August 31, 2018 Feature

Keeping Schools Lawful

By Ann Farmer

Several years ago, the U.S. Department of Agriculture published its Smart Snack Standards, which states that foods that don’t meet its nutritional guidelines can no longer be sold or given away on school property. But some teachers were unaware of the standards, including one who set up a crowdfunding site asking for sugary food donations to use as rewards for students’ good behavior.

“One teacher was asking for $750 worth of, basically, reward candy—lollipops and hot chocolate packets,” says Erin Gilsbach, who practices education law with Steckel and Stopp, which has offices in Pennsylvania. “And I get it. You can motivate a kid with a lollipop. That is probably the most motivating thing.”

Luckily, though, this legal issue can be easily fixed. Gilsbach, who is also executive director of EdLaw Interactive, which provides proactive professional development to public, private, and charter schools, says a school’s lawyer simply has to devise a policy requiring teachers and other staff to follow certain guidelines about fundraising and get administrative approval before posting anything.

“It’s not schools behaving badly,” sympathizes Gilsbach, who was a high school English teacher before becoming a lawyer. “It’s a disconnect between the laws and what school employees understand about the law.”

Being an education lawyer requires leading from the front and the rear. These lawyers represent schools and districts in legal proceedings. But they must also focus on preventive work—counseling school boards, administrators, and teachers on what the myriad federal and state laws mandate and what their particular school district’s rules are, developing legal policies for schools before problems arise, and navigating legal quandaries when issues arise.

For example, Diane Marshall-Freeman, a partner at Fagen, Friedman & Fulfrost LLP, which provides education law services to more than 400 school districts in California, has received calls alerting her that a fight between students took place on a school campus in violation of school rules. The administrators are considering expulsion. Before they do that, however, they want her to weigh in.

“We have an obligation to make sure that they have all the information to make an informed choice,” says Marshall-Freeman, who first recommends a prompt and thorough investigation.

What she has sometimes discovered is that one of the students had been bullied for a period of time. “And [the fight] was actually a reaction to the bullying,” she says, which poses another legal issue. Bullying is often against state and local laws. And depending on those laws, expulsion of the bullied student could pose legal consequences for teachers and administrators if there were previous complaints about the bullying and nothing was done about it.

There are countless laws and legal issues impacting the field of education and even more ways that a school can run afoul of them. In addition, education laws are constantly evolving, making it further challenging for school lawyers. “It’s a dynamic field because it is so uniquely at the center of so much social change,” says Sonja Trainor, managing director, legal advocacy, at the National School Boards Association (NSBA) in Alexandria, Virginia, which operates as a federation of state school board associations.

Trainor says the big evolving moment right now is the rights of transgender students and, as of late, whether federal laws entitle them to use the bathroom of their choice. While the Obama administration concluded that transgender students were protected under Title IX, which bars sex discrimination in schools that receive federal funding, that view conflicts with some courts and state legislatures.

The issue became even more muddied under the Trump administration, which has declared that Title IX doesn’t extend to bathroom rights and indicated that it will not investigate civil rights complaints on the matter, leaving schools and school lawyers in the lurch until the courts sort it out. “It’s an issue the schools always want us to talk about,” Gilsbach reports. “At some point there will be something to say. But right now, it’s tricky.”

On the other hand, Title IX, which was passed almost 50 years ago, remains vital when it comes to providing female students with equal athletic opportunities as male students. “It can still be an issue,” says Marshall-Freeman, who is occasionally asked to do an analysis after someone has made a complaint. “Sometimes you have to deliver the hard message—it looks like you do have a violation here, and we’re recommending that you remedy it.”

Before Trainor took on her role with the NSBA, she worked as a school lawyer, answering calls at all hours. Her days stretched into evenings, when board meetings and expulsion hearings were held. Sometimes her cases involved teachers who were accused of unsavory behavior toward students. “When a schools fires a teacher,” she says, “they have to go through due process.”

She would also routinely work on such matters as confidentiality of student records, open meetings laws, and opens records laws. “Those are very much part of everyday questions you get,” Trainor notes.

It was hard but gratifying work. “From a nerd’s perspective, in the field of school law, you get to deal with constitutional issues every day, which makes it very unique,” Trainor says. “It’s not something that corporate lawyers get to deal with—how the First Amendment applies to student speech in the classroom. Those kinds of heady constitutional issues are just fascinating and important and fun.”

Trainor also enjoyed her regular interactions with students. “I think it does appeal to those of us interested in the young mind.”

Nowadays, she takes similar pleasure in the NSBA’s mission, providing support and resources to its more than 3,000 education lawyer members. For instance, it recently issued a brief on how to navigate the legal issues surrounding student walkouts and protests, which have erupted in response to school shootings. The organization also files amicus briefs on important legal matters like the Deferred Action for Childhood Arrivals (DACA) legislation to help courts know how its decision will affect schools.

“I am really lucky to be able to keep an eye on all the national issues that are affecting public schools and all the questions that school attorneys are asking one another through our discussion channels,” Trainor says.

Of all the legal matters that schools must grapple with, Gilsbach suspects that special education is currently the number one issue, especially after Endrew F. v. Douglas County School District, the U.S. Supreme Court’s decision last year in favor of a higher nationwide standard of education for the millions of children eligible for special education services. That ruling handed parents more legal traction to advocate for their children’s education and has necessitated schools to re-examine their procedures and policies to ensure they are in compliance and legally defensible.

Other trending hot-button issues include data privacy and devices and school safety trainings, including how to identify and help troubled students who might become shooters. “There is a big concern about are we doing enough to support students with mental health needs,” Gilsbach says.

Lawyers must also consider the liabilities involved with novel school safety measures. Gilsbach says vendors, many looking to profit on the situation, have been coming out of the woodwork.

“Did you see that theory on the bucket of rocks?” says Gilsbach, describing how one school superintendent decided to place buckets of river rocks inside each classroom, training students to pummel the shooter with them, a strategy that Gilsbach questions. “Most of the students are not going to do that in the panic of a moment and you’re going to have one kid throwing the rocks like they’re supposed to be. What’s going to happen to that kid?”

Then there are the myriad legal issues not at the top of the news cycle. School nurses, for instance, operate under a high risk for liability today with more children presenting with complex health issues attending schools.

And, again, there is that precarious matter of crowdfunding. “Crowdfunding in education is absolutely booming,” says Gilsbach, noting how “the more pitiful and sorrowful your story is, the more successful your crowdfunding is going to be.”

Searching around the Internet, for instance, she discovered a special education teacher who posted pictures of her autistic students with an appeal for iPads to help them, saying something to the effect of: “Oh, my kids, they can’t communicate and they are having such a hard time in school. If only they had iPads.”

By posting pictures and saying that, however, the teacher is likely violating rules under both the Family Educational Rights and Privacy Act and the Individuals with Disabilities Education Act, which guarantee those students privacy and a free and appropriate education. So if that requires iPads, the school is legally responsible to provide them. “There is a huge disconnect,” Gilsbach says. “And, once again, educators wouldn’t necessarily immediately recognize that. We recognize that.’”

“The thing about education law is that it’s never boring,” she concludes. “It can be really daunting. How do we fight this battle? But you stay in it because you love it.”

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By Ann Farmer

Ann Farmer is a freelance journalist based in Brooklyn, New York, who primarily writes about pop culture and legal topics. A former producer for Court TV, she also spent years covering crimes and local breaking news for the New York Times.