Education: When students face expulsion from school

By David Hayes, Toronto Star, December 11, 2011

Early last June, lawyer Renai Williams led 16-year-old Ian McGrath and his mother, Gillian, into a boardroom at the offices of blue-chip Bay Street law firm Affleck Greene McMurtry LLP. They looked nervous in what Williams realized were probably intimidating surroundings, so she began by telling them a bit about herself, to make them comfortable. Then she asked them to tell their story.


A couple of weeks earlier, Ian had been suspended from his Durham high school for swearing at, and allegedly making threats against, a special ed teacher, as well as assaulting a vice-principal (he vehemently denies the latter two charges). There were criminal charges involved, and the principal recommended that Ian be expelled from all schools in the district. Ian and his parents were awaiting an expulsion hearing before a panel of school board trustees.


It was already impossible for Ian, who as a child was diagnosed with Tourette’s syndrome, attention deficit hyperactivity disorder (ADHD) and an anxiety disorder, to salvage the current academic year. But, more critically, he was so frustrated that he was talking about quitting school and getting a job.


Frantic about the future of her only child, Gillian, a 46-year-old real estate administrator, had searched online and stumbled upon a little-known resource: volunteer lawyers like Williams who help kids in situations such as Ian’s (the names of the boy and his mother have been changed to protect the boy’s anonymity).


Most of the time, Williams is a corporate litigator, advising CEOs, boards and executives at large corporations on issues of competition law, price-fixing, breach-of-contract and other matters. But as one of the nearly 130 volunteer lawyers with the Education Law Program, part of the Child Advocacy Project (CAP) run by Pro Bono Law Ontario (PBLO), she provides free services to students and their parents who feel legal rights and procedures haven’t been observed. These may include: unfair or illegal suspensions, expulsions, exclusions or transfers; an inability to access accommodation for disabilities; being denied the right to attend school and being subjected to bullying, harassment or other safety issues.


Mothers and fathers aren’t always the best advocates for their children. The legalities around suspensions and expulsions can be labyrinthine, and parents can sometimes become so emotional at meetings that they’re unable to deal with the issues. The involvement of a lawyer can help move things forward. It makes officials realize, says Sarah Armstrong, another CAP volunteer, “that somebody is there to make this file the squeaky wheel.”


At their meeting, Williams made a point of respectfully addressing Ian as often as his mom, at one point saying to him, “I will do my best for you, but you also have the choice not to retain me if, for whatever reason, you’re aren’t comfortable with me representing you.”


Because of his medical conditions, Ian can become agitated and sometimes antagonistic in situations he perceives as stressful. “He can be mouthy, even swear sometimes,” explains Gillian, who notes that he has the kind of Tourette’s associated with socially inappropriate or obscene outbursts.


For years, Ian has had an Individual Education Plan (IEP), a working document describing the needs of “exceptional” students and detailing a program of accommodations and special services to help them learn. He progressed well through elementary and middle school but problems emerged when he entered high school. Coping strategies that had worked in earlier grades were discarded because, Gillian said, she was told by a special resource teacher that he had to “grow up now.”


One of his coping mechanisms was to leave his classroom for the tranquility of a special resource room or even to come home. But now he was more frequently being suspended for one or more days, affecting his academic performance.

Then, the incident involving the special ed teacher and the vice-principal occurred. Ian was suspended and led off school property but he refused to go home, demanding to know why he had been suspended. The police were called, charges laid and a trial appearance is set for March.


Listening to the story in the boardroom, Williams observed that Gillian was more objective than many mothers. She didn’t minimize the challenges school officials would have dealing with Ian, but she also believed he had a right to an education.


To Williams, Ian seemed like a typical teenager. At five-foot-nine, he was slightly built, a skinny kid wearing skater shorts, a T-shirt and a black-and-white checked Hurley baseball cap. He seemed nervous, a bit defensive. When he spoke, his voice would rise with emotion and a slight stutter would worsen. At one point, when he began getting excited as he said, “Why are they doing this? I shouldn’t have to fight for my education. . ., ” Williams said soothingly, “It’s okay, take a deep breath, Ian. I’m on your side.”


Williams could see him being verbally aggressive but it struck her as the overcompensation of a teenager who needed help. Besides, he wasn’t physically intimidating and even in the two hours she spent with him, he would settle down when she spoke calmly to him, adult-to-adult.


She was also impressed that Ian recognized he had a reputation as a difficult student, though he added he had been trying very hard to change in recent months. He had wanted to get as many credits as possible that year, enrol in summer school, and move on to Grades 11 and 12, but he felt he was being defined by the younger, less-motivated person he had been. When asked what he’d most like to see happen, he said, “I just want to go to school.”


At the end of the meeting, Williams told Ian and Gillian that she thought Ian had a winnable case.


Lynn Burns is a former special ed teacher who at one time created a pro bono program for the state of Ohio. In 2000, several legal organizations in Ontario decided to establish a province-wide system matching lawyers willing to take on pro bono cases with clients in need. Burns was hired to launch what became Pro Bono Law Ontario.


