Private Education Matters: June 2024

Private Education Matters

Grace

Victoria M. Gómez

arbitration

Court Of Appeals Finds USC’s Arbitration Agreement Was One-Sided And Unfair To Employee.

On July 1, 2022, Pamela Cook filed a complaint against the University of Southern California (USC) alleging that she was subject to disparate treatment by USC based on her race. Cook also alleged that USC failed to accommodate a variety of health-related time-off requests and that she was subject to retaliatory harassment when she reported her concerns. Cook alleged that due to this conduct, she was constructively discharged from her employment.

On October 24, 2022, USC filed a motion to compel all of Cook’s claims to arbitration. USC said that Cook’s employment offer was contingent upon executing an employment and arbitration agreement. Cook electronically signed the agreement on May 7, 2021. USC argued that all of Cook’s claims fell within the scope of the arbitration agreement, which USC said was a mutual arbitration agreement and afforded Cook all of the same rights and remedies that would have been available to her in court.

Cook disagreed. She argued that the agreement was procedurally and substantively unconscionable. Unconscionable terms in an arbitration agreement are not enforceable. Procedural unconscionability occurs when there is oppression or surprise due to the unequal bargaining power between the parties. Substantive unconscionability occurs when there are overly harsh or one-sided results.

Cook argued that the agreement was procedurally unconscionable because she was forced to sign it as a condition of her employment. She argued the agreement was substantively unconscionable because it was for an indefinite scope and covered her claims regardless of whether they related to her employment with USC; the agreement also survived the termination of the employment relationship for an indefinite period.

The trial court denied USC’s motion to compel arbitration. The trial court found the agreement was, to a small degree, procedurally unconscionable because of the non-negotiable nature of the agreement as a condition of Cook’s employment. The trial court also found the agreement was substantively unconscionable because it was indefinite in scope and duration. The agreement specifically provided that it would survive Cook’s termination and could only be revoked in a writing signed by Cook and the president of USC. It applied to all claims that Cook brought, regardless of whether they arose from her employment. For example, if Cook was the victim of a botched surgery in a USC hospital in 15 years, her claims could be subject to the arbitration agreement.

The trial court also found that the agreement was not mutual—it required Cook to arbitrate her claims against USC and all of USC’s related entities, including officers, trustees, administrators, employees, and agents. Conversely, the agreement only required USC to arbitrate its claims against Cook; it did not require USC’s related entities to arbitrate their claims against Cook. USC appealed.

Usually, both types of unconscionability need to be present for a court to refuse to enforce a contract. However, the two types do not need to be present to the same degree. For example, the more substantively oppressive the contract is, the less evidence of procedural unconscionability is required to conclude the contract is unenforceable.

The trial court found a low degree of procedural unconscionability, which the parties did not dispute on appeal. In terms of the substantive unconscionability, the trial court found the agreement was unconscionable for the following reasons: (1) the broad scope of the agreement; (2) the infinite duration; and (3) the lack of mutuality. The Court of Appeals considered the trial court’s reasoning on appeal and agreed with the trial court’s findings on all three accounts.

The Court of Appeals found the agreement was overly broad—it applied to claims totally unrelated to Cook’s

employment with USC. The Court of Appeals reasoned that USC could have limited the terms to only claims that arose out of or related to her employment or termination, but chose not to.

The Court of Appeals likewise found the duration was unconscionable because it survived indefinitely following Cook’s termination. The plain language of the agreement stated that the contract would survive unless and until Cook and USC terminated the agreement in a writing, signed by both parties.

Finally, the Court of Appeals agreed that the agreement lacked mutuality. The plain language of the agreement provided a significant benefit to USC’s related entities, without any reciprocal benefit to Cook. The Court of Appeals found that USC gave no justification for this onesided treatment. Therefore, the Court of Appeals upheld the trial court’s ruling that the arbitration agreement was unconscionable.

Note:

This case is relevant for schools that use arbitration agreements in their employment contracts. An overly broad arbitration agreement may not be enforceable and schools should consult with LCW to ensure their arbitration agreements are properly drafted.

Cook v. University of Southern California (May 24, 2024) ___Cal. App.5th___ [2024 Cal. App. LEXIS 338].

Supreme Court Rules That Courts Must Stay, Rather Than Dismiss, Lawsuits Sent To Arbitration.

Current and former delivery drivers for Intelliserve brought a lawsuit alleging that Intelliserve violated employment laws by misclassifying them as independent contractors and failing to pay them minimum wage, overtime wages, and failing to provide paid sick leave. The delivery driver plaintiffs filed in Arizona state court and then Intelliserve removed the case to federal court. Intelliserve moved to compel arbitration and dismiss the case. Both parties agreed that all claims were subject to mandatory arbitration under the Federal Arbitration Act (FAA).

