What Does an Education Law Attorney Do?

Education law is a complex specialty with relatively few expert attorneys in the field. As passionate and devoted education attorneys, we proudly advocate for students and parents who have been harmed or underserved by institutions they formerly trusted. And make no mistake — it can be intimidating to take on an institution. The clients we serve often feel outnumbered and powerless, no matter how justified their grievances are. But you don’t have to face this alone, and you don’t have to back down. We have secured all kinds of underdog victories for victims of a school’s wrongdoing. Below, we give a general overview of what an education attorney does, and the types of issues we most commonly litigate.

What is education law?

Education law is the area of law governing schools, school boards, school districts, school staff, and student’s rights. While public schools are regulated by the federal Department of Education, it is up to individual states to maintain compliance. So generally speaking, you will want to find an education lawyer licensed to practice in the same state as the institution you are proceeding against, even if elements of your claim are adjudicated in federal court due to a Constitutional or Civil Rights issue.

What does an education law attorney do?

An education lawyer works with clients who have been harmed in an educational setting — from preschool to postgraduate school, both public and private. An education lawyer handles a wide variety of issues, from Civil Rights cases, to Title IX offenses, to special education issues and personal injury lawsuits. If, God forbid, you or your child has been the victim of a criminal act at school, such as assault or sexual abuse, a prosecuting attorney will be responsible for handling criminal charges, while an education attorney handles the civil suit to obtain monetary damages for the victimized party.

How much does an education law attorney cost?

For the most part, education lawyers do not work on contingency (where the lawyer only gets paid once you win your case). There are exceptions to this rule if you have a very good case and you are suing for extensive damages. And sometimes, your fees may be waived or vastly reduced if your attorney works for a non-profit legal aid entity. But generally speaking, if you hire an education attorney, you should expect to pay legal fees out-of-pocket for the duration of your lawsuit. Bear in mind, however, that if you succeed in your claim, the judge may sometimes order the losing party to pay your attorney’s fees — thereby making you financially “whole” for the legal expenses you’ve already paid.

Education lawyers usually charge an hourly rate, and that rate will vary based on the complexity of your case, where you live, and the experience level of your counsel. However, your initial consultation is usually free, and at that time, your prospective attorney will give you a detailed estimate of their fees and how payment will be structured. If cost is a prohibitive factor, always feel free to ask your attorney for ideas on how to keep costs down while still pursuing your claim.

What types of cases does an education law attorney take on?

An education lawyer handles a wide variety of legal issues. Below are some of the most common examples.

Individualized Education Plan (IEP)

Parents of special needs children face enough unique challenges at home, and they shouldn’t have to face more at school. To not make accommodations for a special needs child is a form of discrimination — all students are entitled to a quality public education, even if some may learn differently than others. The Individuals with Disabilities Education Act (IDEA) provides nationwide protections and standards that schools must abide by to provide for special needs learners. If your child has certain types of disabilities, they may be entitled to an IEP, or Individualized Education Plan. If your child’s school is not holding IEP meetings, your child has been wrongfully denied an IEP or an evaluation for one, the school is not providing you with progress reports, or is failing to implement any aspect of an established IEP, consult an education attorney who can help guide you through the complaint-filing process. We receive an especially high number of IEP complaints from parents of children with more severe forms of autism.

504 Plan

Like an IEP, a 504 Plan ensures that all public school activities are available to all students, and that adjustments must be made for special needs. A 504 Plan is a bit broader than an IEP in terms of the types of student disabilities it encompasses. To receive a 504 Plan, a child may have any disability at all that interferes with their ability to learn in the context of a general education curriculum. If your child’s school is refusing to evaluate your child for a 504 plan, wrongfully rejecting your child for a 504 plan, disallowing your child from trying out for extracurriculars, failing to provide progress reports, or failing to comply with any element of an existing 504 plan, consult an education attorney to guide you through the complaint-filing process. We receive an especially high number of 504 Plan complaints from parents of children with Aspberger’s.

