GPSolo Magazine - April/May 2006
Back to School Education Law
Public schools are governed by an array of complex federal and state laws. At first glance it might seem impossible for a solo to master enough of these laws to practice school law, and it’s probably true that one lawyer cannot meet a school district’s every need. Still, I believe that if you know your boundaries and line up resources to call upon for assistance, you can develop a very nice niche practice in a field often thought to be off-limits to anyone but big law firms.
Back to Basics
Public education is a governmental function. Understanding this is critical to your success in education law. Each state constitution requires the establishment of a school system in which children can receive an education. So public schools are run under the auspices of the state constitution, the U.S. Constitution, federal and state laws, federal and state regulations, and regulations issued by various federal and state agencies. The courts interpret the laws, and their opinions comprise a vast body of complex case law.
It may be useful to begin with an overview of education law grouped into four categories.
Students. There would not be schools without students. There are laws governing attendance, admission, special education, transportation, instruction, curriculum, health, safety, conduct, and discipline. At the federal level, there are laws such as Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex and has been used to grant girls the right to play on boys’ athletic teams and to have teams of their own. In addition, the equal protection and due process requirements of the Fourteenth Amendment generally prohibit sex-based rules that deny persons the opportunity to freely participate in certain school activities. Claims of sexual harassment and sexual abuse arise under Title IX and state laws that prohibit sex discrimination in schools. Federal legislation also created a huge area of the law in special education; laws such as the Individuals with Disabilities Education Act (IDEA) of 1975 and resulting state laws provide for the identification, location, and evaluation of all children with disabilities regardless of the severity of their disability, and the placement of such children in an educational program tailored to their individual needs at no cost to the parents.
Employees. Schools are a labor-intensive business, and the management of employees constitutes a large portion of legal work for schools. Most of the federal laws that apply to other types of public organizations apply to schools. Examples of these laws are Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Americans with Disabilities Act, and the Equal Pay Act. In addition, employee management is usually governed by extensive state laws and regulations that affect everything from the certification and licensure of teachers and other school employees to the benefits required for employees and the circumstances under which a school district may lay off staff. Further complicating the picture is the fact that many states have union organizations representing groups of employees. The effect for an attorney wanting to provide legal services in employment is that the attorney must know the federal and state law as well as the contractual requirements under the applicable collective bargaining agreement. The effect is also that collective bargaining, contract administration, and union relations are additional areas of legal practice for the aspiring attorney.
Finance. As public organizations, schools are caught in the cycle of public funding and budgeting as well as the process for competitive bidding on purchases of goods and services. Almost the entire finance arena is governed by state statute; attorneys must have a specialized knowledge of the state laws to work competently in this arena. Some attorneys serve schools as bond counsel, some as real estate counsel, and some as specialists in school funding matters.
Boards of education. Members of public boards of education are either appointed or elected, depending on state law. The operation of the board of education is subject to many state “sunshine” laws related to public records and open meetings. The board also may be considered a body politic and therefore subject to lawsuits.
Maximize Your Connections
While the laws and rules governing education can look daunting at first glance, begin to think about how you “fit” with public schools. It isn’t enough just to have attended—although if you want to practice law in the town in which you grew up, and you still know administrators and board members in the public school system, that could be a plus.
Perhaps you have a child who has attended special education classes in the school district, and you’ve become very familiar with special education rules and procedures. Perhaps you served on the PTA in your town or worked as a volunteer in the schools.
Perhaps your undergraduate degree was in education and you have work experience in the public schools. In my case, I started my professional career as a high school teacher. After three years of teaching, I returned to school to get a master’s degree in educational administration. I never worked as a school administrator; instead, I worked in higher education and then in health care in the human resources field—but I always carried that background of three years of high school teaching and the degree in educational administration with me.
Don’t be discouraged by law firms and career programs that tell you your previous work experience matters “not one iota” for your first job as a lawyer. I attended law school at night while working full-time in human resources management during the day, so I had no clerking or law firm experience. When I graduated from law school at the age of 39, the career counseling office and interviewers with law firms told me that (besides being too old to work in a firm) my work experience had no relevance to a position in a firm—and in fact, made me less attractive to a law firm because I was not viewed as “trainable.” Ultimately, after a short stint at a legal publishing house, I decided to ditch the job search and create for myself what I really wanted: an opportunity to combine my previous work experience with my law degree.
After networking with dozens of contacts and defining and redefining my goals, I was lucky enough to have a mutual business acquaintance connect me with a brand-new director of human resources for a large suburban school district. This person had been promoted to the job from another position in the district and had limited exposure to human resources. I was also lucky enough to be introduced to the new superintendent while I was meeting with the human resources director. I worked hard to get a sense of their needs and to sell my ideas to them for meeting those needs; at the end of the appointment, I was asked to submit a proposal. The proposal was accepted, and now, 15 years later, I continue to work for the same school district—although there have been four superintendents and three directors of human resources.
My experience leads me to believe that if you have experience in education, you are automatically on stronger ground than someone who doesn’t. If you understand what it is like to be in a classroom, don’t be afraid to point that out during an interview or during your work with teachers. If you understand the difficulties of school administration, don’t be afraid to reflect upon some of those difficulties as you are discussing resolutions to issues with a principal or a superintendent. And if you are doing a presentation to principals or administrators, use examples from your own experience in the classroom or as an administrator. I’m not saying to overdo it, but don’t be afraid to throw in a sentence or two about your previous experience to help convey the message that you are sensitive to public education roles and jobs.
Maintain Reasonable Rates
School districts operate within tight, tax-dollar-authorized budgets. Legal services are often viewed as a necessary evil caused by increasing state and federal intervention and regulation of schools and education. You need to be able to convince the schools that you understand their legal issues and you can deal with them in the most efficient and cost-effective way. Show your sensitivity to the budget constraints of public education by providing innovative rate proposals, such as “bundled” services and discounts on volume. If you charge by the hour, offer reasonable rates. Remember—you’re not in a big firm, so you can’t charge like one. Besides, wouldn’t you rather have ten hours of work at $100 an hour instead of zero hours of work at $300 an hour? And don’t “nickel and dime” your district. Yes, large firms will bill for each and every copy and will bill in six-minute increments. But do you really have to do that? Can you imagine how annoying that is to someone who works long and extra hours for a set salary and who buys office or classroom items out of his or her pocket because money for supplies is tight?
Know Your Boundaries
Once you are in the door, don’t forget everything you did to get there, and don’t begin believing that you can do any and all types of school law. The array of cases and issues that come before a school law attorney are mind-boggling. (For a taste, see the sidebar “Curriculum Guide” at right.) The biggest mistake you can make is to think you can do everything.
One boundary I suggest is limiting your practice to nonlitigation issues. I find that with a solo practice, it is difficult to manage litigation—plus it is not my first choice of law to practice anyway. Although I handle administrative charges of discrimination and administrative hearings before the state board of education, I usually draw the line at trials, and I will suggest the district obtain litigation counsel for that work.
I also suggest limiting your practice to two or three arenas. One example might be special education. Many attorneys limit their practice to due process hearings, individual education plan (IEP) meetings, and other issues related to special education. Another arena is pupil services—residency, admission, attendance, student records, and discipline. This is a huge area often involving court appearances for hearings before magistrates. Another arena is labor relations, including contract administration, arbitrations, and collective bargaining. In some districts, this could consume an attorney on a full-time basis. There are several other possible niches. The point is to find ones that fit with your background and interests and try to carve out that area for yourself.
The final boundary I suggest is your own internal sense of what you do well—and what you do not do well. Call it intuition. If you feel in the pit of your stomach that a matter is beyond what you are able to provide, say no and help the district find competent legal counsel. If the board or the administration becomes enamored with you—and thinks you are a miracle of an attorney for providing so much service for such reasonable rates—they might ask you to do everything. It’s tempting to accept all the work when a board member says, “But I don’t want anyone but you to handle this.” Don’t let yourself fall into this trap. The flattery is nice, but admit that you do have limits and remember them.
Provide Excellent Service
This probably goes without saying, but the key to any legal service is to excel at your work. How does one excel at being an attorney for a school district in addition to the obvious—knowing the law? Here are some tips:
• Be accessible. Return phone calls within a day and be available to be reached by phone, cell, fax, e-mail. Don’t have school administrators go through a secretary. They want you—make yourself available to them.
• Communicate with the administrator who gives you work, and keep in touch with the superintendent or the board. In my case, I report to the treasurer, so I try to keep him informed of work I am doing.
• Practice rules of common courtesy and civility. Listen to administration or board members. Don’t interrupt, argue, demean, or patronize administration, board, or staff members—show them respect. Don’t act like you can do their job better than they can. Tell the truth. Keep your promises about everything but especially to do work by a certain date. Take responsibility for your own actions, including your mistakes (I promise, you will make them in this arena of the law).
