Lawyer launches nonprofit to provide students representation during discipline hearings
In 2021, when defense attorney Michael Schwartz heard about a Savannah student’s disciplinary hearing case, he dropped all his other cases.
A principal recommended the young male student be suspended for 10 days from Savannah Classical Academy, a public charter school, after getting into a cafeteria fight.
Through Deep Center, an education and criminal justice advocacy organization with whom Schwartz has consulted, Schwartz was connected with the student’s mother, Elizabeth Stafford. Stafford didn’t think her son should be suspended for 10 days. But, as every parent does, Stafford had the opportunity to challenge the suspension in a disciplinary hearing. Schwartz wanted to help.
Schwartz had started his own nonprofit, the Safety Valve Project to provide legal representation to students facing discipline hearings in the school system. Since he launched the project in summer 2021, Schwartz has represented nine student discipline cases in Georgia, five of them in Savannah.
The nonprofit was founded to combat alleged inequitable student disciplinary trends in Georgia school districts, including SCCPSS. As Schwartz started to represent students, the district's former Chief of Schools Sheila Garcia-Wilder filed a civil lawsuit against the district, alleging that she was demoted and fired in retaliation for raising questions about discipline procedures.
The seeds of Schwartz's project were planted in 2011, however, when he was a public defender representing clients facing the death penalty. Over time, Schwartz noticed that, in almost every case, his clients’ lives veered off track after an incident in elementary school that resulted in strict discipline.
“Nobody’s ever justified for hitting a teacher, but there's always a backstory,” said Schwartz. “And it seemed like in all of my clients' cases, that backstory was just never investigated.”
Meanwhile, Schwartz started reading academic articles on the school-to-prison pipeline. Through research, he realized that a causal link existed between students who experienced strict school discipline and being arrested or incarcerated as an adult, and whether attending a stricter school influenced criminal activity in adulthood.
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Triage, mediation and go-karts
Schwartz employs Maurine McFadden, a licensed clinical social worker, as an advisor. McFadden also serves as a project coordinator for Resilient Coastal Georgia, in which she provides behavioral therapy to SCCPSS students. In the advisor role for the Safety Valve Project, McFadden conducts assessments for students and recommends triage for children facing discipline.
"I like the fact that [the Safety Valve Project] really tries to provide legal representation for free, and to keep youth not suspended and not expelled, but keep them in the classroom, which will decrease their mental health problems and promote their well-being," said McFadden.
In his first meeting with Stafford and Brown in his office, Schwartz recalled his first question: Why the fight?
“Like most fourth-grade spats, nobody really knows what they were fighting over anyway, and these guys are over it and they've moved on,” Schwartz said in an interview in his office on Congress Street.
Within one week, Schwartz found the guardian of the other child involved in the altercation. First, Schwartz and the families did mediation through the Mediation Center. Then, Schwartz hosted both families at a Funzone. There, the kids quickly reconciled their differences, playing arcade games, riding go-carts and chowing down on pizza.
“This was how hard it was for me to resolve this problem. Right? I stopped what I was doing for a couple hours. I reached out. We did some mediation. And I spent 100 bucks on go karting for the weekend. And now these guys are fine,” he said.
The case galvanized Schwartz to look longer and harder at the student discipline process in Savannah.
“At that point, I said, 'This is completely out of control,'” said Schwartz. “If these are the kids, that we are turning into people who are guaranteed to have contact with law enforcement in the future over that, I don't want to live in that community.
“Even if you have no connections and carry no political weight, just having that skill set and showing up and saying: Hey, timeout everybody, what happened in this fight? And why did it happen?” said Schwartz. “It is also about introducing some of the science to the panel members, who are not super receptive to it, and going to them and saying an expulsion is serious. We have all gotten numb to it, but what are the ramifications?”
The school district dropped the action in the middle of the hearing process "in exchange for his commitment that he would follow the code of conduct from then on," Schwartz said.
"I can honestly say [having Schwartz in the discipline hearing] alleviated some of the fear of facing something so serious, which shouldn't have been," said Stafford. "These were 9-year-old kids fighting. Having Mike Schwartz there gave me a release of burden."
