Using Therapeutic Jurisprudence to Protect the Rights of Homeless Children and Their Families

A few days ago NPR profiled a young woman named Tierra Jackson, now a junior in college, who had struggled in high school as her family experienced homelessness. She recalled being frequently punished by school administrators for her tardiness, but being too embarrassed to tell them that her lateness was caused by a long bus ride from a homeless shelter across town.  Ms. Jackson's story is a prime example of how therapeutic jurisprudence and the Truancy Court Program can help homeless children.

The U.S. Department of Education estimates that there are nearly 1 million school-aged children in this country who are homeless, and the National Center on Family Homelessness believes even that estimate is low. The McKinney-Vento Homeless Assistance Act of 1987 provides special protections for these children, with the goal of ensuring minimal disruption to a child’s education during a time of family crisis.  For example, if a child’s family loses their housing mid-year and moves into a shelter across town, the parents have the right to enroll the child in a local school or keep the child enrolled in the school of origin. If the family feels it’s in the child’s best interest to stay in the original school, the school system is required to arrange and pay for transportation to and from school.

But how do we identify homeless children to ensure that their rights are protected and that their needs are being met?

As the case of Ms. Jackson shows, the stigma and embarrassment of being homeless can be a significant barrier to school attendance for children and teens. Therapeutic jurisprudence (TJ), combined with a holistic approach to problem solving and emphasis on empowering individuals, may be the best way to break down these barriers. A TJ mindset calls on lawyers and other actors in the legal system to look at the big picture.  For homeless children who fail to attend school, we have to look at both the psychological effects on the child and a host of other reasons why a homeless or unstably-housed child misses school. It could be due to a lack of clean clothes, inadequate transportation, or staying home to take care of younger siblings. Homeless children who do attend school may be frequently late or have trouble concentrating because they didn’t have breakfast. These issues can affect any school-aged child, but they impact homeless children the most.

CFCC’s Truancy Court Program (TCP) is proof that this approach can yield results in identifying the root causes of truancy (and homelessness is just one of the many). By providing an opportunity for an entire team of caring adults - a judge, a TCP coordinator, a CFCC Student Fellow, a TCP mentor, and school representatives – and giving the student the personalized attention he or she needs, we can create a safe, non-judgmental  environment where students can talk more freely about their problems than they otherwise might with their teachers or peers. Once we understand the full spectrum of a child’s barriers, we then can take the necessary steps to help that child succeed.

The Law in a Vacuum: How Exposing Students to the Theory Behind CFCC’s Mission Might Be the First Step Toward Reform

The Center for Families, Children and the Courts’ focus on promoting court reform is based on the belief that families would benefit most from a legal system which addresses underlying issues (such as substance abuse, domestic violence, mental illness etc.) as part of an effective and therapeutic judicial process¹ In a state where half of court filings involve family law cases, the notion of a “user-friendly” court shouldn’t seem so far-fetched, since research has shown that “the very processes of the family and juvenile justice systems inadvertently create and inflame problems for adults and children alike.”² Treating complex family problems like a string of separate incidents litigated in different venues causes unnecessary delay and cost, duplication of effort, and often results in conflicting orders from judges.³ Many of these decisions are made with little regard for their therapeutic outcome on participants or their impact on other pending cases or hearings; perhaps just as importantly, these experiences negatively impact participants’ view of the legal system.⁴

CFCC’s Student Fellows Program offers UB law students an opportunity to work on projects addressing court reform and truancy issues in Maryland.  Studying therapeutic jurisprudence⁵ and preventive law⁶ lets students view the law as a peacemaker, a significant departure from the adversarial model we are constantly reminded of. It puts the law in a broader context by showing how it can be combined with insight from other disciplines (like psychology and sociology) to produce more effective outcomes while staying true to principles of justice and other constitutional values. It also teaches us that the legal system will inevitably have a lasting effect on the people who walk through its doors, thereby increasing the importance of considering how effectively our current processes address not only the matter that brought the family to court but also any underlying non-legal issues as well as access to services and alternative dispute resolution.⁷