However, plaintiffs argued that section 3 of the FAA required the trial court to stay the action pending arbitration, rather than dismiss it.

Section 3 of the FAA, which is located at 9 U.S.C. section 3, states that when a dispute is subject to arbitration, the court “shall on application of one of the parties stay the trial of the action until [the] arbitration” has concluded.

The trial court issued an order compelling arbitration and dismissing the case without prejudice. The trial court noted that “the text of 9 U.S.C. section 3 suggests that the action should be stayed,” but Circuit precedent instructed that notwithstanding the language of section 3, a trial court may either stay the action or dismiss it outright when the court determines that all of the claims raised in the action are subject to arbitration.

Plaintiffs appealed the dismissal to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the trial court's decision to dismiss the case, noting that Circuit precedent gave the trial court the discretion to dismiss. Plaintiffs appealed to the U.S. Supreme Court, which granted certiorari.

The Supreme Court held that the plain language of the FAA required the court stay the proceeding pending arbitration, rather than dismiss it. Intelliserve had argued that the word “stay” in section 3 only meant that the court had to stop parallel in-court litigation during the arbitration, which could also be accomplished by dismissing the case. The Supreme Court disagreed and pointed out that the “longestablished legal meaning” or “stay” meant a temporary suspension of legal proceedings, not a dismissal.

Intelliserve also argued notwithstanding the statutory language, trial courts have the inherent authority to dismiss proceedings that are subject to arbitration. The Supreme Court again disagreed, pointing out that the statute overrode any inherent discretion a trial court might have otherwise had.

The Supreme Court further found that the FAA’s structure and purpose supported that a stay rather than dismissal is required. The FAA sought to move arbitrable disputes out of the court and into arbitration. The FAA allows a party to appeal an order denying arbitration. However, the FAA only allows a party to appeal an order granting arbitration under limited circumstance. If a court dismisses a case that is subject to arbitration, that triggers an immediate right to appeal, which is something the FAA sought to avoid.

Finally, the Supreme Court found that staying rather than dismissing a case better aligns with the supervisory role that the FAA envisioned for the courts. The FAA allows courts to assist the parties with arbitration, such as by appointing an arbitrator or enforcing subpoenas issued by arbitrators. This is easier to do if the lawsuit remains on the court’s docket. Otherwise, the parties would have to file a new suit to enforce the FAA’s procedural protections.

The Supreme Court reversed the Ninth Circuit’s judgement and remanded the case.

Smith v. Spizzirri (2024) ___U.S.___ [___L.Ed.2d___].

discrimination

Religious University Can Sue Government For Probe Investigating Anti-LGBTQ+ Employment Practices.

The Washington Law Against Discrimination (WLAD) declares a right to be free from discrimination because of sexual orientation. The Attorney General and private individuals may sue employers for discriminatory practices under the WLAD.

The WLAD exempts religious nonprofits from its definition of “employer.” However, in 2021, the Washington Supreme Court determined that the WLAD’s exemption of all religious nonprofit employers might violate the Washington State Constitution. At the same time, the U.S. Supreme Court has recognized special protections for religious employers with regard to ministerial employees.

Seattle Pacific University is a Christian university that prohibits employees from engaging in samesex intercourse and marriage. After receiving hundreds of complaints, the Washington Attorney General sent the University a letter alerting it to an investigation under the WLAD. The letter requested: (1) information regarding hiring, discipline, and employment policies, (2) a description of instances when the sexual orientation policies have been implemented, (3) any complaints from prospective, current, or former employees, and (4) the job descriptions for all employees. In addition, the Attorney General requested the retention of all documents relevant to the investigation.

In response, the University filed suit against the Washington Attorney General to stop the investigation and any future enforcement of the WLAD. The Attorney General filed a motion to dismiss the lawsuit, arguing, among other claims, that the University failed to allege any injury. In response, the University argued that the probe and future enforcement of the WLAD violated the First Amendment. At oral argument, the trial court questioned the Attorney General’s counsel on the repercussions of the University ignoring the letter, to which the Attorney General’s counsel replied that there were no legal consequences. The trial court dismissed the complaint. The University appealed.

To establish standing, the University must show that they experienced an injury, causation, and a likelihood that a favorable decision would redress their injury. The University argued that the request for documents chilled their religious exercise, both because the University was targeted for retaliation and because the probe intruded on their religious autonomy. The Court of Appeals disagreed, reasoning that there were no legal consequences for ignoring the Attorney General’s requests. The Court of Appeals also found that the investigation alone was not sufficient to establish a First Amendment violation. The ministerial exception is an affirmative defense and only applies to certain employees, meaning that a threshold inquiry into whether an individual is a minister is necessary.

