Harvard Educational Review

 

Volume 67 Number 3

Fall 1997

ISSN 0017-8055

Copyright©1997 by the President and Fellows of Harvard College. All rights reserved. 

 The More We Get Together: Improving Collaboration Between Educators and Their Lawyers

JAY P. HEUBERT

Harvard Graduate School of Education

Abstract

Effective collaboration between educators and their lawyers increasingly influences such central educational matters as school governance, school reform, equality of educational opportunity, school leadership, and allocation of scarce resources. In this article, Jay Heubert demonstrates the growing need for such collaboration. Examining scholarship on professorial education, interprofessional collaboration, preventive law, alternative dispute resolution, and client education, he identifies many factors that can promote or impede close, ongoing educator-lawyer interaction. Heubert argues that lawyers, educators, and the schools that train them can do a great deal to improve collaboration, and offers many specific recommendations. He concludes by calling for more balance in school law research in order to focus less on how courts treat education cases and more on how good lawyer-educator collaboration can improve eduction and reduce the need for litigation in the first place.
(pp. 531-582)

This article explores collaboration between Kñ12 educators ó school board members, administrators, and teachers ó and the lawyers who work for school districts. It has four broad purposes. One is to demonstrate how close, ongoing collaboration between educators and lawyers can promote effective teaching, learning, school leadership, and educational innovation, and how the absence of such collaboration can harm education significantly. A second is to identify some of the knowledge, skills, attitudes, and behaviors that contribute to effective interprofessional collaboration. A third is to analyze research on the obstacles to effective collaboration, and suggest ways in which educators and lawyers can help overcome such impediments. Fourth, this article calls for greater balance in school law research, which has focused far more on how courts do or should treat education cases than on an equally important question: how good lawyer-educator collaboration could improve education and reduce the need for litigation in the first place. As Hart and Sacks note in The Legal Process (1994, p. 9), "private decisions are the primary motive force which determine the direction of society from day to day." A leading proponent of preventive law, Louis Brown, a professor at the University of Southern California, agrees: "More decisions affecting human conduct are made in law offices than are made in all the trial courts" (Brown, 1986, p. 171).

Rationale for This Study

Given the central roles of education and law in American society, this article is important and timely for several reasons. First, the legal questions that arise in schools affect students, teachers, administrators, school reformers, and policymakers in ways that are anything but marginal. As the U.S. Supreme Court recognized in its 1954 Brown decision, educational policies and practices sanctioned by law can "affect [children's] hearts and minds in a way unlikely ever to be undone" (Brown v. Board of Education, 1954, p. 494). The law affects such central educational matters as school governance, curriculum, pedagogy, staffing, the physical conditions under which educators and students work, and equality of educational opportunity. Similarly, the success of any school reform initiative depends largely on whether and how legal requirements hinder or support it.

Litigation and judicially imposed remedies can also influence education significantly; many school districts, especially those in urban areas, are subject to detailed, lengthy court orders and consent decrees.1 While many of these serve to increase funding for education and spur necessary educational improvements, they also hamstring educators, reducing educational discretion on central questions of education and school leadership. Legal mandates also carry financial costs that reduce the funds that would otherwise be available for other purposes; for example, special education alone can absorb one-fourth of all funding for education, and nearly a third of all federal court litigation in education involves special education (D. Tatel, personal communication, July 1992).

Important long-term trends in law and education also make effective collaboration increasingly necessary. One trend, already well documented (Tyack, James, & Benavot, 1987), is the dramatic increase in the number and variety of legal issues that affect public education. A second development, little noted in the literature, is the increasing convergence of legal standards and educational norms. As discussed more fully below, there are now many areas of education law in which legal standards and educational principles are intertwined. Under the First Amendment, for example, public school officials may determine the content of the curriculum and of school-sponsored newspapers and assemblies, as long as the educators can show that their decisions were "reasonably related to a valid pedagogical concern" (Hazelwood School District v. Kuhlmeier, 1988). In these and many similar situations, it takes a lawyer to know what the legal standard is and an educator to know whether that education-based standard has been met. In sum, it is increasingly the case that neither lawyers nor educators can do their work independently.

A third trend also increases the need for close educator-lawyer collaboration. Many policymakers and educators are promoting reforms that entail deregulation in public education. A recurring dilemma, however, is how to reduce regulatory burdens while maintaining protections for students to whom public schools have traditionally denied equal educational opportunity (Heubert, 1997; Tatel, 1993ñ1994). A second dilemma is that educators and scholars have long faulted lawyers and judges for the very stress on procedures and regulatory detail that schools now seek to escape (Howard, 1994; Kirp & Jensen, 1986.) Yudof (1981, p. 917), for example, fears "a formalism in which procedure is deified at the expense of education." Lawyers, educators, and others must obviously work together to minimize such potential conflicts, which may jeopardize worthwhile reform initiatives. In sum, poor collaboration can produce educational failure, while effective collaboration serves not only to avoid costly litigation but also to promote important school objectives.

This article is also timely because the limited research available suggests that many educators and lawyers may not be engaged in close, ongoing collaboration. For example, results of a 1988 survey show that "educators seem to have little concept of the law as it relates to them and their day to day school activities. In fact, many educators regard legal principles applicable to public school education with apathy or disinterest" (Reglin, 1992, p. 30). A 1978 survey concluded that even "school leaders" get "failing grade[s]" for their knowledge of school law (Zirkel, 1978, pp. 522ñ533). If educators routinely exchanged information with their lawyers, and understood better how legal developments affect attainment of important educational objectives, such results would be unlikely. Most school board lawyers spend more than half their work time in fields other than school law, and most have had little formal training in school law, either in law school or while in practice (Herbert, 1991; Jones, 1978; Lupato, 1973; Rehak, 1986). In sum, the research suggests that some school board lawyers may lack both (a) the time that close, ongoing collaboration requires and (b) the specialized legal expertise that has been shown to produce better outcomes for clients (Kritzer, 1995). In Pennsylvania, most school districts lack written policies on the issues most likely to generate litigation (Meloy, 1992, p. 76). This would probably not be the case if educators and lawyers were working effectively to prevent unnecessary lawsuits.

Finally, this study draws on current lines of empirical and theoretical research ó in preventive law, alternative dispute resolution, professional education, client education, and interprofessional collaboration, among others ó to suggest ways of improving lawyer-educator interactions, reducing litigation, and using the law to support and advance educational policy objectives.

The School Law Literature

There has been little school law literature to date focusing on educator-lawyer collaboration or preventive law. Since the Supreme Court's 1954 decision in Brown v. Board of Education, many of the leading articles and books on school law have focused on whether and how courts should deal with educational matters.2 This research has been important in many ways. It demonstrates the important effects courts have had on school policy (Wirt & Kirst, 1982). It has helped shape the values that judges and litigators bring to court cases involving education. It has helped rebut scholars who challenge the legitimacy of Brown and has generated useful debate about the proper role of courts in public-law litigation (Bickel, 1962; Wechsler, 1959).

But this line of research has also left conspicuous gaps, as Mark Yudof, president of the University of Minnesota, pointed out nearly twenty years ago:

Another line of published school law research (Reglin, 1990, 1992; Zirkel, 1978) focuses on what educators and their lawyers know about the legal issues that arise in schools. These studies are important in their own right and provide information, relevant to this article, on the need for and capacities of educators and lawyers to work effectively with one another. These studies, however, do not explore or make recommendations on actual educator-lawyer collaboration.

Textbooks that professors use in teaching school law (including, among others, Alexander & Alexander, 1992; Goldstein, Gee, & Daniel, 1995; Hudgins & Vacca, 1991; Reutter, 1994; Valente, 1994; Yudof, Kirp, & Levin, 1992) constitute yet another body of literature relevant to this study, for these volumes convey a sense of what knowledge and skills leading voices in educational law think school lawyers and administrators should possess. However, these texts discuss specifically neither how educators and their lawyers do, could, or should work effectively together, nor the obstacles to their doing so. Yudof, Kirp, and Levin, however, do issue a general call for improved lawyer-educator collaboration that this study attempts to elaborate:

Other researchers have written about preventive law, but this area has yet to become a central concern in the school law field. As one well-known scholar put it, "the recognition, much less application, of preventive law has been belated and brief in the field of education . . ." (Zirkel, 1985, p. 10). As recently as 1992, moreover, a researcher reported that he was "only able to identify a few resources specifically related to the extension of . . . preventive law to educational applications" (Meloy, 1992, p. 5). These articles and others (e.g., Hawkins, 1992; Herbert, 1991; McClung, 1981; Zirkel, 1985), however, provide a foundation for an exploration of the obstacles to educator-lawyer collaboration.

Given the limitations of published school law research, this article draws heavily on theoretical and empirical studies in such related fields as preventive law, alternative dispute resolution, professional education, client education, and interprofessional collaboration. These bodies of literature contribute to an understanding of the value and techniques of good collaboration among professionals and between professionals and their clients. Thus, this article relies on interdisciplinary research to address a problem of practice in education (Singer & Willett, 1991).

The remainder of this article is organized as follows: First, it explores why close, ongoing collaboration between educators and their lawyers is increasingly important educationally. It also offers a model describing the knowledge, skills, attitudes, and behaviors that contribute to such collaboration.

Second, it attempts to explore systematically the principal obstacles to effective collaboration between educators and their lawyers. Some stem from a lack of knowledge about what forms of collaboration are desirable or about how to collaborate effectively. Other impediments are the product of limiting assumptions that lawyers and educators make: about themselves, one another, and their professions. (This article makes no effort to prove that such limiting assumptions are false, only that they are not inevitable.) Other obstacles to collaboration stem from structural problems, such as fee structures that impede close, ongoing collaboration between lawyers and their clients.

This article concludes that many of the obstacles to effective collaboration between educators and their lawyers can be surmounted. It discusses these conclusions and their implications for professional education, practice, and future research.

Close, Ongoing Collaboration: Why It Matters and What It Looks Like

As noted briefly above, important long-term trends in law and education make it increasingly important for educators and lawyers to collaborate more closely and more frequently. At the same time, however, the kinds of collaboration that contribute most to educational improvement do not conform to traditional models of lawyer-client interaction. The familiar, asymmetrical lawyer-client relationship ó in which a powerful, high-status professional tells a troubled layperson how to solve a legal problem ó is of limited utility where there exist complex interrelationships between legal considerations and educational ones.

The sections that follow explore in greater depth both these trends and their implications for educator-lawyer interaction. They suggest that effective collaboration should be more regular, more egalitarian, and more preventive in its orientation. Also, collaboration should rest on the recognition that lawyers and educators ó and, often, researchers and parents ó possess specialized knowledge and expertise that are indispensable to the wise resolution of legal questions that arise in schools.

Why Collaboration Matters: The Educational Stakes

The proliferation of education law, the convergence of legal and educational questions, and the law's broad impact on central aspects of teaching, learning, and school leadership all make effective educator-lawyer collaboration more important than in the past.

In the last generation there has been a dramatic increase in the number and variety of legal issues that affect public education: "If one went back to the early 1950s [much less the 1890s], one would find less litigiousness than today, less prescriptive legislation concerning rights and programs, fewer and less complex federal and state regulations, and more deference by government officials to educational leaders" (Tyack et al., 1987, p. 196).