Free appropriate public education (FAPE)

FAPE is not an acronym for a specific special needs program, but instead refers to the fundamental right of all special needs students to receive free and appropriate public education under the Individuals with Disabilities Education Act. FAPE is the legal basis for your disabled or differently-abled child’s entitlement to an IEP or 504 plan. While FAPE requires schools receiving government subsidies — this includes many private schools, by the way — to provide a learning environment that ensures your child makes progress, FAPE does not guarantee your child the best possible learning environment. But this is something of a slippery legal slope, as “making progress” means different things to different people, and it is too often the case that teachers and administrators set the bar unconscionably low for special needs students because they simply don’t want to make the extra effort to accommodate them.

Rehab Act

Passed in 1973, the landmark Rehabilitation Act was the first-ever act passed to protect and expand the rights of disabled Americans in the workplace, at school, and in all contexts connected with government funding. 504 Plans were given that name because they are based on the requirements laid out in § 504 of the act. It will behoove parents of special needs children to familiarize themselves with their child’s educational rights under the Rehabilitation Act (1973), the Individuals with Disabilities Education Act (2004), and the Every Student Succeeds Act (2015). The more you know about what your child is entitled to under the law, the better. An experienced education lawyer can help you learn how these laws affect your child specifically, and what to do if their rights aren’t being recognized and respected.

Physical Abuse

Physical abuse has absolutely no place in the classroom. To hear that your child has been touched or handled in an inappropriate, sexual, or aggressive manner is among the most maddening feelings a parent can possibly endure. Nobody has the right to touch your child without their consent — even special needs teachers should be trained in de-escalation tactics that avoid physical restraint methods as much as possible. Gentle, friendly touching may be appropriate as agreed-upon by parent and teacher to soothe and encourage a special needs student, but any unwanted physical engagement by a teacher should absolutely be discussed with an education lawyer as soon as possible to put a stop to it immediately.

Neglect or Gross Neglect

Neglect or gross neglect may give rise to a lawsuit against a school if harm or injury was sustained by a student as a direct or contributing result of an educator’s extreme neglect. While accidents do happen, especially where young children are concerned, it becomes a different story if school staff are entirely absent from the playground or classroom, habitually providing inadequate supervision, failing to administer medications as instructed, or subjecting students to hazardous conditions which a reasonable person would have noticed and attended to. If your child has sustained a physical or psychological injury at school because of a staff member’s neglect, consult an education attorney to explore your legal options.

Child Abuse

Child abuse is one of the most heinous offenses imaginable for good reason — whether it is physical, emotional, or sexual, child abuse leaves lasting scars on an innocent victim lacking the power to defend themselves. When we send our children to school, we place a sacred amount of trust in school personnel to care for our children while we are not. When our children are abused, that trust is abused as well; often shaking parents to the core. Depending on the type and extent of the abuse your child has suffered, the offender may face criminal charges. But the school or district may also be responsible for paying civil monetary damages, as they have a duty of care to oversee and thoroughly vet all staff members under their employ. It is a sad fact that many schools fail to do their due diligence in this regard, and until someone brings a formal lawsuit against an abusive educator, they may be free to continue hurting other children. If your child has been abused in school, in any way, talk to an education lawyer right away.

Bullying

Over 25% of all students report having been bullied at some point in their educational career. The most common time for bullying is during middle school, but it can and does happen at any and every age. Both schools and courts are taking a more proactive approach to bullying prevention in recent years, as social media continues to worsen the problem and even drive some students to attempt or commit suicide. Keep in mind that, in California, all schools are required to develop and enforce an anti-bullying policy. If they fail to do either, they may be legally liable if your child is bullied on their watch. All staff members at a school are required to intervene if they observe a student being bullied, and if other people witnessed a teacher or staff member failing to do so, you may have a case against your child’s school or district. And especially if your child is being bullied by other students as a direct result of a teacher’s efforts to hurt or humiliate them in front of the class, you may have legal grounds to sue the school.

Discrimination

Sadly, discrimination claims are a very common complaint in both public and private schools, though they must be attacked from different legal angles. Students in public schools enjoy Constitutional protection from discrimination on the basis of sex, race, age, disability, color, creed, national origin, religion, or genetic information. In California, children are also protected from discrimination on the basis of sexual orientation, gender identity, and gender expression. If your child has been the victim of discrimination, you may literally have to “make a federal case out of it,” and are encouraged and entitled to do so. Chances are, if this has happened to your child, it has happened to other students in the same protected class, and you may be able to join forces with other parents to file a class action suit. This has economic advantages as well. See more below.

