MOORE, Circuit Judge:
On February 2, 1967, plaintiff Victor Madera, was a 14-year-old student in the seventh grade in Junior High School No. 22, District No. 1 of the New York City public school system. On that date, after a period of more than a year of behavioral difficulties, Victor was suspended from school by the principal. Victor's principal notified the District Superintendent of District No. 1, Miss Theresa Rakow, of the suspension. Miss Rakow notified Victor's parents, requesting their presence at a Guidance Conference to be held in her office on February 17, 1967, with regard to Victor's suspension.
After Victor's parents received the notice, they sought the aid of legal counsel who wrote to Miss Rakow asking to appear on behalf of Mr. and Mrs. Madera and their son at the conference. Miss Rakow's office advised the attorney that he could not attend the conference. General Circular No. 16 (1965-1966), promulgated by the Board of Education of
On February 16, 1967, the Maderas sought and obtained a temporary restraining order from the district court, restraining appellants:
After a trial, the district court issued a permanent injunction and held that "the right to a hearing is a due process requirement of such constitutional significance as to void application of defendants' `no attorneys provision' to the District Superintendent's Guidance Conferences." 267 F.Supp. at 373. Defendants, the Board of Education, have appealed the issuance of that injunction. Pending the decision of the appeal, this Court on May 1, 1967, granted a stay.
At the very outset it should be made clear what this case does not involve. First, the Guidance Conference is not a criminal proceeding; thus, the counsel provision of the Sixth Amendment and the cases thereunder are inapplicable. Second, there is no showing that any attempt is ever made to use any statement at the Conference in any subsequent criminal proceeding. The record is to the contrary (186-87),
The issue is one of procedural "due process" in its general sense, free from the "specifics" of the Fifth and Sixth Amendments. What constitutes due process under any given set of circumstances must depend upon the nature of the proceeding involved and the rights that may possibly be affected by that proceeding. Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Thus, it will be necessary to describe the nature and purpose of the District Superintendent's Guidance Conference in some detail.
Article XI, Section 1 of the New York Constitution states that "the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." In New York, a person over five and under twenty-one is "entitled" to attend the free public schools in the school district or city in which he resides. § 3202(1), New York Education Law, McKinney's Consol. Laws, c. 16. Attendance at school is a statutory requirement for minors between the ages of seven and sixteen. § 3205(1), Education Law.
The suspension of a pupil who is insubordinate or disorderly or who endangers the safety or morals of himself or other minors, is authorized by section 3214(6) of the Education Law.
If the principal feels that a simple suspension will not solve the problem, he may suspend the child and refer the suspension to the District Superintendent. This is what is referred to as an "administrative suspense," a suspense which remains in effect pending an administrative decision. Section 3214(6)(b) vests the responsibility for dealing with the suspended child with the District Superintendent. There is no statutory requirement that a parent be granted a hearing prior to invoking this power. Cosme v. Board of Education, 50 Misc.2d 344, 270 N.Y.S.2d 231 (1966), affirmed without opinion, 27 App.Div.2d 905, 281 N.Y.S.2d 970 (1st Dept. 1967). Section 3214, subd. 5(a) requires only that a hearing be held prior to sending a child to a special day school or to confinement. However, pursuant to procedure promulgated by the Board of Education of the City of New York and the Superintendent of Schools and distributed in General Circular No. 16, hearings, or "Guidance Conferences," relating to the suspension are held in all cases. The principal, after suspending the student, notifies the parents that a conference will be held and the District Superintendent's office notifies them of the date of the conference.
In attendance at the Guidance Conference are the child and his parents, the principal, the guidance counselor of the suspended child's school, the District Superintendent, her assistant, the guidance counselor assigned to her office, and the school-court coordinator assigned to the district. If the parents do not speak English, they may bring an interpreter with them or one will be provided. In addition to his parents, the suspended child may have a representative from any social agency to whom the family may be known, attend the Guidance Conference. Students and their parents have never been represented at any of these Conferences by counsel. (184-85).
The function of the school-court coordinator is to provide a liaison between the Family Court and the schools. He interprets to the court "the program and facilities" of the school and he "interprets to the school the decisions of the court and the recommendations of the courts." (171). In some cases the Family Court may make use of the District Superintendent's decision at the Guidance Conference, and when requested to do so by the court, it is the school-court coordinator who takes this information to the court. In such a case, the court would receive only the school record of the child containing the fact that the child had been suspended and some notation as to where he had been transferred or where he had been placed after the suspense. (355-56). Apparently as a matter of convenience, the school-court coordinator will also take notes at the Guidance Conference. (180). However, it is clear that no statements made during such a preliminary conference could be admitted into evidence at any adjudicatory hearing before the Family Court. Section 334 of the Family Court Act provides that "No statement made during a preliminary conference may be admitted into evidence at an adjudicatory hearing
The District Superintendent's guidance counselor coordinates the activities of the District Superintendent's office with the Bureau of Child Guidance. The guidance counselor takes notes and keeps records of the Guidance Conference. When the child returns from suspension, the guidance counselor helps to place him in the proper school situation. (172).
At the Guidance Conference it is made clear to the parents and the child that it is not intended to be punitive, but it is, rather, an effort to solve his school problems. Each one present, including the child if he is old enough, is asked what he thinks should be done and contributes to the discussion. Sometimes either the parents or the child will be asked to step outside for a moment so that one might discuss problems that would be difficult to discuss in front of the other. (173-74).
At the very beginning of the conference, the District Superintendent's staff may gather to go over the school records and background of the case before the parents and child arrive, but the parents are asked what they think should be done with the child and "no decision is made until the parent and child have participated" (303).
It is important to note that there are only three things that can happen to a student as a direct result of the District Superintendent's conference:
1. The suspended child might be reinstated in the same school, in the same or a different class, or
2. The suspended child might be transferred to another school of the same level, or
3. The suspended child — but only with the parents' consent — might be transferred to a special school for socially maladjusted children. (Gen. Circular No. 16).
Schools for socially maladjusted pupils (formerly known as "600" schools) were established about eighteen years ago. They are schools which are provided with special services for rehabilitation of children who are socially maladjusted or are problem children. These schools have smaller classes, specially trained teachers and special programs. More money is allocated to them so that they are able to provide more equipment and field trips for the children. (100-101). There is evidence that these schools are presently inadequate to meet the needs of the New York public school system,
Thus, aside from a decision that the child should be returned to the school he has been attending, the District Superintendent is only authorized finally to decide that the child be transferred to another school. The most that is involved is a change of school assignment. However, after the Guidance Conference, the District Superintendent may also:
4. Refer the student's case to the Bureau of Child Guidance or other social agency for study and recommendation, or
5. Refer the case to the Bureau of Attendance for court action. (Gen. Circular No. 16).
If the compulsory school attendance law, § 3205, Education Law, is being violated, it is the responsibility of the Bureau of Attendance to take the matter to the Family Court. If, after the guidance conference, the District Superintendent determines that the child should be enrolled in a special school for socially maladjusted children, his parents are told to report to that school with the child. The written consent of the parent or person in parental relation to the child, is necessary before he may be required to attend a school for socially maladjusted children. § 3214, subd. 5(a), Education Law. However, if the parents refuse to give such consent they may be prosecuted for violation of the compulsory education laws. §§ 3214, subd. 5(c)(1), 3212, subd. 2(b). If the child does not report for admission, the Bureau of Attendance is notified and appropriate action is commenced in the Family Court.
