Class Action

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Quietly but effectively, the Center for Law and Education is using the court system to bring justice to the nation's schools.

Last February, 20,000 people from all walks of life flocked to pay their respects to Thurgood Marshall as he lay in state in the Great Hall of the U.S. Supreme Court. Near his casket, one mourner left a copy of the Supreme Court's ruling in Brown vs. Board of Education--the decision that ended the oppressive "separate but equal" school system--with a note that said, "You will always be remembered."

In 1954, when Marshall, then legal counsel for the NAACP, argued the case before the Supreme Court, he had to persuade the justices that the racial segregation of public schools in the Jim Crow South was unconstitutional. But he also had to convince them that the courts were an appropriate place to address this egregious injustice.

The justices took his plea to heart. "Today, education is perhaps the most important function of state and local governments," they wrote in the unanimous ruling. "In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."

The Brown decision triggered a movement in this country to use the courts as a forum for debate about issues in education--and as an engine for change. Groups such as the NAACP Legal Defense and Educational Fund, the Lawyers' Committee for Civil Rights Under Law, and the American Civil Liberties Union all have played an important role.

But one organization--the Center for Law and Education--has carved out a unique leadership position in legal advocacy in education. Where groups such as the NAACP and the ACLU tend to concentrate their energies on a handful of big cases in areas such as desegregation, civil rights, and school finance, the CLE has had an impact on dozens of educational issues by taking on a dizzying variety of cases. And, for more than a decade, lawyers at the center have been actively involved in shaping the federal laws that govern school programs.

Two lawyers, Kathleen Boundy and Paul Weckstein, exemplify the convictions that lie behind the center's work. Staff members since the late 1970s and co-directors since 1990, Boundy and Weckstein share Marshall's deep and passionate sympathy for the less fortunate. They also share Marshall's belief that laws meant to protect the rights of all of us can be employed in court to fight educational injustice.

In 1954, not everyone agreed that "separate but equal" schools should be abolished. Even among those who did, there were people who said the courts were not the appropriate forum to leverage the change.

The debate over whether courts should be involved in school reform still rages today, but it is hard to deny the sway the courts have had in school matters. The CLE alone has been involved in litigation that has compelled schools to reconsider testing practices, hold hearings before suspending or expelling students, protect students and teachers from racial and sexual discrimination, and educate disabled, limited-English proficient, and homeless students.

Through their leadership in the field of education law, Boundy, Weckstein, and their colleagues at the CLE are helping keep Marshall's legacy alive.

The Cambridge, Mass., office of the Center for Law and Education, located on bustling Massachusetts Avenue, is not much to behold. The red-brick facade of the building is in keeping with the style at Harvard University, which is just down the road. Inside the office, the worn carpets, tattered furniture, and clutter of boxes reinforce the collegiate feel.

Kathleen Boundy, 43, has cut a path from her door to her desk through the stacks of books and piles of papers on the floor. The piles, like stairs, climb onto the black filing cabinet behind her desk, blocking the collage of posters and children's paintings tacked helter-skelter on the wall. One poster, though, is unobstructed. It shows two hands--one black, one white--reaching out toward each other. The words above them read: "Thou shalt not stand idly by." The message says a lot about Boundy and captures the very spirit of the organization she leads.

Boundy started her career as a classroom teacher at a high school in Brockton, Mass. The school lacked nothing, she remembers; it had wall-to-wall carpeting, overhead projectors, and televisions in every classroom. She taught students in the slow track and was surprised to find that many were illiterate. She remembers that all the students in this group came from the same housing project, rode the same bus, and had the same limited vocabulary. Boundy used to ask them to predict what they would get on their report cards. Well over 80 percent would say something like "D because I'm dumb."

"When I thought about education law," she says, "it was to address tracking. It was so offensive, the stigma and lack of self-esteem these kids faced."

