hundreds of articles by subject Featured: Writing Paralegal Resumes New: How To Discover Business Assets New: Criminal Motion Practice (with forms) New: Trends in paralegal training & programs. New: Getting Started as a Paralegal The Listserv is a free, e-mail discussion group. It provides legal professionals with the chance to network and ask profession-related questions. Featured topic: Billable Hours This long-running column examines ethics in the paralegal profession. Do you have an ethical dilemma or question? E-mail us today. Recently Posted: Avoiding Technology Traps
|
Paralegals in Education Law A look at this unique
specialty. (Originally appeared in print as "Playground Politics")
As the landscape of American
education has evolved, the field of education law has grown to
address new issues and respond to changing legal requirements. So,
too, the paralegal’s role has evolved to include an ever-broader
range of duties. “Education law encompasses a vast variety of
practice areas for a paralegal, from community work and lobbying for
legislative change in statewide education policy to attending a
hearing and advocating on behalf of an individual student in a
disciplinary or academic classroom matter,” said Scott A. Hatch,
J.D., a former paralegal. Hatch and his wife, Lisa Zimmer Hatch
founded The Center for Legal Studies in Golden, Colo., and have
authored several paralegal career books. Education law, also known as school
law, is a broad and complex legal specialty encompassing a myriad of
issues confronting school districts, school boards, boards of
education, and colleges and universities on a daily basis. These
issues include the administration and operation of educational
institutions, instruction methods, curriculum, programs, sunshine
laws, constitutional and first amendment rights, tort liability and
school athletics.
School law also encompasses legal
issues that relate to school faculty and other employees, including
contracts, salary, benefits, employee misconduct, dismissal,
discrimination, labor relations and pension funds. Education law also comprises the
laws governing students. A few of the more commonly litigated issues
include discrimination, attendance, admission, student prayer,
athletics, transportation, instruction, student records, curriculum,
health, conduct, discipline, free speech/ religious expression,
student safety and harassment. Special Education Law Special education law is a growing
subspecialty of school law that addresses the rights of children
with disabilities within the context of the nation’s education
system. There are six million children with disabilities in the
United States and, according to the Disability Statistics Center,
that number is growing, making special education law one of the
hottest areas in education law today, according to John Borkowski, a
partner with the Washington, D.C., law firm of Hogan & Hartson, who
specializes in education law. The work of the special education
paralegal spans the entire litigation spectrum from basic
administrative proceedings to complex state and federal litigation.
On the plaintiff side, special education paralegals work with
attorneys to assist with meeting the educational needs of disabled
children and protecting their constitutional rights. On the defense
side, special education paralegals assist attorneys who represent
school districts, school boards, teachers, administrators and other
school employees to defend against a variety of claims. Dona Wright, a paralegal/advocate
for Wyner & Tiffany in “We see it all. People come in with
kids who have emotional disabilities, learning disorders, or a
combination of issues. Some of the children have learning, speech
and language communication needs,” Wright said. She acts as the
initial contact for the family, passing along information to the
attorney. “Case management can be very laborious; there are a lot of
questions, a lot of documents, attorneys can’t read every piece of
paper, every single e-mail or field every phone call,” she
explained. Wright drafts many documents for
attorney review including requests for due process, subpoenas,
correspondence and compliance complaints with the State Department
of Education. Gina Farley of The Weatherly Law
Firm in Farley’s role in special education
cases often includes gathering a wide array of records from the
school district and other sources that are needed to defend the
case. Documents include special education testing, Individual
Education Plans, school district policies, communications with
parents, team meeting notes, therapy notes, attendance records,
classroom notes and evaluations performed by school psychologists
and other professionals. “The records come from several places in
the school. They don’t come neatly packaged and you never really get
all the records [initially] so you have to follow up … and track it
all down,” Farley said. Under the Individuals with
Disabilities Education Act, parties must exhaust their
administrative remedies before filing in federal court. Prior to the
due process hearing, the school district must attend a resolution
session where the parents and the school district attempt to resolve
the matter. If the parties fail to reach a resolution, a due process
hearing, which is similar to a fast-track mini-trial, is scheduled. Wright is very involved in the
hearing preparations, including managing the documents, gathering
exhibits and preparing exhibit books. “As a result of that intimate
involvement, I have a clear understanding of how documents relate to
the allegations,” she said. Working with the attorney, Wright helps
prepare witness examination questions and write closing arguments. Farley also is involved in
preparations for hearings and works with the attorneys to create
witness preparation outlines. “Our firm does extensive witness prep.
