Using Pro Bono Lawyers to Expand Access to Justice in School Discipline Cases

The early years of any child’s life are critical for building the foundation of learning needed for success in school and later in life. Oftentimes, the children most in need of intervention are the ones expelled from the system. According to a recent discipline report from the Civil Rights Data Collection, children with disabilities and children of color receive suspensions and expulsions at a disproportionate rate compared to their representation in the school system. The research is clear—children who are expelled or suspended are many more times likely to drop out of high school, experience academic failure and grade retention, hold negative school attitudes, and face incarceration than those who are not.

Lawyers can make a critical difference in school discipline cases and can often make the difference for a child staying in school or being excluded through suspension or expulsion. Yet there are not enough lawyers to represent children in school discipline cases. Pro bono lawyers can be a link to increasing access to justice in these cases. Recently, the ABA Section of Litigation Children’s Rights Litigation Committee hosted the roundtable “Can Pro Bono Lawyers Expand Access to Justice in School Discipline Cases?” where speakers discussed the importance of children having lawyers to represent them in school discipline cases, how to start and maintain a pro bono program, and how successful programs have overcome challenges. 

Starting and Maintaining a Pro Bono Program

Recruitment of pro bono lawyers can be problematic, especially for school discipline cases which often provide very little notice and time to prepare. Successful programs reported that they focused recruitment efforts on large firms, law school clinics, and younger lawyers. The “start small and build” approach appears to be the commonality among ongoing programs. Being intentional about which firms and lawyers are recruited can assist in successful program establishment—look for leaders within firms and the legal community that will champion the program among colleagues. The benefits are two-fold: lawyers who are willing to take cases and who are also willing to help market your program.

Law student clinic models have been proven to be particularly effective. Some law school clinics use a team approach through which law students can help alleviate the pressure of the fast-paced nature of school discipline cases by completing much of the preliminary work such as record collection and review, investigation, and research. Pairing a law student with a private lawyer allows the lawyers to work more efficiently, and not at the expense of billable hours.  

Many successful programs have used free continuing legal education (CLE) courses as a means of recruitment. Because of the uniqueness of school discipline cases, training is essential. The combination of training and free CLE credit is a worthy way to recruit pro bono lawyers while preparing them to take their first case. Use of additional CLE courses in exchange for pro bono lawyers’ agreement to take cases is one strategy that some programs use for recruitment and maintenance of a pro bono program.

Once a school discipline pro bono program is established, lawyers must be engaged to remain active participants. On-going free CLE courses are one way to keep pro bono lawyers engaged beyond their first case. Providing technical assistance on cases is also invaluable to pro bono lawyers and can help keep them engaged in the work. Regular check-ins via in-person meeting (or Zoom since everyone is an expert in working remotely now) can be an avenue to provide legal updates, case conferences, or to identify gaps in the work.              

Using Volunteers Outside of Direct Representation

Some prospective pro bono lawyers may be interested in school discipline work but unable to devote the time for individual cases. In those cases, there are other ways to engage volunteers including simply being a champion of the cause and bringing awareness to the impact school discipline has on children. In addition, in those cases that do not warrant extended legal representation, pro bono lawyers can provide brief advice to parents and children on their rights in school discipline cases. Volunteers can also be beneficial in systemic work by advocating for policy initiatives or cocounseling class action cases or other impact litigation cases.

Identifying and Overcoming Challenges

While pro bono lawyers may be one way of increasing access to justice in school discipline cases, establishing a pro bono program is not without its challenges. Rural areas that lack large firms or law schools can have difficulty in recruitment but using alternate formats can be a way to tackle that hurdle. The use of technology can be used to remotely train and engage lawyers in rural areas. Using pro bono attorneys to conduct parent education sessions, legal clinics, and legal advice via telephone are also ways to connect parents and children in rural areas with pro bono lawyers.

The fast-paced nature of school discipline cases can also be challenging. Navigating scheduling issues and conflict cases in a short timeframe can be done by having regular communication with pro bono lawyers to give them a heads up of potential upcoming cases. Allowing pro bono lawyers the option of “on call” weeks or specific time periods may also be a solution.

Exclusionary school discipline can have a permanent impact on a child’s life. Many children face school discipline proceedings without a lawyer, which can have harmful and lasting consequences. Programs using pro bono lawyers can help close this access to justice gap. If you are interested in starting a school discipline pro bono program or are a lawyer interested in volunteering for a pro bono program, contact the ABA Section of Litigation Children’s Rights Litigation Committee.