Abstract
The current climate reflects not only a hostile politicization of diversity, equity, and inclusion (DEI) work but also an institutionalization of anti-DEI sentiments through legislation and litigation, leaving educational institutions to operate within a hyper-legalistic environment. Although there are a large number of education attorneys who interface regularly with educational institutions, the field of education knows very little about contemporary models of collaboration between attorneys for educational institutions and the values that inform these collaborations. In this article, we aim to illustrate the significant role of attorneys for P–20 educational institutions, the need for more research to help us better understand existing strengths and limitations, and ways to harness this role in meaningful ways to further DEI commitments.
School districts and higher education institutions have increasingly adopted strategic plans, mission statements, educational policies, and practices that aim to advance diversity, equity, and inclusion (DEI) (e.g., Anderson, 2019; Benson Clayton, 2021; Fong, 2021; Watson, 2018). Under the umbrella term of “DEI,” educational institutions seek to promote the representation of various unique identities, backgrounds, and experiences; meaningful access to opportunities to individuals regardless of their identities and in ways that account for systemic inequalities; and integration of individuals as part of the community and decision-making processes. As a reaction, we have witnessed organized efforts to undermine DEI at the federal, state, and institutional levels. For example, the Trump administration placed limitations on DEI trainings, referring to them as “divisive” (White House, 2020). Similarly, states passed legislation and adopted policies that limit participation in athletics; discussions regarding race, sex, and gender in classrooms; and offices or staff dedicated to DEI in higher education (e.g., Avery, 2021; The Chronicle of Higher Education, 2023; Jones & Franklin, 2022; Schwartz, 2022). The Supreme Court’s SFFA (Students for Fair Admissions; 2023) decision restricting race-conscious admissions in higher education shows that civil rights setbacks are not just limited to legislation; court opinions also circumscribe policies and practices for educational institutions in ways that undermine DEI commitments.
The ramifications of regressive legislation and court cases cover a range of educational issues and cut across P–12 and higher education. These sources of legal authority not only undermine institutional efforts to advance DEI, but also, their ambiguity leaves educational institutions with little guidance regarding their implementation (e.g., Izaguirre & Gomez Licon, 2022). Although advocates have challenged regressive state laws, litigation takes time. Thus, even when the legality of legislation is questionable, educational institutions are left to navigate an uncertain legal terrain that legitimizes oppressive policies and practices. Moreover, following court cases that restrict equity-oriented policies and practices, educational institutions are tasked with interpreting and implementing court mandates. Within this context, educational institutions can engage in what Garces and colleagues (2021) refer to as “repressive legalism” or “the interpretation and application of legal norms and other facets of the legal environment in a manner that shuts down a focus on other approaches (e.g., institutional responses to promoting inclusion for students of color)” (p. 1059).
Attorneys for educational institutions are caught in the political crosshairs as they advise their educational clients on issues that implicate both the law and broader commitments to DEI. This is particularly noteworthy given that “more decisions affecting human conduct are made in law offices than are made in all the trial courts” (Brown, 1986, p. 171). For example, according to a recent article in The Chronicle of Higher Education, “Counsels are acting from a place of caution,” [Dr. Garces] said. That has led colleges to react to even the slightest risk of adverse reaction. For example, she cited new laws targeting diversity, equity, and inclusion policies that have prompted campuses to scrub their programs “before the bill is even enacted.” (Jesse, 2024)
Further demonstrating the politicized nature of the current climate, attorneys who have worked thoughtfully to help educational institutions make practical sense of regressive laws and preserve institutional DEI commitments within the bounds of the law have been targeted for their efforts (e.g., Miller, 2023; Thompson & Horton, n.d.-b). Overall, the chilling effects of the current climate present practical challenges for educational institutions, and the decisions and advice that legal counsel provides to educational institutions and leaders can advance or stymie DEI efforts on campus.