With that being said, the Court of Appeals concluded that the University established “preenforcement standing,” which occurs when a party has alleged a credible threat of enforcement in the future, resulting in a chilling effect on a party’s conduct in the present.

The University provided sufficient evidence that it intended to continue its employment practices. For example, in the face of faculty and student pressure to change its policies, the University’s Board voted to retain the existing employee conduct policy prohibiting same-sex marriage and intimacy. Furthermore, the University alleged that it would be automatically disaffiliated from the Free Methodist Church if it permitted employment of Christians in same-sex marriages. The University made clear that it would continue to apply its sexual conduct policies to all employees, meaning that it would arguably violate the WLAD, which prohibits employment discrimination on the basis of sex. Finally, the Attorney General’s letter requesting documents and a litigation retention hold was enough to establish a threat of enforcement.

The Court of Appeals reversed the trial court’s dismissal of five out of 11 of the University’s claims.

Note: This University is located in Washington; however, this decision was from the Ninth Circuit Court of Appeals, which is binding on California.

Seattle Pac. Univ. v. Ferguson (9th Cir. June 7, 2024) 2024 U.S. App. LEXIS 13908.

defamation

Court Allows Professor’s Defamation Case To Move Forward, Citing That UPenn Embraced Cancel Culture.

The Christian Action Life Movement, later known as the MOVE family, was founded in 1972 as a family of revolutionaries. In 1983, the Philadelphia MOVE members resided in a house in Philadelphia. During a standoff between the MOVE members and the Philadelphia Police, the police dropped an aerial bomb on the MOVE residence, killing MOVE members, presumably six adults and five children.

After the MOVE bombing, Dr. Janet Monge, a doctoral student at the time, assisted in identifying those killed during the MOVE bombing. In the process of this investigation, Dr. Monge and Dr. Mann (a professor of anthropology at Penn) came across remains that they believed may not have been affiliated with any of the known MOVE victims. Dr. Monge and Dr. Mann referred to these remains as Jane Doe. The City worried about its liability if the bombing killed neighbors unrelated to the incident. The City’s appointed commission and Dr. Mann issued conflicting reports as to whether these remains belonged to the MOVE family or to a Jane Doe.

The Penn Museum stored the bones for the next several years, with Dr. Monge and Dr. Mann continuing to research the bones. In August 2020, Dr. Monge published a course on Coursera, an online course platform. The bone remains were shown during the class, and Dr. Monge and one of her students compared the bones to other similar bone fragments.

Paul Mitchell was a former doctoral student of Dr. Monge. Dr. Monge alleged that Mitchell engaged in misconduct while at Penn by defacing books in the Penn Museum, engaging in plagiarism, improperly accessing the lab with friends, stealing DNA samples, and screaming at Dr. Monge, throwing objects at her, and threatening her. Dr. Monge reported these actions multiple times, but Mitchell was not punished.

In April 2021, Mitchell accused Dr. Monge of mishandling the MOVE bone fragments and engaging in professional misconduct regarding the MOVE bombing investigation. Mitchell worked with his then-girlfriend, Maya Kasutto, a writer for the news organization Billy Penn, to broadcast the same sentiments about Dr. Monge. Dr. Monge alleged that Mitchell and Kasutto worked together to “cancel” Dr. Monge by declaring that she harbored racist animus against people of African descent.

Shortly thereafter, in April 2021, a series of news articles and statements began to be published regarding Dr. Monge’s involvement in identifying the MOVE bone remains and her use of the bones in the Coursera course. Dr. Monge alleged the press attention adversely affected her reputation, as people were deterred from working with her and she was forced to remove herself from research articles and other scholarly papers.

On April 26, 2021, a group of professional associations released a statement, strongly condemning Penn, Dr. Mann, and Dr. Monge for their “horrific treatment of the [MOVE] remains” and “for the unfathomable heartlessness and disrespect shown towards the [MOVE] family.” Penn locked Dr. Monge out of her laboratory, and two days later, the President and Provost of Penn sent an email to all Penn Museum employees that they were “disturbed” to learn that the Penn Museum was keeping the MOVE remains and that it was “insensitive, unprofessional, and unacceptable.” The email went on to say that Penn hired outside investigators to look into how Penn came to possess these remains and what happened over the last four decades.

Shortly after this statement, Dr. Monge was removed from teaching classes. Penn called an action to terminate Dr. Monge’s employment, and ultimately Dr. Monge was demoted to “Museum Keeper,” a job that came with a $65,000 salary cut, and after two years, Penn would deem Dr. Monge retired.

During this time, the Institutional Review Board (IRB), Penn’s internal mechanism that investigates whether faculty research is appropriate, was never contacted. Dr.

Monge alleged that the IRB could have investigated her research and potentially cleared her name. Dr. Monge alleged that she had never been found to have violated any professional, ethical, or legal standards when handling the bone fragments from the MOVE bombing.

