Tennessee GOP leader drafts bill to ensure accused truants get attorneys

Introduction

A leading Tennessee lawmaker —concerned that kids have been shackled and improperly jailed—is drafting legislation to ensure that accused truants receive prompt appointment of legal counsel when facing prosecution in the state’s court.

Sen. Mark Norris, the State Senate Republican majority leader, has been active in national campaigns to promote alternatives to school suspensions and juvenile detention through the Council of State Governments, a legislators’ policy group he chairs.

Norris was motivated to act in part by a Center for Public Integrity investigation into how truants in Tennessee’s Knox County were shackled and taken to juvenile hall to be confined in cells—without first having the benefit of defense attorneys who could have raised questions about kids’ unaddressed special learning needs or mental-health problems.

The measure to ensure counsel, Norris said, “is in process. It’s not soup yet.” But he’s drafting it for the upcoming legislative session, which begins in January.

The move reflects a mounting national debate over inconsistent protections —which vary state by state, sometimes even county by county— for ensuring that children have the immediate benefit of a lawyer in court, even when facing minor infractions.

The costs of Norris’ proposal will have to be assessed by the legislature’s fiscal review committee. A similar initiative proposal in 2012, sponsored by former Tennessee legislator Andy Berke, now the Democratic mayor of Chattanooga, stalled after a study found it might cost the state indigent defense fund an additional half million dollars yearly.

Since that bill faltered, however, the influential Council of State Governments and other think tanks have stepped up national efforts to promote research on how detention actually increases risks that kids who have committed minor indiscretions will subsequently get into more serious trouble and end up in costly adult confinement.

In response to the Center story this spring about jailed truants, Norris said in June that truants “should be provided proper notice and counsel at the front end” of court before entering their pleas.

“How can that plea be a knowing plea without representation — especially with a child?” Norris said.

University of Tennessee law professor Dean Rivkin, who directs the Education Law Practicum on the university’s Knoxville campus, praised Norris’ efforts to draft a bill.

Rivkin has represented Knox truants after they were jailed. He argued for them to receive evaluations for special needs and individual learning plans back in their schools. He also fought an unsuccessful lawsuit all the way to the Tennessee State Supreme Court in an effort to get a court order requiring prompt counsel for prosecuted truants statewide.

More than 9,600 truants were prosecuted in Tennessee in 2012. Providing kids with counsel, Rivkin said, would be a “win-win for at-risk children the state of Tennessee.”

“This legislation is in step with best practices advocated by a number of prestigious national organizations, including the Council of State Governments,” Rivkin said in a statement. “Trained attorneys will advocate for educational, health and mental health and other community services designed to stabilize a student in education and to assure that all students have a full opportunity to become productive workers. “

Rivkin disclosed in November that he and state representatives of the Children’s Defense Fund also quietly filed a civil rights complaint against Knox County schools with the U.S. Department of Education’s Office on Civil Rights. The complaint asks for an investigation and intervention to respond to disproportionate suspensions and arrests of black and special-education students in the county’s public schools. The civil rights office declined to comment other than to confirm that officials are currently looking into a case to determine if a student or students suffered discrimination based on disability.

The U.S. Justice Department’s Civil Rights Office is already investigating allegations that due process rights were violated when truants and other kids in Knox County faced court without lawyers. The Justice Department did not respond to requests for information on the status of the investigation.

In most states, truancy is not a crime. It is a “status offense,” an infraction that only a minor can commit. Kids accused of truancy are not covered by the constitutional right to appointed attorneys—if kids can’t afford to hire one—as soon as prosecution begins.

Under federal law, accused truants or other status offenders, such as runaways, are not supposed to be jailed directly as a punishment for their infraction. However, federal law does include a loophole allowing status offenders to be jailed if—once they’ve appeared before a judge—they fail to follow court orders the judge gave them in response to their infraction.

A judge might, for example, order a child not to miss any more school and complete a counseling program, at the family’s expense, or pass drug tests, as kids in Knox County were ordered to do. A judge might also order a child to pay fines or perform community service. Before status offenders can be jailed for failure to obey orders, however, federal law does require that they first be clearly offered the appointment of legal counsel.

