Civil Procedure

Catchy ‘School-to-Prison Pipeline’ Phrase Cited in Motion to Oust ACLU Lawyers

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When lawyers from the American Civil Liberties Union filed a March lawsuit challenging the constitutionality of practices in Rhode Island’s truancy courts, the media relations effort cranked into high gear.

An ACLU press release said the suit was part of an effort to “end the school-to-prison pipeline.” An ACLU senior staff lawyer, Robin Dahlberg, asserted in the Providence Journal that the truancy court system “appears to have thrown the due process clause of the United States and Rhode Island constitutions out the window.” A post on the ACLU Blog of Rights by another ACLU lawyer, Yelena Konanova, told of a struggling student accused in court of being “wayward” after being absent twice and late five times. She also spoke about constitutional problems at a news conference.

Now the judicial defendants are citing the press statements and blog posts in an effort to revoke the pro hac vice status of Dahlberg and Konanova, both from New York, along with New York Law School professor Deborah Archer, who is also representing the plaintiffs through the law school’s racial justice program.

The Rhode Island suit (PDF) claims schools in six communities use the truancy courts as a disciplinary device for children who may have trouble attending school or doing their homework, forcing some of the youths into the state training school. The students don’t get adequate notice of the charges against them and are regularly bullied into giving up their rights, the suit alleges.

The judges’ memorandum (PDF) seeking to oust the New York plaintiffs’ lawyers claims the statements have prejudiced the defense in violation of lawyer ethics rules barring statements that could prejudice the proceedings. “Rather than to fight a legal battle in the courtroom, these individuals chose, instead, to wage their case through the media,” the memo says. “These statements could have the effect of poisoning the jury pool.”

Dahlberg’s statements “play on the emotions on those who are not familiar with the truancy court,” the memo asserts. Konanova’s blog posts also try to evoke emotional sympathy “while completely misstating the law,” the document says. The aim of Konanova’s blog posts, according to the memo, was to “spread to other blogs her opinions about the case which were camouflaged as uncontroverted fact.”

Dahlberg tells the ABA Journal that she is crafting a response. “I think it is very unfortunate that the defendants have chosen to proceed in this fashion,” she says. “Rather than engaging us on the merits of our lawsuit, they’ve stooped to making unfounded baseless accusations against plaintiffs’ counsel.” She notes that the plaintiffs haven’t even requested a jury trial, so there is no danger of polluting the jury pool, and says press conferences have been a standard procedure in her 20 years of litigating similar cases.

Two of the six school districts named in the suit have already settled, and three others are in settlement talks, Dahlberg says. Even if the ACLU lawyers from New York are kicked off the case, she says, the litigation will continue with local counsel.

Dahlberg says out-of-state lawyers from the ACLU can play a valuable role in such litigation because local lawyers may be reluctant to take on the judges whom they appear before on a regular basis. She intends to “vigorously dispute” the motion. “Clearly lawyers have a right to speak out about matters of public import,” she says.

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