The procession of new court decisions, statutes, and regulations continues,3 and with bipartisan support.4 Indeed, two decades of education reform have spawned countless new legal obligations, arrangements, and entities. Charter schools, voucher programs, site-based management plans, new systems of assessment and accountability, and other efforts to deregulate schooling are among the recent reforms that raise novel and complex legal questions for educators and their lawyers (Heubert, 1997). Moreover, they merely add to the list of older, still evolving, issues such as desegregation, services for immigrant children, special education, and school-finance reform (Heubert, forthcoming). Even lawyers who work full time in the education field (which, as noted above, most school board attorneys do not) find it hard to keep current.

As noted earlier, there has been a significant increase in the number of school law matters in which legal standards and educational norms are converging. Where disputes hinge on judgments that are at least as much educational as legal, it is unwise, and perhaps impossible, for educators and their lawyers to do their jobs without close, ongoing collaboration.

In school-finance cases, for example, the traditional litigation strategy was a quintessentially legal one (McUsic, forthcoming) in which plaintiffs established legal liability by demonstrating significant interdistrict funding disparities within a state. The proposed remedy was usually equalization of per-pupil expenditures. Theoretically if not politically, liability and remedy could be determined through a few simple arithmetic calculations. Educational questions ó such as whether the statewide per-pupil average was sufficient to educate any child properly, whether it made sense to assume that each child would cost the same to educate, whether any new funding would actually be applied so as to improve teaching and learning (Murnane, 1994), or whether improved student performance depended upon changes in school governance ó were simply not part of the initial equation.

This is no longer true, especially where the parties must define an "adequate" education and explain what services schools will need to provide if each child is to obtain one; such cases require sophisticated collaboration between educators, lawyers, researchers, parents, and state-level policymakers. In a number of states, collaboration on issues such as these has transformed school-finance cases into ambitious statewide school reform efforts.5 Moreover, a number of federal education statutes now mandate such collaboration (Weckstein, forthcoming).

The convergence of law and education is especially evident in special education. Federal disability laws were first enacted in response to categorical exclusion of students with disabilities from public schooling. The remedies entailed ending such exclusion, and actually finding and enrolling as many disabled students as possible. Thereafter, lawyers often focused on whether schools were complying with the many specific timelines and procedural requirements that federal regulations imposed. These are the types of questions many lawyers and judges are well equipped to handle.

Today, however, special education disputes focus more typically on such questions as what strategies classroom teachers are employing to avoid identifying too many children as disabled, or on the pedagogical issues of where, what, and how a child with disabilities is actually being taught (Heubert, 1997). These are educational questions that no law school equips a lawyer to answer (Bok, 1983; Schuck, 1993). Answers usually emerge from conversations between educators, experts, parents, and advocates. When parents and educators disagree, their disputes are usually resolved on the basis of evidence that is largely educational in nature.

Moreover, in some areas of education law the convergence is virtually complete. Law and education are not only intertwined, they are inseparable. The legal standards actually embody educational norms.

Under federal civil rights regulations, for example, an educational policy or practice that has a disproportionate impact by sex, race, or national origin is permissible only if educators can show that the policy or practice is educationally necessary. Even if they can, the plaintiffs can still prevail by showing that there exist equally feasible alternatives that have less disproportionate impact.6 This standard governs a variety of common situations, including (a) ability-grouping plans in which minority students are assigned disproportionately to low-track classes, and (b) standardized tests that disproportionately disadvantage minority students or women (Heubert, 1982).

It is the rare educator who can quote the elements of this legal test; usually it takes a lawyer to determine what legal standard would apply to a situation arising in school. By the same token, however, it is the rare lawyer who knows why it is "educationally necessary" to use a particular test for a particular purpose, or whether the use of an alternative test, having less disproportionate impact by gender or race, would be "feasible." In other words, once the lawyer provides the applicable standard, an educator must help determine whether the school's test program meets the educational criteria on which the legal standard is based.

Similarly, under a federal statute protecting limited-English-proficient children, the legal adequacy of educational programs is determined under legal standards that rely on educational criteria: 1) whether the programs for such children are based on a sound educational philosophy; 2) whether the state and school district provide resources sufficient to ensure proper program implementation; and 3) whether the program actually enables students to overcome language barriers that impede their educational progress (Equal Educational Opportunities Act, 1972; see also Heubert, 1988).

As the italicized passages also illustrate, in these areas of the law ó and others that are beyond the scope of this article ó what is legal and what is educationally sound are inseparable. Where this is the case, it is hard to see how educators and lawyers can do their work independently.

Partly due to a result of the proliferation and convergence described above, legal mandates and disputes significantly affect school leadership, teaching, learning, school discipline, allocation of scarce financial and other resources, and school reform. Ongoing educator-lawyer collaboration is therefore essential.

Governance. Law defines the basic authority and discretion of education agencies and school leaders. Many state legislatures, hoping to improve student achievement, have already altered or reallocated the traditional powers and responsibilities of state education departments, school boards, and school-based authorities. Education leaders should be aware of these legal developments, not only because their own jobs are affected, but also because governance decisions can affect student learning.

Lawsuits, particularly class actions, can also lead to court orders and consent decrees that explicitly or implicitly alter existing governance arrangements and power balances in important ways, leaving superintendents and principals with diminished authority for years and giving plaintiffs enhanced leverage over school district policy and behavior (Hogan, 1985; Horowitz, 1977; Kirp & Jensen, 1986; Rebell & Block, 1982). As discussed more fully below, close collaboration between educators and their lawyers can help prevent lawsuits or influence remedies that would otherwise reduce the authority and flexibility of school leaders.

Educational authority and discretion. An educational leader who wishes to make optimal use of authority and discretion must know where the law ends and discretion begins. As noted above (and for reasons discussed below), however, many educators are not knowledgeable about school law. As a result, some educators unknowingly exceed their authority and others unknowingly fail to exercise their authority fully. To find out what the law requires or forbids and what decisions are not legal ones, school boards and administrators often need to consult with lawyers.

Understanding the law can also help education leaders exercise wisely the authority and discretion they do possess. Where legal mandates affect central aspects of education, there often exists a need to balance and complement legal considerations with nonlegal ones. Just as attorneys are generally better trained than educators to assess what the law requires or forbids, educators are usually better equipped than lawyers to address the many nonlegal questions ó educational, administrative, political, financial, and ethical ó that legal disputes typically raise but do not resolve. For example, most lawyers know that it is illegal for schools to exclude all students who are HIV positive, but typically educators know more than lawyers about how to create a school climate in which such an individual gets support rather than ostracism.

Protecting and advancing school objectives. Though many educators and lawyers see the use of law as primarily defensive ó reacting to litigation when sued ó they can also use lawsuits and legal mandates to advance educational objectives. For example:

Controlling allocation of scarce educational resources. Yet another reason for educators and lawyers to work together effectively is to avoid being sued, or at least to "position the district favorably with respect to the facts of a dispute" (Meloy, 1992, p. 4). While litigation has produced important educational improvements, "a great deal of education litigation is unnecessary and preventable" (McClung, 1981, p. 37). Responding to lawsuits is only occasionally the most effective or efficient way in which educators can apply their expertise to improve teaching and learning (Hawkins, 1985). Litigation often frustrates educational leadership and innovation by draining resources that schools could otherwise use to advance educational objectives. And even a single lawsuit can be costly in several ways.

The most obvious costs are financial. Depending on the amount in controversy, a school district that has been sued successfully may have to provide remedies that cost millions of dollars. Moreover, in civil rights cases, a district that loses will have to pay for both sides' attorneys. Even a defendant school district that prevails in the end may spend large sums on attorney's fees and other litigation costs, which is why defendants sometimes settle cases that they would probably win in court. And while most school boards and many employees carry insurance, policies are costly and do not cover every situation. Moreover, litigation expenses typically come from a school district's general operating budget, in part because federal funds and most state funds may not legally be used for such purposes. Ironically, the likelihood of litigation is greatest when competition over scarce educational resources is intense, and that is also the time when schools can least afford the financial drain of litigation. Court cases do not always end with one-time exchanges of money. Additional costs of litigation include the expenditures a district must make to comply with the requirements of court orders and/or consent decrees. Such orders can remain in effect for years and affect governance as well as district finances.

Yet another cost of litigation, rarely reduced to dollar terms, is the loss of staff time (Imber & Thompson, 1991). As one special education director lamented when she learned that her program was about to be sued, "They can't sue me ó I haven't got the time!" Collecting documents, responding to detailed requests for information, preparing for interviews or trial testimony, meeting with attorneys and outside experts to discuss the issues and plan strategy ó all these require major investments of staff time. And since employees rarely receive extra compensation for the time they spend on lawsuits, litigation almost always takes time that would otherwise be devoted to teaching and other activities that promote student learning.

A third cost is the psychological toll on school staff (Imber & Thompson, 1991). Most people dislike being sued, and litigation is particularly troubling for educators, many of whom already consider themselves overworked, underpaid, and under-appreciated. Those who file lawsuits often seek to cast doubt on school employees' competence and character. Not surprisingly, able educators have left their jobs and the profession as a result of lawsuits against them. Ultimately, of course, it is students who pay the price for low staff morale and the loss of good teachers.

Fourth, litigation often exacts a price in divisiveness. Many educators work hard to create a sense of trust and community, within their schools and beyond. Lawsuits, however, frequently pit one segment of the community against another. They can polarize people on the basis of such characteristics as income, gender, race, ethnicity, and religion, and create a climate in which learning suffers.

Finally, school leaders' authority can be diminished if they lose lawsuits with any regularity. Citizens may conclude that school board members or administrators are ill-informed or that they are wasting money on litigation. The result, warranted or not, can be reduced public support for education leaders or for the public schools generally.

School reform. Legal obstacles, large and small, can impede school reform. For example, "some educational reformers express skepticism about whether local school districts can play an instructive role in school improvement" (Elmore, 1996, p. 36). Here the problem and potential solutions are both law related, since school districts are entities that state statutes create and empower. Similarly, some researchers have concluded that improving conditions for teacher learning and collaboration will require waivers of legal requirements and changes in funding formulas (Darling-Hammond & McLaughlin, 1995). Educators and lawyers will have to work out these problems together.

Whenever a new program, arrangement, or type of school is created, questions arise about whether and how preexisting laws will apply. For example, if school districts create "newcomer schools" to help new immigrants make smooth transitions to school, how can those districts minimize segregation based on race or national origin (Suarez-Orozco, Roos, & Suarez-Orozco, forthcoming)? Similarly, reforms seeking to deregulate public education present a common question: how to reconcile the objectives of deregulation, which enjoy broad support, with regulatory frameworks that themselves reflect fundamental and widely held educational and political values (Heubert, 1997). For example:

Deregulation efforts are further complicated by the tendency of lawyers and judges to focus on the kinds of procedure and regulatory detail that schools now seek to escape through deregulation (Howard, 1994; Kirp & Jensen, 1986; Yudof, 1981).

Educators will need to consult lawyers ó as well as parents and policymakers ó in deciding how to balance increased educational autonomy with the values that existing regulatory schemes reflect and embody. They will also need to help lawyers ó and courts ó find alternatives to the legal proceduralism and detail that deregulation aims to minimize.