I’m there to facilitate, helping the attorneys find the right
documents, making notes and creating outlines to be used at the
hearings,” she said. If the petitioner is not satisfied
with a hearing decision, he or she may appeal to federal court.
Wright is involved in preparing cases for trial, performing research
for motions and briefs, organizing and managing voluminous documents
and exhibits, and helping with preparing pleadings. Wright also assists at the hearing.
“We just finished a long due process hearing in San Diego that was
27 days, with close to 600 exhibits and 40 witnesses — a very
complicated case,” she said. At the hearing, she assisted with
preparing witness examination questions and managing exhibits. “I
have to follow the line of questioning. I have to be on my toes and
think ahead,” she explained. Because of her extensive knowledge of
the documents, she often can anticipate which exhibits to pull while
the attorney is questioning a witness. No Child Left Behind Act In 2001, Congress passed the No Child
Left Behind Act, seeking higher standards and greater accountability
in the nation’s public school systems in order to close the
achievement gap between schools in low-income areas and schools in
high-income areas. The act sets forth standards that schools must
meet with regard to student achievement, teacher quality and
parental choice. With the parental choice provision, low-performing
schools must offer parents the option to seek alternative
educational opportunities. Specifically, public schools that fail to
make adequate yearly progress must offer students the option to
transfer to a better public school or choose an after-school
tutoring program. Up for possible reauthorization, Congress is
considering major revisions to the act. “NCLB is a big issue right
now,” Borkowski said. “When will it be reauthorized by Congress and
what changes will be made in the reauthorizing process? Or, will the
program be abandoned?” Concerns about the efficiency and
effectiveness of NCLB have raised compliance issues, as well as
special education issues. Wright states that NCLB has created higher
expectations in the public schools, noting that some states now even
give exit examinations from high school. Occasionally, the
unintended result is an increase in segregation by disability, often
resulting in lower-performing and special needs students who are
unable to graduate with a regular high school diploma, or are being
pushed out of school altogether. A number of educators, civic
leaders and advocates of education reform have criticized the law
for a variety of reasons. Most significantly, the
“one-size-fits-all” assessment requirements have been criticized as
deforming curricula in significant ways, causing schools to water
down their standards and lowering, instead of raising, student
performance in what often has been called a “race to the bottom.”
Moreover, although the law mandates that all students become
proficient in reading and math by 2014, the law offers few real
sanctions or penalties to non-performing schools. The law’s “one size fits all” tests
also have been criticized as unfair to students whose second
language is English, and don’t take into account schools with a
disproportionate number of English as a Second Language students.
The current NCLB also has been criticized for failing to financially
reward the best teachers or focus on improving working conditions in
challenging schools. Finally, since the NCLB focuses on raising the
score of poor-performing students, gifted students who easily can
pass the standardized test requirements often are overlooked. Lawyers and paralegals working in
this area assist in advocating parental rights under the NCLB and
ensuring district compliance with the act. The paralegal’s role
often involves record-gathering and organization. “Paralegals might
compile test scores and submit the scores to the school board, the
school board’s counsel and any other associations that may need to
receive and analyze this information,” Scott Hatch said. Student Discipline and Student Rights Another growing niche of education law
is the area of student rights. Education law attorneys and
paralegals investigate and litigate a wide variety of student
matters, including student discipline and expulsion, student
records, misuse of the Internet, harassment claims, sexual abuse,
drug testing, free speech and student religious activities at
school. “Paralegals need to know the
rudiments of the in loco parentis doctrine, the truancy law, and the
responsibility of teachers as mandated reporters of child abuse,”
said Scott Hatch. Another contentious issue, according to Scott and
Lisa Hatch, is the recognition of cultural diversity in public
schools and its effects on the basic education program. Joanna Perkins, a paralegal at
Doster, Mickes, James, Ullom, Benson & Guest in Perkins’ work on behalf of school
districts involves investigating harassment, sexual discrimination
and molestation cases. “It’s a very broad and interesting area,” she
said. “It really opens your eyes as a parent.” Since many of the
cases are filed in federal court, Perkins must be familiar with
federal court rules and procedures. “We have hundreds of school
cases and the paralegals are pretty involved. We do everything
except give legal advice. We draft pleadings, discovery, case status
reports and communications with the district.” Working on the school district’s
side, Perkins notes, often involves working with the district’s
insurance company. Each insurer has its own policies. “There are
reviews, meetings, updates and reporting requirements … anything
going on with the case or an investigation, we must report back [to
the insurer],” she said. Perkins generally doesn’t attend
hearings. “Tax dollars are what pays our fees so we try to keep
costs at a minimum,” she said. When she does attend, she prepares
exhibits and witnesses for testimony, drafts pleadings, notices of
hearing and other documents, and retains the court reporter. Bridget Layton Gehm, a paralegal
with 14 years of education law experience at the firm Tueth, Keeney,
Cooper, Mohan & Jackstadt in Gehm interviews teachers, students,
parents and other involved parties, and performs background research
to investigate property records, court records and other data. She
drafts discovery, deposition outlines, mediation briefs, dispositive
motions and other documents for attorney review. “I do a lot of
client hand-holding,” she said. She also takes part in developing
the strategy of the case, and attends teacher termination hearings
and trials where she issues subpoenas and drafts cross-examination
questions. Gehm also is very involved in
witness preparation. “If we’re going to prep someone, I attend with
the attorney and throw my two cents in, if needed,” she said. “In
some cases there are so many witnesses, the attorney will prepare
some and I prepare some.” Other Hot Topics in Education Law Rights of English Language Learners.