The Bureau of Child Guidance (BCG) is the "clinical arm of the Board of Education. Its employees are social workers, psychologists, and psychiatrists." (175). When the District Superintendent refers a child to the BCG, it makes a study of the child "as seems indicated to help" the District Superintendent or to advise her "of what may be [the] best educational placement." (176). The BCG has no authority to order a particular placement for a child, but can only recommend various alternatives to the District Superintendent. (307-08). What these alternatives are would depend on the individual child but, in general, they are the following:
1. The child is able to attend school but should be sent to a school with a particular kind of program.
2. The child should be sent to a special day school for socially maladjusted pupils or a residential institution where the Board of Education operates such a school.
3. The child should be instructed at home.
4. The child should be temporarily exempted from school while his parents seek institutional help.
5. The child should receive a medical suspension or exemption.
6. The child should be exempt from school. (176).
The Fourteenth Amendment prohibits a state from depriving "any person of life, liberty, or property, without due process of law." Thus it has long been clear that where a government affects the private interest of an individual, it may not proceed arbitrarily, but must observe due process of law. Wynehamer v. People, 13 N.Y. 378 (1856).
It has been held that any action that would effectively deny an education must meet with the minimal standards of due process.
See also Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Knight v. State Board of Education, 200 F.Supp. 174 (M. D.Tenn.1961). These cases, however, involved an expulsion from school. The result of the action by the educators in an expulsion case would have been the drastic and complete termination of the educational experience in that particular institution.
As noted above, it is the school principal that initially issues the administrative suspense. After this preliminary suspension, aside from a decision that the child should return to the school he has been attending, the District Superintendent's Guidance Conference is only authorized finally to decide whether or not he should be transferred to another school. At most what is involved would be a change of school assignment.
The court below found that "a `Guidance Conference' can ultimately result in loss of personal liberty to a child or in a suspension which is the functional equivalent of his expulsion from the public schools or in a withdrawal of his right to attend the public schools." 267 F. Supp. at 369 (emphasis supplied). The difficulty with this holding is, of course, the word "ultimately." The trial court by a series of hypothetical assumptions, in effect, turned a mere Guidance Conference relating to Victor's future educational welfare into a quasi-criminal adversary proceeding. The possibilities of Youth House, the Psychiatrist Division of Kings County Hospital or Bellevue Hospital, institutionalization, or attendance enforcement proceedings were mentioned. 267 F.Supp. at 371-372. When, as and if, in the future, Victor or his parents find themselves faced with
While it is arguable that in view of the limited character of the action that may be taken, a Guidance Conference cannot result in a deprivation of "liberty" within the meaning of the Fourteenth Amendment, the contrary will be assumed for present purposes and the question whether the due process clause requires the presence of counsel at such a conference will be considered forthwith.
If due process is applicable to such a conference, it would not follow that the school must permit the presence of counsel. The "differing rules of fair play" encompassed by the concept of due process "[vary] according to specific factual contexts * * * and differing types of proceedings." Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed. 2d 1307 (1960).
In Dixon v. Alabama Board of Education, supra, which was relied upon heavily by the court below, the Fifth Circuit Court of Appeals recognized that "The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and the interests of the parties involved." 294 F.2d at 155. The court set forth in some detail the due process safeguards it deemed necessary in an expulsion proceeding and, significantly, those due process requirements did not include the right to counsel.
Similarly, the court in Knight v. State Board of Education, supra, stated that, "the conclusion appears inescapable upon the present record that the rudiments of fair play and the requirements of due process vested in the plaintiffs the right to be forewarned or advised of the charges to be made against them and to be afforded an opportunity to present their side of the case before such drastic disciplinary action was invoked by the university authorities." 200 F.Supp. at 178. Again there was no mention of representation by retained counsel.
The trial court seemed to think that once due process requires a hearing, the right to representation by counsel follows automatically. In support of this conclusion, it cites Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
But Powell was a criminal case heard before a court of law. Later in the same paragraph quoted above, Justice Sutherland went on to note:
The present situation is the polar opposite from the criminal trial as depicted, for example, in Gideon v. Wainwright, 372 U.S. 335, 344-345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). There the Court stressed the unfairness of a lawyerless defendant being opposed by a government lawyer-prosecutor in an adversary proceeding where liberty is at stake. Here the District Superintendent has no lawyer present, does not regard the proceeding as adversary, and the child's liberty is not in peril.
