GIDEON GOES TO SCHOOL: AN ARGUMENT FOR A RIGHT TO APPOINTED COUNSEL IN SCHOOL DISCIPLINARY PROCEEDINGS.

• Author: Weinhold, Eric
• Position: NOTES

"Upon the subject of education... I can only say that I view it as the most important subject which we as a people can be engaged in." (1)

INTRODUCTION

Article XI, section 1 of the New York State Constitution requires the State to "provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." (2) The State's mandate that all children of the State be educated within a system of public schools requires more than the State merely providing access to those schools. (3) This constitutional grant of power "has obligated [New York State] constitutionally to ensure the availability of a 'sound basic education' to all its children." (4) In 2015, the New York State Legislature adopted a concurrent resolution acknowledging the importance of a civil right to counsel, espousing that "it should be the policy of the state of New York, that every New Yorker in need have effective legal assistance in matters involving the essentials of life (housing, family matters, access to healthcare, education and subsistence income)." (5) While purporting to support the ability of New Yorkers to access counsel in cases involving essential matters of life, like education, the State has shirked its responsibility of enacting protections to ensure a civil right to counsel in many situations. (6) The State Legislature promulgated the 2015 concurrent resolution but "leaves open the precise nature of the representation." (7) It ignores how the State will provide "effective legal assistance in matters involving the essentials of life" to "every New Yorker in need." (8)

There has, however, been a movement in recent years spearheaded by former Court of Appeals Chief Judge Jonathan Lippman and coinciding with the 2017 New York vote for a Constitutional Convention to create a "civil Gideon." (9) "[T]he idea would be to embed into the state constitution a civil right to counsel." (10) The movement to expand access to civil legal services has habitually failed to address educational issues, by ignoring them altogether in favor of providing counsel in other types of cases. (11) Students, primarily those from minority or lower socio-economic demographics, or those with disabilities, (12) are removed from schools at much higher rates than students from more privileged backgrounds. (13) Minority students and those with disabilities face systemic discrimination by being subjected to school discipline at much higher rates than their non-disabled and white colleagues. (14) In order to fulfill New York State's Constitutional mandate to provide a sound basic education to all, New York should enact a constitutional amendment creating a right to appointed civil representation when students are faced with school-disciplinary actions. Specifically, this amendment would address the needs of students who are faced with the loss of access to education.

Two terms will be used throughout the body of this Article which require defining. The first is one's education interest. An education interest is simultaneously an individual right as well as a societal right because it is the individual's receipt of an education which allows them to participate in civic society and because democracy, where citizens play a fundamental role in the fate of a nation, requires an informed citizenry. The second term, access to education, refers to the ability to capitalize on one's education interest; to take advantage of one's education interest is to gain the ability to fulfill one's responsibilities of citizenship by being an informed citizen with the skills and knowledge to participate in civil society. Accessing one's education is more than the ability to sit in a public school and to receive an education. It is the ability to receive classroom instruction, to have access to textbooks, to participate in afterschool programs and athletic activities, and to enjoy social interactions during school.

This Article will demonstrate that education is a fundamental right and that the dangers presented by the loss of education, even a temporary loss, are so great that New York must adopt a constitutional amendment providing for a right to appointed counsel when students face the loss of their education interest. Part One of this Article examines the origins of the civil Gideon movement. Part Two explores education and its position as a fundamental right. Part Three provides a general outline of how school discipline is structured. Part Four addresses the risks associated with the loss of education and the impacts it has on students who are taken out of the classroom. Finally, Part Five looks to some potential solutions, including the adoption of a state constitutional amendment.

1. ORIGINS OF THE CIVIL GIDEON MOVEMENT

   The Supreme Court's landmark 1963 decision in Gideon v. Wainwright (15) provided that, in all criminal proceedings the accused shall enjoy the right to counsel and that the government must provide counsel for those who are unable to afford it. (16) While this decision guaranteed the right to counsel in criminal cases, it did not broach the issue concerning civil matters. Nearly twenty years after Gideon, the Supreme Court expressly declined to extend the right to counsel (17) to civil cases. (18) Despite the fact that the Supreme Court failed to create a civil right to counsel under the federal constitution, (19) New York State is entitled by America's system of federalism to go further than the federal government in protecting the rights of its citizens in navigating complex civil issues such as school discipline. (20)

   Over a decade after the Supreme Court's Gideon decision, the New York Court of Appeals heard the case In re Smiley, (21) where the Court held that no right to counsel "applies to private litigation." (22) In re Smiley addressed the issue of whether indigent litigants in divorce actions have a constitutional right to have provided counsel or a constitutional right to be compensated for the cost of retained counsel. (23) The Court reasoned that "[t]he underlying principle" for providing counsel in criminal matters is that the government is "proceed[ing] against the individual with risk of loss of liberty or grievous forfeiture." (24) The foundation for the Court of Appeals' reasoning, that appointed counsel is necessary when the state moves against an individual where there is a risk of grievous forfeiture, is at odds with the refusal to appoint counsel when the loss of education is at issue. (25) The state legislature has acknowledged that education is essential to life. (26) Additionally, public schools are an arm of the state. (27) The Court's reasoning combined with the essential status of education would call on the state to provide counsel when it moves to revoke a student's access to education.

   Former Court of Appeals Chief Judge Jonathan Lippman has championed increased access to civil legal services and a civil right to counsel in New York and took steps while he was Chief Judge to enlarge access to civil representation. (28) While still on the Court, Judge Lippman created the Task Force to Expand Access to Civil Legal Services in New York ("Task Force"), as "the centerpiece of his efforts to establish a comprehensive approach to providing counsel to low-income New Yorkers in civil cases." (29) The Task Force, while aiming to "focus on equal access to justice and to highlight the need to expand access to civil legal services to those most vulnerable in" New York, directed its attention to civil representation in "areas such as housing, personal and family safety and employment" but did not include access to education within its scope. (30) In 2015, the Task Force became the Permanent Commission on Access to Justice to continue the "Task Force's significant contributions towards increasing the availability of civil legal services, while acknowledging the work that remains to further remove barriers to justice for all New Yorkers." (31) The Permanent Commission's 2015 report to the Chief Judge emphasized the importance of civil representation for indigent persons in landlord-tenant law, (32) employment law, (33) for victims of domestic violence, (34) accommodation of the disabled, (35) bankruptcy, (36) veterans' rights, (37) immigration issues, (38) and health care, (39) but educational issues were generally left out of the report. (40) The State cannot, consistent with its claim that education is an essential aspect of life, continue to address other issues in the civil Gideon movement while simultaneously ignoring education.

2. EDUCATION AS A FUNDAMENTAL RIGHT

   New York State has recognized the importance of education by deeming the receipt of an education one of the "essentials of life." (41) While today the State recognizes the importance of education, in 1894, New York State together with New Jersey and Delaware "[were] the only states which to-day [sic] have not a similar analogous provision in their fundamental laws" guaranteeing a public education. (42) The lack of a provision providing for public education in New York led to the 1894 Constitutional Convention's creation of the modern Article XI, Section 1 provision. (43) Indeed, the 1894 Constitutional Convention's Committee on Education issued a report that "no imagination can picture this state refusing to provide education for its children." (44) In a statement in support of a constitutional provision "provid[ing] for the maintenance and support of a system of free common schools," the Committee on Education noted that "it is a significant fact that... no other state of the Union has considered it superfluous or unwise to make such an affirmation in its fundamental law." (45) Decades before the 1894 Constitutional Convention, in an 1822 speech delivered by Governor De Witt Clinton on education, the governor noted that "the first duty of a state is to render its citizens virtuous by intellectual instruction." (46)...