Boundy entered Northeastern Law School in 1973 to explore the connection between law and education. While there, she worked for the Children's Defense Fund, an experience that convinced her that the law could be used to address some of the injustices of the public education system. During Thanksgiving break one year, she went down to Mississippi to interview potential plaintiffs for Mattie T. vs. Holladay, one of the first major cases to address the education of the handicapped. Escorted by a local social worker, she trudged in mud--sometimes ankle-deep--from shack to shack, talking to students who were excluded from school. "It rocked me, what I saw," she remembers. "I had thought I'd been around; I thought I'd seen poverty." The children she met with were disabled, and they were either not going to school at all, or they were getting a totally inadequate education, housed in what other kids called "the crazy trailers."

"There was a sense that the family had no rights if a child was disabled," she says. "They didn't feel entitled to anything; they were just grateful that they were allowed in the door."

In fact, a number of laws do give students with disabilities clear rights. Mattie T., which was settled out of court in 1979, was one of the first cases to use the Individuals with Disabilities Education Act of 1975. That federal law, in conjunction with Section 504 of the Rehabilitation Act and various state laws, mandates free and appropriate public education in the least restrictive environment for every disabled student.

These are some of the laws Kathleen Boundy relied on when she was first hired as a staff attorney at the CLE in 1977 and still relies on today when fighting for students in court.

The CLE's Washington, D.C., office is located away from the city's K Street "lawyers' corridor." The white marble and glass building that houses the office is on Connecticut Avenue, just north of Dupont Circle, an upscale neighborhood of boutiques, restaurants, and art galleries that also is home to many nonprofit, public-interest organizations.

The office is slick, carpeted in a muted blue-gray. On Paul Weckstein's desk and on the windowsill behind it are tidy stacks of paper. Silhouetted, they look like the Washington skyline outside.

If appearances were any indication, Weckstein, 44, would fit right in on K Street. His black hair, neatly cut, has a slight peppering of gray. Dressed in a dark suit, he speaks methodically, his blue eyes steady, as he describes how he ended up at the center.

Like Boundy, Weckstein knew from his first day at Harvard Law School that he wanted to use the law as a tool for social justice. But he left the program after a year because he wasn't sure what he could accomplish with a law degree. "I felt like I needed to take stock and find a specific direction," he says.

A two-year stint working at a mental hospital pushed him toward psychology. Then, he happened upon some material from the Harvard Graduate School of Education that got him thinking about what it would be like to combine law and education.

While Boundy was drawn to education law from her experience as a teacher, Weckstein was pulled by its theoretical appeal. He liked that public education was the guaranteed right of every child and not a system only for the poor, like public housing and welfare. And it seemed to him that the legal issues in education were not far removed from policy issues. "The questions in the law are very much the same questions that people involved in education outside the law would face," he says.

In 1973, he went back to Harvard, this time in a joint degree program with the schools of education and law. Hungry for field experience, he got a summer internship at the Center for Law and Education. He found that the work was both satisfying and important. After graduation and a two-year stint at the Massachusetts Department of Education, Weckstein made his way back to the CLE in 1978, a year after Boundy started there.

First established as a think tank affiliated with Harvard University, the CLE is part of a national network of defenders of the poor and powerless. Funded by the federal government as a support service for the thousands of legal-service agencies across the country, the center helps lawyers apply case law to local education problems.

Legal-service agencies provide the disadvantaged with free legal assistance. Most low-income "clients" approach the agencies seeking advice on housing, divorce, or Medicare or Medicaid matters. Many are parents who don't realize that their children have specific educational rights.

CLE lawyers keep track of students' rights by monitoring federal and state case law, and they stand ready to assist local lawyers who need help in this area. It is with this work that the CLE most directly carries on Justice Marshall's legacy. Typically, a parent will approach a legal-service agency with a school-related problem; a school may have expelled an emotionally disturbed student, for example, or cut bus service, leaving students living in rural areas with no way to get to class. The local lawyer, unfamiliar with education case law on the matter, calls a lawyer at the center, who discusses the case on the phone, gives advice and a written analysis of the legal issues, identifies expert witnesses or data, and sends copies of relevant pleadings, articles, and reports.

In their early years at the CLE, Boundy and Weckstein, as staff attorneys, spent much of their time answering these calls and doing legal research. When Boundy was hired, for example, word quickly spread that the center had an expert in special education who could help local lawyers harness the strength of new federal laws. Calls began to flood in. Even now, more than 40 percent of the requests the center receives have to do with special education.

