Paralegals in Education Law

A look at this unique specialty.

By Sally A. Kane

(Originally appeared in print as "Playground Politics")

January/February 2008 Table of Contents

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 Torrance, Calif., is involved in the plaintiff side of special education cases, from inception to resolution. Her firm, which consists of three attorneys and three para­legals/ advocates, solely represents parents of children with disabilities. She and the attorney meet with families to review their intake questionnaires and advise them of their options. While Wright doesn’t give legal advice, she does assist families with gathering information so they can make informed decisions as to the most appropriate special education program for their children. She also provides contact information for services, service providers, educational consultants, and other professionals who can consult and assist the parents with their children’s educational needs.

“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 Atlanta serves as a paralegal on the defense side of education law and assists attorneys with representing school districts, teachers and school personnel. With six attorneys and two paralegals, The Weatherly Law Firm solely specializes in special education law.

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 Missouri, works on the defense side of education law, representing school districts, teachers and school personnel. Doster, Mickes has seven paralegals and approximately 14 attorneys who specialize in education law in its three offices located in Chesterfield, Mo.; Kansas City, Mo.; and Collinsville, Ill.

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 St. Louis, which has a group that specializes in education law, notes an increase in student-on-­student harassment cases. Although bullying always has existed in the school system, she said, students today are less likely to tolerate threats or harassment. With the advent of technology, students now have more avenues through which to harass other students, including e-mail and the Internet. Gehm’s firm represents school districts (and individually named district employees involved in the incidents); the alleged victims typically are the plaintiffs in lawsuits.

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 Seattle and Louisville, Ky., challenging race-based policies designed to assign students. A 5-4 majority of the Supreme Court held that the school boards violated the Equal Protection Clause when they opted for programs that took students’ race into account as a factor in school assignment, in order to try to mirror the district’s racial balance within particular schools. This landmark decision is certain to affect the role of race in grade school and high school admissions.

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 Loyola Marymount University. “It’s very rewarding to see a child get the services they need, see them do better and have a parent come to you and say their child is in the classroom and is learning and we were a part of that.”

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
.com/help/dis.orgs.htm) is one source for special education organizations, she said. Attending school board meetings also helped Wright learn about special education funding, contracts, services and the language unique to the education law specialty.

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 U.S. children and teens — 5.2 million — has a physical or mental disability, reflecting a sharp growth in the nation’s disabled youth in the past decade. Reasons for the increase in childhood disabilities include a broadened definition of “disability,” a rise in childhood obesity and advancements in medical care that save more babies with low birth weight, Down syndrome and spinal cord injuries.

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 U.S. have been pushed to their limits by population growth and new demands have been placed upon professors for new approaches in curriculum development,” Scott Hatch said.

As the education law specialty evolves, more paralegals are finding this specialty a rewarding career choice. Tremendous growth, professional autonomy, intellectual challenges and the opportunity to help students, parents and the community are just a few reasons paralegals are gravitating to this exciting and cutting-edge area of law.

Sally A. Kane is a freelance writer specializing in legal and career subjects. She has 12 years of experience in the legal field as a paralegal and an attorney. Visit her legal careers Web site at About.com.