We recognize the importance of attorneys who advocate for the interests of students and employees; however, in this article, we are particularly interested in attorneys for educational institutions, whether in-house counsel or externally contracted attorneys who are retained as generalists or to provide counsel on particular issues. This particular group of interest holds significant power and influence over the actions of educational institutions across P–20, and some attorneys simultaneously advise multiple institutions, thereby extending attorneys’ reach and influence. In this regard, despite the contextual differences between P–12 and higher education, they share a common reliance on attorneys to inform their everyday functions (Council of School Attorneys, n.d.; Guard & Jacobsen, 2024; Jesse, 2024). In fact, some attorneys or law firms advise both P–12 and higher education institutions (e.g., Franczek, n.d.; Husch Blackwell, n.d.; Thompson & Horton, n.d.-a).
Although there are a large number of education attorneys who interface regularly with educational institutions (e.g., Council of School Attorneys, 2022; National Association of College and University Attorneys, 2022), the field of education knows very little about contemporary models of collaboration between attorneys for educational institutions and educational leaders, board members, and so on. Potential considerations regarding collaboration include: where attorneys are housed in formal organizational structures, reactive versus proactive approaches, and affordances and limitations of existing lines of communication with institutional actors and the implications for collaboration. Moreover, beyond professional standards, we have limited knowledge about what values dictate how they approach their work, particularly as it relates to DEI. In this article, we aim to illustrate the significant role of attorneys for P–20 educational institutions, the need for more research to help us better understand existing strengths and limitations, and ways to harness this role in meaningful ways to further DEI commitments.
The legal dimensions of DEI work present implications across areas of research housed in programs or departments focused on education policy, leadership, teacher education, higher education, and beyond. For example, advice from legal counsel impacts policies and practices that educational institutions may consider related to the curriculum. In turn, attorneys are key actors to consider in research examining barriers or supports related to belonging for minoritized students in the P–12 curriculum. Similarly, attorneys for educational institutions will influence how college admissions officers approach efforts to promote a diverse student body following the Supreme Court’s SFFA (2023) decision. This legal advice will also be relevant to the work of scholars seeking to examine university efforts to promote equity and access to higher education. As these examples demonstrate, these highly politicized issues with legal dimensions are tied to the work of a wide range of education researchers. Unfortunately, we know very little about the role of attorneys for educational institutions, especially in a hostile sociopolitical context.
The Current Hostile, Anti-DEI Sociopolitical Climate
The current climate offers the latest chapter of retrenchment in the 21st century, where societal equity gains have been followed by substantial backlash (Crenshaw, 1988, 2022). The climate is riddled with attacks and policy distractions—diversions that seek to direct society’s attention away from the profound inequities that persist and maintain the unequitable status quo (Harmon, 2020; López et al., 2021; Mayo, 2021). These policy distractions are apparent in legislatures and courts nationwide.
The 2016 presidential election emboldened politicians to counter equity efforts more vocally (Feagin, 2020; Fording & Schram, 2020; Mondon & Winter, 2020), and the P–20 educational context has served as a focal point for these tactics to gain momentum. The hostile discourse at the federal, state, and institutional levels has reframed educational DEI efforts by P–12 and higher education institutions as divisive, racist, and outside the purview of educational institutions, halting or stalling progress through regressive state legislation and institutional policies and practices (M. M. Lewis et al., 2023). These policy distractions have gained national attention and cover topics that span P–12 and higher education, such as critical race theory (CRT), LGBTQ+ students in the curriculum, book bans, trans students’ participation in athletics, limitations on privacy, freedom of speech and religion, mask mandates, and race-conscious admissions policies (Kelly, 2023). These DEI-related issues carry negative implications for minoritized individuals across social identities such as race, gender, sexual orientation, and ability. Overall, the current climate reflects not only a hostile politicization of DEI work but also an institutionalization of anti-DEI sentiments through legislation and litigation, leaving educational institutions in a hyper-legalistic environment. As such, as educational institutions engage in DEI work, they do so with an ever-present awareness of the legal parameters and potential legal repercussions of this work (Garces et al., 2021).
What We Know
Educational inequities are far-reaching and pervasive throughout our educational institutions (e.g., Ladson-Billings, 2006; A. E. Lewis & Diamond, 2015), and countering these inequities requires explicit and intentional action (e.g., Lavadenz et al., 2019). DEI-focused, systemic and organizational change requires engagement across organizational actors in educational institutions (e.g., Honig & Honsa, 2020; Horsford et al., 2019; Ishimaru & Galloway, 2014; Welton et al., 2018). A key missing actor in this rich and critically important systemic change research, specifically, research that examines change in organizational culture through institution-wide policies and practices, is the attorney for educational institutions. In this section, we offer a brief discussion on the role of law in shaping educational settings and what we know about the critical role that legal counsel can play in this dynamic.