Boundy has seen the types of cases involving special education evolve over the years. Previously, many dealt with students who had been punished or excluded because of their disabilities. Boundy gives an example. A student with Tourette's syndrome--a disorder that causes the sufferer to make inappropriate motions and comments--was thrown off his school bus for making improper exclamations. The boy had no other way of getting to school. The law was unequivocal on the matter; the school could not exclude the student because of a disability over which he had no control. "Over the years," Boundy says, "this was primarily the kind of case we would get because the widespread way schools were dealing with students with disabilities was to shove them out the door."

Recent cases, however, have focused more on the issue of educational quality than access. What is important, Boundy says, is that students not only get an education but also receive an appropriate one. Many cases strive to define what "appropriate" means.

Fielding calls is still a major component of the CLE's work. By one estimate, the center handles more than 200 calls a month; a staff attorney may juggle six cases at one time.

A walk through the Cambridge office is telling. Except for the occasional ringing phone, the hallway is hushed. But behind the closed doors, poignant stories unfold.

In one office, lawyer Florence Moise Stone advises a Texas attorney about how to handle a school that puts students in a 4-by-6-foot "time out" box as a disciplinary measure. Stone suggests that the attorney seek a temporary restraining order to keep the school from using the box, which could be emotionally and psychologically damaging to children.

In another, Maura Kelly prepares a lawsuit on behalf of a quiet boy who has a language disability but receives no special services from his Massachusetts school. Because the boy hears words in a fragmented way, he is constantly misinterpreting what he hears. Although he's not a troublemaker, he is miserable, Kelly says; he didn't know, for example, how to open his locker for the first three months of school. The situation is desperate. "I don't know what the school is waiting for," Kelly says, "for him to become suicidal? It's not that unlikely."

Although the center has made a mark assisting lawyers from around the country, it also involves itself directly in litigation. When a small, local case or a class action seems to have the potential for statewide or national implications, the center joins the struggle.

During the late 1970s and early '80s, CLE lawyers worked on several landmark cases. For example:

  • In Goss vs. Lopez, the center won students facing suspension or expulsion the right to a hearing. In its 1975 decision, the Supreme Court ruled that if a student is going to be suspended for up to 10 days, the school must give the student a chance to tell his or her side of the story. Longer suspensions require more formal hearings.
  • In 1981, in Castaneda vs. Pickard, a federal appeals court set out the legal standard used by education advocates on behalf of the millions of limited-English proficient students. An earlier case had established that putting Chinese students in a classroom where they did not understand instruction denied them equal access to education. But Castaneda established a three-part test for judging the adequacy of school districts' efforts to overcome language barriers.
  • In Debra P. vs. Turlington, a landmark testing case from 1981, the U.S. Supreme Court ruled that it is fundamentally unfair to penalize students for failing a test on material that they have not been taught. The center served as co-counsel on the case.

Today, as co-directors, Boundy and Weckstein carefully choose the cases the CLE joins. "We look for an immediate and significant impact," Boundy says. "We use litigation like a surgical tool."

Currently, Boundy is working with Connecticut Legal Services on a class action involving 125 young people in need of special education who are incarcerated at a juvenile detention facility called Long Lane.

"Long Lane is basically a jail," Boundy says of the Middletown, Conn., facility. "You go in and empty your pockets. They have a guard, and he pushes a button, and the door slams open and slams shut behind you." Boundy has seen a 10-year-old girl clutching a teddy bear huddled in one of the rooms. "There is no way this is a good program for children," she says.

More than 90 percent of the children at Long Lane have been identified as learning or emotionally disabled. But teachers there do not understand the nature of the students' disabilities and thus do nothing special to address them. There is no family therapy, no drug treatment, and no individualized education plans.

Boundy says the crux of the case is to extend federal law--which explicitly protects the rights of students with disabilities--to cover children in correctional facilities. The law requires schools to determine disabled students' needs and provide them with appropriate educational services.

