In the current sociopolitical climate, there are a number of gray areas in the law that are intertwined with school districts’ espoused values, mission statements, and policies. This lack of clarity raises practical questions for educators and school leaders. For example, can a teacher show a movie in class that portrays a gay character? Does a school district have to notify parents of a student’s preferred name or pronouns? Can school board members block parents on social media accounts that are used to communicate official school business? These are real situations that school districts have been grappling with in recent months, and they illustrate the complex reality of the intersection of law and education in practice.

The answers to these questions depend on the facts in each situation and may differ based on the status of the law in a given state. As such, a common (and understandably frustrating) answer to generic legal questions is: “It depends.”

Effectively navigating the gray areas in the law requires interdisciplinary collaboration between educational professionals and attorneys. As an education law attorney and a professor who teaches education law courses, we are particularly interested in this topic. In this article, we provide an overview of the role of law in education and offer best practices for engagement with attorneys. We hope to encourage readers to reenvision traditional education professional-attorney relationships that tend to be reactive as more proactive relationships grounded in collaboration.

May We? Must We? Should We?

The law impacts all dimensions of the everyday policies and practices of schools, including but certainly not limited to special education, student and employee speech, privacy issues, discrimination, student discipline, attendance requirements, the curriculum, and employee and external contracts. The law determines what can or must be done in schools. These “may we?” and “must we?” questions set the bounds of discretion for school districts and education professionals (Mead, 2009; Mead & Lewis, 2016).

Here are examples: “May we use race as a factor in assigning students to school buildings in order to promote racial diversity?” Or “Must we provide students with disabilities special transportation from their doorstep to school under the Individuals with Disabilities Education Act?” These “may we?” and “must we?” questions set the legal guideposts for school administrators to act within. But where nuanced and impactful leadership comes into play is a third question: “Should we?”

The “should we?” questions implicate a school district’s—and even an individual school administrator’s—values, mission statement, ethics, and culture. Even if something can be done (Q: “May we?” A: “Yes, you may.”) that does not necessarily mean it should be done. To navigate the bounds of discretion that the law sets, a principal should ask the district’s attorney these four questions when discussing any situation:

1. What’s the legal answer?

The most straightforward answer an administrator is seeking from the school attorney is to the question “May we do XYZ?” or “Must we do XYZ?” But do not stop here. A good school attorney can provide a wealth of information that goes beyond strict legal compliance.

2. What’s the best practice?

Seasoned and connected school lawyers should be able to provide school leaders with inter­disciplinary approaches to problems—approaches that go beyond the legal answer. This is part of the “should we?” analysis that is so often skipped. For example, if a student is caught with a vape pen in the bathroom and the assistant principal wants to expel the student, the attorney may answer, “Yes, you may, under state law.” But should the school expel the student? What’s the best practice? The conversation may include statistics on teen smoking, the racialized school-to-prison pipeline, the time of school year, the typical long-term outcomes of expelling students for nonviolent offenses, the availability of nicotine-​cessation programs for teenagers, state or county statistics on expulsions or alternative education programs, etc.

3. What’s the risk?

Many school lawyers will advise an administrator along the lines of “do this” or “don’t do that” (which generally answers “may we?” or “must we?” questions). But laws are not created equal. If a school district violates Title IX, it risks the loss of federal funding for the district and civil liability for administrators, in addition to allowing a culture of sexual harassment that can inflict far more damage to your students and staff than simple legal woes. But if you violate a state law that says “Thou shalt teach cursive,” you might have a media spectacle for a news cycle but no tangible legal or financial ramifications. Your lawyer should walk you through the legal consequences but also direct you to resources for thinking through the financial, public relations, and community relations consequences as well.