Increased immigration has raised the number of English Language
Learners in school districts, not just on the borders but across the
country, Borkowski said, making ELL another growing topic in the
education law arena. Approximately 5.5 million ELL students speaking
more than 400 different languages attend the nation’s public
schools, according to the Public Education Network and National
Coalition for Parent Involvement in Education. Much of the
litigation in this area involves Title III of the NCLB, which
provides funding to state and local education agencies that are
obligated by NCLB to increase the English proficiency and core
academic content knowledge of students with limited English speaking
skills. Racial Balancing. Another hotly
litigated issue, according to Borkowski and Scott and Lisa Hatch, is
race-conscious efforts to promote diversity in schools. School
districts across the country employ diversity plans in order to
promote racial and socioeconomic diversity and equal access to
education (race-based integration plans are a constitutionally
permissible choice of school boards). The United States Supreme
Court recently examined cases from School Funding. Borkowski cites a
high volume of litigation, mostly in state courts, over school
finance and educational adequacy. School finance cases usually
involve a challenge that education funding is inequitable in various
states or a challenge to the overall adequacy of a state funding
system, Borkowski said. Paralegals might become involved in
the lobbying aspects of school funding, Scott Hatch said.
“Paralegals interested in lobbying and becoming involved in special
interest groups [might] consider joining the National Education
Association or other … federal education organizations in an effort
to get their state and federal representatives to vote or sponsor
legislation that favors the interest and/or clients of their law
firms,” he said. “Paralegals who serve as paid legislative aides
involved in drafting legislation and steering it to vote in the
education committee and on the Senate floor enjoy extremely valuable
experiences in representative democracy,” Scott Hatch added. Student Athletics. Thirty-five
years after the enactment of Title IX, the question of equal access
to athletics for boys and girls continues to be an issue in schools.
Title IX’s provisions mandate that all student activities be open to
both men and women. “Equal funding for men and women’s sports is an
area of great need for paralegal involvement,” Lisa Hatch said. In
particular, paralegals assist athletic departments in complying
with what was formerly Title IX, and other statutes pertaining to
equality in gender-based funding for education programs, Scott Hatch
said. Title IX presently is referred to as the Patsy T. Mink Equal
Opportunity in Education Act. The paralegal plays a large role in
monitoring the distribution of funds and ensuring that such
distribution complies with applicable statutes and doesn’t exclude
or discriminate by gender. Paralegals might also lobby on behalf of
athletic fund recipients before state legislatures. Rewards of Education Law Education law offers many unique
rewards to paralegals working in the specialty, one of the greatest
of which is helping people. Wright, who is a parent of a young adult
son with an autism spectrum disorder, is passionate about her job.
“I do this because I want to see children receive the services they
need in order to receive an appropriate education. I don’t want
parents to go through the frustration that I went through,” she
said. Because of her advocacy efforts, her son now is studying
business at Farley, who worked for 10 years as
a commercial litigation paralegal, finds education law a refreshing
and welcome change from the business world. “What’s interesting,
having done commercial litigation for so many years and getting
burned out, is that this area of law involves people … I get to work
with Ph.D.-level experts and work closely with the people involved,”
she said. Perkins noted that the education
law field opened her eyes as to what transpires in the nation’s
schools. She also finds helping school districts a positive aspect
of education law. “It’s very rewarding because you’re helping your
community,” she said. Gehm enjoys the relationships she
has developed as a result of working in education law. “I have a lot
of contact with clients, district employees, students and
third-party witnesses, more so than other areas of law,” she said.