Legislation and judicial interpretation of the law determine what policies or practices are legally required or permissible actions for education institutions (M. M. Lewis et al., in press). As such, the policy choices in the discretion of educational institutions are circumscribed by the law (Heubert, 1997; Mead, 2009; M. M. Lewis & Kern, 2018; Mead & Lewis, 2016). Furthermore, collaboration is informed by interdisciplinary norms and training. According to Heubert (1997), 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 [an educational institution’s] operation . . . which may be as important as (or more important than) its legal aspects. (p. 544).
This nexus calls for interdisciplinary collaboration to craft policies and adopt practices that are within the bounds of the law and further DEI commitments (M. M. Lewis et al., in press). Within the legal bounds set by legislation and courts, educational institutions have discretion to implement policies and practices consistent with their mission, vision, and values. Attorneys for educational institutions can communicate the legal parameters to their clients and provide valuable guidance regarding policies and practices that are legally permissible when institutions seek to promote DEI across a range of educational issues.
Although there is limited research on the role of attorneys providing counsel to educational institutions, through education research on various institutional actors, we have learned tangentially about the role of education attorneys. The convergence of law and education can lead to policies and practices that stifle institutional DEI commitments. For example, educational stakeholders may act in restrictive ways out of fear of litigation or may show an unwillingness to participate in meaningful discussions about particular topics because of ongoing litigation (e.g., Garces et al., 2021, 2022).
Focused research on the role of attorneys for educational institutions is limited. Early work focused on the importance of preventing legal issues before they arise, interdisciplinary collaboration, and communication (e.g., Heubert, 1997; Rehak, 1986). In addition to these considerations, Rehak (1986) found that attorneys may lack essential training specific to education law, must be “willing to learn about the education system,” and “be willing to accept the role of school attorney as one of advisor, not policy-maker” (pp. 102–103). In the early 2000s, we also saw some research that focused on the role of educational attorneys or included attorneys as participants (e.g., Crump, 2008; Hustoles, 2012; Hustoles & Palmer, 2015; Magone, 2007; Risch, 2004; Shackett, 2002). However, these studies do not center the implications for equity (although some do touch on equity; e.g., Heubert, 1997), nor do they account for a context in which educational institutions are a focal point of anti-DEI sociopolitical discourse.
Future Directions
It is critical for the field of education to better understand how the educational attorney functions within broader institutional efforts to promote DEI, particularly within the current sociopolitical climate. Attorneys for educational institutions have the potential to shape the actions of educational institutions in profound ways that can exacerbate inequities or enhance DEI commitments.
Our hope is to encourage education researchers to further integrate legal counsel as a key holder of knowledge in future education research in P–12 and higher education settings. This research could include studies that: (a) examine the role of attorneys advising educational institutions as the primary focus of inquiry, or (b) incorporate the attorney as one of many influential actors to examine system-level factors shaping educational policies or practices in a particular area of research. For example, a researcher looking to better understand the forces impacting P–12 policy and practice related to LGBTQ+ students might interview teachers, administrators, school board members, and attorneys. In the higher education context, education researchers studying DEI issues may examine the role of attorneys in advising higher education institutions on the creation, dissolution, or restructuring of DEI offices after SFFA (2023) and legislative changes. Related research across educational contexts and topic areas can inform our understanding of collaborations between institutional leaders and legal counsel, the gaps in knowledge and communication, and the potential systemic barriers to promoting DEI within the bounds of the law. Future research should also explore similarities and differences and, in turn, the benefits and limitations of in-house versus outside counsel on DEI-related issues. Lastly, education researchers can study the development and socialization of attorneys in law schools (e.g., M. M. Lewis et al., 2023; Muñiz et al., 2022) because this training impacts the ways that education attorneys approach their work.
Overall, systemic issues require systemic solutions. The current sociopolitical context necessitates a renewed interest in the role of attorneys for educational institutions. They can serve as a critical lever or obstacle in DEI-oriented systemic change, and we know very little about their role in this work.
