K-12 education law has been a moderately hot practice area for a number of years. Now it is in the middle of a quantum leap forward, thanks to: (1) two emerging issues, and (2) increasing parental concerns and corresponding activism.
Education Law to Date
School attorneys (whether school district in-house counsel employees or private practitioners) fill the role of corporate counsel. They advise school boards and school administrations on the full panoply of issues that any corporate counsel must handle, as well as constitutional and other issues central to school districts, such as:
- Classroom and library materials
- Collective bargaining
- Confidentiality of health records
- Disabled student participation in sports
- Discipline and discharge of employees
- Educator sexual misconduct
- Equal educational opportunity
- Fringe benefits
- Gender equity
- Individualized education plans for disabled students
- Internet safety policies
- Liability for sports-related injuries
- No Child Left Behind Act requirements
- Open meeting laws
- School board ethics
- School violence
- School vouchers
- Separation of church and state
- Student-athlete codes of conduct
- Student-athlete drug testing
- Student dress codes
- Student free speech
- Student privacy
- Teacher and student classroom speech
- Textbook and instruction controversies
- Title IX
Two new issues that have exploded onto the education law scene and into public consciousness confirm the vitality of this practice area. Both are generating a growing body of case law and proposed legislation and regulations.
Student Transgender Rights. The issue component that has percolated up to top-of-the-fold news is the very vexing one of bathroom and locker room access. Schools all over the country are wrestling with the issue of how to provide appropriate access or otherwise accommodate the rights of both transgender and other students.
In addition to non-litigation matters such as the proper terminology to use when referring to a transgender student ("former boy" or "former girl" does not cut it), parents and advocacy organizations are filing Title IX complaints, while parents of non-transgender students are filing complaints opposing school administrator decisions that allow students the right to use the bathroom of the gender with which they identify. Other school districts have decided to provide private facilities or add privacy curtains for students who are uncomfortable with gender-specific bathrooms and locker rooms.
There are also many instances where a transgender student has "come out" to school officials, but not his or her parents. Then a fundamental question becomes where to draw the line between parental rights and the school's traditional role of in loco parentis. In some cases, a school's decision to inform the parents may depend on the latter's attitudes and predictable reactions.
Suffice it to say that this is one of those legal arenas that is murky and still very much in an early stage of evolution, which makes it a good addition to one's practice.
Resistance to Standardized Testing. Thus far this school year, 20% of K-12 children have opted out of standardized testing. That number is even higher when you consider that standardized testing rarely begins before third grade. Last school year, 250,000 parents refused to allow their children to take standardized tests.
The controversy over the concept of standardized testing itself, its national imposition via the No Child Left Behind Act, its frequency, the rollout of Common Core standards in 45 states, and the fact that it has been abused by teachers and administrators due to its potential negative impact on their job security, is what is causing this resistance.
Resistance comes from four quarters: students, teachers, parents, and politicians. The proverbial "flood of litigation" currently afflicting school systems is accompanied by a flood of legislative and regulatory "fixes," causing the kind of legal mayhem that is an attorney's bread-and-butter. Counsel for the New York State United Teachers recently labeled this chaos "borderline disastrous."
Parental involvement which, since the beginning of public education, usually began and ended with occasional appearances at PTA meetings and a conference or two with their child's teacher, has now escalated to the kind of resistance to standardized testing referenced above, and much more. At the same time, this formerly collegial relationship between parents and school systems has become increasingly adversarial.
Administrative hearings and lawsuits generated by the Individuals with Disabilities Education Act's (IDEA) mandates are increasing; issues surrounding school athletics and extracurricular activities are more heated; home schooling controversies are escalating; and sexual harassment, bullying, inappropriate teacher-student relationships, and school security matters have percolated up into public and parent consciousness and are prompting greater scrutiny of the K-12 environment.
There is a growing trend toward hiring in-house counsel by local school districts. The U.S. has 14,500 school districts (California alone has over 1,000 school districts).
A number of law firms specialize in school district representation while other firms and sole practitioners represent parents and students in disputes with school systems.
Government education agencies at all levels employ attorneys.
There is a large nonprofit sector consisting of trade and professional associations and advocacy organizations that deal with education matters.
Getting in Position
The number of Education Law (a.k.a. School Law) certificate programs is growing. Selected examples include:
- University of Connecticut: School Law Online Graduate Certificate
- Indiana University Bloomington School of Education (online): Education Law Certificate
- University of Georgia College of Education: Certificate in Education Law and Policy
- U.S. Department of Education
- National School Boards Association
- National Center for Education Statistics
- Council of Parent Attorneys and Advocates
- Council of School Attorneys
- Education Law Association
- Home School Legal Defense Association