearing you may not have every piece of information you will want to use in these arguments but it will provide an outline of topics to fill in completing your argument plan. One method of preparing the argument when you do not know every detail that the Law Departments witnesses will provide is to outline your arguments under the following categories: 1.

Summary of evidence that does not support the accusation that student violated the Student Code of Conduct --Chronology of events that support your defense --Incorporation of each witness that you will offer or have offered

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2.

Critique of evidence that suggests that student violated the SCC --Weaknesses of each witness provided by the Law Department --Flaws in the theory of the Law Department’s case

3.

Explanation of evidence that does not support expulsion, even if the hearing officer finds that a violation has occurred --Review of language of SCC re: sentencing allowing a range of sanctions for violations --Review of evidence topically that shows that the student can remain in the regular school program and change his/her behavior, or that student has already demonstrated a change in behavior – testimony and testimonials from adults in support of the student In your closing statement, be prepared to address the mitigation factors listed in Robinson and the SCC, listed above.

4.

Evidence that does not fit into these categories should be received for its relevance to the hearing officer’s recommendation. An advocate may choose not to include this information in the final summation at all.

Remember, if you want to discuss your ideas for opening and closing statements, or the themes you will be presenting overall, or your strategy in general, do not hesitate to call the Lawyers’ Committee for advice, or simply to talk through your ideas. Contact Paul Strauss, [email protected], (312) 630-9744 ext. 229.

E. Rules of Evidence Because expulsion hearings meet only minimal standards of due process, the rules of evidence are followed only loosely. See Goss v. Lopez, 419 U.S. 565 (1995); Linwood v. Board of Education of the City of Chicago, 463 F.2d 763 (7th Cir. 1972); and Betts v. Board of the City of Chicago, 466 F.2d 629 (7th Cir. 1972). At the same time, however, there are some procedural protections for student’s due process rights. In particular, the student’s right to cross-examine witnesses means that “expansive use of accusatory hearsay” is not permitted at these hearings. Colquitt v. Rich Township High Sch. Dist., 298 Ill.App.3d 856, 865 (1st Dist. 1998). Accordingly, CPS must present at least one eyewitness to the incident at issue in the hearing in support of its case. Id. Written reports of student eyewitness statements may be permitted, but only if there is a showing of a significant risk of harm should the student have to testify. Id. Though a thorough understanding of all of the intricacies of the rules of evidence is not generally required to participate in these hearings, a general understanding of the most commonly used objections will be very helpful. The following list of evidentiary concepts make up the most commonly used objections in expulsion hearings:

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1. Contents of Question --Relevance --Foundation --Hearsay 2. Discovery Violation 3. Form of Question --Leading --Vague --Assumes Facts Not in Evidence

F. Making a Recommendation In the ideal world, you will be able to argue to the hearing officer that CPS has not proved its case, that your client can be a responsible and safe member of the school community, and that he or she should not be expelled. However, in some cases, it will seem likely that your client is going to be expelled. In those circumstances, you may want to argue in closing that while the hearing officer may recommend punishment, he should recommend a lower level of punishment. The hearing officer can recommend up to a two-year expulsion. But you may argue that the student should receive a shorter expulsion – an expulsion for only the current semester, for instance, counting time already spent out of school as part of the expulsion. Or for instance, instead of an expulsion, you may argue that the student should be enrolled in the SMART program, assuming the student meets the qualifications for that program. (The SCC says in its discussion of violation of Group 5 behaviors, for instance “For Group 5 Inappropriate Behaviors for which a student in the sixth grade of above is referred for expulsion, the student may be recommended by an expulsion officer to attend the Board-sponsored SMART program in lieu of expulsion if he or she has no prior Group 5 or Group 6 violations and/or has not engaged in behaviors which involve violence or the threat of violence within the previous nine months.” The SCC has a similar statement on punishment for Group 6 behaviors.) Remember, where a student has committed a serious offense, getting a decision that results in only a short expulsion may be a victory under the circumstances.

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SECTION XII: AFTER THE HEARING CPS can take up 2 months to render a decision in any expulsion hearing. This can be a difficult wait for a student and his family -- especially if the student is not in her regular school during this period. Tell your client and her parent(s) to make sure to do two things after the hearing: Keep going to school! Notify you when they get a decision from the hearing. If the decision is that the student is not expelled, or the period of expulsion has been served, work with the student and her parent(s) or guardian to make sure that the return to her school takes place smoothly. Of course, a decision in some cases will result in some period of expulsion. A student who is expelled from the regular school system is eligible for enrollment in an alternative school for the term of expulsion. There are two types of alternative schools, (1) Alternative Safe Schools for students on suspension or expulsion, and (2) Alternative Learning Opportunity Schools for students at risk of academic failure. Formerly, students who had been suspended or expelled from school could only be placed in the Alternative Safe Schools. Effective January 1, 2012, the Illinois School Code now provides that a student may be transferred to either type of alternative school program and may not be denied such a transfer unless the transfer could pose a threat to the safety of students or staff in the alternative program. See 105 ILCS 5/22.6(a). The CPS Code of Conduct for the 2011-2011 school year (drafted before the recent law change) provides that, if a student is expelled, “Alternative Safe School placement may be recommended for the period of the expulsion.” In practice, Alternative Safe School placement is routinely recommended for students who are expelled from CPS. However, because there are only three such schools in the city, at times there have been waiting lists for admission to such schools. While the placement process is not designed for input from the student or family, the decision about which school she will attend is usually made by the CPS Specialized/Alternative Safe Schools Placement/Transition Specialists. This office is usually open to receiving information or input from you before a determination is made by them as to which school your client will be attending. Once the decision has been made, CPS is generally reluctant to make a change unless it is clear that a grave mismatch has been made. Because of the difficulty in demonstrating such

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an inappropriate match, it is usually advisable to participate in the placement process as early as possible to avoid this conflict. It is not entirely clear how the placement process will work now that expelled students may also be transferred to the Alternative Learning Opportunity Schools, but it will likely create more choices for students. If your client is expelled from CPS, you should consult the Lawyers’ Committee regarding how to proceed with the placement process.

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SECTION XIII: APPEAL By taking a case through the Lawyers’ Committee, you are not committing to handle an appeal for your client. You may choose to do so if you wish and are willing. There are few guidelines available as to how to appeal the expulsion of a child from CPS. Expulsion decisions by CPS may be appealed to the Circuit Court of Cook County or to the Northern District of Illinois. Prior to the court stage, it is advisable to follow the process for making an informal written appeal to the Chief Executive Officer of CPS. There are strong arguments to be made that you should send such a letter, to avoid the claim that you have failed to exhaust administrative remedies. This letter should be a thorough discussion of all the issues to be appealed and the evidence presented to the hearing officer that supports your contentions.

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APPENDIX

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