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Education law

Post by powerfail » Sat Jul 22, 2023 3:41 am

The SFFA v. Harvard decision has me wondering to what extent education law is a practice area? By this, I mean cases involving issues like Title IX, accommodations for students with learning disabilities, students' free speech rights, student disciplinary proceedings for misbehavior/academic dishonesty, disgruntled faculty members who were denied tenure, schools not doing enough to prevent a student from being bullied or discriminated against, and conflicts between teachers' unions and school districts.

How/where is this type of law practiced? I know universities and school districts have in-house counsel, but where are such lawyers usually trained? And if you want to represent students and parents (i.e., oppose the school/university), are there firms that specialize in that?

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Re: Education law

Post by cavalier1138 » Sat Jul 22, 2023 11:32 am

No idea why SFFA would have made you think about this, except that it involved schools I guess...

In-house counsel at a university usually means you came up through private practice (biglaw for big/prestigious institutions). But I'm not sure if there's an in-house role that focuses solely on the issues you seem to be interested in, since a number of them really aren't what the lawyers for these schools handle (student discipline, for example, is almost never handled by a lawyer). I'm also not sure that there are firms specializing in just representing students/parents in all the adversarial, because it's an extremely wide field. A Title IX specialist shouldn't be handling an accommodations case, and vice versa. But yes, there are education law positions, usually in policy roles.

Have you tried looking for attorneys doing the work that interests you?


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Re: Education law

Post by nixy » Sat Jul 22, 2023 2:18 pm

I think a lot of the cases on behalf of student/parents vs school districts are brought by smaller/local civil rights firms (although at the most national level, this could be national civil rights firms or biglaw firms wanting to look good). Such firms focus heavily on school stuff, but they’ll also probably market themselves as being under the civil rights umbrella more broadly. Local firms can get in on this because education stuff tends to implicate both federal law and state law (for instance, some states have various educational rights baked into their constitutions). You also see solos who’ve amassed relevant experience, but that’s not really an option straight out of law school.

Another alternative is civil-rights based non-profits (usually national) like the ACLU or FIRE, especially if the case looks like it could set significant precedent. Those groups aren’t likely to take a case where it’s pretty obvious the school isn’t following the law and they’re just being jerks and resisting doing anything about it, and you need legal process to get them to see reason. They’re more likely to take cases where the law is less established, and they’re working to create precedent that the law does require [whatever the particular plaintiff is trying to get the school to do]. This is a little bit like what SFFA was trying to do in their suit against Harvard, but in that case they hired outside counsel; there are non-profits like the ACLU or FIRE that have legal staff who do the litigation instead of hiring outside counsel.

You can go look at their websites and their local chapters to see the kinds of credentials and backgrounds the legal staff has. For some organizations, political creds will be as or more important than school pedigree and such. (I’d say that pedigree/fancy credentials tend to be more important for liberal causes, just because there are probably more liberal grads from top schools than conservative ones, so competition is tougher, but that’s just speculation.)

Non-profits usually have a clear political bent in terms of what they’re advocating for. This can come up in local education work, but doesn’t need to. For instance, working to expand accommodations for disabilities tends to be a more liberal cause, but a given case may also just be a response to specific facts where a specific district just gets something wrong. Conversely, a school district defending itself in an accommodations case may be trying to limit the district’s obligations in the context of limited resources rather than actively espousing a more conservative cause. Similarly, defending an employment discrimination case may have political significance (for instance, a religiously affiliated school firing a teacher who came out as LGBTQ) or may just be defending the district against a disgruntled employee who thinks that their boss criticizing them means they were discriminated against. That said, I think the plaintiff’s side of the house does tend to see the sides in a political light, where going from defensive work to plaintiff’s side can be difficult. (A lot of plaintiff’s stuff will be more liberal, like accommodations for disabilities or equal access or fighting against anti-trans policies and so on, but you also definitely have the free speech and religious rights side which can be very conservative, and it seems like both sides can cast schools as the political enemy, whether that means the school is too conservative or too liberal.)

A lot of school districts have in-house attorneys to deal with all the typical in-house stuff (contracts, policies, advice on what’s required to comply with the law), and then hire outside firms for actual litigation. So the in-house counsel creates the policies governing, say, accommodations for students with various cognitive disabilities, but if a student actually sues over the accommodations they were or weren’t offered, the district hires a local firm to litigate the case. In the jurisdictions I’m familiar with, these can often be relatively small, specialized local firms who do a lot of this stuff, but the fancier the school, the fancier the firm will be.

At the university level, this seems to be the same - in house staff handle day to day, outside counsel handle lawsuits. Fancy universities are more likely than local school districts to hire either biglaw or otherwise elite national firms for their suits (one way to figure this out is just to look up lawsuits against various Ivy League or similar schools and see who represents the universities).

Like cav said, a lot of people who end up in-house for higher ed, especially elite private universities, come out of biglaw. I think that’s a little less the case for school districts or state or less elite universities - I’ve seen people go into those jobs out of law school and not T14. It depends a lot on the size of the school - if you work in-house for the U of Texas system, that’s huge with a big legal department that has more entry-level positions; a little tiny liberal arts college is going to have a much smaller legal department and tend to hire fewer but more experienced people. My sense is that school districts are more likely to hire local attorneys (and grads), but if you’re talking about some really swanky locale they’re much more likely to want swanky credentials.

On other kinds plaintiff’s side cases, think about what area of law the cases would fall into apart from dealing with a university. So people denied tenure are going to hire employment discrimination lawyers/firms. Again, ideally the firm will have experience in dealing with tenure cases, but will probably sell themselves as doing employment discrimination more broadly.

When you’re talking about unions, those cases will involve labor/employment attornies. National unions usually have their own attorneys who will go up against whoever the school hires to defend them; in that case, the school will hire defendant-side labor/employment firms, either the big national firms, or, for a smaller case or poorer institution, a local firm.

So education law is a thing, but if you want to practice education law, you will probably specialize within a different kind of legal umbrella, especially civil rights, or labor/employment. There are going to be firms that represent a lot of parents against school districts, but they are likely to be small and local, and may also handle other kinds of cases. So you’d need to look around at local firms in the place where you want to practice. And people end up in those firms from a variety of backgrounds.

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Re: Education law

Post by Serjatclaw » Tue Jul 25, 2023 6:35 pm

powerfail wrote:
Sat Jul 22, 2023 3:41 am
By this, I mean cases involving issues like Title IX, accommodations for students with learning disabilities, students' free speech rights, student disciplinary proceedings for misbehavior/academic dishonesty, disgruntled faculty members who were denied tenure, schools not doing enough to prevent a student from being bullied or discriminated against, and conflicts between teachers' unions and school districts.
Even these specific issues you've listed could involve a wide array of practice areas. If a school is violating a student's free speech rights, that student would probably be more likely to contact a civil rights attorney than an "education" lawyer. To be honest, a school superintendent or principal would be more involved in these types of issues more consistently than a lawyer.

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