Addressing the needs of children was a high priority, so she created the Child Advocacy Project and, within it, the Education Law Program (in partnership with The Advocates’ Society, a not-for-profit association for lawyers, and Justice for Youth and Children, a non-profit legal aid clinic.)


“It turns out that education is rich with legal issues,” says Burns, “and our lawyers find this pro bono opportunity especially rewarding because they’re helping children.”


These services are especially important since education law is not a common specialty and the vast majority of those who practice it work for school boards. The Education Law Program’s volunteer lawyers come from a variety of backgrounds and specializations, although most of them have one thing in common: they know little about education law. So CAP runs training sessions to provide its lawyers, like Renai Williams, with some background before assigning them to their first clients.


“At first, most parents don’t think of problems at school as legal problems,” says Wendy Miller, the longtime project director for the program who recently moved to a new job. “But schools operate in a legal framework governed by the Education Act and the Human Rights Code. And they can be very intimidating institutions where parents are discouraged from challenging the decisions of administrators.”


Consider some examples from the roster of families who have recently been assisted by the program.


• A child is identified as having a disability in language and memory retention. Unsure how to address his special needs, for years his school did little to accommodate him. As the child’s issues progressed, he wrote in his journal that he was thinking about suicide. After a CAP lawyer became involved, the child began receiving appropriate special ed services and has shown remarkable improvement, gaining more confidence. Teachers who were once very difficult to deal with have since agreed to work more closely with the family.


• A child in elementary school was disciplined following a number of minor infractions. When the school suspended the student for as long as possible under the Education Act, a CAP lawyer discovered the principal had misinterpreted the Act; given the facts of the case, the child’s extended suspension was unlawful. Eager for their child to get a fresh start, the family wanted him to be bussed to a different school in the area and have the suspension expunged from his record. The lawyer negotiated with reluctant board of education officials who eventually agreed to provide bus service to a new school and expunge the suspension. The child has since enrolled in the new school and adjusted very well.


• A 17-year old girl with advanced muscular dystrophy has very limited mobility and a tracheotomy tube. She lives at a rehabilitation centre and goes to school with a nurse and a full-time educational assistant. The girl is a good student and has a very positive attitude. With the approval of her medical team, a friend enrolled in the same school was trained in feeding her, handling emergencies and taking her on outings. The girl wanted to be fed at lunch by her friend so she’d have some privacy and they could chat like teenagers. However, school officials, citing liability issues, insisted that while on school grounds she had to be fed by the nurse or the educational assistant and she wasn’t allowed to leave the school grounds with her friend. As a result of a CAP lawyer’s intervention, the girl is now able to enjoy the privacy she wanted with her friends at school.


Few cases are straightforward and the further they progress, the more complicated they become. Gillian McGrath certainly felt that way. Articulate and educated, she was a model advocate for Ian but she could feel the system grinding down on her. (Her husband, although supportive, works long hours at a job far from their home.)


Ian was facing a “full expulsion” — not just from his school but from all schools in the district — and Gillian was told his only opportunity was to attend one of the province’s expelled student programs, where young people can make up lost academic credits and receive help, such as counselling and anger-management workshops. But Ian was mortified at the idea of being further stigmatized as a “bad kid.”


There have always been families struggling to deal with the school system on behalf of their children, but conflicts began escalating in 2000 after the Mike Harris government introduced a Code of Conduct and the Safe Schools Act (known as “zero tolerance”), giving teachers and principals new powers to remove troublemakers. The net was cast so wide, however, and the ability to consider mitigating factors so narrow, that many students, including those with disabilities, were being routinely — and often unlawfully — suspended or expelled.


In 2008, Dalton McGuinty’s Liberal government revised the legislation. The final decision to expel students was returned to the quasi-judicial process of a school board hearing, and principals could no longer automatically suspend or expel students for bad behaviour. Schools were also required to provide educational programs and counselling to students who were expelled or on long-term suspensions. Still, many children and teenagers continue to fall through the cracks.


When Renai Williams decided she wanted to do some pro bono work earlier this year, she came across the website for the Child Advocacy Project and felt drawn to it. As a relatively new mom — with her first, a 2-year-old boy named Zackery — she thinks she probably had children and the importance of education on her mind.


Her first case was instructive. As sometimes happens when school officials hear a child is being represented by a lawyer, a seemingly intractable problem is suddenly and mysteriously resolved. Of course, when a lawyer comes on board it can also create friction, as Williams would learn when she took on her second client, Ian McGrath.


At their first meeting, he told her that he had been in the academic resource room discussing access to a laptop computer to which he was entitled under his IEP. He says he pushed the door nearly closed because he didn’t want other students to hear the conversation. A dispute arose and he swore at a female special ed teacher.


There was nothing new about this, especially for a teenager with Ian’s menu of disabilities. After lunch he went to his English class and his teacher called him over, showing him that the computer listed him as suspended. Agitated, Ian went to the principal’s office.


The principal was away that day but all three vice-principals were there. When he asked why he had been suspended they wouldn’t tell him. He was instructed to leave school property. All three escorted him outside and one walked him down the steps and out to the street. The VP had asked two students to accompany her, apparently for “protection.”


