Bellevue Sch. Dist. v. E.S.
NJDC signed onto an amicus brief written by the Juvenile Law Center supporting the Washington Court of Appeals ruling that a student has a due process right to counsel at the initial hearing of a juvenile court truancy proceeding. Other amici in this case included the ACLU of Washington, arguing the state and federal constitutional due process issues, and TeamChild and the Committee for Indigent Representation & Civil Legal Equality (CIRCLE), arguing the importance of counsel in protecting a child’s right to education under the Washington state constitution and the extreme difficulty a child faces in defending herself against the prosecutor or school district representative in a formal court hearing.
The brief highlighted the prevailing trend among states to secure counsel for children in truancy proceedings, and argued that the complex sociological causes of truancy, as well as the potential collateral consequences of an adjudication, require representation by counsel in truancy proceedings.
The Court of Appeals found that a child cannot be expected to adequately represent her own interests at the initial truancy fact-finding hearing in which the school district must establish that it provided all statutorily required services to remedy the truancy before filing a petition in juvenile court. Children in Washington are provided counsel at a later hearing for contempt of court if they violate the court’s order from the initial hearing. More specifically, at the first hearing, the court usually orders the child to go to school; if the child fails to return to school, or misses any school, then the child has violated the court’s order, and can be held in contempt. At the point that the child is facing possible detention for contempt, the child is appointed an attorney. The appeals court rejected this process as insufficient because the child’s counsel cannot at that point challenge the original finding of truancy from the initial hearing.
On June 9, 2011, the Washington Supreme Court reversed the Court of Appeals’s decision, and held that due process did not require the appointment of counsel to represent children at initial truancy hearings. A strong concurrence noted the importance of counsel at these hearings, and recommended legislation that would provide counsel at this stage. Two justices dissented, and agreed with the Court of Appeals.