4. What would you do in my position?

If you as a school leader ask the school lawyer, “What should I do?” you’re likely to get a vague, noncommittal answer that sounds like, “On one hand … but on the other hand … .” Making a slight tweak to that question by instead asking “What would you do in my position?” is much more likely to elicit a straightforward, simple answer from the lawyer. If you’ve heard all the risks and benefits and you’re still on the fence about the right move, ask “What would you do if you were me?”

Best Practices for Working With Attorneys

It is critical for education leaders to regularly engage in opportunities to learn more about the law. Legal literacy can help them know when to reach out to an attorney (Eberwein III, 2008). In other words, an administrator’s true legal literacy test is spotting potential legal issues and getting a lawyer involved earlier rather than later. To promote interdisciplinary collaboration between school leaders and attorneys, we recommend that education leaders:

  • Be on the lookout for red flags. Metaphorically speaking, you should call your attorney when you have a small grease fire on the stove; if you wait until the whole house is engulfed in flames, the attorney won’t be much use. A good rule of thumb is that if the superintendent and multiple other administrators are talking about an issue, the lawyer should have a heads up. Some school administrators hate calling their attorney because of hourly rates, so they wait to call until it’s too late. As opposed to traditional hourly rates, ask if your school district attorney will operate under a subscription or flat fee (this is an increasingly popular option), which helps allow school administrators to contact their attorney on a regular basis. A subscription fee also allows for consistent budgeting, which school boards appreciate.
  • Provide all relevant facts. Your attorneys only know what you tell them, and most principals will inadvertently leave out relevant information on the first contact. Oftentimes, the principal has already told the story to several different people by the time the attorney is involved, and the principal forgets what information has been shared with whom. Send the attorney any documentation, including notes taken during other conversations and relevant emails, before talking with them so they get “the lay of the land” and can ask follow-up questions when you speak. If other individuals have “on-the-ground” information, bring them into the initial conversation with the attorney.
  • Be proactive. Before you call your attorney, review your school board policy and your student or employee handbook. Point your attorney to the relevant provisions (including if no relevant provisions exist).
  • Keep in mind who the client is. Most school districts have an attorney who acts as general counsel, which usually means the attorney represents the school board as the client (although the attorney will almost always communicate with school administrators). Attorneys have strict rules of ethics regarding the zealous advocacy of their client, so even though the principal may want to tackle a legal issue differently than the school board, the attorney is likely looking out for the legal, fiduciary, and ethical concerns of the school board as a whole.
  • Tell the attorney what outcome you want. Work collaboratively with the attorney and help them understand your important values. If you tell your attorney what your mission and values are at the start, they can guide you to an answer that is both legally sound and in alignment with your desired outcome. The law can be flexible; it’s good for your attorney to know from the outset what you’d like to see happen.

Conclusion

Great working relationships between school administrators and school attorneys can create great educational environments, but it takes creative and nuanced thinking—and pushing the bounds beyond the traditional “may we?” and “must we?” questions—to foster those relationships. Challenge your school attorney to answer the “should we?” questions and see where your relationship can grow.

Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Jessica Heiser, Esq., is a practicing school law attorney and certified diversity, equity, inclusion, and justice practitioner. She is the founder and lead project attorney of Imprint Legal Group, a law and consulting firm focused on legal compliance and culture.

References

Eberwein III, H. J. (2008). Raising legal literacy in public schools, a call for principal leadership: A national study of secondary school principals’ knowledge of public school law. Unpublished doctoral dissertation, University of Massachusetts at Amherst. proquest.com/openview/dee268adbfa279cfc77115610a596069/1?pq-origsite=gscholar&cbl=18750.

Mead, J. F. (2009). The role of law in education policy formation, implementation, and research. In G. Sykes, B. A. Schneider, & D. Plank (Eds.), Handbook of education policy research (pp. 286–295). Routledge. doi.org/10.4324/9780203880968

Mead, J. F., & Lewis, M. M. (2016). The implications of the use of parental choice as a legal “circuit breaker.” American Educational Research Journal, 53(1), 100-131. doi.org/10.3102/0002831215613561