For private school students who are the victims of discrimination, the process can be a bit more tricky, as discrimination tends to be the very point and allure of private schools. Ostensibly, private schools can select and instruct their students however they want. But this may not be the case if a private school, charter school, or otherwise independent school receives federal funding and/or government subsidies. If they do, they may be liable for exactly the same kinds of discrimination lawsuits as public schools. But even if not, discrimination lawsuits can still be brought against private schools for breach of contract, fraud, or negligence. Consult an expert education attorney to learn how best to approach a discriminatory private school from a legal standpoint.

Class Action Lawsuits

In recent years, especially in California, class action education lawsuits have been a supremely influential and powerful way for wronged students to band together and effect justice and rightful compensation, often without having to pay attorney’s fees unless and until the case is won. While class actions may take quite a bit longer than individual lawsuits to get resolved, and the monetary damages awarded are generally split evenly between plaintiffs, it is often the case that the losing party will be ordered to pay your attorney’s fees , so that your share of compensation isn’t reduced by them. Joining a class action lawsuit can be an excellent solution for students and parents belonging to a protected or discriminated-against class, or those able to rally a larger group of similarly-aggrieved parties at the institution they are challenging.

How long does an education law case last?

If you are taking legal action against a school, school district, college, or university, the length of time before your case is resolved may range anywhere from a matter of months if the school offers you an adequate settlement offer out of court, to several years if your case proceeds to trial via formal litigation. When you meet with an education attorney for your initial consultation, always ask them about the best and worst case scenarios for how long your case may go on for before it is ruled upon or resolved. But be prepared to be patient. For many education lawsuits involving public schools and private schools receiving government funding, you will first have to go through the school’s own administrative complaint process before you can even file a legal complaint, and this process alone may take several months.

If my attorney wins the case, when do I get paid or compensated?

If your education lawyer wins your case, either at trial or in a settlement agreement outside of court, you can usually expect to receive your share of compensation within about six weeks following finalization of terms or the verdict. Always feel free to call your attorney’s office to ask about when you can expect to receive payment.

How do I sue a school?

As government entities, public schools (and private/independent schools receiving certain types of public funding) enjoy certain types of legal immunity. Lawsuits against public schools are strictly regulated by the California Tort Claims Act. For more information, you may wish to read our article on “Can You Sue A School? Yes.”

Public School Districts

If you want to sue a public school, you will first have to go through the school district’s own internal complaints process before you can file an actual lawsuit. But be sure to consult a qualified education attorney even before you make an official complaint with the school, because in California, this initial complaint will control what kinds of legal arguments will be admissible in court later on.

Private and Independent Schools

If a private or independent school is also completely privately funded, there are not nearly as many barriers and limitations for bringing a lawsuit against the school — especially for personal injury cases. While private school lawsuits may need to stem from different legal theories than they do for similar offenses in public schools, you may also be able to circumvent a private school’s internal complaint process altogether, depending on the facts of your case. However, private schools generally have more money to spend on legal counsel and prolonged litigation, so in order to win these cases, it is good to have a large group of other parents at the school on your side.

When should I contact an education attorney?

Nobody wants to have to sue a school, and it is not always an easy process, but sometimes it is the only way to ensure you and your child are compensated fairly for the damage you have suffered. If your child is being discriminated against, neglected, abused, bullied, wrongfully expelled, unfairly punished, subjected to hazardous conditions or irresponsible supervisors, or their special needs are continually left unmet, it is time to meet with an education lawyer. Your child has rights, and an expert education attorney will know how to assert and protect those rights so that you don’t have to constantly worry about how your child is being treated at school.

Do I need an education attorney near me?

We recommend finding an education attorney familiar with the school districts in the county where the case is being tried. An education lawyer in the same county as the school district will generally be more familiar with the civil courts, versus an out of state attorney.

Have questions? Call us at (424) 599-4870.

About EducationAttorney.com & RMO Lawyers

RMO LLP serves clients in San Diego, Los Angeles, Santa Monica, Orange County, and communities throughout California. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates.