Law & Courts Reporter's Notebook

Hot Topics in School Law: High Court and Sunscreen

By Andrew Trotter — October 24, 2006 3 min read
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The chummy group at the plummy resort could barely contain its glee at being in the Bahamas earlier this month, just as an early snowfall blanketed parts of the U.S. Midwest and the Northeast back home.

Though the balmy Atlantic Ocean and a pristine beach were just steps away, however, the participants at the Education Law Association’s annual conference, held here Oct. 12-14, did not shirk from cutting-edge topics in school law.

The 250 conferees at the vast, Disneyesque Atlantis Resort, near Nassau, included school administrators who are on the front lines of legal disputes, lawyers who practice education law, and professors who lecture on the subject. Many said they are acutely aware that school law is a fast-changing landscape, mined with disputes that may explode at any time.

They scooped up legal treatises and other handouts and jotted down notes on court rulings involving such federal laws as the Individuals with Disabilities Education Act and the No Child Left Behind Act.

Attendees filled the unfortunately timely sessions on school districts’ duty to keep their campuses safe and to identify school employees who engage in sexual misconduct with children—a growing problem, according to several presenters. A session on “cyberbullying” was standing room only.

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Many speakers here discussed rulings from education-related cases in the 2005-06 term of the U.S. Supreme Court and the docket for the 2006-07 term, notably the two cases dealing with the Seattle and Jefferson County, Ky., schools’ voluntary consideration of race in assigning students.

“It is a very historic moment for the court,” said John W. Borkowski, a lawyer with the firm of Hogan & Hartson in Washington, in his annual speech to the group on education cases in the Supreme Court.

Mr. Borkowski, who has his offices in South Bend, Ind., and frequently works on appeals to the Supreme Court, noted that in its 2005-06 term, the court was in transition, with the arrivals of new Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. That may be why the court rendered often unanimous but rarely dramatic decisions, he said.

But in last term’s decisions, however, he saw “strong indications that this will be a pro-government court” in the current term, which might favor school districts in some disputes with students and parents.

An exception seems to be in employment cases in which an individual’s rights were violated, as opposed to the abstract rights of a class of people, according to Mr. Borkowski. “I think the court is really offended by discrimination against individuals,” he said.

Another speaker, Raymond G. Kuntz, a lawyer in Bedford Village, N.Y., spoke firsthand about arguing before the Supreme Court while representing the school districts in two important IDEA cases: Hendrick Hudson Central School District v. Rowley, which in 1982 clarified the appropriate education due to children with disabilities, and Arlington Central School District v. Murphy, in which the justices ruled earlier this year that parents who prevail in special education cases against school districts may not recover expert fees.

Mr. Kuntz emphasized how the “human element” in the facts—especially the welfare of the child—influenced the justices in both cases. He advised lawyers, who tend to be enamored of their arguments, to keep in mind that justices often respond not to “lofty principles, but flesh and blood.”

Certainly, the organizers of the ELA conference were conscious of the human element, scheduling sessions to start early and end on most days by 2 p.m.

Soon afterward, buttoned-down professional attire was replaced by tropical prints, and the participants—whose families suddenly materialized—turned toward the waves and sand, the resort’s casino, and its many restaurants.

Mandy Schrank, the executive director of the ELA, which has its headquarters on the campus of the University of Dayton, in Ohio, said having the meeting at the splashy, subtropical venue resulted, as expected, in 25 or 30 fewer school administrators “on the public dollar” attending than at last year’s conference, in Memphis, Tenn.

Public school officials are sensitive to perceptions that overseas conferences are junkets, and some districts have policies barring employees from district-paid professional travel outside the United States.

But an increase in participation by lawyers from private firms made up for that loss, Ms. Schrank said.

In fact, the location played a big part in drawing 13 lawyers, specialists in school law, from Bracewell & Giuliani, a large firm based in Houston, said Christopher P. Borreca, a lawyer with the firm.

Ms. Schrank said that was a record number from a single firm.

The association is betting that many first-timers will turn up in San Diego for the annual conference in November 2007.

A version of this article appeared in the October 25, 2006 edition of Education Week

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