Monday, February 29, 2016

Visualizing Administrative Law: The Case of Lean on Me

Let's face it, the notion of "administrative law" doesn't infuse the ordinary person with a great deal of excitement. That's of course not surprising in the least. Even if most people don't have an inkling as to what administrative law is about, few people become electrified by the notion of anything that might be characterized as "administrative" - notwithstanding that it is attached to law. As soon as one gets an inkling that a great deal of administrative law (at least in its Canadian incarnation) concerns ideas of procedural fairness, the mention of procedure is enough to send most into a somnolent state and cure the worse cases of insomnia. This is likely what faces any number of students who take or are mandated to take a course in administrative law in law school leave alone the general public. 

However reasonable such assumptions, sentiments and/or apprehensions may be, administrative law speaks to incredibly important issues concerning public decision-making. Much of what constitutes government action and decision-making today, for better or worse, takes place not in legislatures or courts, but through administrative agencies, departments, tribunals, boards, arbitrators, officers, and a whole slew of other actors both at home and abroad. Some decision-makers are more tangibly tied to a government and government policy, while others are independent. Their decisions impact on people's lives in countless ways - the acceptance or refusal to grant refugee status, any license, citizenship, parole, a pardon, extradition, a passport, a visa, release from mental health institution, welfare or other forms of income support, as well as worker's compensation. Administrative tribunals adjudicate, among other contests, labour disputes, conflicts concerning intellectual property, and human rights complaints.

The scope of administrative law is quite simply breathtaking. As a law school educator who teaches administrative law, there is no shortage of cases for my class and I to examine. Yet, the focus of an administrative law course (and certainly mine included) can tend to dwell in some measure on how difficult it is, in most cases, to practically challenge the merits of administrative decisions before a reviewing court. In addition, we often look at whether decision-makers followed a fair process in arriving at their decisions. The failure to provide a fair process may result in a court quashing the decision and sending it back.

As with other areas of law, the written word, manifested through court judgments, constitutional provisions, statutes, regulations, guidelines, cannot always (and let's be real, often don't) capture for many the true drama of administrative decision-making and their implications. This is where films and television can play an immensely important role in making visible that which is often invisible or largely unnoticed. After all, we absorb large volumes of information today via audio-visual storytelling. Through such narratives, one can illustrate the dramatic and compelling nature of procedural fairness (or the lack of it), and indeed the importance of due process more generally. 

To give an example of this, I'll discuss here a clip from a film that I recently showed in my own administrative law class as a launching point to discuss the significance of procedural fairness. The film is Lean on Me. Briefly, the film stars Morgan Freeman who plays a disciplinarian principal/educator named Joe Clark (based on a real life individual with the same name). He is recruited to transform a crime-ridden school infiltrated by drug traffickers and infested with chronic violence and chaos. The disorder afflicting the school is apparent in the opening sequence of the film, and for good measure is set to Guns 'N Roses' "Welcome to the Jungle" as seen here:

In order to begin the needed change to alter the failing character of the school, Clark takes a significant and radical step by expelling dozens of errant students, the worst of the worst, as illustrated in the following clip:

The scene (which is the one I screened in class) shows in a short minute or so a number of crucial concerns connected to procedural fairness as they are understood in Canadian law. This is certainly the case even if the context is American in nature. These concerns include the idea of sufficient notice before a decision is taken, disclosure of information which served as the basis for the decision, and the presence/lack of any participatory rights (e.g. a hearing) before the decision is reached. It's obvious from this scene that none of these things were provided to these students, even if we are to assume that they were the miscreants they were alleged to be. The students are constructed as a singularly cancerous contingent that must be expelled to save the remainder. Indeed, this is largely how Clark justifies it at an emergency parent meeting convened the same day as the mass expulsion shown above. 

As part of the course, one of the issues discussed in connection with procedural fairness is the content and level of fairness owed. This will usually be dependent on an assessment of five non-exhaustive factors discussed in a seminal decision by the Supreme Court of Canada - Baker v Canada. Through these five listed factors, courts may assess the content of the duty of fairness and what degree of fairness may be owed to someone impacted by a decision. For example, is someone entitled to a hearing, and if so, what would the hearing look like? Would it be an oral hearing where an individual has the face-to-face opportunity to plead their case or is one's ability to address a decision-maker/executioner limited to written submissions?

The ability to parlay with a decision-maker in person with respect to their decision may be crucial. It offers a chance to the individual to humanize him or herself and forces a decision-maker to contemplate the impact of their decision on a person. In the second clip displayed above, there was clearly no ability to do so. Not too long after the second clip, a student who was expelled in Clark's mass expulsion approaches the latter to ask him to reconsider his expulsion. The following is what transpires:
This impromptu rooftop "hearing", which is more akin to an inquisition, allows the student to plead his case and to secure his re-entry into the school and this discrete community. The scene shows that it has its desired outcome. Rather than being one who is undifferentiated among a mass of drug-dealers or other consumers, the student is able to have his case considered as an individual. It is in stark contrast to the earlier mass expulsion scene. The long-term impact as the film progresses becomes evident as the student turns things around (though with some comical hick ups along the way). The student's ability to seek a hearing is vindicated. 

A larger discussion of Lean On Me is beyond the scope of this post, but in many ways the film raises a number of interesting procedural fairness concerns. The Clark character approaches the larger transformation of the school in rather authoritarian and menacing ways that raise other procedural concerns.

As pedagogical tools, film and television clips highlight a number of administrative law issues which may not be easily contemplated or accessible through a more standard examination of case law and other legal sources. Such visual storytelling can highlight the range of administrative decision-making - from more informal processes to those which resemble trial-like mechanisms warranting a higher level of procedural fairness in accordance with natural justice. This is where decision-making more closely resembles judicial or quasi-judicial adjudication and calls for a greater degree of fairness.  

In coming posts, I shall endeavour to address other depictions of administrative law and decision-making in film and television and their importance, among other things as an educational tool to make these processes more accessible and to highlight the issues they raise.

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