Moore, Friendly and Anderson, Circuit Judges.
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 the City of New York and the Superintendent of Schools, provides:
"Inasmuch as this is a guidance conference for the purpose of providing an opportunity for parents, teachers, counselors, supervisors, et al., to plan educationally for the benefit of the child, attorneys seeking to represent the parent or child may not participate." (page 5).
On February 16, 1967, the Maderas sought and obtained a temporary restraining order from the district court, restraining appellants:
"From holding any proceeding at which the plaintiffs may be affected and, particularly, from conducting the 'Assistant Superintendent's Hearing' scheduled for February 17, 1967, without permitting plaintiffs' legal counsel to be present and to perform his tasks as an attorney."
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),*fn1 and the district court so found, 267 F. Supp. at 372. Therefore, there is no need for counsel to protect the child in his Fifth Amendment privilege against self-incrimination.
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.*fn2 There are two kinds of suspensions, the "principal suspense" (meaning by the "principal" of a school) and the "administrative suspense." Under the principal suspense the school principal has the authority to suspend the child from classes for a period of no more than five days. Generally, the principal tries to meet with the parents of the child to try to solve the problem before the suspension, but sometimes the situation requires an immediate suspension with a later conference before the child is returned to school. Normally, a principal suspense does not require any consideration by the District Superintendent. (168-170).
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 under this act or in a criminal court at any time prior to conviction."*fn3
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).
"The sole purpose of the conference is to study the facts and circumstances surrounding the temporary suspension of this student by his school principal, and to place the child in a more productive educational situation. At these conferences the assistant superintendent interviews the child, his parents and school personnel to learn the cause of the child's behavior. The conference is conducted in an atmosphere of understanding and cooperation, in a joint effort involving the parent, the school, guidance personnel and community and religious agencies. There is never any element of the punitive, but rather an emphasis on finding a solution to the problem.
"After full and careful study and discussion a plan is formulated to deal more adequately with the problems presented by the child. Every effort is bent towards the maintenance of a guidance approach. The emphasis is on returning the child as rapidly as possible to an educational setting calculated to be most useful to him."*fn4
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 ...