In May 2022, Dr. Monge sued, alleging defamation, among other claims. Penn moved to dismiss the case. Defamation requires a showing of fault for a court to impose liability. That level of fault varies depending on whether the person is a public or private figure.

In this case, the Court determined that Dr. Monge was a public figure because her work related to an issue of public controversy. There was clear controversy about the bone fragment remains and whether they belonged to the MOVE family or to a Jane Doe. This dispute led to contradictory reports and the potential that the City could be liable for the deaths of individuals outside of the MOVE organization. Dr. Monge further chose to insert herself into the public controversy of the MOVE bombing when she published her Coursera course.

Because Dr. Monge was a public figure, a showing of “actual malice” was required to establish fault for defamation. Here, the Court found that Penn acted with actual malice. Multiple times, Dr. Monge raised concerns about Mitchell’s conduct, yet Penn took no action. Mitchell discussed Dr. Monge’s mishandling of bone fragments before the media firestorm about Dr. Monge began. In the wake of those allegations, Penn locked Dr. Monge out of her lab; released a statement to the Penn Museum employees describing

Dr. Monge’s actions as “insensitive, unprofessional, and unacceptable;” placed Dr. Monge on a work pause; canceled Dr. Monge’s regular summer courses; demoted Dr. Monge; cut her pay; and deemed her retired after two years.

The Court found the asymmetry between Penn’s response to the complaints of Mitchell and Dr. Monge showed that Penn acted with actual malice. There was reason to doubt Mitchell’s statements, and Penn was aware of Mitchell’s potential bias against Dr. Monge, yet took no action to corroborate his complaints or investigate the matter further before publishing statements about Dr. Monge. Penn did not properly investigate the claims through its own internal mechanisms of using an IRB. The Court determined that by publishing a statement about Dr. Monge’s actions, calling them “insensitive, unprofessional, and unacceptable” before conducting any investigation created an inference that Penn acted with malice.

The Court denied Penn’s motion to dismiss.

Monge v. Univ. of Pa. (E.D.Pa. May 14, 2024) 2024 U.S.Dist. LEXIS 87312.

Note:

This case is relevant for two reasons. First, schools should keep in mind that their public statements “canceling” or speaking out against their employees can result in defamation liability. Second, if a school is conducting an investigation, it should avoid reaching any conclusions about what happened until the investigation has finished.

accommodations students

Student Allowed To Play Additional

Year Of High School Sports As Reasonable Accommodation.

After spending a year at a parochial school during the pandemic, where there was significant remote learning, John Doe’s parents enrolled him in an out-of-state boarding school, and opted for him to repeat his freshman year. While at boarding school, John’s academic performance and social and physical health took a steep decline. John was diagnosed with anxiety, depression, and ADHD, among other learning disabilities. John’s pediatrician prescribed him medication and regular therapy sessions, and John received medical advice to continue participating in competitive sports.

John returned home to Rhode Island and enrolled in a private school, where he received academic accommodations, an individualized learning plan, and other support to address his learning disabilities. John also began playing competitive football and basketball, which had a positive impact on his mental health and well-being. John will be a senior next year and wants to continue playing on his respective teams.

However, under the Rhode Island Interscholastic League (RIIL), the organization that administers competitive sports in the state, there is an EightSemester Rule (Rule). Under the Rule, a student is automatically ineligible to play competitive sports eight semesters from when he enrolls in ninth grade. Since John repeated freshman year at the boarding school, he will be entering his ninth and tenth semesters of high school next year.

Students may seek a waiver from the Rule, which involves submitting a Waiver Request Form and accompanying documents, such as transcripts, letters of support, medical documents, and documents relating to a student’s individualized education plan. The request is then reviewed by a committee.

John applied for a waiver, asserting that he needed to play competitive sports for a fifth year to maintain his positive self-esteem, emotional well-being, and ability to engage in the classroom. The application included letters of support from his parents, psychiatrist, and family attorney. The waiver committee heard testimony from John, his parents, the private school’s athletic director, and his family attorney.

The committee unanimously denied the request, which was then upheld on appeal. The committee reasoned that it was John’s parents “personal choice” to have John transfer to the boarding school and repeat freshman year.

John sued, alleging RIIL violated his rights under the Americans with Disabilities Act and moved for a permanent injunction to stop RIIL from enforcing the Rule against John.

To obtain a permanent injunction, the plaintiff must first show actual success on the merits. To show actual success on the merits, John needed to establish: (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some entity's services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.

The Court concluded that John was a qualified individual with a disability–his learning impairments clearly fell within the definition of a disability.

