I am pleased to host a guest post today from 2L Sarah Nyaeme, who reflects on her clinic experience this past semester.

Almost exactly a year ago, I was in New York for my pro bono spring break trip. It was only my second time in the City, and in addition to looking forward to working at the
International Legal Foundation for the week, I was also excited to explore all that New York had to offer.

The trip took an unexpected turn when I realized my phone was missing from my purse
on my first day there. After searching my pockets, the surrounding area, and using the “Find My iPhone” app on my friend’s phone, it was clear that my phone had been stolen. Unsure of what to do, I called the non-emergency line of the local police department, assuming that a call to 911 was an improper use of the emergency number. I mean, it was just a phone.

However, I quickly realized how serious of a crime this type of theft was when a woman
at the police department exclaimed, “Honey! Call 911. That is grand theft felony!” It had never occurred to me that a person who steals a phone could face felony charges, and, as I learned in my clinic this semester, could prevent a child from receiving an education.

Although it is not explicitly stated in the United States Constitution, education is treated in American society as a fundamental right that all children deserve. So, one would think that a child’s mistake (because all children make mistakes) won’t preclude that child from receiving an education, right? As I learned, the answer is: not necessarily. In Massachusetts, along with other states, if a child has a pending felony, he or she can be indefinitely suspended by their school. Furthermore, if the child has an adjudicated felony, he or she can be expelled and no other public school is required to accept that student. After watching this scenario play out in one of one of my cases in the Juvenile Rights Advocacy Clinic (“JRAP”) this semester, I realized how harsh this law is, and how detrimental it can be to a child’s education.

It was shocking to me to see how many nonviolent crimes can be considered felonies,
even if committed inadvertently or without recognizing the consequences. For example, some types of theft, burglary, larceny, criminal damage to property, and assault and battery all can fit within this category. Therefore, if a student were to steal a teacher’s phone, the child could potentially lose his or her access to education, either indefinitely or for life.

The one saving grace is that the school must also find that the student has a substantial
detrimental effect on the general welfare of the school beyond having a pending or adjudicated felony. See M.G.L. c. 71 § 37H1/2. This is undoubtedly an important protection, but the decision regarding the length of suspension or whether to expel the student is completely within the principal’s discretion. Furthermore, there are not really any safeguards in place to ensure the principal treats the decision as a two-prong test.

This past semester, I was witness to a child who had been indefinitely suspended from his school for a pending felony charge. The student never received a hearing in front of his principal and was kept out of school until he was able to appeal to the superintendent, who ended up upholding the principal’s decision. This child then went over a semester without attending school and only received six hours of tutoring each week. Although the child was eventually found not delinquent by the jury after spending months away from school, the student and his family did not feel comfortable with his return to that school district because of how the situation was handled. This displayed another problematic issue with the current system: how is a student supposed to feel comfortable returning to school after months of being excluded because of an alleged crime, even if he was found not guilty?

Ultimately, there is a lot of work that needs to be done with how felonies are handled at public schools in particular. It feels wrong that a student who is accused of committing a felony—even one that is nonviolent—can be kept out of school, especially when he or she may be innocent. Beyond that, it also feels wrong that a nonviolent felony adjudication can potentially keep a student from receiving an education for the rest of his or her life.

If a student wants to be educated and is unable to go to any school because of a mistake they made when they were a child, is that a just or right result in a society that values education so highly?