• When you are unavailable, provide a competent, reasonably priced backup. Choose someone you trust not to badmouth you or take away your clients. Make sure you identify the backup person and be sure your clients know when you will be out of town.
Stretch Your Skills and Provide Your Best
School board membership changes, administrators change, priorities change, and some people just have friends in high places. Never assume that the work you do today will be here tomorrow. Your best strategy will always be to focus on and anticipate the needs of the school district, stretch your skills to provide excellent service to meet those needs, and define your boundaries clearly and professionally with your education clients.
Business issues. School districts have buildings and property that must be maintained. There are contracts for services, contracts for construction or design, and various other types of contracts to write and review. A business department often will also handle insurance coverage and claims against the district covered by insurance, for example for personal injury while someone was on school property. Another potentially large area in business is the transportation of students. If an issue regarding transportation is contested by parents, the matter may end up before the state board of education and then in common pleas court.
Finance issues . The financial issues run the gamut from real estate matters to bond matters. One particular area in which a solo could work effectively is handling protests of real estate appraisals. If real estate is undervalued, the school district loses money from property taxes. In some districts, this could become a full-time job for one attorney.
Board of education issues. The board needs special counsel available for assistance in parliamentary procedure, sunshine laws, records issues, evaluations, and contracts with the superintendent and the treasurer.
Human resources. There are a number of human resources issues that require the assistance of an attorney. Policies and procedures for hiring and recruiting, orientation, benefits, layoff, and myriad other issues that arise when dealing with employees are the first of these. Day-to-day assistance with discipline, performance appraisals, and grievances can be required. There are charges of discrimination in employment, reasonable accommodation issues, arbitrations, and unfair labor practice charges. Another area in human resources is the administration of and legal representation in workers’ compensation cases. And there is also the huge area of collective bargaining and contract administration.
Pupil services. Student discipline, student records, attendance issues, residency issues, illegal students, truancy issues, custody issues, guardianships that are for school purposes only and therefore require representation in a hearing—the list could go on. All of these can require legal counsel, and often school districts are glad to have an attorney to handle all of the trips to court and the paperwork required in these matters. In student discipline matters in my state, if parents appeal a suspension or an expulsion, the matter goes to the board of education or the board’s designee, which creates a need for an attorney to present the district’s case and an attorney to serve as hearing officer.
Special education . This is a highly detailed and specialized legal area. The rules on special education continue to change, and lawyers handling such matters must know the law, know the cases, and practice in this area on a regular basis.
Boards of education often could use help overseeing the various legal matters in which they are involved. It may be possible for you to become a sort of “corporate” counsel for the board by providing information and services about other attorneys working for the school district.
Guidelines for external legal counsel. In my practice, I proposed that the board develop a list of guidelines for attorneys providing services to the school district. Businesses for years have asked for proposals from outside counsel. Attorneys are supposed to operate with fee agreement letters with their clients. But for some reason, schools have been slow to catch on to this as a method of managing legal work. Having such guidelines can serve the goals of the board by assuring that attorneys and law firms will abide by common rules.
Send these guidelines to attorneys and law firms once a year and request that the firms submit an annual proposal. You can summarize the proposals and then submit the summary and a resolution to the board to approve the attorneys for the upcoming year. Some of the guidelines might be as follows.
• Billing and fee procedures and guidelines, including proposed fees for the upcoming year, guidelines for the timing for submitting bills, the information required to be included in bills, and items that will not be paid without prior approval.
• A statement that the board seeks firms that demonstrate a commitment to diversity and place a high value on honest and direct communication.
• A statement that the board expects firms to work collaboratively with other legal counsel representing the board, always maintaining the top priority of promoting the best interests of the board.
Reports on legal expenditures. I prepare this report semiannually, and it allows the board to compare expenditures by law firm and by attorney from one year to the next. It’s extremely helpful information and addresses the questions board members will often ask—how much do we spend on legal fees, what is the average hourly rate we pay for legal services, how many hours of legal service do we receive each year, to whom do we pay legal fees, and for what particular purposes?
Reports on active and recently closed litigation and pre-litigation matters. I found that board members did not always know what cases were outstanding and would sometimes be caught off guard by a comment from a community member. This report, which I prepare quarterly for the board, the superintendent, and the treasurer, provides current information on developing cases and cases in litigation so the board will have full knowledge of legal matters pending against it.
Diane E. Millett is an attorney and sole practitioner in Cleveland, Ohio, representing boards of education. She also represents businesses and organizations in employment matters especially related to anti-harassment and civility in the workplace. She can be reached at email@example.com.