The Court concluded that John’s disability caused his exclusion from competitive sports. Had John not left the boarding school, he would have been eligible to play sports for the remainder of his time there; it was only when John returned to Rhode Island to enroll in a private school that John fell under RIIL’s jurisdiction and that the Rule went into effect. The record also supported that John transferred from the boarding school to the private school due to his disability. After enrolling at the boarding school, John experienced a decline in academic performance and deterioration of

his physical and psychological health—he became isolated and anti-social, lost about sixty pounds, acted out, and failed to maintain routines for academic success. This led to a decline in John’s grades. At the same time, the boarding school did not provide the personalized attention or services to address John’s needs. The Court found that this required John to return to Rhode Island and enroll in a school that could adequately address his needs, for example, with an individualized support plan and counseling.

The Court also concluded that RIIL failed to reasonably accommodate John. Under the ADA, an organization must provide reasonable accommodations to qualified individuals with disabilities. A determination of whether an accommodation is reasonable is a fact-specific inquiry and before denying an accommodation, the defendant must show that the accommodation would fundamentally alter the nature of the program or pose a direct threat to the health and safety of others. Here, waiving the Rule was a reasonable accommodation because doing so was necessary to afford John access to competitive sports.

RIIL argued that waiving the Rule would alter the nature of the program because John would take the starting place of other students and cause unfairness among student athletes. The Court disagreed with RIIL because John would not give his team an unfair advantage over non-disabled students. John did not plan on playing sports in college. John also would not be taking the place of another student, as every non-freshman makes the varsity team at the private school.

In light of these findings, the Court determined that John demonstrated actual success on the merits— John’s disability caused him exclusion under the Rule, and a waiver would have been a reasonable accommodation that would not fundamentally alter the nature of high school athletic competition in Rhode Island.

Following a showing of actual success on the merits, the Court considered four additional factors to determine whether a permanent injunction was appropriate.

These factors were: (1) that the plaintiff has suffered (or will suffer) an irreparable injury absent relief; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, the injunction is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

The parties agreed that there were no other remedies that would adequately compensate John for his future injury—John wants to play competitive sports during his senior year and monetary damages will not address that.

In considering the remaining factors, the Court found that John would be irreparably harmed if he was barred from playing sports during his senior year because doctors recommended interscholastic sports to help his diagnoses and sports were proving successful for John’s well-being.

In balancing the harm imposed on John versus RIIL, the Court concluded that the harm imposed on John was greater. John could lose out on athletic programs that have had a substantial benefit on his overall well-being and his efforts to overcome his learning disabilities. RIIL cited administrative burdens of granting similar requests, but the Court was not convinced by this argument. RIIL is obligated under the law to provide accommodations to individuals with disabilities, meaning the harm imposed on them is relatively minor.

Finally, the permanent injunction would not negatively impact the public interest, in fact it would serve the public interest by including disabled individuals in economic and social life.

The Court granted the permanent injunction.

Note:

This case shows the fact-intensive analysis that is required of schools when considering reasonable accommodations for students.

Doe v. League (D.R.I. May 28, 2024) 2024 U.S.Dist.LEXIS 94423.

DEI

NYU’s Diversity Efforts Not Violation Of Supreme Court’s SFFA Decision.

The Law Review is a student-run academic journal at most law schools across the country. Students who run the Law Review, commonly referred to as editors, select the articles that the Law Review publishes and the students who are invited to join its ranks. Before the Supreme Court’s decision in Students for Fair Admissions, Inc. (SFFA) v. Fellows of Harvard College, the New York University (NYU) Law Review would select fifty new editors each year from the rising second-year class. Of the fifty students, twelve spots were filled by the Law Review’s Diversity Committee.

To select students to fill these twelve spots, the Law Review required applicants to draft personal statements and permitted them to submit anonymized resumes. In evaluating personal statements, the Diversity Committee considered factors that included (but were not limited to) the applicant’s race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability and age.

Following the Supreme Court’s decision in the SFFA case, NYU changed its website in an attempt to obscure the details of its membership-selection process, including removing mention of the Diversity Committee and the diversity set-aside seats. The website still emphasizes the importance diversity plays in selecting members, and requires each applicant to submit a statement of interest that provides a more comprehensive view of the applicant as an individual. Students have the option of submitting a resume, which the Law Review uses to “realize its commitment to staff diversity.”

John Doe, a first-year law student at NYU, who describes himself as a heterosexual white man, is interested in applying for Law Review in the summer of 2024 but claimed that he would be subject to race and sex discrimination and denied an equal opportunity to compete for membership. NYU moved to dismiss the complaint, arguing that Doe did not have standing

to bring the claim and that the claim was not ripe for review.

To establish standing, a party must show: (1) that they have suffered an injury that is concrete and particularized, and actual or imminent; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to speculative, that the injury will be redressed by a favorable decision. For a claim to be ripe, the injury must similarly be actual or imminent, rather than conjectural or hypothetical.