The state's position in the case, which is known as Smith vs. Wheaton, is that Long Lane is not an educational placement. It is a juvenile detention facility, officials argue, so the state's only obligation is to operate a school there; as long as the school meets the state's basic educational requirements, they have done their job.

Not so, says Boundy. The fact that the children are incarcerated does not relieve the defendants from their duty. "The law says the state has to provide an appropriate education," she says. "I don't care where the children are, that is the obligation of the state."

One of Boundy's real disappointments is that the center has not been able to stem the continued use of ability grouping, the issue that first drew her to education law. To date, there have been few successfully litigated cases on the practice, despite what she calls "clear legal handles." Title VI of the Civil Rights Act of 1964, for instance, prohibits discrimination in federally funded programs. That means practices or policies that have a disproportionate impact on one race--such as tracking--are illegal, unless they can be shown to be justified on educational grounds. So far, schools have been able to justify tracking educationally, Boundy says. "Courts defer to professional judgment on how to effectively teach students," she explains. "Tracking has been a professionally accepted method of instruction. Only in recent years has it been called into question."

That's not to say that the CLE does not address the issue. In addition to its direct legal work, the center publishes newsletters and other publications and offers training seminars. Tracking has been a topic. "Ability grouping is questioned infinitely more now than it was in 1970 when I came here," says CLE lawyer Robert Pressman. "People are thinking of how to educate kids in other ways. The center, having talked about ability grouping through the years, has had a role."

From years of experience in legal advocacy, CLE lawyers know that the stronger and clearer the law on a particular issue, the better their case in court. So, more than a decade ago, the director at the time sent Weckstein down to Washington, D.C., to open a branch office that would lobby Congress to strengthen students' legal rights to a good education.

Since then, Weckstein and his Washington staff have worked with federal lawmakers and left their mark on a wide range of issues and measures, including the Elementary and Secondary Education Act, which incorporates Chapter 1 and vocational education; the Individuals with Disabilities Education Act; the Higher Education Act; and the McKinney Act, which deals with the education of homeless children.

But overall, the early 1980s turned out to be a tumultuous time for Boundy, Weckstein, and the CLE. Soon after Weckstein was sent to Washington, the Reagan administration launched a campaign to do away with the federally funded legal service system. Congress fought off the attack, but the administration came right back and attempted to bar legal-service agencies from taking education cases. Congress again said no, but the fallout from the battle resulted in major cuts in funding for the CLE and all other legal-service agencies across the country.

The CLE tried to deal with the funding drought by downsizing through attrition, but eventually layoffs were required. At one point, the center had only three lawyers handling calls from legal-service agencies.

The retrenchment took a toll, but the center tried to make the best of a bad situation. "Litigation was limited by the resources we had over this period of time," Boundy says. "But it also reflected a choice here that we provide critical, high-quality backup assistance--that that would be the way to reach the greatest number of people."

The frustrating lull ended with the ascendancy of Boundy and Weckstein as co-directors in 1990. One of their first moves as directors was to launch a fundraising effort that has enabled the center to expand its two-pronged approach: lobbying for strong laws while working with parents and lawyers to hold schools accountable to the law.

The center's new National Chapter 1 Advocacy Project is a good example of its multilevel approach to advocacy. The group, which operates out of the Washington office, lobbies for changes in Chapter 1--the federal compensatory education program that provides about $6 billion annually to school districts for extra educational services to disadvantaged students--while working with more than 15 legal-service programs to ensure that the requirements of the law are enforced. "These threads feed each other as information flows back and forth," Weckstein says. "Our positions on the federal level grow out of our local work. Legislative successes really form the basis for some of our fieldwork."

Recent changes in the act, for instance, have transformed Chapter 1 into a powerful tool for improving the core education program for disadvantaged students. Now, for schools to receive Chapter 1 money, they must involve parents in the design of the educational program and teach participating children the basic and more advanced skills that all children are expected to learn. Weckstein acknowledges that the changes do not go far enough--he's lobbying heavily for improvements as the act approaches reauthorization this year--but he believes that the current law has enough teeth to push schools to make their programs more than a federally funded drill-and-practice track for poor children.