Ian repeatedly demanded to know why it was happening, even when he was off school property, but says he wasn’t told. At one point, Ian says he tried to catch a walkie-talkie that slipped out of the VP’s hand; she alleges he forcibly grabbed her. Soon both Ian and the VP were on their phones talking to Gillian, who was at work. By the time the police arrived, she could tell her son was becoming increasingly worked up, so she asked the VP to call an ambulance.


When Gillian and her husband arrived at the hospital, Ian was being evaluated by a psychiatric crisis team to see whether he should be temporarily held for further assessment (a provision under the Mental Health Act). By then Ian had calmed down and the hospital felt it unnecessary to keep him. At that point, the police arrested him and charged him with two counts of assault and one of uttering threats. McGrath had to hire a criminal lawyer.


Later, after a few conversations with school officials, McGrath became suspicious. She hadn’t been told Ian had assaulted or threatened anyone when she was first contacted. Her son confirmed he had made some threats, but last year, not during this incident. Then she was told the principal, who hadn’t been present but heard the story from his staff, had decided on a suspension pending full expulsion.


“They kept talking as though this was a done deal,” she says today. “I was told that over and over. But I started thinking, does it have to happen this way?”


When Williams examined the file she thought there were a number of inconsistencies. Under the Education Act, the principal was required to conduct an objective investigation, getting all sides of the story. But he never contacted Gillian McGrath and the report read as though it had been transcribed from what his staff had told him.


The principal’s letter to McGrath said Ian had been suspended for making threats, but his mother had been told it was for swearing at the teacher. Examining Ian’s IEP, Williams saw that the school knew he suffered from the form of Tourette’s associated with inappropriate outbursts and had problems dealing with authority and recognizing body language cues.


When he wasn’t told why he had been suspended, he would understandably grow more exasperated, triggering his anxiety disorder. School officials knew all this, Williams thought, yet failed to defuse the situation early on by treating Ian with respect and calmly explaining why he had been suspended.


“My suspicion was that at some point they’d decided if there was another incident involving Ian, they wanted to remove the problem,” says Williams.


A date for a hearing was set. When Williams contacted the lawyer representing the board’s trustees, he was very cooperative. But her experience with the lawyer representing the school’s administration was quite different.


“She was condescending, inflammatory, extremely adversarial,” recalls Williams, adding that her efforts to reach out and discuss any common ground were rejected.


During one phone call, the lawyer told Williams that in ten years she’d never seen a student with as bad a discipline record as Ian’s. Having reviewed Ian’s record, Williams replied, “Really? You know that this is my first case of this type, but three one-day suspensions and one three-day suspension? In ten years you’ve never seen worse than that?”


Later Williams thought that a junior lawyer might have been rattled after a conversation like that, which was probably the intention. “I was so grateful I’d been assigned Ian’s case at that moment,” she says. “Here you have a parent who is thorough and objective, trying so hard to be even-handed. You can see how she could be railroaded by the system.”


On the morning of June 29, Williams accompanied McGrath to the school board’s offices. Tables were set up in a large circle in a conference room. The principal, VPs and special ed teacher, plus their lawyer, sat on one side of the circle, the director of education and the school board’s lawyer on the other side. Williams and McGrath faced the trustees.


Although Williams was prepared to argue many points supporting Ian’s case, she first raised what she knew might be a pre-emptive strike. “While I do not want to introduce an adversarial tone so early in the hearing,” she said, “…it is our position that this hearing has been convened out of time.”


Williams was making the case that although the school claimed Ian’s suspension began the day after the incident, Ian’s teacher had shown him on a computer that he had been suspended the day the incident occurred. That would mean the hearing, which had to be held within 20 days of the suspension, was being held on the 21st day. After a one-hour recess, Williams and McGrath were told the trustees dismissed the case because Williams was right about the date.


“I’ve learned so much from this experience that I hope I’ll never have to use again,” says Gillian McGrath today. “Sure, the teachers are specialists, but that doesn’t mean they’re always right. They’re human, they make mistakes. From a parent’s perspective you have to go with your gut.


“I felt so lucky to have Renai on our side. She seemed to treat us no differently than she would her clients on multi-million-dollar cases she really does litigate. I hoped she could help us, but I knew there were no guarantees. Honestly, she saved me. If she hadn’t been involved we would be in a completely different situation right now.”


Ian went to summer school and made up a couple of credits. In September, he started in Grade 11 at a new school, doing some Grade 10 and some Grade 11 subjects. He’s made some friends and so far is doing well.


“Ian will always struggle in school,” says Gillian. “I won’t even go so far as to say, ‘Yeah, he’ll get all his credits and graduate.’ But he’s going to school every day, which is a huge thing.”


As for Williams, she thinks of her own toddler, Zackery, when she looks back on her first major pro bono case. “At 16 we all have ‘stuff,’” she says. “I know I had my share. Then imagine not only dealing with the usual issues of being a kid but also having physical and learning challenges that make fitting in even harder. Pile onto that the sense that most of your teachers have written you off. I hope Zack never has to feel so unsupported by the school system as Ian did.”