What Effective Collaboration Requires

Collaboration between educators and their lawyers can take many forms. This section argues that educator-lawyer collaboration is most effective when it is early and often, ongoing and in-depth. Such collaboration may seem inefficient, however. If lawyers understand the law and educators the educational issues, it may seem simplest in most circumstances to have lawyers address the legal questions and educators handle the policy or administrative issues. In fact, such a division of labor ó "you do your job and I'll do mine" ó enjoys some support in the literature (Butler, 1989; Davis, 1974; Rissman, 1981; White, 1981).

For several reasons, however, it is problematic for lawyers and educators to do their work largely independent of one another. Many educators lack the legal knowledge it takes to recognize potential legal problems before they evolve into actual legal crises. Regular conversations between school officials and their lawyers will often promote earlier diagnosis and resolution.

For educators to be unaware of what the law allows can also be a serious problem, for it can discourage risk-taking, innovation, and the exercise of strong educational leadership. For example, current federal law makes it easier than in the past to serve low-achieving disadvantaged children in regular classroom settings (Weckstein, forthcoming). Many educators are unaware of these changes, however, and continue to serve such children through "pull-out" programs that many teachers and researchers criticize. Ironically, some educators who do know of the new rules, rather than welcoming the increased educational discretion, have reacted in fear; as one article put it, "Title I Provisions Designed to Promote Local Flexibility Spur Anxiety" (Pitsch, 1996). In these and other situations, misperceptions and unwarranted fear of the law can deter educators from doing what they know to be best for young people.

There is another reason why educators and lawyers often cannot do their work independently. Just as many educators do not appreciate the legal dimensions of things that occur in school, most lawyers simply do not appreciate the ways, often subtle, in which a legal dispute can affect central aspects of a school's operation. That is not what law schools train their students to do. Lawyers are therefore likelier than educators to define an issue as legal and to miss its educational dimensions, which may be as important as (or more important than) its legal aspects. In court, this can be fatal, and unnecessarily so:

It is only through collaboration that educators and lawyers can decide to what extent a problem or issue is educational, legal, or both, and how to balance potentially competing legal and educational considerations.

Poor collaboration can also have serious consequences in the policy formation process. In one metropolitan area, for example, school districts responded to a state mandate by adopting policies and procedures on sexual harassment of staff and students. Some districts asked their attorneys to develop the policies, while others convened teams of educators, parents, students, and legal counsel to do the job.

The policies that lawyers produced on their own were quite different from the ones that educators, parents, students, and lawyers developed collaboratively. The latter, for example, were generally written in simpler prose. Most strikingly, they placed greater emphasis on strategies for preventing harassment through such educational means as new curriculum, improved pedagogy, school assemblies, and staff development. Ultimately, the policies produced collaboratively probably did more to 1) educate students and staff on an important issue, 2) create a school climate conducive to learning, 3) prevent harmful behavior, 4) avoid the litigation to which such behavior could lead, and 5) reduce the likelihood that anyone would need to invoke elaborate, time-consuming procedures. This is not to criticize the lawyers who worked on their own ó they did well what they had been trained to do ó but to point out that there are many important things lawyers are simply not trained to do. Attorneys who make decisions and develop policy with educators are more likely to be "sensitive to the total . . . institutional context in which the client is raising the problem and to the basic motivations that may be involved" (Bednar, 1991, p. 8).

In practice, it is not uncommon for board lawyers to see a policy only after school officials have drafted it, at which point the only question that remains is whether the policy is legal. "But in some situations the lawyer can be more helpful . . . by going beyond substantive review of proposed policy and helping policymakers develop policies and procedures that better achieve their policy objectives and at the same time secure the rights of students and other participants in the education process" (McClung, 1981, p. 42). In addition, early attorney involvement saves educators time by raising possible legal problems before educators, parents, students, and others have invested considerable time in the development of a draft policy.

There is another justification for ongoing, in-depth collaboration. Evidence suggests that when litigation does arise, a high degree of client involvement can reduce legal costs. As Kritzer, Felstiner, Sarat, and Trubek (1985) point out:

In summary, in-depth collaboration between educators and their lawyers enables them to advance important educational objectives and to address actual and potential disputes with a minimum of litigation.

Effective collaboration does not occur by accident, any more than successful litigation does. It requires specific knowledge, attitudes, and skills, as well as an awareness of how structural considerations ó such as fees and other aspects of the educator-lawyer relationship ó can impede or support collaboration.

Preventive law and alternative dispute resolution. From the outset, it is important for educators and lawyers to understand the objectives, advantages, and limitations of litigation and nonlitigation approaches for addressing potential and actual disputes. As its name implies, a central objective of preventive law is to avoid litigation and its costs: "The basic premise of preventive law is that the legal profession can better serve clients by focusing on appropriate consultation and planning rather than looking to litigation as the solution to all legal problems" (Zirkel, 1985, p. 9, quoting Preventive Law Reporter, 1982; see also Shafton, 1981, 1995).

Preventive law is also intended to help a client identify and advance central objectives. According to a leading scholar on preventive law, Denver University Law School dean Edward Dauer, "What preventive law means is simply the counselling of clients on matters that are not the subjects of current disputes, in ways that maximize their personal ambitions while minimizing the risk that those ambitions will be confounded by legal problems in the future" (Dauer, 1990, p. 25). Similarly, the National Center for Preventive Law defines preventive law as "a field principally of law practice devoted to minimizing the risks of legal disruption in the affairs of businesses and individuals, and to maximizing the attainment of their goals through the enhancement of their legal rights . . ." (Bednar, 1991, p. 7). It is disappointing that educators and their lawyers, for reasons discussed below, do not routinely make use of this widely recognized technique for preventing litigation and advancing central policy objectives.

Alternative dispute resolution (ADR) also offers promising alternatives to litigation ó if and when legal disputes actually arise. As a leading text on negotiation (Goldberg, Sander, & Rogers, 1992) puts it, ADR combines elements of three related processes ó negotiation, mediation, and adjudication ó in a rich variety of "hybrid" dispute resolution processes:

One advantage of ADR over litigation is that participants retain greater control of the process and autonomy in problem-solving. Another is that such methods are more conducive to win-win solutions: ". . . with a very narrow set of exceptions, this sort of useful win-win outcome cannot ever be attained by actually going to court" (Dauer, 1990, p. 22).

As both researchers and clients have found, ADR can also significantly reduce the costs of litigation. Kritzer et al. (1985) note that "party interaction is the single most important determinant of lawyer time investment. . . . One reading of our results is that relatively little in the way of cost reduction will be achieved unless something can be done to modify . . . the `adversary culture'" (p. 594; see also Kritzer, Sarat, Trubek, Bumiller, & McNichol, 1984; Trubek, Sarat, Felstiner, Kritzer, & Grossman, 1983).

Finally, as Dauer (1990) points out, "There isn't any question that these ADR techniques work. Some lawyers do use them, and the survey research suggests that the satisfaction level of the party participants is sometimes significantly higher than it is in the standard litigation (not to mention the savings in time and money)" (p. 22).

This is not to say that ADR is always preferable to litigation as a dispute resolution mechanism. Litigation can yield better solutions in some cases, especially those involving the rights of politically and socioeconomically disadvantaged groups, in which the presence of a judge can help correct power imbalances. Dauer (1990) agrees: "Not every case is fit for ADR. Some really do need the advantages of the courtroom, but others clearly do not. . . . Each is better for some kinds of problems . . ." (p. 22).

The literature on preventive law, ADR, and interprofessional collaboration provides useful insights on the attitudes and knowledge that make for effective collaboration between educators, lawyers, and other interested participants. One important attitude is a willingness to collaborate as equals. This calls upon educators and lawyers to respect one another as individuals and professionals and to avoid the hierarchical relationships that frequently exist between lawyers and their clients. Not every lawyer or educator will feel comfortable with such a relationship. An appreciation for the value of open, easy, ongoing communication between educators and lawyers also enhances collaboration: "Nothing is more essential to the success of a preventive law program than candid, complete, and timely communication between lawyer and client . . ." (Bednar, 1984, p. 11). Open communication with others ó researchers, parents, students, and community members ó is also important (Hawkins, 1992).

Collaboration is improved if participants are aware that each profession has critical knowledge and skills that the other profession lacks. Moreover, each professional must be aware of what the other professional does not know (Goldstein, Freud, & Solnit, 1979). Most of the legal literature focuses on how lawyers can educate clients, but it is equally important for educators to show lawyers how legal factors interact with important educational priorities. This is not to say that educators should become lawyers or vice versa. Each has a different role to play. But each can play that role more effectively once it is clear how legal and nonlegal considerations interact in a particular context.

It is also helpful to set aside limiting preconceptions about the roles that educators and lawyers are capable of playing. Many lawyers, for example, do not realize that nonlawyers can often learn important legal principles far more quickly and less painfully than they themselves did as law students. Similarly, many educators do not recognize the full range of roles that lawyers can play:

The forms of collaboration described above encompass some of the most important techniques for addressing potential or actual legal disputes without litigation. One other deserves special mention. There is an analogy in preventive law to the periodic checkup that physicians give their patients to treat problems and promote health. The legal version is called a risk audit (Frierson, 1991; Shafton, 1988) and has several basic components:

Structural arrangements and political factors that affect collaboration. There are many ways in which educators and lawyers can structure their working relationships, and the choices they make can support or impede effective collaboration. Political factors ó such as whether school boards choose their own attorneys, and on a merit basis ó can also affect collaboration for better or worse. Educators and lawyers who wish to embrace a collaborative, preventive-law model should be aware of these considerations as they define their work relationships.

One structural issue concerns fee arrangements. Those who retain attorneys usually pay them using one of the following:

Many clients, including school boards, use more than one of these arrangements.

For several reasons, some fee arrangements may promote collaboration and prevention more effectively than others. First, school boards are likelier to make frequent use of attorneys if legal fees are more affordable. That legal fees can be costly is beyond dispute: the Commerce Department has estimated that legal fees constitute 1-2 percent of GNP ($23.4 billion in 1981, and doubtless far higher today) ("Fat fees," 1981), and lawyers' fees usually constitute a substantial portion of all out-of-pocket litigation costs (Kritzer et al., 1985). And while some in-house counsel lack extensive courtroom experience, it is nonetheless significant that in-house counsel typically costs far less ó often only half as much ó as private law firms retained on a fee-for-service basis ("A new corporate powerhouse," 1984). Prepaid legal service plans, like prepaid health-care plans, would also probably encourage more frequent use of attorneys, since the fee is the same no matter how often the client consults the attorney, as well as a greater emphasis on education and prevention.

Second, studies of attorneys who work for large corporations suggest that in-house counsel are far likelier than outside attorneys to focus on issues of client education and preventive law (Chayes & Chayes, 1985). A major empirical study concludes that in-house corporate counsel are far likelier to assist their clients with strategic and informal planning, preventive law, and employee programs to help ensure legal compliance:

"[T]he rapid growth in both importance and size of in-house . . . counsel" (Chayes & Chayes, 1985, p. 277), which has been widely recognized, demonstrates the value that major corporations place on involving lawyers in planning, prevention, and legal education efforts. Moreover, it is a broad role, not limited to strictly legal questions, interactions with senior corporate officials, or isolated facets of a company's operation.