But waiting to provide counsel to kids until they are on the brink of being confined, Rivkin said, is too late in the process to effectively help children who often have complicated reasons for refusing to go to school.

As the Center’s “Juvenile Injustice” story recounted, months before Rivkin began representing a Knox County student identified as A.G., the 15-year—old girl was summoned to juvenile court to answer for continuing truancy. She suffered from bullying and other problems and would freeze up and refuse to go into school. Her parents say school staff advised them to call police to force A.G. to go to classes.

The first day A.G. appeared in court, she was taken out in leg shackles and ordered to spend the night in a juvenile detention cell, according to witnesses and court documents obtained by the Center. The next morning A.G.’s parents found her so distraught they took her to a doctor and she was placed in a mental-health facility for a week. A.G. had never been evaluated for special needs at school until Rivkin intervened months after her jailing. Her confinement, he said, violated federal law and due process.

A.G. was also slapped with a delinquency record—meaning, a criminal record—that would have remained on file in court permanently if Rivkin’s practicum had not discovered it and petitioned to have it expunged. A.G. had never committed a delinquent act and had no idea she had been labeled a delinquent.

Other Knox County truants in court with no lawyers included a 13-year-old boy with diagnosed mental-health problems who was jailed twice for several days each time. Another was a 15-year-old girl, K.P., who was arrested and handcuffed while she was actually in school and then taken to jail.

Knox County Juvenile Court Judge Tim Irwin, who jailed A.G. and others, declined to discuss court proceedings with the Center. In legal documents, Knox County prosecutors argued that truants Rivkin eventually represented were verbally informed of the right to request appointed counsel when they first entered court; however, parents of some jailed kids disputed that this was disclosed to them. The kids’ files contained no proof that they had agreed not to have legal representation, according to Rivkin.

The Knox County District Attorney’s Office did not respond to a request for comment on Norris’ proposal to require truants to have counsel appointed promptly.

Knoxville native Andre Canty, 29, who serves with the rights group 100 Black Men of Greater Knoxville, has publicly spoken out about his support for the recently disclosed civil rights complaint regarding suspensions and arrests of students.

He hopes it will lead to more support for teachers to obtain training in discipline and counseling methods that can be employed as an alternative to suspensions and calling police.

“They’re being criminalized at a very young age,” Canty said of some of Knox’s black students. “A lot of special-needs kids are being affected as well.”

The complaint says the district’s own 2012 data—which was submitted to the U.S. Department of Education—shows that “African American students are almost three times more likely to be suspended, and over four-and-a-half times more likely to be referred to law enforcement, than their white peers. African American students with disabilities are over six times more likely to be referred to law enforcement than their white, disabled peers.”

Additional information that Rivkin and others submitted to the Department of Education claims that at least 60 Knox students in less than a year have been arrested for disorderly conduct—including 29 kids who were between 12 and 14 years old. Thirty-six, more than half of the kids arrested for disorderly conduct, were black. Yet black children represent only 14 percent of Knox County’s students.

Some students, both black and white, were arrested in incidents involving “stop and frisk” policies and resisting arrest, according to the document submitted as part of the complaint.

Portions of the complaint that were made public note that a community task force was convened in Knox County eight years ago to study concerns over school discipline. That task force issued a report in 2007 urging reforms because discipline was not being applied “equitably and consistently,” according to the complaint Rivkin filed.

The task force urged educators to more sharply define what constituted “conduct prejudicial to good order,” an accusation frequently used to suspend students. The community group recommended “cultural competency training” for educators. But the recommendations the task force suggested do not seem to have taken root, the complaint argues.

The Center asked Knox County School District Superintendent James McIntyre to comment on the complaint. The district’s spokeswoman, Melissa Ogden, said McIntyre preferred not to comment until a new “Equity of Opportunity Task Force” he is appointing has been convened.

The Knoxville News Sentinel newspaper reported in November that at a community forum McIntyre said he was examining the district’s disciplinary data. Disparities such as those claimed in the complaint are not unique to Knox County, he was quoted as saying.

“This is an issue in every school system across the country, so there’s lots of conversation going on in school districts across the country,” McIntyre said, according to the paper. “But I think that still doesn’t diminish the need here in Knox County Schools for us to be having this important conversation and for us to make this an important priority and really to address these challenges head-on.”