Charter School Dispute had a Strategic Angle

The charter schools movement has been divisive for the past two decades, but an especially hard-fought dispute broke out in a New York courtroom.

Kirkland & Ellis partners Andrew Dunlap and Jay Lefkowitz moved quickly and successfully, leading a group of lawyers representing 19 New York City charter schools fighting to open their doors last fall.

The issue was "co-location" - in late 2010, the New York City Department of Education announced plans for these charter schools to share space on public school property alongside traditional classrooms. This spurred a community and teacher outcry that finally led to court action in the critical final months of preparation before the schools in question - with 7,000 enrollees - could open.

In May, the United Federation of Teachers union, the New York State Conference of the NAACP and a number of elected officials sued the department to block co-location as part of a related effort to challenge the city's decision to close 22 schools for poor performance in mostly minority neighborhoods.

"Our objective here is to make sure the schools don't become separate and unequal," Charles Moerdler of Stroock & Stroock & Lavan,   lead attorney for the union and the other plaintiffs, told the New York Times.

Kirkland entered the case as the pro bono representative of four charter schools in a case that attracted about 30 lawyers to the courtroom.

"Co-locations were approved in March, and [the opponents] could have filed their complaint at that time, but they chose to file in May," said Dunlap, a general litigator in Kirkland's New York office and recipient of the firm's pro bono service award in 2010. "That put us on a very short schedule. To litigate the full case, we had to do months of discovery in a couple of weeks."

Quick Work

Kirkland volunteered to take the lead counsel position among firms that included Paul Weiss Rifkind Wharton & Garrison,   Arnold & Porter, Mayer Brown, Akin Gump   Strauss Hauer & Feld and SNR Denton. 

Within two weeks, Dunlap, Lefkowitz and their team of full-time litigation and summer associates prepared an opposition brief that addressed whether the department properly issued its co-location plans and whether those plans followed state law.

On July 21, New York County Supreme Court Justice Paul Feinman denied the plaintiff request for a preliminary injunction and dissolved an interim temporary restraining order against the openings. Feinman ruled the union failed to clearly prove the city acted improperly in closing schools and co-locating the new charters. The Kirkland team called it an "interim" victory that at least got the schools open in time. Other aspects of the lawsuit continue.

Dunlap argued the motion and led the Kirkland team that included litigation associates Devora Allon, Samara Penn and Heather Thomas. "They all put in long hours and did excellent work," he said. Total pro bono attorney and staff time totaled roughly 450 hours.

Lefkowitz, a former domestic policy adviser to both Bush administrations, has been active in education policy for the past two decades and has been involved in legal battles involving charter schools and vouchers in California, Wisconsin and Florida.

He said charter schools are growing as a pro bono issue at law firms because the work "has an immediate, meaningful effect on the community" - and also because many firms' business clients have lent their support to the charter movement as a way to improve public education.

Dunlap noted many attorneys have made career moves into the charter-school world as a result of this experience. "They know what to ask for" and provide a level of organizational sophistication to schools that often start on the community level, he said.

Esther Lardent of the Washington-based Pro Bono Institute noted charter school support among law firms has its controversial side. Nevertheless, it is a symbol of the increasingly strategic nature of pro bono work at law firms in general.

"People on the left and the right are in support of charter schools, and there's no question that it's a controversial school choice, but it's an area where lawyers can make a difference in education on the community level," Lardent said. "Law firms have become much more strategic about it."

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