The right to representation by counsel is not an essential ingredient to a fair hearing in all types of proceedings.
In In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957), the Supreme Court held that a person had no constitutional right to be assisted by retained counsel in giving testimony at an investigatory proceeding conducted by a Fire Marshal. There the Court stated:
Because, after the hearing the Fire Marshal can arrest the witness if he believes that there is evidence sufficient to charge him with arson or a similar crime (at 338, dissenting opinion), Groban would seem to have presented even a stronger case for allowing the presence of counsel than the present case which does not at all purport to investigate possible criminal activity or to prosecute. The holding in In re Groban was followed in Anonymous v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234 (1959). See also Nason v. Immigration and Naturalization Service, 370 F.2d 865 (2d Cir. 1967), where this Court held that a witness was not entitled to have a lawyer present at a preliminary interrogation by the Immigration and Naturalization Service even where the witness might become the object of a deportation proceeding.
Recent Supreme Court decisions concerning procedures of the juvenile courts are not to the contrary. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), involved the referral of a youthful offender from the juvenile court to the adult criminal court. The Court there stressed the "tremendous consequences" of such a decision and held that before it was made, the juvenile was entitled to a hearing and to the assistance of counsel. But the "tremendous consequences" to which the Court was referring in that case were "that the child will be taken from the Receiving Home for Children and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence instead of treatment for a maximum, * * * until he is 21." 383 U.S. at 553-554, 86 S.Ct. at 1053.
In In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Supreme Court held that due process required that
The Guidance Conference clearly is a preliminary conference not an adjudication. As said in Cosme v. Board of Education, supra, 270 N.Y.S.2d at 232:
What due process may require before a child is expelled from public school or is remanded to a custodial school or other institution which restricts his freedom to come and go as he pleases is not before us.
Appellees here argue that the presence of a lawyer is necessary because it is he "who has the communicative skill to express the position of the student's parents when — because of lack of education, inarticulateness, or simply awe at the array of highly educated and articulate professionals in whose presence they find themselves — they may themselves be unable to do so, * * *" (Appellees' Brief, p. 15). However, it does not appear that a lawyer could solve this communication problem. Actually the trial record supports the view, despite some testimony to the contrary (141-49), that the social worker, who is allowed to attend the Guidance Conference, would provide more adequate counsel to the child or the parents than would a lawyer.
Appellees also argue that the presence of counsel is necessary because the decision of the Guidance Conference depends to a certain degree on the school's statement of the child's misbehavior and that this statement may be incorrect. In the present case there were eleven incidents of misbehavior reported by seven different teachers. The mere attendance of counsel at the conference would do little to aid this problem without also granting the other rights accorded in adversary proceedings — calling of witnesses, cross-examinations, etc. To do so would be destructive of the original purpose of the Guidance Conference — to provide for the future education of the child. The conference is not a judicial or even a quasi-judicial hearing. Neither the child nor his parents are being accused. In saying that the provision against the presence of an attorney for the pupil in a District Superintendent's Guidance Conference "results in depriving plaintiffs of their constitutionally protected right to a hearing" (267 F.Supp. at 373), the trial court misconceives the function of the conference and the role which the participants therein play with respect to the education and the welfare of the child. Law and order in the classroom should be the responsibility of our respective educational systems. The courts should not usurp this function and turn disciplinary
While it is most doubtful that there is any basis in law or fact for considering Victor Madera and his parents to be representatives of, and champions for, a class, a ruling on this point becomes unnecessary in view of the decision that the complaint must be dismissed for failure to state a claim on which relief can be granted.
Judgment reversed; injunction vacated and complaint dismissed.