Here, the Court found that Doe’s complaint was riddled with contingencies and speculation. The alleged discrimination had not yet occurred and would only occur if (1) Doe applies to the Law Review; (2) students submit statements of interest or resumes that identify their sex, gender, race, or sexuality; (3) the Law Review unlawfully selects students based on sex, gender, race, or sexuality; and (4) Doe fails to gain admission to the Law Review. The Court would be forced to predict the information students may share with the Law Review and how that information may be used in order to make a ruling on the merits of this case.

The Court concluded that the Law Review selection policy was facially lawful and Doe provided no examples or evidence that the editors gave preferential treatment to women, non-Asian racial minorities, homosexuals, or transgender students. Even if the Law Review learns about an applicant’s sex, race, gender identity, or sexual orientation in the selection process, the Court was not willing to jump to the conclusion that the Law Review would use that information unlawfully.

Furthermore, even assuming that Doe had standing to bring his claims and his claims were ripe, the Court stated that it would still dismiss Doe’s complaint on the merits under Title VI and Title IX. The Court concluded that the membership-selection process was facially-neutral and Doe provided no examples where NYU was giving preferential treatment to certain minority groups. Although the Law Review considered sex, race, gender identity, or sexual orientation before the Supreme Court’s decision in SFFA, this was lawful at

the time. The Court reasoned that the Law Review’s lawful practices in the past did not give rise to an inference of discrimination today.

The Court also found that a commitment to diversity was not enough to conclude an inference of unlawful conduct. Among the many aspects of diversity are life experience, political ideology, academic interests, and socioeconomic background, which do not relate to any legally protected classification. The Court dismissed Doe’s complaint.

Note:

As anticipated, the Supreme Court’s affirmative action ruling last summer has resulted in more cases challenging schools’ and employers’ DEI policies. These cases illustrate how various courts may interpret educational institutions’ DEI efforts. For example, in this case, the judge noted that considering life experience, political ideology, academic interest, and socioeconomic background did not relate to any legally protected classification and therefore was permissible.

Doe v. N.Y. Univ. (S.D.N.Y. May 30, 2024, No. 23-CV-10515 (VSB)) 2024 U.S.Dist.LEXIS 97269.

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boarding schools

Boarding School Escapes Liability

On False Imprisonment And Educational Negligence Claims Following Student’s Death.

Diamond Ranch Academy was a residential treatment center and therapeutic boarding school in Hurricane, Utah, for troubled youths between 12 and 18. Diamond Ranch’s staff included licensed physicians and healthcare providers.

Around October 2021, at the age of seventeen, T.G. was placed in Diamond Ranch by her parents. On December 9, 2022, T.G. reported to medical staff that she was experiencing back pain and having difficulty breathing. On December 13, 2022, the medical staff learned that T.G. had been vomiting and experiencing an elevated heart rate. T.G. continued vomiting for the next four days but was not referred to a medical doctor or taken to an off-site hospital. T.G. begged the staff to take her to the hospital, but her requests were denied. T.G. expressed anger at the staff for their failure to help her while she was sick. On December 20, 2022, T.G. was too sick to leave her bed but was still not referred to an offsite hospital. Later the same day, T.G. collapsed and an ambulance was called. T.G. then died of sepsis.

T.G.’s family sued Diamond Ranch, alleging false imprisonment and educational negligence, among several other claims. Diamond Ranch moved to dismiss these two claims.

False imprisonment occurs when there is an unlawful detention or restraint against another against their will. Diamond Ranch argued that the false imprisonment claim failed because T.G.’s parents approved T.G.’s admission to Diamond Ranch; did not allege that they tried to remove T.G. from Diamond Ranch; and did

not allege T.G. was prevented from leaving Diamond Ranch's premises by Diamond Ranch's staff.

T.G.’s parents argued that Diamond Ranch made written representation to the students' parents that Diamond Ranch would take care of the well-being of the students at the facility; T.G. was in pain and sick in December 2022 at Diamond Ranch; Diamond Ranch's staff did not take her to the hospital when they learned she was sick and despite T.G.'s multiple requests; and T.G. had no ability to call her parents, order a taxi, or walk off the premises. T.G.’s parents further argued that Diamond Ranch restricted students' access to communication with their parents; Diamond Ranch's students endured behavior modification programs, which included labor and workshops; Diamond Ranch represented to parents that the students would be allowed to ensure their basic health needs; T.G. begged Diamond Ranch's staff to take her to the hospital; and Diamond Ranch cancelled T.G.'s appointments to talk to her parents.

The Court dismissed the parents’ claims because they did not allege facts that Diamond Ranch committed an act that restrained T.G.’s movement against her will. For example, there was no evidence that T.G. tried to leave Diamond Ranch’s premises but was prevented by staff from doing so. The School declining to take T.G. to the hospital after she made requests was not enough to establish false imprisonment.

