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My Tangle with the School Board

Monday September 22, 2014 | Category: Civil Rights, Legal Topics

The recent debacle with the Escambia County School Board and its handling of the Escambia High School recruiting issues reminds me of where my legal career all began.  My most challenging case came my first year as a lawyer. I was fresh out of law school, and my first job was as a general practitioner in a small 3-man law firm. When I took the case, I had never been in trial, questioned an expert witness, argued an appeal, been at odds with a major government institution, tangled with a legendary community figure, or been in the news media. All of that quickly changed when 15 year old Tawana came into my office with her father and told me that she needed a lawyer to help her get back into school. She had been kicked out for having nail clippers.

During the 1990’s school districts around the country routinely adopted “zero tolerance policies” regarding drugs and weapons in schools. Like most reactionary policies, zero tolerance sounds great on paper but is horrible in practice. It either takes discretion away from decision makers who best know an individual and situation, or it provides an excuse to take extreme action to make an example of someone. Generally, policies that limit discretion work until an exceptional case comes along to discredit the policy. Tawana had an exceptional case.
Tawana was expelled from school under the Escambia County School District’s then zero tolerance for weapons policy. Legendary educator, basketball coach, and the principal at Pensacola High School at the time, Norm Ross decided that Tawana’s nail clippers constituted a weapon and kicked her out of school permanently for having them at Pensacola High School.
Tawana and her father were beside themselves. She had simply lent the clippers to another student to use to clip nails. Not only were the clippers not a weapon, they were never used aggressively. Tawana was a good student who had aspirations of getting ahead in life. She came from a modest middle class family who supported her and wanted the best for her. She had never been a behavior problem, and getting kicked out of school was never something she or her family would ever have imagined happening. Getting kicked out for bringing a weapon to school was even less on their radar. Tawana had never owned a weapon. Now her hopes of getting into college and her dreams of working in a high paying job were dashed. No college would accept a student who had been expelled for bringing a weapon to school. Tawana and her father needed help fast, and they wanted me to do it.
Within weeks we had a trial before a magistrate. However, hearing officers are paid by the Escambia County School District to make determinations about expulsions, and, unfortunately, the chances of having a truly independent magistrate review the case were slim. The trial was a hard fought battle, and the preparation was intense. I knew that Principal Ross was well respected and would make a strong impression on the hearing officer, so I hired an expert witness with an equally strong reputation and respect in the community to testify about whether these nail clippers were a weapon.
Retired Pensacola Police Captain George Underwood, who had been with Pensacola Police Department for a lifetime and had investigated one of the most notorious murderers in the country, Judy Buenoano, testified that nail clippers were not a weapon especially when they were used for their intended purpose – clipping nails. The school district’s lawyer cross-examined Captain Underwood extensively about how ordinary items could be weapons, but Captain Underwood never wavered.
Through his testimony and other evidence, we argued that nail clippers are not only not weapons, but the school district’s insistence that ordinary objects that could be used as a weapon should cause Tawana to be expelled proved the ridiculousness of their zero tolerance policy. Taken to an extreme, every student holding a pencil, pen, or pair of scissors should have been expelled. We asked the hearing officer to not only reinstate Tawana but also to throw out the zero tolerance policy. We argued that the policy violated due process rights, the policy did not apply to fingernail clippers, and that even if the hearing officer believed the clippers were a weapon, he had the inherent power to ignore the policy and put Tawana back in school where she belonged. Unfortunately, the hearing officer, who was paid by the school district, disagreed with us, found that the nail clippers were a weapon, and upheld the suspension. Tawana was devastated.
I, too, was devastated. I was fresh out of law school. I had the national media calling me. I had thought I had a slam dunk case, and I lost. It felt like my career was over before it started. However, I still had one option: appeal to the Escambia County School Board.
I quickly filed an appeal and prepared a short brief for them to review. I spent days reviewing law and the magistrate’s opinion in an attempt to explain to the school board why they should not accept his recommendation. I talked with other lawyers who had argued expulsions before the school board, and people advised me to be prepared to lose because the school board rarely rejects the opinion of its own hearing officers.
When the big day for argument before the school board arrived, I was nervous. I walked into the meeting room with Tawana’s family and my wife present. The media was there with cameras rolling, and it was time for me to present my case. I was prepared for the worst and argued to them that their zero tolerance policy did not allow for due process and Tawana’s case proved this. I implored them not to ruin her future by kicking her out of school for carrying a grooming item. The school district’s attorney disagreed. He said the policy was in place to prevent violence and that the nail clippers were a dangerous weapon.
The school board members called for a vote. It seemed like forever as the votes came in one by one, but the school board did the right thing. Amazingly, they decided not to follow the recommendation of one of their storied and most respected principals and rejected the findings of the hearing officer. We won! And just like that, Tawana was back in school, and my faith in the process was renewed.
Since that time, I have had a number of challenging cases. I have had a few other cases make national news, and I have had numerous trials and appeals over my career, but the case of the deadly nail clippers was my first indoctrination into all of the components of the justice system and my first time to fight against and within it.


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