Michelle Tellock, a product of rural Wisconsin’s public schools as well as Yale Law School, brings her breadth of experiences to Recess to clear up our misconceptions. Now an attorney with the education practice group at Hogan Lovells, LLP in Washington, DC, she shares her insights about how attorneys and the law can help prevent conflicts in schools and institutions, and how lawyers and educators can learn a bit more about each other to improve relationships across the different sectors of education.
I’ve always been fascinated by the inner workings of educational institutions. My parents struggled with our rural school district for quite a while to obtain necessary accommodations and services for my younger brother, who is autistic; although my mother, a school employee, knew how to navigate the system fairly well, it seemed unfair to me that many other families probably did not. After moving to Baltimore, I was exposed to the challenges faced by students in that urban environment: I worked for a non-profit that teaches financial life skills to middle school students, and I interned with the Maryland State Department of Education (MSDE). At MSDE, I had the opportunity to work with the general counsel and other officials who were involved in the state’s takeover of several failing Baltimore City Schools.
In law school, I joined a legal clinic that was serving as plaintiffs’ counsel in a class action lawsuit alleging that the State of Connecticut is failing to fulfill its constitutional duty to provide suitable and substantially equal opportunities to students, regardless of the child’s wealth or place of birth.
My experiences with MSDE and my clinic taught me that law can be a very powerful tool for those who believe that the status quo isn’t working in the best interests of students – to investigate why it isn’t working, and to make sure that policies are administered in a way that is fair and just.
For many practitioners, the term "education law" can feel distant and ominous, mostly used in regards to lawsuits or issues of compliance. How do you choose to describe your work, and how does it impact the different sectors of education (research, policy, practice)?
I usually say that we help schools and other education-related clients (for example, accrediting agencies, non-profit foundations, and private equity firms) do what they want to do while managing their legal risk. It’s certainly true that we spend a great deal of time representing client institutions that are party to lawsuits or dealing with compliance-related issues. Advocating for our clients in court or in response to a government investigation is some of our more public-facing work. But that “reactive” part of our practice—defending institutions in disputes—isn’t all that we do.
Often, a client will come to us when it anticipates legal implications, and we’ll work together to make sure that the client understands the relevant legal framework and how it affects the client’s goals. For example, a college that wants to launch its first online degree programs might seek our advice – after establishing an understanding of why the institution wanted to launch those programs, we’d talk to them about the relevant federal and state regulations, we’d research any requirements that the institution’s accrediting agency might have for those programs, and we’d help the institution negotiate its agreements with any third-party service providers that might be involved. In that regard, a lot of our work is preventative: spotting potential issues and addressing them before they become subject to a dispute.
Although our group doesn’t do very much of what one might think of as lobbying, we do have occasions to advocate for adoption of certain policies (for example, the U.S. Department of Education’s process for adoption of regulations often involves an invitation for public comment, which we may help clients to draft) or for a particular outcome in a body’s application of policy. We also work to stay abreast of developments in the field so that we can anticipate our clients’ needs and potential risks.
What type of projects have you worked on at Hogan Lovells, LLP?
My clients include school districts, state departments of education, and colleges and universities from all sectors, so our projects span a broad range of topics and types of legal practice. As an example, tomorrow I’m planning to: research a regulatory issue related to compliance with Title IV federal student aid programs; work with a client to finalize state agency approvals of a change of ownership; review documents related to a university’s compliance with federal regulations about contracts and grants; and prepare some filings for a pro bono immigration court hearing. One of the things I most enjoy about my job—but also one of its greatest challenges—is that every day is different, and almost always, what I actually do on a given day is not what I’d planned when I came into the office.
How can educators become better acquainted with the laws that affect their work? Similarly, how can attorneys become better acquainted with the work of educators? Why are these efforts important?
In some cases, it’s very easy: educators who work in charter schools or in special education can Google something like “charter school law and [state]” or “special education law and [state].” Usually, the state department of education or another organization will have created a primer on law applicable to those special circumstances. Some examples of laws with which classroom educators come into contact most often have to do with civil rights and privacy protections. Reading a bit from the Office for Civil Rights and about the Family Educational Rights and Privacy Act (FERPA) could be a good start. I’d also encourage educators to participate actively in compliance trainings and to introduce themselves to their organization’s in-house legal counsel – those simple steps can help to alert educators of potential legal risks and to address in a timely manner any situations that might develop. It’s always better to have a relationship with your lawyer before you “need” her!
As an attorney, nothing helps me become better acquainted with the work of my clients than visiting them in their offices and seeing the challenges that they face every day as they deal with students and faculty. That’s hard to do, so I also read trade press materials daily and follow educators on Twitter so that I see both the “big picture” trends and the individual-level thoughts and reactions of those on the ground. College newspapers are a great source of information, too. My colleagues and I also attend public hearings and conferences where regulators welcome public comment, so that we can understand the viewpoints of other institutions and educators.
What do you see as the most contentious/critical areas of education law? Do you have any predictions for up and coming issues or changes in education law?
One area that is getting a lot of attention at the K-12 level is bullying. In particular, school districts are trying to understand to what extent they are responsible for addressing behavior that happens outside of the school building – either off campus or online. Many states have laws and policies to address these concerns, and the federal government has said that bullying can amount to harassment, which may implicate a number of civil rights laws.
At the postsecondary level, there has been a lot of public attention paid to compliance with Title IX (which prohibits discrimination on the basis of sex), especially with regard to preventing and responding to complaints of sexual violence. The Violence Against Women Reauthorization Act of 2013 requires colleges and universities to take certain steps to help protect victims of sexual violence and therefore remain in compliance with Title IX. The U.S. Department of Education has convened a panel of experts and interested parties (called a “negotiated rulemaking committee”) that will prepare proposed regulations to implement the statutory requirements.
Affirmative action also remains a hot topic. The U.S. Supreme Court in Fisher v. University of Texas found that a lower court had not applied a sufficiently demanding legal standard when it upheld the University’s use of race in selecting students. However, because the Supreme Court sent the case back to the lower court for additional proceedings, we don’t have a final answer about whether the University’s plan is constitutional. Another case before the Supreme Court this term, Schuette v. Coalition to Defend Affirmative Action, will determine whether a state can amend its constitution to prohibit race- and sex-based preferential treatment in public university admissions decisions.
Amanda Klein is a community school coordinator in Baltimore, and her Q&As with local education leaders are a regular Recess feature. Send her your suggestions for future interviews via email.