School Disciplinary Tribunals may follow state guidelines, but local
judge, lawyers, probation officer sharply critical
Tribunals fail to protect the rights of students accused following
loose procedures and issuing harsh punishment say legal professionals

By Michael Moore

Earlier this year, two students at Pickens High School were
accused of the same incident of marijuana possession, a criminal
offense. Both denied the drugs were theirs, and one claimed the
contraband belonged to the other student.
They were both referred by their principal to a disciplinary
tribunal hearing -- "the highest form of discipline" provided by
Pickens County Schools' conduct policy, in the words of one school
official.
Declining to sign waivers admitting their guilt, as most
pupils accused of similar grave offenses do, the two students
separately appeared before a panel of three system administrators
from schools other than PHS.
While all student tribunals and their video recordings are
closed to the public, each student was given the chance to present
evidence supporting her case, call witnesses, hire an attorney to
represent them, and cross-examine the school system's witnesses.
In this case, one student hired Jasper attorney James
Johnson, who noted in a long letter sent in February to the school
superintendent that the only evidence against his client was the
testimony of the other student, who was accused of the exact same
offense.
"The testimony of a co-defendant alone is legally
insufficient according to Georgia law," read Johnson's letter listing
numerous complaints with the tribunal process. He provided a copy to
the Progress.
Nevertheless, his client was found guilty by the tribunal,
who upheld the principal's recommended punishment of a two-semester
suspension from school. She now attends Crossroads Alternative School
in Gilmer County, where the tribunal recommends all students attend
during their suspension.
The disciplinary tribunal, required by state law to be
offered by every school district, can be requested when a student is
accused of such a serious violation of school rules that his or her
principal feels a suspension of more than 10 days, or an expulsion,
is in order.
Many local legal experts -- including the juvenile court
judge, a juvenile probation officer, and local attorneys who have
defended accused students -- have a laundry list of reasons to oppose
the way the local school system handles tribunals, which is not
necessarily the same as other area systems.
Generally, critics of the process note that the school
system's methods are far less forgiving than the criminal justice
system, which frequently deals with similar, if not the exact same,
offenses.
There is no due process, the punishments are too severe, and
looser standards of evidence are unjustified, the opponents of
disciplinary tribunals say.
"For a lot of these kids, this is their first introduction to
the legal system, especially when they appear before the tribunal for
criminal charges," said Johnson, who has represented juveniles in
court for over seven years. "They need to feel the system is fair."
The tribunal is meant to be a chance for students accused of
assault, damage to property, drug possession, terroristic threats or
other significant offenses, to plead their case before a "jury" of
administrators who have no previous knowledge of the incident.
Pickens County Schools have had a tribunal policy, spelled
out in their student code of conduct, ever since the Georgia
legislature passed the Public School Disciplinary Tribunal Act in
1996.
The law was passed in order to give students a degree of due
process rights. Its purpose was to provide checks and balances within
school systems so that administrators could not unilaterally or
arbitrarily deny a student's right to education.
"Students still have a right to due process, and the state
board of education says every school system has to have allowances
and regulations for tribunals," said discipline and attendance
officer Shelley Cantrell, who convenes the tribunals and sometimes
acts as the hearing officer.
School officials and their legal staff, who have conducted
tribunals for nearly a decade, note that the process is not part of
the criminal justice system. It thus does not have to abide by the
laws or rules of court, and state school board policy and state law
support this notion, they maintain.
"It's two entirely separate forums," said Pickens County
Board of Education attorney Phil Landrum, III. The U.S. Supreme Court
has even ruled, he said, that students in public schools are not
entitled to the same due process rights as suspects in court.
He also noted that in cases which are referred to juvenile
court, the judge is not bound by the tribunal's decision. At the same
time, a judge's decision cannot overturn that of the tribunal.
That only leaves Johnson asking, "So what do I do as an
attorney?" he said, adding, "There are no rules. Basically they can
do whatever they want to do."