To date, no litigation has arisen from the Chapter 1 project, but Boundy and Weckstein agree that the law is strong enough for parents to bring suit against a school or district that is not in full compliance. For now, the center is content to work cooperatively with districts. But if they display intransigence, that could change.

Throughout the 1980s, Weckstein lobbied hard for changes in vocational education programs. In 1990, Congress passed the Carl D. Perkins Vocational and Applied Technology Education Act, which, Weckstein says, has the potential to "radically" change the focus and content of vocational education for millions of students. Now, the Washington office is poised to take advantage of it.

The Perkins Act directly controls about $1 billion in federal aid but also shapes the spending of more than 10 times that amount in related state and local funds. Under the law, schools receiving Perkins funds are required to integrate vocational and regular education. Vocational classes must teach both basic and advanced skills and must cover "all aspects of an industry" instead of just technical skills.

An article in a recent issue of the CLE's newsletter, Newsnotes, discusses the possibilities the Perkins Act presents. The law, the article states, "can overcome the tracking of disadvantaged students away from high-level academics and the division of students into those who will eventually understand the big picture, plan, and decide, and those who will spend their working lives carrying out other people's decisions."

The "all aspects of an industry" requirement, especially, could revolutionize vocational education, CLE lawyers believe. Imagine an automotive class, Weckstein says, where instead of learning only repair skills, students establish and run a repair shop, study the history of transportation and the auto industry, the relationship of the shop to other parts of the industry, the physics behind engine design, pollution and waste disposal issues, and the role of auto workers and their organizations.

The center plans to use the Perkins Act as a catalyst for reform in roughly 15 districts across the country. As with the Chapter 1 project, it will work hard with schools to promote change before taking a confrontational stance.

Boundy and Weckstein know that a victory in court does not guarantee change. The Brown decision was handed down in 1954, but segregated schools continued for decades. "Cases are won, but then no one knows what to do," says Joan First, director of the National Coalition of Advocates for Students. "There may be a ruling that there has indeed been an injustice, but people other than lawyers need to get involved to tell schools how to fix the problem."

It's been difficult, for example, to translate school-finance victories in the courts into real change because reform depends on a political solution. To create a more equitable system of finance, schools must either be leveled down, which would mean taking funds from wealthy schools, or leveled up, which would mean increasing revenues, probably by raising taxes. That's one reason the center shies away from school-finance suits. Another, according to Weckstein, is that "this kind of litigation can be very, very time-consuming and rather expensive."

Joan First thinks the CLE's policy of not relying solely on litigation but using a spectrum of strategies, including lobbying, is wise and reflects a trend in education advocacy. "Historically, advocacy has depended strongly on litigation, especially in desegregation," she says. "Litigation will always be important, but I've seen more collaboration these days."

Edward Ashworth, executive director of the Southern Poverty Law Center, is an admirer of the CLE's work but has become somewhat disillusioned in recent years with the use of litigation to promote reform. Ten years ago, his group was deeply involved in bringing suits against white supremacist groups. Eventually, he says, he found that "legal work attacks the symptoms rather than the root of the problems."

The main reason for this, says Gwen Gregory, deputy legal counsel for the National School Boards Association, is that "courts are not designed to make policy; they are designed to decide who is wrong and who is right in a dispute."

Decisions made in an adversarial environment are not the best decisions, she asserts, because everyone involved just wants the lawsuit to end. "Courts are not the panacea that people think they are," she says. "They certainly are not the first place to go to reform anything. That is what state legislatures are for."

Gary Marx of the American Association of School Administrators believes our society relies too heavily on litigation. Court cases, he says, are "the two fists that people put up to resolve something."

Administrators and school board members, often the targets of lawsuits, tend to think the propensity to litigate has taken a toll on public education. "I believe that people in our society have the right to bring action against any institution, including the schools," Marx explains. "But people should apply that right judiciously, after exhausting other alternatives. Schools are not so heavily staffed that they can deal with multiple lawsuits without suffering financially. Court cases are really taking vast amounts of time and resources away from education."

