What K-12 districts need to know when adding legal counsel
As court cases involving special education students, human resource issues and staff grievances continue to increase for all districts, school leaders have had to rely more heavily on legal counsel.
For decades, a single general counsel might have handled all litigation, but the ever-growing complexities of state and federal regulations, and expansions of districts’ legal needs, have changed that, says Teri Engler, a longtime Illinois school attorney and founding partner in Engler Callaway Baasten & Sraga.
“While the old model is fine, districts now work with two or three firms so that they can pick the specialists in particular practice areas of school law,” says Engler. “District leaders are saying, ‘This firm here has the deepest bench on labor and employment, but this firm has a better bench when it comes to student rights and special ed law.’”
RFPs for legal counsel should be honed to include issues based on a district’s unique needs, Engler says.
“For example, you may be looking at reconsidering your counsel right before your teachers union contract is up,” says Engler. “Well, have you ever had a strike? Before you choose counsel, you want to know who has a history and an ability to handle that effectively.”
Before reaching out for representation, district leaders should look inward to analyze specific immediate, intermediate and long-term needs, Engler says. In addition to considering experience (at least 10 years of practice in education law, she suggests), references from other districts, accessibility, and billing practices, look for firms who are mindful that they work for the district, and not the other way around, she says.
Finding that ideal working relationship is key, agrees Isabel Machado, board attorney for more than 30 public school districts in New Jersey and founding partner of the Machado Law Group.
“Every school attorney in New Jersey—we all know the law,” says Machado. “It’s more important to have someone who can collaborate with and who’s a good fit with the administration, and someone whom you can really work with on a day-to-day basis.”
Part of that relationship also includes preventing legal problems. Machado stages regular training sessions for her clients, covering issues such as sexual harassment and hostile work environments, and sharing updates to legislation and regulations.
“Training allows me to put in certain protocols for the district,” says Machado.
Finding the right fit
To help districts navigate the challenges of finding and vetting legal counsel, the Texas Association of School Boards has created Working with Your School Attorney, which answers common questions and provides advice from an unbiased source, says Joy Baskin, TASB director of legal services.
For example, administrators often debate whether to add staff attorneys. “District administrators should know that once they hire in-house counsel, that’s not the end of the story,” says Baskin. “They can experience cost savings because the in-house counsel manages relationships with outside firms, but no one lawyer can satisfy a thriving school district’s needs.”
The legal needs associated with special ed, in particular, have become a huge challenge for any district to navigate because special ed has become so complex, says Baskin.
It’s an area of high risk for school districts due to the mandate for individualized education programs, the resource challenges involved in fulfilling those programs, and the potential for parental relationships to break down.
Special ed is a practice unto itself, agrees Machado. “It’s easy for someone who doesn’t practice special ed law all the time to be overwhelmed by the different judges, pretrial work and other issues,” she says.
Ultimately, the biggest pitfall in adding legal counsel may be hiring an attorney who doesn’t specialize in education.
“There are so many nuances in school law that it’s easy to make a mistake,” says Machado. “Not every attorney, no matter how skilled they are, is a good fit for every district.”