"The death penalty of school"
All students accused by a school official of a criminal
offense are automatically referred to juvenile court, and Johnson is
now defending his client there against charges for the same incident.
Appalachian Circuit Juvenile Judge John Worcester-Holland,
speaking of Pickens County Schools' tribunal policy in general, said
when he sees that a child appearing in his court has already been
handed, for instance, a one-year suspension by the school system, he
considers that a harsh punishment by itself, especially for
college-bound students.
"From what I have observed, usually what happens at the
tribunal is worse than what I would do because the tribunal is pretty
severe. It's the death penalty of school," he said.
He called the tribunal "[the school system's] own sort of
court." Defense attorneys, he noted, are used to a strict adherence
to procedures in court that are not followed in the schools' hearings.
"If you have a proceeding that is taking away a right you
have, there ought to be more safeguards," said Worcester-Holland, who
noted that he is not involved with the tribunals in any way.
Patricia Greenway, the mother of Johnson's client, said she
was "floored" when she first heard that her daughter might get
suspended for a year.
Initially reluctant to send her child to Crossroads which to
her had a "pretty rough" reputation, Greenway home schooled her for
the first three months of the suspension. "But I have to work," said
Greenway, who then started sending her daughter to Crossroads. (She
now admits her concerns were exaggerated, and her daughter is "in a
better school.")
Acknowledging that her daughter had a prior discipline charge
-- smoking cigarettes in the bathroom -- Greenway still believes she
deserves another chance. Especially considering that the accusing
teacher testified before the tribunal that she never saw the drugs in
the student's possession, as Johnson also pointed out in his February
letter.
"I'm not saying my daughter's not guilty, but if she is
guilty she has already paid for it," said the child's mother. "I
think everybody deserves a second chance."
Twenty-four of 25 students appearing before tribunals in the
last two school years have been found guilty by the panel of three
rotating members. Twenty of those were suspended from school for at
least one semester, and most received a two-semester discharge. Two
students were expelled permanently.
Four tribunals are currently in progress, but no decisions
have been made.
The tribunal recommends suspended students attend Crossroads.
Other options include home school or private school, as long as the
student receives their education somewhere during the sentence.
Of the four tribunals for which he has served as defense
since the school board sanctioned the process, Johnson said he has
never won, and all his clients were recommended to Crossroads.
Another concern about the severity of punishments raised by
Worcester-Holland is that Pickens County Schools seem to suspend
students more frequently than Gilmer and Fannin Counties, the other
two jurisdictions in the Appalachian Circuit.
According to Crossroads principal Dick Key, there are
currently more students from Pickens attending the alternative school
than from the other two counties. As of the beginning of the month,
there were 22 high school and 14 middle school students from Pickens
County at Crossroads, the only public alternative school in the
three-county corridor.
In contrast, Gilmer County had 20 high school and seven
middle school students; and Fannin County had seven high school and
nine middle school students attending Crossroads.
Key noted, however, that disciplinary problems are only one
of three main reasons a student might transfer to Crossroads. The
others are a transition from a detention, boot camp, or other
penalty; or students can place themselves there voluntarily due to
special learning needs.
Cantrell said referral to a tribunal is part of a
"progressive disciplinary process," which is also defined in the
conduct codes and applies to all students grades K through 12. She
said she was unaware of the number of students from other counties
attending Crossroads.
Potential disciplinary penalties for all offenses are ranked
in order of seriousness from one to 26. For example, the punishment
for a first minor offense, such as classroom disruption, may result
in a warning (number one) or temporary removal from class (number
four).
The disciplinary tribunal is number 22, leaving only those
sentences the tribunal is most inclined to dish out ranked higher.
Suspension, alternative school placement, referral to juvenile court
(required for some alleged offenses), and permanent expulsion are
ranked 23rd through 26th respectively.
