In National Merit scandal, FCPS agreed to pay outside lawyers hefty fee: $2,225 per hour

On Jan. 31, after Virginia Attorney General Jason Miyares launched a civil rights investigation into Fairfax County Public Schools for withholding National Merit awards from students, the embattled school system’s chief counsel, John Foster, retained Sidley Austin, agreeing to pay its senior partners a rate of $2,225 per hour – the monthly salary of some teachers.

According to a copy of the retainer agreement, obtained by Fairfax County Times in response to a public records request, Foster signed the retainer agreement with M. Sean Royall, a partner at the tony law firm, headquartered on K Street NW in Washington, D.C., blocks from the White House. In a section titled “Matter,” Royall stated the firm’s representation of Fairfax County Public Schools is related to the “Virginia State AG Investigation (the ‘Matter’).”

Parents said the agreement begs the question why the school district’s own lawyer, Foster, isn’t managing the school district’s response to the investigation by Miyares. In response to another public records request, Fairfax County Times has learned that Foster is currently paid $234,434 annually – or about four times the rate of a beginning teacher’s salary in the school district.

What is further ironic, parents say, is that Fairfax County Superintendent Michelle Reid went on an extensive “apology tour,” as one local resident called it, first calling the withholding of awards a “one-time” mistake, and then a “staffing” issue, before principals at numerous schools admitted they had withheld National Merit awards from students. Already, Reid is paying the law firm Sands Anderson PC to “investigate questions surrounding notification to students of awards or recognition from the National Merit Scholarship Corporation ('NMSC')." Attorneys at the firm conducted interviews with parents for an internal report to the superintendent. 

In the retainer, Foster agreed to pay the law firm’s senior partners and senior counsel the rate of $2,225 per hour, while agreeing to pay $700 per hour for “new associates” and $400 per hour to $570 per hour for paralegals. Helen Lloyd, executive director of the school district’s Office of Communications and Community Relations, issued a statement for the school district, stating, “Unfortunately, FCPS has been required to retain legal counsel to counter recent baseless claims made by the Attorney General. The Attorney General’s office blocked FCPS from working with any of the most highly-qualified [sic] and less expensive Virginia-based legal firms FCPS originally contacted and therefore the Attorney General is responsible for imposing these higher legal costs on taxpayers.”

In fact, people familiar with the process said, law firms are “blocked” when they are already doing business with the Office of the Attorney General and simple conflict-of-interest policies, like the ones outlined in the state’s “Outside Counsel Directives,” preclude them from being retained by clients being investigated by the Office of the Attorney General. A spokeswoman for Miyares declined comment, citing the open investigation.

Parents like local mother Shawnna Yashar, an attorney who first discovered the withholding of National Merit awards at her son’s school, Thomas Jefferson High School for Science and Technology, are outraged over the hiring of the expensive new legal counsel and the school district’s excuse. “All the high-powered, expensive lawyers in D.C. can't wash away the fraud Fairfax County Public Schools inflicted on hundreds of students and their families,” said Yashar. “Awards earned by students, during school hours were specifically and purposefully withheld from children to spare the feelings of others. Parents don't need a $2,250/hour lawyer to know FCPS is in the wrong.”

The official biography for the Royall, the partner at Sidley Austin, notes he has “spent his entire career handling complex litigation matters and government investigations,” saying he is “equally effective navigating complex government investigations.” Formerly deputy director of the Federal Trade Commission’s “Bureau of Competition,” the irony of Royall’s title is not lost on this particular matter, in which parents allege Fairfax County Public Schools undermined the academic competitiveness of students by withholding National Merit awards.

In the agreement, Royall notes, “We are willing to provide you with a 12.5% discount off of our standard hourly rate.”

“Should gross billings on this matter at any time exceed $500,000,” Royall noted in the retainer agreement, “this discount will increase to 15% from that point forward through the end of the engagement.”

The contract provides a window into hefty billing practices of school districts nationwide, from Loudoun County, Va., to the suburbs of Philadelphia, as school districts increasingly fight parents on matters from Freedom of Information Act requests to allegations of racial discrimination, failure to provide special-education services to children with disabilities, improprieties related to the handling of sexual assault causes and denial of parental rights. 

Members of organizations like the Fairfax County Taxpayers Alliance have consistently lambasted school district officials in Fairfax County for the exorbitant legal fees they pay to argue cases in court.

The new legal fees come amidst an already exorbitant tally that Fairfax County Public Schools’ auditor, Esther Ko, released not long ago in a Legal Audit Report, which concluded that the school district had spent $9.2 million on 10 legal and consulting firms, one firm only listed as “A Consulting Firm,” over a year and a half, between June 1, 2020, and Dec. 31, 2021, to provide “general legal advice and litigation services.” 

In the National Merit scandal, Yashar learned this past November that school administrators had intentionally withheld distributing National Merit Commended Student awards from students, handing them out after early college application deadlines had passed. Brandon Kosatka, the director of student services at TJ, told Yashar that the school principal, Ann Bonitatibus, and he didn't want to “hurt” the feelings of students who didn’t get the award, the mother said.

The withholding of awards occurred as the school superintendent, Reid, paid a sole-source nine-month contract of $455,000 to an outside California-based consultant, Mutiu Fagbayi, founder of Performance Fact. Inc., for strategic planning work that includes a strategy of “equal outcomes for every student, without exception” in Fairfax County, in line with an “equity” agenda called “One Fairfax,” passed by the Fairfax County Board of Supervisors. 

News of the high-priced legal fees is emerging as public outcry builds over an 8-2 vote last week  by the Board of Supervisors to give themselves a hefty 45% pay raise, increasing their salaries to between $125,000 and $130,000 for county supervisors and between $140,000 and $145,000 for Chairman Jeff McKay. Only one of the county’s nine Democratic supervisors voted with Republican Pat Herrity against the pay raise. The Board of Supervisors will hold a public hearing on March 21 before the pay raise is final. 

A former Wall Street Journal reporter, Asra Q. Nomani is the author of a new book, “Woke Army.” She is a senior fellow at Independent Women’s Network. She is reachable at asra@asranomani.com and @AsraNomani on Twitter.