While not without their problems, in-house counsel have an "inherent advantage . . . : the relationship and knowledge the corporate counsel gains through day-to-day contact with the client" (Krebs, 1994, pp. 66ñ67):

Roughly 11 percent of U.S. school boards (Herbert, 1991, p. 51), usually the largest ones, have in-house counsel: one or more lawyers who are salaried employees and usually work full-time for the board. Their offices are typically located near those of central administrators, and they are available full-time for consultation, planning, and training of school staff. Because of their ready availability, their specialized knowledge of a district's priorities, policies, personnel, and community, and the fact that their salaries remain constant no matter how often school staff seek their advice, in-house counsel often can provide advice at lower cost on a wider range of legal and law-related issues. Ongoing involvement helps them anticipate and prevent lawsuits, train school staff on how to avoid potential legal problems, and help educators think through how the law can be used to advance key policy objectives. There is no reason, moreover, why several smaller school districts could not pool their resources to hire one or more salaried in-house lawyers, whose services the districts could share.

Each fee arrangement has different advantages and drawbacks, and this article does not argue that any single approach is ideal. For instance, even an in-house attorney who understands a school board's educational objectives may be well advised to apply that expertise to the legal issues where such specialized expertise matters most, leaving to outside attorneys legal problems (such as a leaky roof or a dispute with a contractor) that any competent general practitioner could handle (M. Gerry, personal communication, November 1996).

There is plainly a need for more research into how fee arrangements affect the type and quality of legal services. In legal scholarship, research on corporations should be expanded to cover school boards. Similarly, studies of fee arrangements, prevention, and client education are far more advanced in the health fields than in law, perhaps because third-party insurers have greater leverage over doctors and hospitals than anyone has over lawyers. Where relevant, further legal research can draw on scholarship in medicine and public health (Balint, 1996; Kanzer, 1975; Last, 1992; Levin, 1988; Wexler & Winick, 1991).

A second structural issue concerns defining the lawyer's role. This article argues that important educational benefits flow from a definition of that role broad enough to encompass long- and short-term planning, policymaking, legal risk assessment and other preventive law measures, as well as ongoing education of school employees. As Chayes and Chayes (1985) note above, in-house counsel already play these roles, but lawyers working under different fee arrangements can do so as well.

There are also political considerations that bear on prospects for effective educator-lawyer collaboration. For example, even school boards that believe in ongoing educator-lawyer collaboration are often subject to the control of other governmental entities that pay for school board legal services or that must approve school board budgets. In such situations, effective collaboration will depend on whether those entities are prepared both to recognize the value of collaboration and preventive law and to provide support for legal fees even before legal crises are at hand. Similarly, a school board is likelier to find an attorney who meets its needs if it is the board that has legal authority to hire its attorney, and if the school board attorney is selected based on merit and expertise rather than political connections.

In sum, structural and political considerations can promote or undermine regular, in-depth collaboration between educators and their lawyers. More generally, such collaboration is both important and capable of implementation. For reasons discussed in the next section, however, there are many factors that impede effective collaboration between educators and their lawyers.

Obstacles to Effective Collaboration

If educators and lawyers collaborated in the ways described above, as corporations and their lawyers increasingly do, it would probably lead to increased respect for the rights of others, more effective educational leadership, and better use of the limited financial resources available to educators. As noted previously, however, it appears from the education-law literature that such forms of collaboration are not common in education. Given their commonsense appeal, why is this the case?

Some obstacles, it turns out, are matters of limited knowledge and communication skills: If lawyers are to inform educators about their schools' legal obligations, for example, lawyers should be familiar not only with the wide range of school law issues, but also with how to communicate what they know to educators. Similarly, if lawyers and educational policymakers are to evaluate jointly how legal developments could advance or hinder attainment of the schools' educational goals, each should know (or be prepared to learn) enough about the other's domain to make productive conversation possible. If there is to be a continuing focus on preventive law, alternative forms of dispute resolution, and interprofessional collaboration, educators and lawyers must be aware of the benefits of each and must possess the knowledge and skills each requires.

Other obstacles are the product of attitudes and limiting assumptions some lawyers and educators make about themselves, one another, and their professions. If school boards and superintendents believe that lawyers should not be part of policy discussions, for example, lawyers will probably not have much occasion to offer advice on how the law could be used to protect and advance educational objectives. Meaningful collaboration will also be difficult if lawyers wish to retain a monopoly on legal knowledge or if educators show little interest in legal matters.

Finally, there are structural obstacles that have less to do with educators and lawyers themselves than with financial, organizational, or political factors over which they may have less control. For example, some fee arrangements are more compatible than others with the practice of preventive law. Preventive law will also be difficult if school officials cannot justify incurring legal expenses until the district has been threatened with an actual lawsuit.

Law-Related Obstacles

Lawyers get their professional knowledge and skills from many sources, including law school, legal practice, and "continuing legal education." And while each provides lawyers with different kinds of learning experiences (Garth & Martin, 1993), research suggests that most lawyers do not obtain the knowledge and skills they need to collaborate effectively with educators (Lederman & Levenson, 1987).

Law school and legal practice are apparently successful in training students to "think like a lawyer" ó that is, to develop powers of analytic reasoning and thinking (Bok, 1983; Howland & Lindberg, 1994; Van Alstyne, Julin, & Barnett, 1990). Law schools also seem to be effective in helping students learn substantive law and acquire legal research skills, and many lawyers acquire litigation and negotiation skills while in practice (Garth & Martin, 1993).

Nonetheless, scholars and practitioners alike have identified knowledge gaps and attitudes among lawyers that impede effective collaboration. Among the concerns raised in the literature are that:

Though it is beyond the scope of this article to do so in depth, each of these concerns is discussed below.

"The most important work that lawyers do for society is to communicate the law and its application to nonlawyers, so that nonlawyers can make informed decisions" (Jacquish & Ware, 1993, p. 1715). Not surprisingly, therefore, a survey of hiring partners at Chicago law firms revealed that such firms look for new attorneys who possess good communication skills and the capacity to work well with clients (Garth & Martin, 1993).

There is significant evidence, however, that many lawyers possess poor communication and client skills. For example, the Chicago study (Garth & Martin, 1993) reports that law students do not think law schools do a good job of teaching such skills, and the students are not alone in this view. The MacCrate Report, prepared by the American Bar Association Task Force on Law Schools and the Profession, supports this conclusion, faulting law schools and bar programs for failing "to provide the competence training required by new lawyers," including "investigation, communication [and] negotiation" skills (Howland & Lindberg, 1994, p. 48). Similarly, Austin Sarat (1991), an authority on the legal profession, writes that:

Some lawyers acquire such skills while in practice (Garth & Martin, 1993), but there is evidence that many do not. The result is "a deficiency in lawyers' abilities to communicate the results of their legal analyses, which interferes with their fundamental role of advising clients" (Jacquish & Ware, 1993, p. 1715). "The [lawyer's] poor communication skills . . . frustrate comprehension. Attorneys . . . may not explain legal concepts coherently to lay persons" (Strauss, 1987, p. 345). Poor communication skills hinder an attorney whenever the task is to inform or persuade a lay audience ó a client, a jury, or even an in-law.

If words are a lawyer's tools and the lawyer's most important task is "to communicate the law and its applications to nonlawyers," how is it that lawyers, scholars, and lay people alike see serious problems in the capacity of many lawyers to communicate with their clients, and that lawyers are so often criticized for speaking in legalese rather than plain English? The literature identifies several possible reasons, not mutually exclusive.

One may be the traditional law school focus on legal analysis of appellate court decisions. Only rarely do appellate cases ó cases decided after one or more parties have appealed a lower court decision ó turn on legal issues concerning the lawyer-client relationship. Morever, the customary emphasis on legal argumentation and rules tends to "[sever] clients from the social world that gave rise to their case [and instead place them] in a world defined by . . . legal categories and concepts" (Shalleck, 1993, p. 1733; see also Krantz, in "Proceedings of the first annual conference on law," 1988, p. 459). Students rarely discuss the meaning of legal arguments to a particular client; "[there is no] sense that, in deciding how to choose and frame legal arguments, the attorney might need to confer with the clients to understand better their goals in a case, their vision about justice or fairness, or their perception about the role of law and the legal system" (Shalleck, 1993, pp. 1735ñ1737). As Richard Wasserstrom (1975) puts it, "[A]t best the client is viewed . . . not as a whole person but as a segment or aspect of a person ó an interesting kidney problem, a routine marijuana possession case, or another adolescent with an identity crisis" (p. 21).

More generally, legal education places greater emphasis on how courts behave than on what takes place when lawyers and their clients interact. Erwin Griswold acknowledged early in his twenty-year stint as dean of Harvard Law School that legal education would be stronger if law schools made more frequent and effective use of "materials relating to matters which happen in law offices" (Griswold, 1951, cited in Brown, 1995, p. 8; see also Widiss, in "Proceedings," 1988, p. 476). As noted earlier, this emphasis in legal education reflects a similar focus in education-law research on the behavior of courts; scholarship on how educators and lawyers interact is sparse and appears principally in unpublished doctoral dissertations.

That law professors stress appellate decisions and learning how to "think like a lawyer" need not preclude teaching law students practical skills for dealing with clients as well, any more than employing legal terminology where appropriate is inconsistent with the use of plain English when communicating with nonlawyers. There is certainly no shortage of instructional time; in fact, many law professors think that law schools could complete their work in two years rather than three (Posner, 1995).

The obstacle may partly be one of limited knowledge on the part of the professors who determine curriculum and pedagogy. Faculty members are selected primarily on the basis of their own academic performance in law school, and often have limited experience working with clients (Krantz, in "Proceedings," 1988, p. 460). As a result, some may not realize that good communication between lawyers and their clients often does not come easily, that language used among lawyers may be confusing and off-putting for clients, or that careful training can enhance a professional's communication skills significantly. Strauss cites the results of numerous studies on medical students: "[A]ll suggest that intensive training in physician-patient communication results in behavioral change among physicians. . . . [A]ll suggest that communications skills can be taught to students in medical school . . ." (1987, pp. 345ñ346). In this sense, legal education lags behind medical training by a decade or more (Littlefield, in "Proceedings," 1988, p. 468).

The attitudes and beliefs of law professors are also germane. Most law schools offer clinical courses in which law students can learn to deal with clients (Gee & Jackson, 1982; Moliterno & Lederer, 1991), but the second-class status of most clinical programs and instructors, coupled with the theoretical focus of most legal scholarship, conveys clear messages to students: that law professors do not attach much value to what students learn in clinical courses and/or that practical lawyering skills should be acquired after law school, on the job (Krantz, in "Proceedings," 1988, p. 462). According to Dean Dauer, one law professor was heard telling another, "Well, it may work in practice, but it'll never work in theory!" (Dauer, in "Proceedings," p. 478).

The assumptions that lawyers and clients bring to their interactions also affect communication. A traditional view of attorney-client relations is that clients should establish their objectives and that attorneys should determine the means by which those objectives can be achieved. Some scholars and practitioners claim, however, that attorneys can be arrogant in their dealings with clients, that they substitute their own agendas for those of their clients (Rosenthal, 1974; Trotter, 1990), or that they encourage client passivity by simply presenting their legal recommendations and urging clients to accept them (Dinerstein, 1990). As was once true of physicians, some lawyers may prefer a traditional model in which the trained expert does not reveal much to the client:

Such behavior, when it occurs, can hardly promote good attorney-client communication; on the contrary, research suggests that "clients who actively participate get significantly better results than those who delegate [too much authority to their attorneys]" (Strauss, 1987, p. 339, n. 106; see also Kritzer et al., 1985) ó a strong argument for the kind of collaboration that occurs too infrequently.