Cantrell noted that students referred to tribunals typically
have a history of discipline problems, or they are accused of
something so heinous that only a lengthy suspension or expulsion fits
the charge.
The specific charges against students who land in a tribunal
are not public record, according to Landrum, but the state's unsafe
school option district summary lists 38 incidents of criminal acts in
Pickens County Schools in the last two years.
Fifteen of those were felony weapons, 10 were non-felony
drugs, nine were felony drugs, two were terroristic threats and two
were aggravated battery.

Questions of due process
Before a tribunal is convened, the student facing the
allegations and his or her parent are called in for a conference with
Cantrell or school system social worker Lynn Palmer.
"We explain what the child is accused of, and explain their
rights and options," said Cantrell, adding, "We have to be a neutral
party. We can't advise them, and we don't pressure them."
At this pre-tribunal meeting, student and parent may opt to
sign a waiver admitting guilt, thus skipping the tribunal and
accepting the principal's recommended penalty. About 70 percent of
students given the option of a tribunal sign the waiver instead,
according to Cantrell.
If the waiver is not signed, Cantrell then convenes the
tribunal. One of the first steps is deciding who sits on the
three-member panel, which acts like a jury in court except they
determine the punishment as well as guilt.
Panel members must be administrators who are not from the
same school as the student, according to local guidelines.
"We try not to use the same people over and over," said Lynn Palmer.
When the hearing begins, the accused student's principal and
assistant principal present the school's case, which may include
submitting evidence and subpoenaing witnesses, who are sworn in
before testifying, according to Cantrell. The student is then allowed
to respond with their own witnesses and evidence.
Also present at the tribunal is a hearing officer who
conducts the process, ensuring all guidelines are followed. "We make
no decisions," said Cantrell. She serves as the hearing officer
unless the student brings in his own attorney, in which case a
hearing officer comes from Gainesville law firm Harbin and Hartley,
which specializes in public education law.
The school system's legal representative attends the tribunal
only if the student's attorney is present.
Cantrell said about three students per year hire an attorney
to represent them at tribunals. The school system does not provide
legal representation if a child cannot afford it, she said.
After both sides have presented their cases, the tribunal
panel makes two decisions -- whether the student is innocent or
guilty; and what punishment they will receive. Cantrell said the
principal always recommends a punishment.
"They make their decision based only on the evidence
presented at the tribunal," she said.
If found guilty, students are notified at the end of the
hearing that they may appeal the decision to the five-member school
board. Out of the 24 guilty students in the last two years, only five
appealed, and the board upheld the tribunal's judgment in all of them.
Johnson's client appealed her case after she was found guilty
by the tribunal. Johnson said it is the appeal where the lack of due
process is most obvious, as he was "shut out" of his client's appeal.
He noted in his letter to the superintendent that he asked, in
writing, three times when and where the appeal was to occur.
He said he did not receive a response until after the appeal,
when he was notified that the board heard his case and found his
client guilty.
"How can they not invite you to your own appeal?" he said.
"Due process means giving notice and the opportunity to be heard."
But Landrum said the tribunal process as a whole, including
the appeal, provides sufficient due process to students.
In a five-to-four decision in 1975, the U.S. Supreme Court
established in Goss V. Lopez that public school students facing
discipline by school officials do not have the same due process
rights as a suspect in criminal court. However, the case also
determined that students being suspended or expelled must be allowed
basic rights to be heard and to contest the charges against them.
"All children have a property right in education," Landrum
explained. "Before any property right can be deprived you must be
afforded due process. But the property right in education is
different from the property right from imprisonment because the
consequences are different -- the tribunal can take away just your
right to education whereas a judge can take away many more property
rights."
Specifically, due process rights served by both Pickens
County Schools' tribunals as well as criminal courts include
reasonable notice, a statement of the matters asserted, and all
parties' right to present evidence and cross-examine witnesses,
Landrum said. The school system is also required by Georgia's
Tribunal Act to provide a videotape or written transcript of the
hearing, but no court reporter is present at the hearings even though
a student may hire and bring their own stenographer.