But what is also magnified by the study of the scholarship advocating family court reform is the lack of exposure of law students to these realities of the profession. A curriculum which focuses almost entirely on providing the “correct” answer to theoretical disputes or debating the virtues of controversies long-since settled provides law students with little practical training in problem-solving or unearthing our clients’ underlying problems. It does not teach us how to tailor solutions to a family’s legal and emotional issues, or how to ensure that issues relating to the well-being of children receive proper attention in our courts.  It doesn’t prepare us for the lack of interest some colleagues or judges may have in family law, the lack of attention to the needs of poor and unrepresented litigants, or how to explain the time-consuming, expensive, cumbersome, and duplicative court process to our clients. And yet as a third year student, I can honestly say that the classes with the most impact are the few that put the law in a greater context because they speak to the profession’s more noble values while also acknowledging its limitations. This, in turn, requires us to either take part in a system we know is flawed, or to play a role, no matter how small, in reforming it. While certainly not every student who is exposed to some of the flaws of our legal system will turn into a zealous advocate for change, it is nearly impossible to imagine these changes occurring without some prodding from the profession’s rank and file.

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1.What is the Center for Families, Children and the Courts?

The University of Baltimore School of Law, http://law.ubalt.edu/centers/cfcc/whoweare/ index.cfm (last visited September 18, 2012).

2. Catherine J. Ross, The Failure of Fragmentation: The Promise of A System of Unified Family Courts, 33 Rev. Jur. U.I.P.R. 311, 314 (1999) (quoting Barbara A. Babb, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72 IND. L.J. 775, 798 (1997)).

3. Id. Ms. Ross argues that these delays are compounded by the fact that legal proceedings which drag on a year or more represent a significant part of a young child’s life, resulting in a “multiplier effect” when measuring the impact on a toddler. Id. at 315.

4. Id. at 314-16.

5. “Therapeutic jurisprudence is the study of the role of law as a therapeutic agent. It is an interdisciplinary enterprise designed to produce scholarship that is particularly useful for law reform. It proposes the exploration of ways in which, consistent with principles of justice and other constitutional values, the knowledge, theories, and insights of the mental health and related disciplines can help shape development of the law.” See Dennis P. Stolle et. al., Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, 34 Cal. W. L. Rev. 15, 17 (1997).

 6. “Preventive law provides a framework in which the practicing lawyer may conduct professional activities in a manner that both minimizes his or her clients' potential legal liability and enhances their legal opportunities. In essence, preventive law is a proactive approach to lawyering.”  Id. at 15.

7. Ross, supra note 2, at 314-18.

The Center for Families, Children and the Courts Student Fellows Program: A Unique Experience to Develop Lawyers as Problem Solvers

The Center for Families, Children and the Courts Student Fellows Program I (SFP) is now underway.  The course provides students with a unique perspective on the law, instructing them on policies and theories that underlie family justice system reform.  The SFP includes classroom discussion, lectures, and guest speakers about cutting edge issues in family law, including unified family courts, therapeutic jurisprudence, and the ecology of human development. 

Student Fellows have the opportunity to see firsthand how theory informs practice during visits to the Family Division of the Circuit Court for Baltimore City, a drug court, a teen court, and the Baltimore City Juvenile Justice Center.  They also are actively involved in CFCC’s projects, including its Truancy Court Program (TCP).   For example, as part of their TCP involvement, Student Fellows serve as law clerks to the TCP judges, collaborate with public school faculty and administrators, work with service providers, and develop workshops for teachers, parents, and students on issues relating to school attendance.   Interested Student Fellows can continue their involvement for a second semester in the Student Fellows Program II, which has no seminar component but includes a weekly team meeting.

Throughout the semester, the CFCC Student Fellows will be posting blogs about their experiences with some aspect of the SFP.  Click here to view and engage with past and current blogs by Student Fellows and to learn more about the Student Fellows Program.