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Abstract:

Assigning fault and responsibility in a lawsuit involving a school is rarely clear cut. Even the most experience attorney can find themselves lost in the complexity of the statutes and regulations governing schools. This article discusses the importance of an education expert in the dispute resolution process, and highlights how an attorney can use the consultation of an expert.

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The rising number of fatal accidents, hate crimes, sexual molestation, beatings, shootings and other unthinkable incidents in our schools today unequivocally demonstrates that educational institutions unfortunately are no longer the safe havens they were meant to be. As society analyzes the causes of such tragedies and develops plans to prevent future occurrences, the issue of proximate cause and blame are naturally addressed.

Who is to blame when a New York City girl is killed when the drawstring of her jacket catches on a school bus handrail? Should a. Florida teacher face suspension for allegedly showing his class how to make a pipe bomb and where to place it 'for maximum injuries and damage to the school? Is a Florida school administrator over-reacting when he recommended the expulsion of a 15-year-old girl for taking a nail clipper with a 2-inch knife to school? Who could have prevented two Massachusetts prep school students from allegedly carving an anti gay slur into another student's back? Is it responsible for an Ohio school to suspend a 9-year-old boy for writing a threatening fortune-cookie message? Did an assistant principal in Dallas go too far when he gagged an 8-year-old girl and bound her wrists with masking tape as punishment for acting up in class?

The resolutions to these and hundreds of similar cases nationwide are not so clear-cut. The settlement of resulting legal battles often depends on the findings of a trained education expert who offers objective analysis of the situations in question. Moreover, these experts and the attorneys they work with are setting precedents for future legal judgments.

Recently, the Supreme Court ruled on three major education cases, which will most likely generate more interest in pursuing legal action against schools and motivate defense strategies among boards of education. One involves a teacher sexually harassing a student. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998). The Gebser court stated that it would not hold a school district liable in damages for a teacher's sexual harassment of a student absent actual notice and deliberate indifference. In Gebser, the student was involved with a teacher but never reported or complained of the relationship. The teacher was fired when others discovered the relationship. In the second case, the Supreme Court held that schools could be sued, in some cases, in which one student sexually harasses another. Davis v. Monroe County Board of Education, 119 S. Ct. 992, 526 US. _ (1999). The third landmark ruling involves services for students with disabilities. In this case, the Supreme Court stated that students with disabilities, who require special care during the school day, are entitled to that care at public expense. Cedar Rapids Community School District v. Garret F, ex reI Charlene F, No. 96-1793, 525 US._(1998).

Whenever new laws are passed, increases in litigation often result. Negligence and disability related lawsuits have risen considerably over the past ten years. Recent studies indicate that, in a school district with 3,500 students, there will be approximately one lawsuit per year. The implementation of federal and state statutes and regulations within the school system is not always smooth. The culture of schools, how they work, the delivery of curriculum, the reaction of teachers to pupils with disabilities, accountability issues relating to supervision, and new teaching methodologies all establish how the laws and regulations must be understood. In many cases, the understanding and impartial investigation of issues may necessitate the use of a consulting education expert who through knowledge, experience, training and education is familiar with schools and the administrative enforcement of the laws and regulations in that environment.

The education expert, as a provider of litigation support, is one of the most important tools a lawyer can use in the dispute resolution process. By virtue of experience and training, certain individuals are able to do and understand things that others are not. This is what defines the expert. Consultants use their expertise to help clients narrow the gap between what they now have or know and what they want or need to know. Expertise, through training, experience and the ability to teach and help others is central to the role of consultants. They are individuals who have the ability to look at an issue, analyze and organize it into understandable elements, and explain it so that people, without such expertise, are able to understand it.

An education expert is not an advocate for one side or the other. He or she is an expert in the field in which the litigation is taking place and has the training and ability to effectively act as an impartial authority. The lawyer is the advocate for the client - the litigation support consultant is an advocate for the principles upon which his or her opinions are based. The education expert may be called upon to assist in all phases of litigation support including investigation, research, preparation of interrogatories, discovery, observation at depositions and trial, and provision of expert testimony. In many cases, the effectiveness of the consultant will determine the outcome of the controversy.

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Lawyers need to recognize the need for a consultant early so they can have the greatest impact on the case. Early on, the education expert can assist with determining the cause of action, appropriate damage or if litigation is warranted. Clients easily recognize the wisdom of the financial investment in an expert witness and will feel more confident about the outcome of the case.

A lawyer should look for an education expert with a broad background including teaching, supervision, management, curriculum development and program monitoring. An expert with a majority of career activities in one or two areas may not be as credible as one with a broader background. Actual work experience in the field is also more impressive and important than primary experience in academia. The court is more likely to listen to the real world opinions of the expert, not the theoretical.

Once an education expert is contacted, the lawyer should review the case in detail, share the basic documentation and ask for an initial reaction. If, after reviewing the issues, the consultant indicates there is no merit, the lawyer should seek advice as to alternative strategies for resolution. If the case seems to have merit, the two should enter into an agreement regarding the case theme, review of materials, reports, time lines and fees. The lawyer should make it clear on which points the consulting expert may be of assistance. The lawyer should ask the consultant if there are any other points that need to be researched and if additional documents or depositions are needed.

Share the ground rules with the education expert. Are you asking for a report or just a documentation review with an informal opinion? Perhaps the most important ground rule involves time lines and the case schedule. When will the consulting expert be expected to be deposed and ready for trial? If a report is necessary, when will it be required? Make sure there is sufficient time so that a professional job can be completed.

Working together the qualified education expert and a lawyer can make an unbeatable team. If you feel that you need to develop such a partnership, let your client know, find a qualified consultant as early as possible and support him or her along the way toward winning your case. Give your consultant the time necessary for the development of a professional analysis and report. Your client is expecting you to sort out and evaluate the issues brought to you and to develop the case. Understanding the education enterprise, how relationships between administrators, teachers, students and parents affect decisions and the application of specific laws and regulations is a task that can be accomplished quickly with a good lawyer/consultant team.

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Dr. Edward Dragan, provides education expert consultation for high-profile and complicated cases. As an educator and administrator, he has more than 35 years' experience as a teacher, principal, superintendent and director of special education. He also has served as a state department of education official.

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