Friday, September 18, 2015
In October of 2013, I published a series of posts on a high school student, Erin Cox, at North Andover High School in Massachusetts. The story told by her, her family, and primarily her attorney, Wendy Parker, was that the school had punished her under its zero tolerance policy on alcohol for being at a party where alcohol was served. The media story that unfolded over a couple of days was that she had not actually consumed any alcohol, that she had not actually been present at the party, that she had only come to the party to give a drunk friend a ride home, and that the police were already there when she arrived, but released her because it was clear she was not involved. Her attorney claimed she had a police report that even verified these last facts. The narrative was that the school was punishing for doing the right thing. She then brought suit in state court seeking to enjoin her punishment and her attorney said that the school's attorney lied about the undisputed facts at the initial hearing before the court.The beauty of blogging, as opposed to reporting, is that most legal blogs are not in the "fact-investigation" business. Because we are not, we have the time to comment on numerous stories, spot trends, and tie them together with larger legal theories and doctrines. From time to time, we might even be helpful to folks on the ground looking for a little direction in how to respond to a crisis.
The vice is that the facts we are commenting on are not always correct and the facts that matter most are not always clear. With the case of Erin, I had a lot of questions and some were not clearly addressed by the initial news reports. Thus, for the first time on this blog, I reached out to get more facts. I spoke directly with Erin's attorney.Both relying on the media for initial reports and relying on the attorney for details led to fatal inaccuracies that I and countless members of media fell victim to.
On my way to Boston to deliver a talk on school discipline yesterday, I wanted to reference Erin's story and update myself on the story. I found, to my deep embarrassment, that the story I had been commenting on and pushing was all wrong. The Valley Patriot reports that in a letter to the court, Erin later admitted that: a) she had been at the party prior to the police arriving and b) she had consumed alcohol there. The police report that Erin's attorney made so much of also was not as convincing as she had claimed. The email actually said Erin was there when the officer arrived. He released her because "she did not have the slightest odor of alcohol coming from her person" and was steady on her feet. This is, of course, far from the verification that she was not even at the party and, thus, could not have been drinking. In short, I/we got it all wrong.
The Valley Patriot says that if the media would have double checked its facts the problem could have been avoided. Maybe, but I am not so sure. The problem with reporting on school discipline is that the media is generally only going to get one side of the story: that of the student or her attorney. Schools, for legal privacy reasons, do not talk to the media about students' misbehavior, nor should they regardless of the law. None of us would want a school talking to the media about our children. The same is true with the juvenile justice system. So I am not so sure the media could have done a lot of fact checking here. But both the media and I could be far more careful about framing allegations as allegations and listening to claimed injustices with a good dose of skepticism. This we failed to do. My apologies. I know I, for one, will be more careful in the future.
Erin's story, however, reveals something more fundamental about school discipline that I am only now fully appreciating because she did lie. Her story reveals just how hard it can be to get the truth, not just for the media, but for the school itself. This is one of the reasons why courts defer to schools. One can imagine any number of situations where schools have limited information and must rely on the stories they get from students who are the participants in problematic events. In other words, they must tell on themselves and their friends.
Erin, by all accounts, is good student, good member of the school community, and will go on to be successful later in life. But she lied, told less than the full truth, massaged a few facts or something along those lines. I am sure students do something along these lines all the time.
The reasons are twofold. First, their characters are still developing. Many who have excellent characters or will have them soon are still in development. The Supreme Court in Roper v. Simmons and other cases makes this point very clear and offers it as a primary reason why minors are not fully culpable for their actions and ultimate punishments like the death penalty and life without parole are inappropriate. Second, schools put these kids under enormous pressure. The academic and athletic stakes are high and the consequences of behavioral breaches severe. When kids face long-term suspension, expulsion, and the complete derailment of their athletic and academic careers, it is hard for them to tell the truth. It is probably even harder when the punishment they are facing seems entirely disproportionate to the thing they have done.
This leads me to reflect on the case of Seal v. Morgan. Seal is the most notorious zero tolerance case out there because the 6th Circuit, by a vote of 2-1, actually ruled in his favor. The school expelled Dustin Seal for having a knife under the passenger seat in the car he drove to school. The undisputed facts show that it was not his knife and he did not place it there. He claimed he did not know it was there and all the other accounts of his friends, including the owner of the knife, confirm or are consistent with Dustin's story. On the theory that he was not in knowing possession of the knife, the Sixth Circuit held that his expulsion was irrational and violated substantive due process.
The dissent, however, was unwilling to accept that he did not know it was there or, at least, that he was not culpable. The dissent argued that he could/should have know it was there. This is something I have always wondered about. I do think it is possible that he knew it was there at one time and had just forgotten about it. Or based on the facts he had available to him, he could surmised the knife was there had he thought about it. I can live with those realities and do not find them damning of his case. But I have also always worried that maybe Dustin Seal just lied. After all, it was not his knife, he did not put it under the seat, he did not necessarily want it under his seat, and he had no intention of using it. But there is was--a mistake of carelessness--and now the school district is expelling him--what I term an educational death penalty elsewhere. Would he have told the truth under those circumstances?
We cannot resolve the fact that kids lie (or adults for that matter). What we can resolve are the extremely high consequences of telling the truth. Students should not be expelled for minor misbehavior, nor should they automatically be expelled for more serious misbehavior. The facts of individual cases matter. Even if we made the worst inferences possible based on the available facts, Dustin Seal's behavior did not warrant expulsion. This is lesson of Erin Cox's lie.