An essential function of our government is education. Although the Department of Education regulates some aspects of education through funding program, it is the individual states that have primary responsibility for education. Education is considered to be one of the most important functions of state government.
Each state is required by its state constitution to provide a public school system whereby children may receive an education. State legislatures exercise power over schools in any manner consistent not only with the state’s constitution but also the Federal Constitution. In practice, state authority is delegated to a state board of education and, in turn, local school boards. Constitutional issues, often relating to the First Amendment, are significant. Parents are not required to avail themselves of the public school system. Parents have a right to direct the education of their children, which includes the right to choose a private school education. While formal private schools are most commonly utilized, many parents home school their children. States have the power to regulate private schools; however, this power is limited as many private schools are religious institutions. Most importantly, private schools must satisfy the requirements of the state’s compulsory education law.
There is a strong focus on equal educational opportunity in education. In addition to the constitutional standards, various statutes prohibit discrimination on the basis of and require equal opportunity on the basis of race, color, national origin, sex, and disability. An affirmative obligation also exists under the Individuals with Disabilities Education Act to find, evaluation, and provide special education services to those students with disabilities.
Many issues arise in connection with education and the governance of educational institutions. Boards must deal not only with student issues, such academic standards, curriculum, auxiliary services, extracurricular activities, searches, and discipline, but with a wide range of other issues. Among these are board operations, contracting, employment, labor law, tort law, school safety, and intellectual property.
In addition to elementary and secondary education, higher education is an important area of education law. Similar issues exist with some differences because adult students are involved.
Practicing Education Law
Because educational systems serve every part of the Nation, education law attorneys are a diverse group. Many educational institutions are represented by larger firms, often specializing almost exclusively in education law and other governmental law. Smaller firms, even solo practitioners, may represent some schools. Administrators, parents, students, or educational employees may also require legal services.
Typical tasks performed by attorneys practicing education law include the following:
- Furnish specific legal opinions on request.
- Update the educational institution on current education law issues, decisions and laws, as well as their implications for the institution.
- Prepare or review an educational institution's policies and procedures.
- Document and supervise elections.
- Attend meetings of the educational institution's board, committees, staff or students as required.
- Effecting the acquisition, disposition or lease of real estate.
- Drafting and review of contracts.
- Assure compliance with applicable competitive bidding and other contract requirements.
- Review of insurance policies and coverages.
- Review and assure compliance of requirements applicable to the collection and expenditure of funds and monies generated by students and local, state and federal sources.
- Review grant proposals and programs for legal implications and compliance.
- Prepare or review the educational institution's budget and assure compliance with applicable budget procedures.
- Document and assure compliance with requirements to borrow funds or issue bonds.
- Respond to inquiries of auditors regarding an educational institution's litigation and contingent liabilities.
- Analyze the income, employment and other tax requirements of the educational institution and any support organizations or foundations.
- Bring actions to collect student financial obligations owed to the educational institution.
- Review the legality of the educational institution's employment practices.
- Provide advice and counsel regarding the dismissal of faculty and staff members.
- Review, negotiate or interpret collectively bargained agreements and participate in related grievance procedures.
- Provide advice and counsel regarding student rights and responsibilities.
- Provide advice and counsel regarding the suspension and expulsion of students.
- Review an educational institution's activities as they relate to possible tort liability.
- Prosecute and defend litigation brought by or against the educational institution.
- Provide assistance and advice regarding the maintenance and inspection of education records.
- Determine the relative rights of the educational institution, faculty, staff or third parties to copyrights, patents or trademarks, and assure they are protected or honored, as appropriate.
- Conduct in-service seminars or programs for board members, faculty, staff and students.