For the educational negligence claims, T.G.’s parents argued that Diamond Ranch committed educational negligence by failing to provide proper educational care to T.G.; fostering a culture of distrust and shame at Diamond Ranch; failing to provide constant care from a family practitioner; and failing to allow T.G. to talk to her parents on December 13, 2022. Diamond Ranch argued that the claim should be dismissed because Diamond Ranch was not responsible for educating

T.G. In response, T.G.’s parents argued that educational institutions have a custodial duty to protect students when children are in their custody.

The Court dismissed the educational negligence claim because Utah does not recognize education negligence. Even if Utah recognized education negligence claims, the Court said it still would have dismissed the claim. While Diamond Ranch had a duty of care to T.G. because T.G. was in their custody, educational institutions do not breach any duty by providing a poor education, as T.G.’s parents alleged here. Furthermore, the Court found there was a reasonable dispute about whether Diamond Ranch’s education curriculum was the cause of T.G.’s death. For these reasons, the Court dismissed the educational negligence claim.

Note:

This Court’s decision was only on two narrow claims, false imprisonment and educational negligence. This family has also brought other claims, including a general negligence claim, against the School. LCW will monitor this case for future developments.

Goodridge v. Diamond Ranch Acad., Inc. (D.Utah May 17, 2024) 2024 U.S.Dist.LEXIS 91351.

security

Providing Security On A Private School Campus.

A paramount concern of a private school is ensuring its campus provides a safe and secure environment for its students. There are many ways a private school can provide and promote a safe campus, such as hiring an expert to conduct a risk and safety assessment and hiring security guards.

Obtaining an Expert Risk and Safety Assessment Report

One way to evaluate the safety of the campus is to hire an expert to conduct a risk assessment and provide a report to the school’s board. The report generally outlines the school’s vulnerabilities and provides recommendations on how the school can improve those vulnerabilities.

Prior to engaging in the expert, the board should take a few issues into consideration. While the board cannot predict exactly what the expert will find and recommend or the associated costs, the board should be aware that it has a fiduciary duty to take action once the report has been issued. Therefore, the board should ensure the board has sufficient funds not only to engage the expert but also to take action once the expert issues the report. Second, the board or administrators should engage an expert that is familiar with private schools and is willing to provide recommendations that are tailored to the school’s unique campus, culture and environment.

Third, the board should determine whether it wants to engage the expert directly or consult with legal counsel to engage the expert. If the school’s counsel engages the expert on behalf of the school and utilizes counsel in the decision-making process, the school will be able to assert that the report is attorney-client work product and that privileged status may remain in the future in the event of an adverse action.

Once the expert issues the report, the board and the directors have a fiduciary duty to review the report and make informed decisions on how to proceed in the best interest of the school. The report may include an array of recommendations, ranging from simple fixes to unfeasible recommendations. The recommendations may be unfeasible for a variety of reasons. The recommendations may be outside the school’s budget, extremely cumbersome to the school operations, change the dynamics or culture of the school, or may violate fire or building codes if implemented. It is important for the board to document the steps it takes to evaluate the report’s recommendations such as documenting quotes, discussions with local safety personnel and other information that goes into the decision of whether to take action to implement a recommendation in the report. If the school wants to assert attorney-client over those discussions, the school may want to engage counsel to assist with guiding the discussion and providing input leading up to the final decisions.

Contracting with a Security Company

Another avenue for the school to provide safety and security on campus is to hire a security company to provide security guards and services. As with any vendor contract, it is important for the school to ensure the contractor clearly identifies each party’s responsibilities and obligations and provides liability protection to the school.

The school should confirm that the security vendor is properly licensed by The Bureau of Security and Investigative Services (the “BSIS”) as a private patrol operator or operator of a private patrol service. BSIS requires that entities providing security services and guards to other businesses for compensation have a license. This includes providing security guards to protect persons or property or to prevent the theft.

The school should consult with its insurance broker to confirm that the school has adequate insurance and that the vendor’s insurance is sufficient for the services the vendor is providing to the school. The school should also make certain that the indemnification is reasonable given each party’s obligations in the contract. The security vendor performing security services is in the best position to manage risk that might arise from the contract, but the security vendor will also not want to take on liability for potential crimes, personal injury or property damage inflicted by third parties that the school is seeking to prevent on its campus. We recommend consulting legal counsel to determine whether the language is reasonable given each party’s obligations in the contract.

