Tharrington Smith LLP: Education Law Is Dynamic

Tharrington Smith

The photo of Tharrington Smith’s education practice group looks like a class picture with its 19 attorneys. Twenty years ago, it would have looked like a one-room school-house with seven lawyers.
The practice group’s growth is, in part, indicative of the complexities school boards face.

“School systems are like many large corporations, and often they are the largest employer in the community. We do personnel work, student issues, we draft school board policies, there is all kinds of litigation, anything you can think of that a corporation of its size would deal with,” said Rod Malone, a member of Tharrington Smith’s education practice group.

“Public education would be one of the most highly regulated industries if it were an industry,” said Eva DuBuisson, another partner in TS’s education practice group

“It’s a lot like being an in-house counsel for a corporation with the added layer of representing governmental entities. So, we have constitutional issues, First Amendment issues, student’s rights, and due process issues,” said partner Carolyn Murchison.

EDUCATION LAW IS DYNAMIC

There were 1,429,275 students attending traditional public schools in North Carolina as of the 2020-2021 school year, with over 100,000 teachers, administrators, and school staff employed across 115 school districts.

For years, many North Carolina boards of education were represented by local attorneys with general legal practices. But with many of those attorneys retiring and the ever-increasing complexity of education law, more and more school districts are retaining lawyers who specifically focus on education law.

“Every new legislative session brings a dozen new mandates, requirements, or changes. We like to be a consistent, reliable force in the background providing good legal services to school boards,” said DuBuisson. “We all care about public education, so we see our role as removing obstacles that might stand between the school boards and operating a strong public education system.”

“Education law is dynamic,” said Malone. Public education undergoes a sea change every few years with cultural shift s. For example, when TS launched its education practice in 1982, almost no one had cell phones, and President Ronald Reagan wanted to abolish the Education Department and promote prayer in the schools and tuition tax credits.

Even five years ago, it would have been rare for a school system to face now-common questions about accommodations for transgender students or how to employ virtual teachers.

Additionally, school districts are experiencing high turnover in superintendents, administrators, and teachers. Accordingly, schools must constantly train new employees on current policies, procedures, and laws, as well as current employees on new policies, procedures, and laws. The firm’s attorneys play an integral role in this training. “We have to take a 10-page memo and turn it into a one-page memo that is easily digestible,” said Malone.

COVID TESTS

The group’s experience and knowledge were tested in real-time during the COVID pandemic when schools received weekly directives from the state legislature, Governor Cooper, the NC Department of Health and Human Services, and the CDC, among others.

“All of our clients were having the same crisis at the same moment, and so we were able to really work as a team, and with every new development that came out, to digest it, research it and then provide everyone in two or three dozen school districts with the information, and we were doing that all day long,” recalled DuBuisson. The immediacy of the issues necessitated working with some school districts to update their communication practices and learn new technologies.

The teacher shortage was serious before 2020. COVID made it worse. Possible solutions proposed by school boards must comply with existing rules and regulations.

“We help with troubleshooting. So, for example, we may advise that the law requires you to do X, to have a certain class size cap, to provide a certain level of services, and then the client comes back and says, ‘what if we just can’t? It’s impossible.’ So then, as lawyers, we have to be there to help them figure out, ‘then what?’” said DuBuisson.

“School districts are looking for new creative models which we have helped them with, whether that’s outsourcing, looking for virtual and technological instructional options. These involve public purchasing, bidding, and contracting issues,” added Murchison.

STAY OUT OF POLITICS

Not all school boards across the state think alike. And not all members of each individual school board think alike. Some have entrenched board members or one board member who rules the roost. Some districts are more conservative than others. Some are rural school districts, and others are in the cities.

“Not all of our clients viewed the COVID crisis in the same way,” recalled Malone. “Some wanted to be told masking was great. Some wanted to be told no masking. Within the board itself, the division over what the answer could be, could turn on a single vote. It could be a 4-3 vote or a 6-5 vote. You’ve got all those dynamics playing out. We try to stay out of the politics and provide the best legal advice we can and then let the board make the decision.”

VERTICAL AND HORIZONTAL STRENGTH

With 40 years of experience, TS’s education law practice group has strengthened vertically and horizontally. Horizontally, all the attorneys are generalists in education law; then many have niches such as public records and open meetings law, personnel, student services and discipline, civil rights, special education, contracts, public bidding, school funding disputes, and school construction and renovation.

The fi rm also provides specialized litigation services to public school clients across the state and their insurers, advocating before state and federal courts and administrative agency tribunals.

Vertically, some relationships go back years. “We meet people as a teacher or as a principal, and ten years later, they may be an assistant superintendent or superintendent in another district,” said Murchison. “They may be board members. So, we have friendships and professional relationships with people that traverse our entire career. When there’s a need for an attorney in a new district, and it involves people who inevitably have relationships with several of us here at the firm, we want to be able to provide that support if we can, and that’s what generally has led to our growth.”

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