Montgomery County Public Schools spent $2.3 million on attorneys’ fees and other legal costs in fiscal year 2005, and is on pace to spend 10 percent more in fiscal year 2006, which ends June 30.
Fairfax County Public Schools, which is 17 percent larger, spent half as much as MCPS in FY05.
About 45 percent of the county schools’ legal spending is related to special education disputes. One such dispute involving a Potomac family went to the Supreme Court in October following more than seven years in lower courts. The schools prevailed over the parents. The school district spent about $250,000 on the case, according to Brian Edwards, MCPS spokesman.
Other major spending areas include employee grievances and conflicts with builders over capital project bidding and construction.
Three outside law firms — Washington, DC-based Hogan and Hartson LLP and Venable LLP and Columbia, Md.-based Reese and Carney LLP — account for the vast majority of the charges. Ellicott City, Md.-based attorney Jeffrey A. Krew handles many of MCPS’s construction cases.
The spending also includes administrative legal costs but does not include the salary of the school system’s staff attorney, Zvi Griessman.
The federal National Center for Education Statistics tracks school district spending but does not separate legal spending from other administrative costs.
“What I have is anecdotal information from superintendents who tell me that their [legal] costs have tripled in the last decade or so,” said Bruce Hunter, a spokesman for the American Association of School Administrators, which is based in Arlington.
Hunter said that even when legal costs are listed as a line item on school budgets—as in Montgomery and Fairfax—the number does not capture “hidden costs” like liability insurance.
“The most hidden costs of the things you do that you would not otherwise do if you were not protecting yourself,” he said.
“Some of it is just good practice: getting advice before you try different things, getting advice before you go into contracts,” said Naomi Gittins, an attorney for the National School Boards Association in Alexandria. “If you don’t get good legal advice up front, the chances that you’ll pay more down the line are greater.”
Gittins warned that comparing school districts’ legal costs—evened boiled down to a per-pupil number—can be misleading. Some districts have in-house attorneys and some don’t. Legal services cost more in some areas than others. And litigation ebbs and flows from year to year. School districts have to defend themselves in the face of legal challenges, whether the challenges are merited or not.
There are more opportunities for such challenges than ever before due to the growing complexity of education law, Gittins said.
“There’s no let down now in the number of rules and regulations that apply to schools,” she said. “No Child Left Behind … requires a lot of legal assistance for schools.
Higher legal costs could also be tied to a more litigious society, where parents and employees are quicker to sue.
The October Supreme Court Case, Weast v. Schaffer, centered on whether school systems or individual parents should bear the burden of proof when the parties disagree about the adequacy of special education services.
MCPS argued that placing the burden on school districts would open the floodgates of parent lawsuits. It won the case in a 6-2 vote.
“I think the whole nation is more litigious. People default to litigation pretty easily and schools are caught in that like lots of other people are,” Hunter said. “There’s a very specialized bar around employee actions and special education and other kinds of things involving students and that specialized bar makes their living suing us. We’ve created a cottage industry there.”
As for the disparity between legal spending and Montgomery and Fairfax,
”You have to look at how the different districts handle it. If they have five staff attorneys then that’s a whole different ballgame,” Edwards said.
Hunter had a different analysis.
“I just think MCPS suffers from proximity,” the Montgomery County school spokesman said. “The most famous attorneys in the plaintiffs’ bar here in this area live in Montgomery County. … As a parent if Fairfax County, I’m hoping those folks don’t move across the river and set up offices in Virginia.”