Power imbalances between attorney and client may also interfere with open communication:

Other commentators, however, argue that attorney-client power relations are neither so simple nor so asymmetrical (Felstiner & Sarat, 1992), and call for further empirical research: "Despite the importance of the discourse between lawyers and their clients, we know very little about what actually goes on in the lawyer's office" (Sarat, 1991, p. 46).

Despite the need for more research, there is an impressive body of literature showing both that many lawyers ó including, presumably, some who advise educators ó need to be able to communicate more effectively with their clients and that formal training, during and after law school, would be one promising way of addressing this deficit.

To collaborate effectively, lawyers need to know not only how to communicate, but also what to share with clients. What substantive information do lawyers need to communicate? To what extent do they possess the necessary legal and other knowledge?

 

Legal knowledge. Educators look to lawyers first and foremost for legal information, and here the school district lawyer has a heavy burden. As noted previously, the list of legal problems that school districts face is a long one. The law keeps changing, and the legal issues increasingly involve questions both of education and of law. Moreover, if a district hopes to avoid litigation, it is not enough for the lawyer to know how to handle legal disputes that have already arisen; lawyers need a sufficiently clear sense of potential legal issues to anticipate problems and head them off. Thus defined, the role of the school board lawyer is one that requires specialized, interdisciplinary expertise.

Recent scholarship bears this out. Herbert Kritzer (1995), who studied the effectiveness of legal representation in certain administrative proceedings, concluded that advocates with specialized legal knowledge ó whether lawyers or non-attorney advocates ó produced significantly better outcomes for their clients than did attorneys who lacked substantial specific expertise in the relevant area of law. Experienced practitioners (who may be less objective on this point) agree; according to the general counsel to the Ohio School Boards Association, for example, school law is so specialized that "the general practitioner . . . will have limited, if any, experience in school law"; he recommends that a school board retain an attorney "who most probably has encountered your particular issue on several prior occasions" (Baker, 1991, pp. 4ñ5).

In the legal profession at large, however, there is evidence that many practicing attorneys do not recognize the strong relationship between specialized legal knowledge and effective representation. This may be due, in part, to the widespread emphasis on general legal education:

One of the most striking aspects of [this research] was the apparent belief by many attorneys that they could walk into an unfamiliar, highly specialized setting and apply their general knowledge to that setting. The idea that perhaps standard civil procedure might not apply in a [state administrative] hearing had never occurred to some of these lawyers. This pattern probably reflects . . . the nature of legal education, which emphasizes general skills and knowledge rather than how that general background is a foundation for specialization. (Kritzer, 1995, p. 23)

To what extent do lawyers who identify themselves as "school attorneys" possess special expertise in school law? There is not much information on this question, and the available data raise questions that merit further study.

On one hand, several local surveys suggest that most educators believe their attorneys to be knowledgeable about school law. In one Texas survey, for example, 98 percent of superintendents who responded rated their attorneys as "fairly knowledgeable" or "very knowledgeable" about school law (Zollars, 1986).

For several reasons, however, such statistics on client satisfaction are of limited value. First, it is not clear how these superintendents could gauge accurately the legal knowledge of their attorneys; a problem not unique to educators is that people seek professional advice precisely because they themselves do not possess the knowledge in question. In this survey, moreover, the superintendents' own understanding of the law almost certainly had been influenced by the very lawyers whose knowledge the superintendents had been asked to assess. Second, it is not clear how strong an endorsement it is to say that a professional is "fairly knowledgeable" in his or her own field. In sum, these results are interesting and reassuring are far as they go, but more information is needed.

In terms of university-based training, a national survey of school attorneys showed that only 16.2 percent of the respondents had taken a school law course at a law school or education school (Rehak, 1986, p. 50). The proportions who reported having taken school law seminars run by bar associations (43 percent) and other associations (61.7 percent) were higher, but little is known about the content or quality of the courses and seminars. Moreover, the figures suggest that many school lawyers have had little or no formal training in education law, even after having entered this specialized field.8

Further, many districts rely for legal advice on attorneys who spend most of their time working in fields other than education. In the national survey mentioned above, only 14.9 percent of the school board attorneys who responded said they practiced school law full time. For attorneys representing school districts with fewer than 2,500 students, the mean proportion of time spent on school law issues was 14 percent, and for all school board attorneys completing the survey, the mean was 42 percent of their time (Rehak, 1986, pp. 57ñ58). Other studies support the view that school attorneys spend relatively small portions of their time on school district matters: in Indiana, 10.3 hours per month (Lupato, 1973) and in Mississippi, 25 percent of their time (Jones, 1978). And in a national survey of school districts, some 7 percent of responding districts reported that attorneys from the offices of a district attorney or attorney general constituted their "primary source" of legal services (Herbert, 1991, p. 51); these lawyers probably devote much of their professional time to fields other than school law, and are less likely to have special expertise in school law than are attorneys who work full time on education matters (McClung, 1981). These findings support Kritzer's concern, noted above, that lawyers may not recognize the importance of adding specialized expertise to their general legal knowledge.

What can we infer from all this? First, many school attorneys, especially those who devote significant time to other fields of law, probably find it difficult to keep up with the constant new developments in law and education. Second, these attorneys probably also find it difficult to anticipate and prevent legal disputes rather than responding to problems already identified as legal in nature. Third, given the breadth and complexity of the school law field, school districts should probably try, if possible, to retain lawyers who work full time on issues of education law. Finally, there is a need for further empirical research, both on the extent to which education lawyers possess the substantive legal knowledge they need and on the adequacy of current training opportunities in school law.

Nonlegal knowledge. Attorneys do not offer legal advice in a void. In recent decades, U.S. corporations have greatly enlarged their in-house legal staffs, not only for financial reasons, but also because in-house lawyers who know the clients and know the business ó in short, possess specialized expertise ó can offer higher quality legal advice (Krebs, 1994). Robert O'Neil (1993), an attorney and former university president, argues that the same holds true for universities:

The issue, moreover, is not merely one of legal advice. In-house counsel, whether in corporations or in universities, participate actively in strategic and informal planning (Chayes & Chayes, 1985, pp. 281ñ282), work closely with senior management, and "benefit from full immersion in the range of issues facing the institution" (O'Neil, 1993, p. 336).

School districts are not universities or commercial enterprises, but they are highly complex organizations upon which society places heavy, often seemingly contradictory, responsibilities. As noted in part one, educators need help from lawyers: to exercise sound educational leadership, to protect educational initiatives from attack, to recognize the scope of their own discretion, to promote school reform, and to make optimal use of limited resources. This is true whether the lawyers are in-house, on retainer, on a fee-for-service basis, or part of prepaid legal plans. A lawyer who participates actively in the planning process, works well with educational policymakers, and understands the client's priorities, needs, and constraints can make important contributions:

At the same time, the role of counsel is not that of a board member or superintendent. Attorneys should therefore be clear whether the advice they are giving in any situation is legal, offered ex cathedra, or nonlegal.

Many lawyers lack the kinds of nonlegal knowledge that would enable them to collaborate more effectively. Some school attorneys lack sufficient knowledge about education generally, about their clients' educational priorities, and about relevant social science research. Some lack the attitudes that promote effective interprofessional collaboration. Still others do not have the knowledge and skills associated with preventive law, alternative dispute resolution, and client education.

The nonlegal context. Whatever weaknesses exist in terms of lawyers' communications skills or specialized legal expertise, they are at least as great where nonlegal knowledge is concerned. Though "the intellectual method of law itself has a certain parasitic quality ó the lawyer must immerse herself in the client's substantive concerns in order to apply her skills" (Edley, 1991, pp. 298ñ299) ó neither law schools nor education-law scholarship communicates a message that lawyers who work with educators could benefit from greater exposure to the worlds educators inhabit or to the information that matters to them.

While increasing numbers of law professors do hold graduate degrees in the social sciences, the principal consequences for legal research and education have been a greater emphasis on social-science theory and a reduced focus on legal doctrine. This shift has been the subject of considerable debate, but no one involved in the debate suggests that law students should acquire the sort of knowledge and skills that an education school would provide. Quite the contrary; in this debate the term "practical" refers to legal education that is purely doctrinal and noninterdisciplinary (Edwards, 1992), and the social science perspective, where it exists, is even more theoretical (Priest, 1993). If those are the current options, it is not surprising that even "[school] [a]ttorneys generally do not know the fields of education and educational administration" (Trotter, 1990, p. 13).

A lawyer need not become an educator, of course, but should understand the context in which school leaders make decisions, the language of education, and how and where to find additional nonlegal information as the need arises. For a school lawyer to lack such knowledge has important ramifications. First, a lawyer who is unaware of a district's educational priorities cannot set legal priorities, such as paying special attention to the legal factors that could hinder or promote the attainment of important educational objectives. Second, a lawyer who does not understand subtly what a district is trying to achieve cannot know how to help educators define or modify an educational initiative so the district meets both its educational objectives and its legal obligations (Lufler, 1980). Third, unless the lawyer understands how a proposed change would actually affect students, staff, and the community, it is difficult to predict who will raise what kinds of legal challenges. As noted earlier, these problems are particularly serious in the many areas where legal standards and educational norms are converging, where what is sound legally depends on what is sound educationally. In such situations, an attorney who neither understands the educational issues nor meets regularly with people who do cannot know what the law requires. Unfortunately, however, many lawyers get neither the training nor the opportunity to meet regularly with educators. Worse, they have been told that neither is necessary.

Insufficient understanding of research. There is another obstacle to effective collaboration between educators and lawyers: Many lawyers also lack sufficient understanding of educational and social science research. To understand educational issues, to advise educators on the wide range of law-related issues, and to defend a client's educational policies (in and out of court), however, education lawyers should be able ó with help from their clients and, occasionally, experts ó to understand social science research and articulate what such studies contribute on matters relevant to their clients. It would be helpful, for example, if lawyers in school desegregation cases knew more about educational programs and social policies that help children overcome the effects of unequal educational opportunity (Dimond, 1985; Heubert, forthcoming; Orfield, 1978, forthcoming). Attorneys also need to recognize both the limitations of particular studies and methodologies, and the tentative, evolving nature of social science research (Levin & Hawley, 1975). This is true whether or not their clients are among those educators who consider data and research in deciding what educational policies to pursue.

Unfortunately, however, few law schools provide even a single course on research methods. According to Yale's Peter Schuck, law professors seldom "teach . . . students how to handle facts ó how to find, interpret, prove and rebut them. . . . This educational deficiency is surprising and alarming" (Schuck, 1989, p. 325). This deficiency is not due to any lack of time for law school training in research methods or to any lack of good curricular materials on how to understand research and its limitations. This deficit can be traced, in part, to what Derek Bok (1983) called the traditional "lawyer's skepticism" about the value of academic research, especially empirical research:

There seems to be a widespread belief among lawyers that they can find all the information they need in legal texts:

Under the circumstances, it is hardly surprising that lawyers become adept at advancing plausible arguments on any side of an issue. Neither is it surprising that many fail to recognize both that some plausible arguments are more true than others and that there exist methods ó apart from poring over legal texts ó by which people can sometimes determine which plausible propositions are more true and which less so. Posner (1995) asserts that "[Justice Oliver Wendell] Holmes was never further off the mark than when he called law the calling of thinkers, not poets" (p. 75).

A little knowledge can be a dangerous thing. A lawyer who recognizes the value of empirical research is not necessarily capable of telling good research from bad. Harvard professor Gary Orfield (forthcoming) describes numerous situations in which lawyers have introduced in court research evidence that is simply incorrect ó and which the courts, in some instances, have nonetheless accepted, with unfortunate and predictable educational consequences.

Inadequate understanding of techniques of interprofessional collaboration. There is now a distinct and growing body of literature on what is known as "interprofessional collaboration" (IC) (Gitlin, Lyons, & Kolodner, 1994). IC occurs when "experts from the same or different backgrounds are linked in such a way that they build on each other's strengths, backgrounds, and experiences and together develop an integrative approach to resolve a . . . problem [of research, education, or practice]" (Gitlin et al., 1994, p. 16).

Most people involved with IC are university personnel and professionals (such as social workers, mental and public health professionals, educators, and lawyers) who wish to improve the lives of families and children (Albert, 1985; Clark, 1994; Drinka, 1994; Gerry, forthcoming; Lawson & Hooper-Briar, 1994a, 1994b; Meier, 1993; Miller & Swartz, 1990). Two IC initiatives provide illustrations. First, faculty, students, and deans of five University of Washington graduate schools (education, social work, public health and community medicine, nursing, and public affairs) are preparing and teaching courses in which graduate students can learn how to serve families and children through effective collaboration with professionals in other disciplines. The second is an interdisciplinary effort at Harvard to "forge new collaborations in support of children's well-being" ("Interfaculty initiative," 1996, p. 1). According to Harvard professor Martha Minow, interdisciplinary courses, research, and collaboration will aim to overcome fragmentation within programs for children and the university itself ("Interfaculty initiative," 1996, p. 6).

Although these efforts have yet to produce published studies focusing specifically on lawyers and educators, scholars have explored interprofessional collaboration involving lawyers and members of other professions: attorney-social worker relationships in the child welfare system (Johnson & Cahn, 1992), and the role of judges, attorneys, and social scientists in redefining the "best interest of the child" standard (Akre, 1992). This section briefly reviews relevant literature on obstacles to interprofessional collaboration.

Many of the obstacles IC scholars have identified have already been discussed above: that each profession has its own jargon, which sometimes reflects unique knowledge but also excludes others, whether or not by design; that professionals sometimes expect others to interpret situations as they themselves have been trained to view them; that members of different professions may agree on a problem but disagree sharply on how to address it; that many professionals do not possess knowledge in disciplines other than their own; and that some professionals are either reluctant or unable to make good use of research.

There is evidence that effective interprofessional collaboration is less likely to succeed if those involved do not receive actual training in techniques of collaboration, but there are obstacles that prevent professionals from receiving such training. For example, as of 1995 there were only twenty-five institutions that offered any form of "interprofessional training," and there is only limited consensus on what forms of training and experience are most effective (Cohen, 1996).

Some obstacles to interprofessional collaboration are structural. First, most universities evaluate faculty members using discipline-based criteria for teaching and research that may discourage interdisciplinary work. Second, many students are subject to degree requirements and certification standards that require them to take virtually all their course work at a single professional school. Third, there are universities where professional schools do not operate on a uniform academic calendar; students from some schools arrive only after courses at other schools have already begun. Last but not least, the high degree of faculty specialization at most universities leaves many faculty members unaware of related work going on in other schools and even in other departments of the same school. Plainly these are obstacles that individual students, faculty members, and administrators will find difficult to overcome on their own.

Beyond these structural problems and the limitations of knowledge, there are obstacles to interprofessional collaboration that stem from attitudes and inertia. First, in all fields, including law and education, there are faculty members and practitioners who would prefer not to take the time and effort to acquire new knowledge and skills. It is easier to remain in a field in which one can claim special expertise and enjoy the deference that often accompanies it.

Second, some may resist interprofessional collaboration, at least initially, because it tends to reduce the autonomy that many professionals value highly. Kritzer (1990) has shown that lawyers in a variety of fields tend to operate quite autonomously, often consulting their clients only when it is time for crucial decisions or when their clients possess actual evidence relevant to a case. For their part, educators, especially teachers, can be protective of their own autonomy; many teachers enjoy being able to close their doors and work with students free of external constraints, and important school reform movements, such as site-based management, seek to expand teacher autonomy. Similarly, as discussed below, school attorneys justifiably fear that they would offend school board members or superintendents if they presumed to know about educational subjects (McKinney & Drake, 1995; Trotter, 1990).

Like almost everyone else, school lawyers also have concerns about their fees. Some attorneys who lack experience in interprofessional collaboration may fear that they would lose clients if they billed for extra time spent collaborating with educators in the ways described above. Legal fees could also go down, however, if collaboration helped avoid costly lawsuits.

Preventive law and ADR. When it comes to preventing problems rather than addressing them after the fact, the legal profession parts company in at least three ways with medicine and other health fields, which have changed their basic focus in recent decades. First, while health professionals still try to cure patients in poor health, they now place far greater emphasis than before on measures that will promote health and prevent disease. Second, while physicians still use costly and invasive medical procedures to treat existing health problems, they increasingly prefer less costly and intrusive techniques. Third, rather than viewing patients as ignorant, health professionals increasingly try to educate the public about health matters and to acquire patient information that may shed light on an individual's medical needs and personal preferences. With very few exceptions, lawyers lag far behind their medical counterparts in these respects. Within the legal profession, moreover, education law lags behind other parts of the profession, particularly corporate law, with respect to preventive practices, including techniques of alternative dispute resolution.

What prevents lawyers and educators from engaging in practices that corporations ó which have far greater resources ó have increasingly found to be most effective? Some of the obstacles come from educators or are structural in nature; these are discussed in subsequent sections. A number of obstacles, however, relate to the legal profession.

As noted previously, most attorneys lack training in techniques of preventive law and alternative forms of dispute resolution. They have little training or experience in carrying out legal audits (Dauer, 1990); in knowing how to administer client questionnaires that will later remain subject to the attorney-client privilege (Hughes, 1990); in counseling clients; or in providing clients good cost-benefit analyses on the basis of which to make decisions (Littlefield, in "Proceedings," 1988, p. 468). Even clinical courses, which consider lawyer-client relationships, emphasize litigation rather than prevention (Krantz, in "Proceedings," 1988, p. 460). Indeed, while most attorneys have heard of preventive law, few lawyers understand concretely what it would entail, for clients or their own work. Dauer (1990) believes that most attorneys in private practice would be at a loss if a client said, "No one's suing me and I'm aware of no trouble lurking around the corner. But since an ounce of prevention is worth a pound of cure, could you just give me a checkup?" (p. 25). They would respond by saying either that they could not do it or that it would cost a lot.

Dauer and others believe that most lawyers would consider preventive law or ADR far less attractive than traditional litigation. What lawyers do in nonlitigation settings has "much lower visibility than their courtroom work" (Dauer, 1990, p. 24). In terms of publicity, for example, "preventive law is a nonevent. One simply does not see headlines reading `Law Firm Avoids the Filing of a Five Million Dollar Suit'" (Luce, in "Proceedings," 1988, p. 437). In law as in medicine, it is more glamorous to cure problems than to prevent them: "[P]eople who deal with sick folks get to use high-technology equipment and . . . act like heroes and saviors. People who work in preventive medicine get to work with sewers, and cigarettes, and oat bran, and . . . draining swamps. The sexy stuff in the profession lies in the curative. And so it does in law" (Dauer, 1990, p. 26).

To complicate matters, there is some evidence that lawyers "attribute their own choices to the preferences of their clients." In a survey of lawyers and their clients, for example, ". . . there was a substantial . . . error in the lawyers' predictions of what their clients wanted of them, and in a single direction: The lawyers thought that . . . clients wanted them to channel their advice more into after-the-fact advocacy than their clients actually wanted" (Dauer, 1990, p. 24). As subsequent sections suggest, however, educators also have reservations about preventive law.

An additional obstacle to the practice of preventive law is that some lawyers fear it will lead to malpractice claims if, for example, a lawyer does a risk audit covering ten items and the client is sued on an issue not among them. While it should be possible to address such concerns, some lawyers may believe there is less risk in focusing their legal advice narrowly, on a single, existing problem (Dauer, 1990, p. 25).

The literature identifies yet another obstacle to preventive law and ADR: Traditionally, lawyers have earned the most by handling big cases in court, and attorneys may fear that a departure from present practice will cost them business (Shafton, in "Proceedings," 1988, p. 442). Preventive law and ADR can both be time intensive, especially if they include client education, and may generate legal fees as high as or higher than at present. If the concern about fees is valid, however, it implies a direct conflict between the client's interest and the attorney's.

Finally, some lawyers may dislike preventive law and ADR precisely because it reduces the traditional asymmetry between their clients and them: "Lawyers may be the experts in the law, but clients are the experts in the facts. In a preventive consultation, the dominance of the lawyer is far, far less than it is in the litigation consultation, where the entire matter has been recast into the lawyer's frame of reference" (Dauer, 1990, p. 26).

Education-Related Obstacles

Many educators also lack knowledge, skills, and attitudes that make for effective collaboration with their lawyers. Like lawyers, educators get their knowledge and skills from many sources, including their own formal schooling, on-the-job training, and continuing education, formal and informal. Among the obstacles identified in the literature are that:

1. Many educators have a limited understanding of legal requirements that apply to schools, of the educational purposes that close, ongoing educator-lawyer collaboration can serve, of the ways in which lawyers can be of help to educators, of the need for specialization among school attorneys, and of the techniques of preventive law and interprofessional collaboration.

2 Many educators have fears or make assumptions that impede good collaboration with their lawyers. For example, some educators are hostile toward law, lawyers, and courts, viewing them as a threat both to public education and the authority of school officials (deKieffer, 1966; Howard, 1994; Posner, 1995).

3. Many educators lack the knowledge or the authority they need to select suitable attorneys, to draw effectively on their lawyers' skills, and to collaborate more effectively with their attorneys.

Educators' limited knowledge of school law. Just as lawyers with specialized expertise can often be more helpful to their clients, educators, especially education leaders, can benefit from a basic understanding of legal issues affecting schools. With such knowledge, educators are in a stronger position to recognize the extent and limits of their discretion, to exercise leadership, to use the law to advance policy objectives, to avoid unnecessary litigation, and to make optimal use of limited resources.

Unfortunately, educators at all levels often lack this legal knowledge. For example, there is evidence that school board members, who set educational policy in most school districts, typically "have limited knowledge of the judicial system . . . [and only] become acquainted with the scope and particulars of their individual legal obligations as board members (let alone those of the school district) after they are appointed. . . . [They] learn on the job how to work with school district attorneys" (Cunningham, 1978, p. xvii). Organizations such as the National School Boards Association offer legal updates, many of which are excellent, at conferences and through advisories. But the fact remains that those who set policy in America's school districts are not obliged to acquire knowledge of the law and rarely get systematic, ongoing legal education through course work, professional education programs, or their own attorneys.

By contrast, administrators usually must take at least one course in school law as part of the certification process. Like school board members, however, administrators are under no obligation to remain legally current, and it appears that most do not (Hawkins, 1992).

One survey, which Perry Zirkel conducted in 1978 ó during the period when education litigation was most common ó showed that most administrators were "abysmally ignorant" on the most basic issues of school law (Zirkel, 1978, p. 522). Four hundred randomly selected members of Phi Delta Kappa received a twenty-question multiple-choice test concerning some of the most important Supreme Court decisions affecting schools. The response rate (26 percent) and the mean score (10.7 out of 20, or 53.5 percent) were low, and figures for K-12 administrators in the sample did not differ significantly. Zirkel (1978) concluded:

Moreover, Zirkel implies that results would be even worse in a survey of the many areas of law, such as federal and state statutes and regulations, that are as important as Supreme Court decisions but less well known.

Zirkel's findings are generally confirmed by more recent research. For example, a 1988 survey of administrators and teachers at each public high school in South Carolina (with an 82 percent response rate) showed that ". . . the educators surveyed . . . seem to have little concept of the law as it relates to them and their day to day school activities. In fact, many educators regard legal principles applicable to public school education with apathy or disinterest" (Reglin, 1992, p. 30).

These results and Zirkel's are inconsistent with what one would find in most corporations or in such human service fields as health care; there, employees at all levels are more likely to receive ongoing training on their legal obligations and to learn about what situations and behaviors are most likely to raise legal problems (Chayes & Chayes, 1985). That levels of legal knowledge should be so low in schools, where employees are concerned not only with avoiding liability but with educating students and serving as role models of lawful behavior, is unfortunate.

At the same time, educators' limited understanding of school law strongly supports the need for the kind of close, ongoing collaboration that this article proposes. For preventive law models rely heavily on client education and offer educators efficient ways of exploring how law affects their own objectives.

Not understanding the value of collaboration. Many educators lack not only legal knowledge, but also a recognition of why legal knowledge and effective collaboration with their lawyers are so important. It is not surprising that many educators should fail to see the educational significance of legal disputes, for educational research to date has said little on this point (Zirkel, 1985, p. 11). There exist few studies of educator-lawyer collaboration itself and even fewer that attempt to apply relevant principles to education. According to Hawkins (1992), "State departments of education maintain no records reflecting the extent or the cost of litigation in public schools" (p. 24), and the same is true for federal data collection.

Moreover, the studies that do exist are chiefly unpublished doctoral dissertations. With few exceptions (Herbert, 1991; Meloy, 1992), most of these focus on questions that are relevant but not directly on point: 1) the topics on which school attorneys are most often asked for advice; 2) whether the district has written policies on these topics; 3) whether districts have in-house counsel; 4) whether the attorney reports to the superintendent, the school board, or both; 5) whether there exist written policies defining the role of the board attorney; and 6) how much districts spend on legal advice. In sum, even educators who wanted to know how to improve educator-lawyer collaboration would have trouble finding information on the subject.

Like most school law research, educators think of law principally in terms of litigation: something to be avoided. Educators do not usually recognize law as something that they can use affirmatively: to advance important policy objectives, to improve school governance, to expand the scope of educator discretion, to reform and deregulate education, and to improve student performance. As one commentator put it, ". . . all too often, the concern is whether a `case' is `winnable' and not whether the best interest of the school, student or employee is served" (Bednar, 1991, p. 9).

Limited knowledge of preventive law and ADR. The importance of preventive law and ADR to effective educator-lawyer collaboration is inversely related to the frequency with which either is actually practiced in education law. This is due, in part, to aspects of legal training and practice and to structural obstacles to collaboration. Some obstacles are also due to educators' knowledge, attitudes, and priorities, including, of course, the general lack of legal knowledge among educators.

There are relatively few studies of preventive law practices in education (Bednar, 1984, 1991; Hawkins, 1992; Herbert, 1992; McClung, 1981; Meloy, 1992; Zirkel, 1985). These studies do identify obstacles to preventive law, and general scholarship on client attitudes toward preventive law identifies others. The latter may well apply to education, though further research on this would be helpful. What obstacles does the research identify?

First, there is evidence that many clients simply do not know what preventive law is (Luce, in "Proceedings," 1988, p. 435). To the extent the term is self-explanatory, clients may assume that it refers only to avoiding litigation, rather than to the broader purpose of using law to advance the client's objectives.

This finding probably applies to educators, since "[v]ery little of our scholarly literature [in education law] is being written from an overtly preventive point of view" (Bednar, 1984, pp. 12ñ14, cited in Zirkel, 1985, p. 10); and ". . . efforts to put preventive law into practical form for state policy makers and local educators on the elementary/secondary school level have been notably limited in scope and sophistication" (Zirkel, 1985, p. 10). There may be similar lack of awareness with respect to alternative dispute resolution and interprofessional collaboration: what they are, how they are practiced, and how individuals develop the skills associated with each.

Whatever the cause, a lack of awareness may well reduce the demand for preventive law among educators. "Clients won't demand what they don't know exists . . ." (Dauer, 1990, p. 26). Moreover, historical restrictions on attorney advertising exacerbated the problem by preventing lawyers from "tell[ing] people how they could be helpful" (Bolger, in "Proceedings," 1988, p. 433). There are reasons why preventive law is not understood, accepted, or practiced as widely as preventive medicine.

Even when educators know what preventive law is, however, there are other obstacles. Perhaps most important, most educators spend more time responding to immediate demands or crises than they do to the longer-term planning associated with preventive law; "limited . . . resources tend to be absorbed by crises such as litigation, administrative hearings, compliance reviews, and the press of routine school business (Bednar, 1991, p. 9). Especially in such a climate, educators may think "if it ain't broke, don't fix it." The problem with this logic is that it assumes that "the need to fix is known," when in fact "[t]he problem is to determine whether `it is broke'" (Brown, 1992, p. 16). Most educators, however, lack crucial information on the types of litigation that arise most often (Meloy, 1992).

Second, the benefits of preventive law, however great, are not quantifiable or immediately obvious: "Most people have a pretty high discount rate for future problems that they can't see right now, and besides, there's no guarantee you could ever save anyone any specific amount . . ." (Dauer, 1990, p. 26). Many actual problems that could lead to litigation may never actually do so, and some clients may prefer not to hear bad news unless they are certain they will have to face it.

Third, some clients fear that preventive-law services may cost them more than the legal services they already receive. While preventive law does not always cost less, especially at first, research suggests that "[clients'] estimates . . . for preventive services . . . average well over the actual costs . . ." (Bolger, in "Proceedings," 1988, p. 434).

Fourth, there is limited evidence suggesting that clients, including educators, have found the techniques of preventive law ó including "risk audits," or legal checkups ó to be intrusive (Zirkel, 1985; Mosten, in "Proceedings," 1988). On the other hand, Zirkel found any such resistance "not insuperable," (1985, p. 10) and Mosten concluded that it "appears less due to antagonism and more to ignorance" ("Proceedings," 1988, p. 440).

The obstacles to collaboration stem not only from a lack of knowledge, but also from limiting beliefs and attitudes. For educators, these can include a hostility toward lawyers and courts, a fear of losing autonomy, a belief that lawyers should stick to the law, and a sense that lawyers and educators can never learn enough about one another's fields to make collaboration meaningful. These attitudes are not inevitable, however.

Hostility toward lawyers and courts. There is broad hostility toward lawyers, in U.S. society in general and among educators in particular. There are calendars in which every day contains a different expression of the hope that all lawyers will die. Books about lawyers carry titles such as The Decline of Common Sense: How Law Is Suffocating America (Howard, 1994), How Lawyers Screw Their Clients (deKieffer, 1996), and Overcoming Law (Posner, 1995). Jokes that most people no longer tolerate when aimed at women or ethnic minorities elicit guffaws when lawyers are their target. The New York Times reports an increasing scorn for the legal profession (Johnson, 1995).

As this article suggests, the legal profession is open to criticism on many grounds. Interestingly, many of the common complaints ó that lawyers are selfish and arrogant; that the "gun for hire" approach has largely replaced the traditional model of "lawyer as counselor, conciliator, problem-solver and planner" (Sheppard, 1996, p. A23) ó are criticisms that could be muted with broader adoption of the collaborative model of legal representation discussed here.

Educators have additional reasons for questioning the value of lawyers and courts. As Rebell and Block (1982) argue, public education is "the single area where judicial activism has had the most direct, visible, and controversial impact on Americans" (p. 16). Yudof, Kirp, and Levin (1992, p. xi, cited in McKinney & Drake, 1995) contend that "decisions once made by school administrators and local boards of education have increasingly become the province of courts" (p. 471).

To the extent that lawyers and courts have contributed to reduced educational autonomy or issued rulings without understanding how they would actually play out in schools, resentment among educators is understandable. For several reasons, however, some of the assumptions on which such resentments rest may not be fully valid.

First, if adverse court decisions are what produces loss of educational autonomy, there would be less reason for resentment if lawyers and educators ó rather than waiting to be sued and then responding defensively ó worked together both to avoid litigation and to use the law to advance educators' objectives. In other words, by adopting the model of educator-lawyer collaboration described here ó which it is within the power of educators to do ó they could avoid some, perhaps many, of the lawsuits and court orders that reduce their autonomy and generate resentment in the first place.

Second, the "litigation explosion" in education, about which many educators have complained, is not as simple a matter as some have reported:

Third, much of the litigation that did occur in the 1960s and early 1970s was due to the reluctance of political and educational leaders to address on their own such serious problems as state-imposed racial segregation, grossly inequitable formulas for funding public education, outright exclusion of children with disabilities from many public schools, sex discrimination, compulsory school-sponsored prayer, and the lack of free-speech and due-process protections in public schools (Tyack et al., 1987). As Justice Ginzburg said of judges who, in issuing school desegregation orders, reduced the autonomy of school officials: "Had state and federal legislatures and administrators assumed the implementation burden, the managerial jobs the courts took on, generally with reluctance and misgivings, could have been avoided or at least substantially curtailed" (Lewis, 1993, p. A12).

Techniques of preventive law and alternative dispute resolution would help avoid developments that diminish educator autonomy. As Weckstein (forthcoming) points out, "educators need to understand that the law is not necessarily `top-down.' It often does reshape authority, but not necessarily in the direction of moving it to higher levels ó it can help give those on the ground (including parents, students, and teachers), and among them those who are least enfranchised, the power to better control the events that affect them" (p. 14).

Finally, there are times when school boards or administrators may actually prefer to have courts take responsibility for decisions that educators know will be politically unpopular (Rebell & Block, 1982). Where this occurs, however, judicial intervention serves educators' interests and should not be cause for resentment.

The belief that lawyers should stick to law. A second attitudinal obstacle to the adoption of collaborative models of educator-lawyer interaction is that some educators and scholars consider such approaches unwise for one or more of the following reasons.

First, some believe that lawyers should limit themselves to dispensing strictly legal advice, since that is where their expertise lies (Trotter, 1990). Once lawyers are invited to offer nonlegal advice, there is always the possibility that an attorney may disguise as legal advice views that are actually personal. There are many educators and lawyers who would prefer to keep the lawyer's role narrow, and they are free to do so. Other educators may look to their lawyers for more general advice, which offers advantages if one believes that legal and nonlegal issues are often closely intertwined. Under the latter arrangement, however, it is important that the lawyer be clear as to which opinions are legal and which are based on nonlegal judgments.

Second, some educators and scholars believe that lawyers who participate actively in discussions of school priorities and policy will usurp educators' policymaking prerogatives (McKinney & Drake, 1995, p. 480). Being an attorney with specialized expertise plainly gives someone a form of power that, like other forms of power, can be abused. At the same time, such expertise can also improve the educational decisionmaking process in the many ways described above, and literature on collaborative roles of lawyers in corporations have not identified usurpation as a problem (Chayes & Chayes, 1985).

Third, an attorney can become a pawn in disputes between the school board and the superintendent, for while the attorney's client is the board, it is with the superintendent that the attorney usually consults most frequently. Many school boards have adopted policies in an effort to clarify work relationships (Pope, 1980).

The fear that educators cannot understand law well enough to make collaboration meaningful. Another obstacle to ongoing educator-lawyer collaboration is the fear among educators that they will never understand the law well enough to make collaboration with their lawyers meaningful. This is understandable, given 1) the sheer volume of law, 2) the fact that the law is constantly changing, and 3) the fact that school board members, administrators, and teachers already have extremely demanding jobs. These concerns do not take adequately into account, however, aspects of the collaborative model discussed here.

First, preventive law differs from "curative law," in part in its heavy emphasis on client education. Regular ongoing collaboration between educators and their lawyers, focused on the educational priorities of a particular school or school district, is the most efficient way for educators to learn about whatever legal questions are most relevant to achievement of educational objectives. Second, the less educators know about law or think they can learn, the greater the need for regular collaboration with lawyers who can supply the information educators lack. The alternative ó to ignore the many ways in which law continues to affect schools ó will only reduce resources, autonomy, leadership opportunities, and attention to important educational objectives. This alternative, the current status quo, is both more demanding and less productive educationally than a model based on collaboration.

Structural and Political Obstacles

Even if educators wanted to adopt the kind of collaborative, preventive-law approaches this article describes, there would be structural and political obstacles to their doing so. These stem in part from the ways in which school board lawyers are typically selected and the limitations of common fee arrangements.

Many school boards are limited in their capacity to select their own lawyers (Klitzman, 1991). For many, the "primary source" of legal advice is the office of a district attorney or attorney general (Herbert, 1991, p. 5). In such situations, the lawyer(s) at the board's disposal may lack the time, expertise, and/or inclination to provide the types and amounts of collaboration the school board would like; especially where attorneys spend most of their time on litigation, the counseling process usually takes a back seat (Riddle, in "Proceedings," 1988). School board choice is also limited in districts that are subject to the direct control of city authorities; here city solicitors may represent the district.

Second, even school boards that do choose their attorneys may base selection decisions on political considerations rather than on whether the candidates possess the knowledge, skills, and attitudes that make for optimal collaboration. Some board members try to hire friends or supporters to serve as school board counsel. Some board members are themselves lawyers, and try to steer the board's business to their own law firms. These practices raise ethical questions. They also tend to prevent selection of attorneys who can do the best job: "It is certainly unfortunate that many boards consider the school attorney's position to be a political plum, to be doled out to some favorite" (Herbert, 1991, p. 26, quoting McGehey, 1969, p. 27).

Third, especially in rural areas, there may be relatively few lawyers from whom to choose, and those available may lack the orientation the school board seeks. Finally, even school board members who know what they are looking for face the challenge of determining, as nonlawyers, which candidates possess the best combination of knowledge and skills.

A different structural obstacle is that the most common fee arrangements between school boards and lawyers do not encourage ó and may even discourage ó ongoing collaboration and preventive law. Among the five fee arrangements described earlier, two ó contingency fee arrangements and prepaid legal services ó are rare among educators and their lawyers. More significantly, relatively few school boards ó only 10.9 percent nationally, mostly in the largest districts (Herbert, 1991) ó employ in-house counsel. This is true despite the growing popularity of such arrangements in the business world, and despite the fact that in-house arrangements lend themselves well to lawyer-client collaboration and the practice of preventive law. This suggests that roughly 90 percent of school boards hire outside attorneys on a fee-for-service basis, on retainer, or through some combination of the two.

In principle there is no reason why outside attorneys, paid on an hourly basis, cannot engage in close, ongoing collaboration and preventive law. Fee arrangements do affect attorney behavior, however; contingency-based representation, for example, has been shown to limit or discourage creative, nonpecuniary solutions to problems (Kritzer et al., 1985). Similarly, in law and in medicine, fee-for-service arrangements are associated both with higher fees and a focus on solving problems rather than preventing them: "Usually called on to deal with existing legal problems, the [private] firms [are] masters of swift, precise reaction rather than planned strategy or prevention" ("A new corporate powerhouse," 1984, p. 66). For school boards no less than others, simply knowing that the meter is running tends to discourage routine, informal collaboration and efforts to involve attorneys in ongoing client education. Moreover, the third-party payment mechanisms that have promoted cost reduction and preventive care in medicine (largely though prepaid health plans) do not exist to the same degree where lawyers and law firms are concerned. Finally, commentators point out that outside counsel may not always have interests identical to those of their clients, as, for example, where fees are concerned ("A corporate campaign," 1981; Kritzer et al., 1985).

While in-house counsel arrangements may be preferable, they are not problem free. For example, as their client's employees, in-house attorneys may not enjoy as much independence as other lawyers. They may be reluctant to make suggestions with which their clients disagree, thus rendering them less effective.

Conclusions and Implications

This article supports a number of conclusions. First, it identifies the need for a broader vision of law among educators and the lawyers who serve them. Law is not simply litigation. Law is more than a nuisance to which educators can react passively or defensively. Misunderstood or ignored, legal mandates and disputes can undermine much of what educators seek to achieve in terms of school governance, resource allocation, curriculum, policymaking, and school reform. Properly understood, law is a powerful tool that educators can use to advance their most important aims.

Second, this article demonstrates the need for a better understanding of relationships, actual and possible, between educators and their lawyers. Thus far there is little evidence that most educators, lawyers, and scholars recognize the importance of these relationships, the potential benefits of effective educator-lawyer collaboration, or the forms such collaboration could take.

Third, drawing largely on research from fields other than school law, this article proposes a general model of ongoing, in-depth educator-lawyer collaboration. The model recognizes the growing interrelationships between law and education. It also recognizes that lawyers cannot become educators or vice versa. Indeed, continuing collaboration is necessary precisely because neither profession can do the other's work or, in isolation, even its own.

The preventive-law model advanced here differs in important respects from typical patterns of educator-lawyer interaction. Moreover, this article explores numerous obstacles to the adoption of such a model:

These obstacles are not insurmountable, but it will take sustained efforts ó from both professions, from the schools that train lawyers and educators, and from scholars ó to create the conditions for improved collaboration.

While such efforts may encounter resistance, there are several important sources of support. One, noted earlier, is that statutes, regulations, and court decisions continue to affect students, teachers, administrators, school reformers, and policymakers in important ways. The ever-increasing number and variety of legal issues affecting schools, the growing convergence of law and education, and the challenges of deregulation that this article describes all make school law ó and educator-lawyer collaboration ó too important to ignore.

Second, there already exist many examples of enlightened practice in other fields on which to model improved collaboration between educators and their lawyers. Third, there is a wealth of scholarly literature available on such topics as professional education, preventive law, client education, ADR, and interprofessional collaboration. Education-law researchers can make this information available to educators and school lawyers, and begin to apply to education insights from other fields. For example, there is a need for further research on such topics as:

Careful, systematic school law research on these and related topics is at least as important as further scholarship on the role of the courts in education or the case notes that currently comprise the majority of published work in the field. Case studies of effective (or ineffective) educator-lawyer collaboration would also be quite useful. In these suggestions, this article seeks to shape the direction of future school law research.

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I wish to thank Gary Orfield, Martha Minow, Martin Gerry, Jeffrey Kobrick, Rhoda Schneider, Peter Holland, Mark Yudof, Jacqueline Stefkovich, Carol Weiss, Richard Fossey, and Doug Stone for their invaluable comments on earlier drafts. I am also grateful for the exceptional research assistance of Janet Viggiani, Hilary Ware, Sascha Blechinger, and Kim Seltzer. Most of all, I thank Valerie Aubry for her many vital contributions to this work.

Notes

1 A consent decree is an agreement between the parties to a lawsuit that a judge has approved and signed. Once the judge has done so, the agreement becomes a court order, and violations constitute not merely breach of contract but contempt of court.

2 Among the publications that are most often cited in the field, and that find their way into education and law school courses on school law, are these: "The Courts, Social Science, and School Desegregation" (Levin & Hawley,975); "Toward an Imperial Judiciary?" (Glazer, 1975); The Courts and Social Policy (Horowitz, 1977); Education, Social Science and the Judicial Process (Rist & Anson, 1977); The Courts and Education (Hooker, 1978); Educational Policymaking and the Courts (Rebell & Block, 1982); The Schools, the Courts and the Public Interest (Hogan, 1985); and Social Science in Court (Chesler, 1988). This interest in courts is not unique to education law, of course; one of the most frequently cited pieces of U.S. legal research is "The Role of the Judge in Public Law Litigation" (Chayes, 1976), and research in the field continues (Schuck, 1993). See also Bottomly (1978), Cavanagh and Sarat (1980), Craven (1977), Elliott (1987), Hill and Madey (1982), Hogan (1970), Kalodner and Fishman (1978), and Kirp (1977).

3 Issues on which there have been important recent legal developments include student and staff religious freedom; free speech; tort liability; child abuse; search and seizure; due process; confidentiality; collective bargaining; personnel disputes; desegregation; assessment and accountability issues; assignment of students to classes within schools; harassment based on race, national origin, sex or sexual orientation; educational services for immigrant children; employment discrimination; school- finance reform; special education; and affirmative action.

4 Until recently, conservatives blamed the proliferation of law on liberals, who used the law to help end segregation; achieve greater equality of opportunity for women, immigrants, and people of color; and extend to students such Constitutional protections as the right to free speech. In recent years, however, voucher proposals, free speech claims, challenges to the curriculum, school prayer proposals, parental rights initiatives, voter initiatives on affirmative action, services for immigrants, and rights of homosexuals have come chiefly from the Right, while others, such as special education and charter schools, enjoy bipartisan support.

5 See, for example, Rose v. Council for Better Education (1986) and Abbott v. Burke (1990).

6 These include regulations adopted under Title IX of the Education Amendments of 1972, a statute that prohibits federal fund recipients, including public school districts, from discriminating on the basis of sex; and Title VI of the Civil Rights Act of 1964, which prohibits federal fund recipients from discriminating on the basis of race, color, or national origin.

7 These funds benefit education only if spent to improve student achievement. There is evidence, however, that this condition is often not met (Orfield & Eaton, 1996).

8 Most law students do, however, take courses in constitutional law, contracts, torts, and property, all areas of the law that apply to education.


 

 
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