The Education Lawyer’s Perspective

By Stephanie Burke, Senior Reference and International Law Librarian

Boston University School of Law Library

Where can a lawyer get the chance to deal with cutting edge issues in state and federal constitutional, labor, contract and tort law?Well, surprisingly, it is the field of education law, as Theodore Comstock, Legal Counsel for the New Hampshire School Boards Association, illustrated to attendees at the LLNE Spring Meeting on April 26, 2002, hosted by the Franklin Pierce Law Center.

Using the example of a story on National Public Radio that very morning which many heard while driving to the meeting, Mr. Comstock spoke about the issues he deals with as a practitioner of education or school law.The unique aspect of this area of the law, he pointed out, is not that it is a specialization, as much as it is representing a specialized client, a public sector municipal corporation.It is not always clear exactly whom a school attorney is representing, leading to potential conflicts of interest.For example, in New Hampshire, the voters elect the school board, and at town meetings, the school board attorney is often forced into the position of advising the school board against answering questions posed by those very voters who elected the board.The voters, as they are paying the board and have the power to re-elect the board members (or not), want the answers which lawyers such as Mr. Comstock are advising them not to give.Mr. Comstock said this can be an uncomfortable position in which to find oneself.

Even though he is the attorney representing the school board, Mr. Comstock rarely meets with the school board.Instead, he most often meets with school administrators such as the superintendent, which often results in the superintendent assuming Mr. Comstock is his or her attorney. As superintendents and school boards do not always agree, this can become an issue.Mr. Comstock must advise the superintendent or other administrators to hire their own attorneys in certain situations, like a dispute over tenure rights or the non-renewal of a teacher’s contract.If the superintendent recommends to the school board the non-renewal of a teacher’s contract, the teacher has a right to a hearing in front of the school board.This hearing often involves many attorneys, i.e. an attorney for the school board, an attorney for the teacher, and an attorney for the superintendent.Mr. Comstock joked that it is the “full employment act for lawyers”.

The specialized client with which the education lawyer deals, Mr. Comstock went on to explain, is like a corporation, so his practice bears many similarities to corporate law; however, as the municipal corporation is a public sector entity, there are some differences as well.The education lawyer “dabbles in many areas of law,” many of which are “statute rich,” including federal and state constitutional law, employment law, real estate law, torts, insurance law, and labor law.A school lawyer such as Mr. Comstock also deals frequently with administrative agencies such as the Department of Education.

The client also, as a public entity, is usually fairly “thrifty, or some could say cheap,” Mr. Comstock pointed out, so they will often call ahead for advice on a matter rather than chance expensive litigation.Also, as the school board and superintendent are in political positions, they often request advice prior to taking action in an attempt to avoid any political repercussions.

On the topic of how he performs his legal research, many in the crowd of law librarians cringed when Mr. Comstock explained he is often forced to do what he termed, “arms length research,” meaning he used whatever he could reach from his desk.He said that this is often his only alternative because of the tight turnaround time required by the client.Plus, the client does not like large bills for research time.He said he often has to go out on a limb, giving immediate advice or answers. Additionally, he added, he often calls a law librarian for expert assistance so he can confidently fulfill those quick turnaround requests.

The career path of a school lawyer is not usually a direct route after law school.Mr. Comstock, the child of a school board member, says he is unusual in that respect.Most school lawyers come into the practice after practicing as one of a few lawyers in a small town, primarily as a generalists, or alternatively, from practice at a smaller law firm.The recent trend has been for larger law firms entering the field of school law, Mr. Comstock pointed out, likely because the school board is sure to pay their bills, and on time.

To wrap up his presentation, Mr. Comstock summed up what school attorneys look for from law librarians.He said that the school attorney will likely not know a lot about any particular area of the law, equating them to “liberal arts lawyers.”Additionally, he advised librarians not to assume school lawyers know everything about education law, and if they ask for a “little review”of an area, he said most likely that is code for the fact that they are “clueless.”And further, he added, do not assume that school lawyers are comfortable using computers and technology.He said librarians are important to school lawyers to help get them back on track or started out on the right track in their rich and varied area of law.

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