Students in the Duke Children’s Law Clinic successfully challenged a yearlong suspension received by a middle school student and cleared her record of any misconduct. Without the successful appeal, the 13-year-old girl would have been out of school for her entire eighth grade year.
David Houska ’13 argued on behalf of the student at the formal disciplinary hearing before a three-person panel chosen by the school system to hear the case. Allison Schultz ’13, Dan Sanchez ’13, and Jamie Yoo ’13 helped research the case and prepare the appeal.
In October 2012, the Children’s Law Clinic got a call from the mother of Amber Thomas (whose name has been changed for this story). Amber was charged with fighting another eighth grader at her middle school and her principal recommended to the superintendent that she be suspended for the rest of the school year. She received a notice saying that if she disagreed, a hearing would be scheduled. Believing that her daughter was not at fault, Amber’s mother started looking for help, and was referred to the Children’s Law Clinic. The clinic agreed to provide Amber with free legal representation.
Houska was assigned to interview Amber about the charges. He learned that Amber was at the center of an after-school altercation that sparked a melee involving dozens of students. School authorities claimed that another girl punched Amber and that Amber responded in kind. A crowd of students pushed in to see what was happening, and before long multiple students, teachers, and administrators were thrown to the ground and trampled in the chaos. Because Amber was believed to have engaged in more than self-defense, she was considered as guilty as the student who swung first. The school administrators justified the severe punishment in part by citing the overall size of the disturbance and the need to send a clear message that fighting was not tolerated.
Amber protested her innocence from the outset, claiming that she had been punched by the other girl and then immediately thrown to the ground. She said it took all her strength just to protect herself and get free of the mob, and that she never hit her attacker. She said she had nothing to do with the crowd that gathered or the actions of the other students.
After conducting the initial intake interview, Houska, supervised by Clinic Director Jane Wettach, immediately began to prepare to present Amber’s side of the story at the disciplinary appeal hearing. The case took an unexpected turn when the clinic students began looking for evidence to bolster Amber’s version of events. Amber mentioned that her assailant had made comments about the fight on Facebook. Acting on this information, the clinic students were able track down the Facebook and Twitter accounts of Amber’s attacker. Sifting through hundreds of Facebook posts and Tweets, the clinic students discovered that Amber’s attacker had been making vulgar and incendiary comments about fighting Amber for days before the incident. To them, it became clear why so many students had gathered for this particular fight: Amber’s assailant had been advertising it as a coming attraction to over four hundred followers on the internet.
Armed with this distinctly 21st century brand of evidence, Houska was able to craft his theory of the case: that Amber bore no responsibility for what had happened, and was the victim of an aggressive assailant who had planned the fight. He spent the next several days preparing his direct examination, cross examination, documentary exhibits, and a closing argument. He met with Amber and her mother again and prepared them for the hearing.
At the hearing, held before three school administrators, Houska presented the case with “every bit of the skill of an experienced attorney,” said Wettach.
“He effectively cross-examined the assistant principal and was able to bring to light the facts that favored his client,” she said. “He carefully led his client and her mother through their testimony and concluded with a forceful closing argument.”
After the panel deliberated, it rejected the recommendation of a long-term suspension and found that Amber had not violated any school policies. She was allowed to return to school the next day.
“This was without question the high point of my law school career,” Houska said after the clinic learned that Amber was vindicated. “With the help of the other clinic students, I did a factual investigation, trolled through social media to gather evidence, prepped a client for testimony, cross-examined a hostile witness, and summed it all up in a closing argument. You can’t get better training for litigation than this.”
Amber and her mother were overjoyed at the outcome. “Amber really needed someone to advocate on her behalf,” said Amber’s mother. “David and his fellow students worked non-stop to develop a defense for my daughter in less than three days. Without them, I know Amber would have been long-term suspended.”
Amber’s mother also expressed her hope that other law students will continue to enroll in clinics to help people like her daughter. “I truly hope more students take part in this wonderful clinic,” she said. “It’s a hands-on learning experience for law students and great representation for a student fighting a suspension. A win-win!”