Furthermore, taking an issue to court can cut short what could be fruitful debate, Marx says. "When the courts are used to settle so many issues, there is such a note of finality about it that it cuts off discussion." In essence, the overuse of courts tends to limit the scope of school decisionmaking, Marx asserts.

Gregory and Marx are especially critical of cases with a very narrow focus, where only one student will be affected by the outcome. These suits, they say, are unduly burdensome for school districts--and worse. "These cases might even have an adverse affect," Gregory says. "School districts who can't afford an expensive suit will give in even when they don't think it's educationally sound.

"Many of these cases should not be in court at all," she maintains. "They should be resolved at the local level between the educators and the parents."

Marx agrees. "The first step should be to talk to the student's teacher and principal, then the central office--maybe even take it to the superintendent," he explains. "An appeal can be made to the school board if there is no satisfaction."

Boundy and Weckstein argue that some situations simply cry out for a lawsuit. "In some circumstances, the only way you may be able to get change is through litigation," Weckstein says. "When programs aren't working and laws are being violated, the recourse through the courts is really critical." The record is replete with examples of school officials ignoring problems or openly rejecting appeals to resolve them for months or even years prior to a suit's being filed.

In such situations, litigation has the distinct benefit of leveling the playing field; both parties in a suit--a powerful school district and a poor student, for instance--have equal power in the eyes of the law.

Weckstein is convinced that the law can set a context for school reform. "Ultimately, rights--and the understanding that people have rights in school-- are an important vehicle for reform," he says. This was certainly true in the fight to guarantee students with disabilities the right to an education, he points out.

And the effectiveness of litigation has been proved over time. "In areas where you have strong statutory entitlement, we've had tremendously successful litigation," Boundy says. "You could see the wave of change go right across the country."

Boundy and Weckstein have learned that legislation and litigation tend to feed each other. For a case to have a chance, there must be a clear legal handle. But court cases have also clarified the law in ways that have spurred legislation. "If you look at the history of education litigation," Weckstein says, "often what has happened is that successful litigation has been followed by legislation codifying it."

Weckstein acknowledges that there have been fewer "landmark" cases in education in recent years. One reason, he believes, is that many issues have been effectively resolved. "If you look at some of the cases in the '70s," he says, "they were new areas where there were no legal standards. To some extent, once certain precedents had been established and the word got out, our job was done, and we didn't need to litigate anymore."

But that's not the only reason. Two-thirds of federal court judges now sitting were appointed by either Presidents Reagan or Bush. As a result, Weckstein notes, the courts have shifted considerably to the right. "Frankly," he says, "the courts became less receptive, so people stopped thinking about courts as the first line of attack."

Adds Boundy: "We have to think very seriously about bringing a case because we don't want to create worse law."

That's not to say that the work of the center is finished. Boundy and Weckstein look back on the past decade as a breathing period. Recent legislation involving Chapter 1 and vocational education has set the stage for new battles. "There has been a buildup that is only now starting to bear fruit," Weckstein says. "Initially, there was litigation forcing schools to give all students access to education. Now there is a sense that the real impact on schooling for low-income kids is more complex than that. There is a new emphasis on the quality of programs. Only recently have there been real legal handles."

It's after 5 p.m. at the Center for Law and Education's Cambridge office, and the phone calls have tapered off. Although Kathleen Boundy knew she would be interviewed today, she is comfortably dressed in a sweater and black cotton dress. She still has a few hours of work left. The staff at the CLE is hard-working and committed; they are, after all, on a mission. Working late and on weekends is the norm.

What keeps her going, she says, leaning back in her chair, is a vision of how schools could work for this country's poorest, most troubled, children. Elementary school children in need of extra help would not be consigned to a remedial track that offers little hope for a good education; instead, they would have access to Chapter 1 services that would allow them to catch up and give them the chance to succeed. All high school students, regardless of their socioeconomic background, would have access to academic course work and vocational programs that prepare them for skilled jobs or college. And parents would know that their children have a legal right to a good education.

"I don't think it's pie in the sky," Boundy says. "People are fed up with the education system for disadvantaged children. For whatever reason--because it's good for society, good for the economy, or just because it is right--they want the system changed."

Vol. 04, Issue 07, Page 26-29

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