Protecting Kids’ Right to Due Process

LAGUNA NIGUEL —  Mark Lopez’s personal crusade began when his 14-year-old son was expelled from Niguel Hills Middle School for bringing a handgun to the campus. Why, the stunned father wondered, would a good kid with decent grades bring his gun to school?

A group of skinheads had threatened the youth with death.

The gun, the youth figured, would protect him.

While condemning his son’s action, Lopez said he was infuriated when school officials and a sheriff’s deputy questioned the boy for hours without an advocate or his parents present.

Thus began Lopez’s new career as an advocate for children who face school disciplinary hearings.

With two associates, John Palacio and Kathleen Fouts, Lopez founded Schoolwatch SENTRY (Student Education Toward Non-Violence on Campus and Teaching Respect for All Youth) in 1993, calling it a children’s civil and educational rights advocacy group, the only one of its kind in the county.

“Administrators have told me that children do not have a right to due process on their campus,” Lopez said. “We are there to make sure they get due process.”

The group represents the children for free, doing something that few law firms or civil rights groups do.

Each member manages a full-time job on the side.

The cases are often complex, bringing into question the need for school officials to maintain control versus the individual rights of students accused of wrongdoing.

In most cases, the trio is called by a parent or guardian when a child is brought to the principal’s office. They gather information such as witness statements and prepare defense arguments for the disciplinary hearing.

A child can face discipline for missing class or getting into a fight with another student. Criminal charges can be filed if a child brings a gun or drugs to school.

The relationship between the advocates and school districts can be adversarial. Schoolwatch’s work is viewed as controversial by some district officials who call the group apologists for problem kids. Some administrators would not comment on the record.

But other administrators said there is clearly a role for the trio.

“They perform a service for the schools and the students,” said Capistrano Unified School District Supt. James A. Fleming. “It keeps us honest and keeps us on our toes.”

But law enforcement’s role in disciplining kids is a sticking point.

When a student breaks the law on campus, school administrators are required to inform police agencies, and officers may be present during an interview.

California state law is unclear about what rights children have during questioning involving a law officer on school grounds, legal experts say.

Still, children must have their rights read or have a parent or guardian present before questioning continues, said Dean Allen, head of the Orange County public defender’s juvenile division.

“Any reasonable person would see this as an interrogation,” Allen said. “Since these cases are kind of a hybrid where they are gathering information for school hearings and criminal charges, they should be given their rights.”

What often occurs is that the children are not allowed to call their parents, and then they answer questions that may incriminate them, Fouts said.

“Children are constantly asked to sign statements against their own self-interest in several school districts,” she said.

David Araya said he sought out Schoolwatch when his son was questioned on campus by a sheriff’s deputy after being accused of selling marijuana at Rancho Santa Margarita Intermediate School.

The boy, then an eighth-grader, signed an incriminating statement about the incident, Araya said.

“They continually asked him questions without calling me,” said Araya, who is an administrator in an Orange County school district. “If we want kids to be respectful of the system, then the system has to be understanding of them.”

But some school officials maintain they have a right to question students without notifying parents.

“This is a middle school, and we have a right under the . . . school education code where we are in loco parentis, meaning we can act [as parents] in that capacity while the student is in our jurisdiction at our school,” said Rancho Santa Margarita Principal Dan Graham.

Despite disagreements, Schoolwatch has taken an aggressive role, representing children statewide and testifying before the California Advisory Committee to the U.S. Commission on Civil Rights in May.

Palacio said the majority of the 500 children represented throughout Southern California got transferred rather than expelled.

The group takes cases in which children with learning deficiencies, such as attention deficit disorder, face disciplinary hearings for misbehavior rather than getting evaluated for transferred into special education classes.

The three advocates say they are not soft on troublemakers.

Indeed, they will only represent a student once. Second time around, they are on their own.

While reaching agreement with some school districts has been difficult, Palacio says finding a compromise often helps the child.

“As long as it works out on behalf of the kids, we are willing to meet in the middle,” he said.