Page 139 - Impact: Collected Essays on Expanding Access to Justice

Possible Reasons for School’s Failure to Provide Required Services
Possible Responses by School District
A . No school district policy guidance exists on how schools should provide the services .
A . Develop and disseminate policy guidance .
B . A policy exists, but no training was provided and school officials are not familiar with the policy .
B . Provide training .
C . A policy exists and training was provided, but insufficient resources were provided for the school to provide services effectively .
C . Provide appropriate resources .
D . A policy exists and training and resources were provided, but services were not effectively implemented by school officials .
D . Provide enhanced support, supervision and oversight .
E . A policy exists and training and resources were provided, but some school officials have demonstrated hostility toward recent immigrant families and willfully failed to provide required services .
E . Refer the culpable school officials for appropriate disciplinary action .
The chart is provided to help illustrate the importance of determining the reasons that services are not being provided . Sometimes policy clarification and training are sufficient to address a problem, but sometimes they are not . New resources, administrative support and/ or monitoring may be needed to ensure compliance . In situations in which local government attorneys discover evidence of wrongdoing by agency employees, generally their first obligation is to the government agency – not to the individual – and a referral for possible disciplinary action may be appropriate .41
Of course, many problems have more than one cause . Multiple steps may be needed in order to bring about change, and many people at a local agency may need to be involved . In the case of systemic failures to implement legal mandates, substantial resources, time, monitoring, and possibly even structural changes at the agency may be required .
41 Generally the local government attorney’s primary responsibility is to the local agency or entity, and not to individual employees. See model rules of Prof’l conducT r. 1.13 (concerning representation of organizational clients) & cmt.9 (concerning rule’s applicability in the government context). State or local law may also govern the local government attorney’s role with respect to individual employees in the context of litigation. For example, in New York City, the Corporation Counsel’s responsibilities to represent individual employees in litigation extend only to claims “arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred.” N.Y. gen. mun. law § 50-k(2) (emphasis added). See, e.g., Banks v. Yokemick, 144 F. Supp. 2d 272, 277-81 (S.D.N.Y. 2001).
The Role of Government Officials
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