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Disciplined students rarely have legal representation
According to Michael Tafelski, a senior supervising attorney for the Southern Poverty Law Center (SPLC), fewer than 2% of students are represented by a lawyer at their disciplinary hearings in other Georgia counties from which SPLC has obtained statistics, including Henry, Cobb and Gwinnett counties.
“There are very few lawyers who handle these cases,” said Tafelski. “These kids are walking into a process without an advocate, and it shows in the outcomes they get. The systems are designed and rely on the fact that they won’t face much resistance. And that’s why the work Mike [Schwartz] is doing is so important because that resistance begins to swell and can be a really productive way of trying to force the district to comply with the law, and to also reconsider what it does and thinks the way that it does.”
It's not clear whether having an attorney alters students' disciplinary outcomes or not; SCCPSS doesn't keep that data.
"The district does not collect all possible data points. Decisions regarding data collection are based largely on legal requirements and the utility of the data," SCCPSS Director of Communications Stacy Jennings wrote in an email.
But statistics obtained from SCCPSS reveal the number of discipline referrals, such as long-term suspensions and expulsions, has increased since the COVID-19 pandemic, even with decreasing student enrollment and a decrease in the number of infractions ― and regardless of whether or not a discipline hearing is held or whether the parent waived their right to the hearing.
Lawyer or no lawyer, the law is already on the district’s side. The burden of proof for SCCPSS is the preponderance of evidence, meaning the accused student more likely than committed the alleged offense, according to Georgia Department of Education policy, 160-4-8-15, Student Discipline. In a typical criminal proceeding, on the other hand, the state must establish guilt beyond a reasonable doubt.
“I will definitely not negate the benefit of having representation as a parent,” said SCCPSS Deputy Superintendent of Teaching and Learning Bernadette Ball-Oliver. “I think that, in every situation, every parent has to make that decision for themselves. But I can't tell you that a hearing is going to go this way just because there's a lawyer sitting at the table. It doesn't always go our way because we have a lawyer at the table all the time."
Fewer than 25% of SCCPSS students have a lawyer representing them during student discipline hearings, according to Lester Johnson, an attorney who has represented the SCCPSS school board in student discipline hearings since 1991. Johnson said that the lack of student-attorney representation doesn’t affect the outcome of disciplinary hearings at all.
“It doesn't [affect discipline hearings],” said Johnson. “Our hearing officers are retired administrators, so they understand children.”
During some disciplinary hearings, Johnson said he tells the parent, "I'm offended that your child would do what they did on that day."
"And some of them get pissed. I don't care," said Johnson.
Johnson himself represented students in disciplinary hearings before the school board hired him as its attorney. "I became very successful in saying that my student should not be expelled. The reason I got good at it was because [the school board] just really didn't prepare themselves. And I over-prepared."
Even when students are disciplined, Johnson said, “What's the worst that can happen to that student? You go to an alternative school. You still get educated. In the criminal context, the worst that can happen is you go to jail."
Schwartz hopes to positively impact the system
Moving forward, Schwartz hopes to create a public defender system for student discipline hearings that would mirror the criminal court system. When a student is accused of a violation and subsequently faces discipline and their family can’t afford a lawyer, they would automatically retain free counsel.
“Our job would be to defend the student against the school and these allegations, but also to work with the school or to work with the family to figure out where we go from here,” said Schwartz. “And to make sure that the whole story [with the school system] doesn't just end with the end of the tribunal. Because it certainly doesn't [end] for the student. Life goes on one way or the other.”
For now, Schwartz is facing his biggest challenge yet: recruiting lawyers.
“There are people who are either former public defenders or civil rights-type lawyers who can't drop their stuff without notice and go to a hearing in 10 days,” said Schwartz.
When they do recruit more lawyers, the next goal is to represent students in as many hearings as possible. Then, they will represent students when they appeal discipline outcomes to school boards. But, with the project in its beginning stages, he admits, “that's kind of a future endeavor.”
Drew Favakeh is the public safety and courts reporter for the Savannah Morning News. You can reach him at AFavakeh@savannahnow.com.
This article originally appeared on Savannah Morning News: Savannah Chatham County Public Schools discipline hearings