When a student appeals a tribunal decision, the school board
refers solely to the transcript or video of the initial hearing, said
Landrum.
Responding to Johnson's complaint that there is no due
process in the appeal, Landrum said the tribunal appeal is "very
analogous" to an appeal in court because new evidence is prohibited
in both forums.
The local school system's policy forbids any oral arguments
in the tribunal appeal, said Landrum. An appeals court, however, may
request oral arguments.
Other complaints against the tribunals have to do with looser
evidence standards than in criminal court. While criminal courts go
by the standard of "proof beyond a reasonable doubt," Landrum noted
tribunals use the lower standard of a "preponderance of evidence."
That standard was set by the state Tribunal Law, and is the
same as that used in civil court. "You can deprive someone of
property rights in a civil case," said Landrum.
But if Pickens County Schools' tribunal policy complies with
all state and federal laws, that doesn't satisfy some critics of the
system.

Tribunals "the weakest link" in helping kids, says probation officer
Pickens County juvenile probation officer Cliff Brooks said
the tribunals and the administering of such harsh punishments
comprise "the weakest link" in helping troubled children in Pickens
County.
He strongly suggests any student who appears before the
tribunal bring an attorney with them.
Although the school system notifies the parents and students
that they may have legal representation at the hearing, most of them
cannot afford it, he said.
Plus, he said while the school system argues that the
tribunal has no connection to the courts, that is not how it is
presented to the parents. He said at the pre-tribunal conferences,
where students are notified of their rights, school officials use
language that makes it sound like a court, such as "the right to
counsel," "cross-examine witnesses," and "present evidence."
As mentioned above, witnesses are even subpoenaed and sworn
in when they get to the hearing.
"It's like driving around on something that has four wheels
and a chassis and saying it's not a car," said Brooks, adding that it
is more like a "kangaroo court."
Brooks has served children who have appeared in both juvenile
court and disciplinary tribunals. He noted that part of his job is to
"figure out why these kids are having trouble."
He also said a suspension of a semester or more is especially
unfair for kids who want to go to college, as the punishment remains
like a stain on their permanent record.
In general, receiving such a harsh punishment at such a young
age, particularly if it is on top of probation or another court
ruling, leaves children discouraged and resentful of the school
system, said Brooks.
"I have a lot of smart kids who think they don't have a
chance," Brooks said. "The ones they're trying to keep in school are
being run off."
Furthermore, for students attending Crossroads, parents who
work have the additional burden of bringing their kids to and from
the bus which provides transportation at the Park and Ride lot.
"You're putting the parents and the kids on probation," said Brooks.
Brooks also made a suggestion that was reiterated by another
local attorney who has represented students in tribunals: They might
as well not even have them.

Is it fair?
Jasper attorney Ed Marger, who has also represented students
in past disciplinary tribunals, said the process is "a joke."
While the state Tribunal Law's intent may have been to inject
more fairness and due process into public school discipline, Marger
said it has not made a difference in children's rights.
"It's a rubber stamp for the administrators," said Marger.
"There is no lay person, or a teacher, or anyone present who is not
part of the administration. It's an impediment in the student's way,
and it takes up time and money."
When asked if they thought their tribunal policy is fair
enough, school officials hesitated to give a direct opinion. Instead,
they stressed that it only does what the state requires.
"There are always going to be cases where the parents are not
going to be happy with the outcome," said Shelley Cantrell. "But in
the end I think the tribunal can make a fair judgment."
"No system is perfect," said Phil Landrum, III. He said
Pickens County Schools, like all school systems in Georgia, face a
"balancing act" in having to provide discipline and protecting the
interests and rights of the students.
"It's not our place to say how to balance it," said Landrum.
He added that the tribunal members do an "excellent job," and
Cantrell "has the ability and drive to make the system work to the
best of its ability."