Maine Bar Journal
Fall 2003 #8.
Tell Me a Story1: A Cautionary Tale of the Lawyer and the Educator
Maine Bar JournalFall 2003Tell Me a Story1: A Cautionary Tale of the Lawyer and the Educatorby Sarah RedfieldThe school board signed a contract to remove underground storage tanks. With proper requirements, the school would have been entitled to reimbursement under federal and state environmental laws. The school board neither consulted its attorney, nor included the requirements - nor were they reimbursed.2 The school board should have known?
Final grades were just posted on the board, listed by student numbers, which happen to be social security numbers. Students complain their privacy has been violated. The teacher should have known?
In a rural town with no noticeable Jewish population, the teacher forbade a young Jewish student's wearing a Star of David, noting that it was a gang symbol. The teacher should have known?3
The Titusville school district just settled a case with gay student Timothy Dahle for $312,000. Dahle, now nineteen, alleged that he had been physically and verbally harassed since sixth grade; the school district claimed Dahle brought the treatment on himself.4 The case is eerily like the million-dollar case brought by James Nabozny against his Wisconsin school district in 1997.5 The Pennsylvania district should have known?
The lawsuit alleged that the principal failed to report a child abuse situation of which she had been informed. A teacher alleged that she had informed the principal about the abusive situation in a hallway conversation. The principal should have known? The teacher?
Luke, a middle school student not classified as a student with disabilities, wore an obscene T-shirt in class, and when told to wear it inside out, lost his temper and lashed out at the teacher. The principal suspended Luke for ten days (making Luke's total for the year to date thirteen days). Luke's parents asked for the school records on the incident and other disciplinary incidents involving their son and other students, the parents having previously indicated to the school that they were seriously concerned about their son's inability to control his emotions. Someone should have known?
Most of these short stories are fairly simple. Several illustrate some simple legal principles, the knowledge of which could have saved the schools involved substantial amounts of money, not to mention time, resources, and peace of mind.6 Others illustrate some simple school contextual realities that would alert attorneys to factual and legal concerns. There are of course more complicated stories, like the last obscene T-shirt scenario that concatenates constitutional due process7 and First Amendment8 concerns with concerns arising under the Individuals with Disabilities Education Act (IDEA)9 and the Family Educational Rights and Privacy Act (FERPA).10As these stories suggest, sometimes, knowing a few basics is all that is called for; sometimes, knowing when to call for expert advice is the answer; sometimes, knowing the school culture and practice offers the clue to resolution. For educators and their attorneys to have the requisite information and knowledge, there is a need to define a new class of educators and a new class of lawyers, each attuned to the contextual reality of the other's discipline.11 Such a new class will establish law-informed educators and leaders who can act preventively to avoid or minimize legal entanglements and act proactively to influence both litigation strategy and government policy. Such a class will also establish education-informed lawyers, apprised of both school practices and important educational research and policies, who can work collaboratively and preventively with their clients.
Pick up a newspaper most any day and we are reminded just how present law is in our schools - as sanction, incentive, directive, arbiter. The topics are as diverse as the numbers are great - religion, homosexuality, Internet use and abuse, censorship, violence, students' and teachers' rights, discrimination, curriculum, negligence, malpractice, assessment, adequacy, equity, and on and on. We even litigate about whether there is authority for schools to hire lawyers and for whom those lawyers work.
As the opening stories and newspaper headlines imply, the number of lawsuits against schools is increasing dramatically.Not surprisingly, the number of education lawyers is also on the increase. In 1960, the education law reporters published some three hundred suits...