“Some cases go on for years and I develop relationships with these
people. I see some people’s children graduate from both high school
and college.” Gehm also enjoys the intellectual
aspects of education law. “This field gives me the opportunity to
expand my skills and knowledge on a daily basis,” she said. She has
developed expertise in the area of garnishments and speaks to school
officials annually. “It’s very rewarding,” she said. “I’m very happy
in the education law field. It’s always different, challenging and
changing.” The diverse aspects of working in
the field also are a plus for Gehm. “Some people have a job where
they do the same thing every Monday of every week,” she said. “The
cases I [work on] follow the same pattern but every case has
different facts and claims. That keeps it fun and interesting and
makes every Monday of every week different.” Breaking Into the Field There are many diverse career paths
that lead to employment in the education law field. For Wright,
raising a son with autism spectrum disorder gave her a long history
of advocating children’s special education needs before she became
employed in special education law. For paralegals who are interested
in education law, Wright recommends volunteering for special
education advocacy, pro bono and disability-related organizations.
Wrightslaw Yellow Pages for Kids (www.yellowpagesforkids Another way to break into the field
is to find a mentor. Wright met Steven Wyner, the attorney she works
with, while involved with a parent support group in her community,
and started assisting him in his solo practice before Wyner &
Tiffany was formed. Farley, whose firm represents
school districts in education law-related litigation, found that her
10 years of prior litigation experience in the bankruptcy,
commercial litigation and workers’ compensation specialties provided
a solid background for her current work. Although the education law
specialty has its own unique terminology and procedural rules, the
litigation skills required — fact-gathering, document management,
witness preparation, research, writing and litigation database
skills — are the same. Farley said that her bachelor’s degree in
education has been helpful in navigating the education law field. A
general knowledge of disabilities also is helpful. Scott and Lisa Hatch noted that
paralegals with a master’s degree in education (an M.Ed. or M.A. in
teaching) might have an employment advantage. “Education law issues
are more discussed at the graduate level in schools of education
than in law school, where it merits only a separate course,” Scott
Hatch said. Adhering to deadlines, anticipating
the attorneys’ needs and re-prioritizing are a few paralegal skills
that are critical to the area of education law, Perkins said.
Keeping up-to-date with federal rules and filing procedures is
another challenge. “In education law, you are in federal court more
than other areas of law,” Perkins said. “You must constantly keep
up-to-date with changing federal court procedures.” According to Wright, skills
required to work in this specialty include compassion, good
communication and a willingness to work hard. “You must work long
hours at times when you are preparing for, and are in, a hearing,”
Wright said. “It’s like being in trial.” Document management skills also are
important in education law. “I highly believe that the paralegal’s
role in litigation is to know every aspect of the file,” Gehm said.
“I have files that take up whole offices. I expect myself to know
the file inside and out. Being a good document manager is very
important.” Gehm also notes that a paralegal in
this field must be able to communicate with people and “hold their
hand” if needed. “When a person is personally sued in a matter, they
don’t understand what every document means along the process and can
become quite emotional at times. You need to be able to explain the
process to them in a calming manner.” The Future of Education Law The specialty of education law is
experiencing tremendous growth according to most accounts. The
number of education law paralegals at Perkins’ firm has grown from
one to seven since 2002. “When I first started in 2002 … we had two
attorneys in the area. Now we have an entire department dedicated to
education law,” she said. Gehm’s firm also has grown in her
14 years of employment there and currently employs about 18
attorneys specializing in education law. “I definitely see the area
growing; there are always new issues coming up,” Gehm said. Special education law is a
particularly fast expanding sector of school law because of the
national increase in childhood disabilities. “More attorneys,
paralegals and advocates are becoming involved in special education
law because the demand is huge,” Wright said. The 2000 Census revealed a rise in
childhood disabilities, including asthma and learning disabilities.
The Washington Post reports that one in every dozen As the field grows, the number of
paralegals entering this specialty is correspondingly increasing.
The Center for Legal Studies offers education law classes and other
courses in conjunction with state continuing legal education boards
and more than 600 colleges and universities nationwide on a credit
and noncredit basis, with online courses available. Co-founders of
the Center, Scott and Lisa Hatch, report a tremendous growth in the
paralegal students’ study of education law over the last few years.
In fact, enrollment figures indicate that, of the 16 advanced
substantive paralegal courses offered by the center, education law
is among the most popular. “Our local, state and federal educational
resources in the
|
© Legal Assistant Today Magazine |