Additionally, the contract must comply with Labor Code section 2810 to provide the school with a defense in the event the individual security guards claim their employer did not comply with certain labor code provisions. Labor Code section 2810 prohibits a school from entering into a contract with a vendor for security guard services if the school knows or should know that the contract does not include funds sufficient to allow the vendor to comply with all applicable local, state, and federal laws or regulations governing the security guard services. If the school has a written contract that includes all of the provisions outlined in the statute, it will create a rebuttable presumption that it did not enter into a contract with insufficient funds to allow the vendor to comply with all applicable laws or regulations governing the security guard services. The contract must include vendor contact information, a description of the services, dates the services will be provided, the vendor’s EIN, vehicle liability insurance and workers’ compensation insurance policy numbers, the vendor’s insurance carriers’ contact information, the VIN for any vehicle used in the services, address of any housing provided to the security guards, the number of security guards, specified information related to the security guards’ wages and commissions, information related to any independent contractors utilized to perform the services and a list of the current local, state, and federal contractor license identification numbers that the independent contractors are required to have under local, state, or federal laws or regulations. The contract must be signed and dated by both parties and kept for four years after the termination of the contract.

Hiring Security Guards as Employees

A private school also has the option to hire security guards directly as employees. In this situation, the school would be responsible for the security guards and their actions, just as it would all other employees.

All security guards hired by the school should have the appropriate licenses required and issued by the BSIS. The BSIS also requires employers of proprietary private security officers or security guards to maintain certain information in each employee’s employment records. The school may hire a proprietary private security officer, which is an unarmed individual who is employed exclusively by the school, whose primary duty is to provide security services for the school, is required to wear a uniform and is likely to interact with the public. Alternatively, the school may hire a security guard or security officer, which is an individual who is employed by the school to protect persons or property or to prevent the theft on the premises owned by the school or in the company of persons being protected.

Again, it is important that the school consult with its insurance broker to confirm that the school has adequate insurance to employ its own security guards.

In the event a security guard is required to deploy his or her physical training or skill set in a school, it is more than likely to be a dynamic, chaotic, and confusing situation. If the guard does not have the requisite and ongoing training, it could cause harm. Thus, it is important that the school has an understanding of not only the training, licensing and record keeping requirements necessary to hire a security guard but what future ongoing training entails to ensure the security guards have sufficient knowledge and ability to perform their duties within the industry standards in the event a situation arises.

When evaluating its security options, a school should consult with legal counsel to identify any liability concerns and its options for understanding its liability while creating the safe and secure environment for its students.

cases we are watching

• The Department of Justice recently brought a lawsuit against a school district in Oklahoma after the District failed to reinstate a music teacher following his military deployment in the Air Force Reserve. The complaint alleges that the employee worked as a music teacher in January 2022 under a contract that ran through the end of the school year. The principal said she wanted the employee back. But, a month later, when the employee was ordered to report for duty and notified the principal, she said it would be easier if he resigned. During the employee’s deployment, the school told the employee that his contract for the 2022-2023 school year would not be renewed. When the employee returned, the school denied his requests for reemployment, despite open positions being available.

• World Vision, a Christian non-profit in Washington, agreed to pay a job candidate $120,000 to avoid a trial about its refusal to hire the candidate because she was in a same-sex marriage. Previously, the Court granted the candidate’s partial motion for summary judgment, finding that the customer service job the candidate was applying for was not religious enough to fall under the ministerial exception. The damages trial would have been held for June 4, though was canceled after the parties reached an agreement. LCW previously covered this case in February’s Private Education Matters

• A history teacher in the Sacramento area is suing his union for discrimination under Title VII of the Civil Rights Act, alleging that the union will not let him apply for a board position because he is white. The board position is a newly created member seat created for Black, Indigenous, and people of color (BIPOC). The position is only open for candidates who self-identify as a member of a specific list of racial or ethnic categories, of which white is not included. The board position was created after data showed that the school district suspended Black students more than any other district in the state.

• California’s Jurupa Unified School District recently agreed to settle a wrongful termination lawsuit for $360,000 after a public school teacher claimed the District violated her First Amendment rights when it fired her for not adhering to gender-affirming school policies. The employee claimed the District refused to accommodate her Christian beliefs when it required her to allow transgender students to use bathroom facilities that aligned with their gender identities and to call them by their preferred pronouns.

• Columbia recently settled a lawsuit filed by a Jewish student on behalf of all those who felt pressured to switch to online learning in the midst of pro-Palestine protests on campus. The student felt that Columbia failed to provide a safe learning environment and the student was subjected to anti-Semitism and feared for their safety. The settlement requires Columbia to provide protection for students on campus via a “Safe Passage Liaison,” who will have the authority to open alternative entrances and exits to students and coordinate 24hour security escorts upon request. Columbia also agreed to promote discussions that encourage alternatives to extreme forms of protest and to consider academic accommodations for students who missed end-of-term deadlines due to protest-related campus closures.

did you know...?

• The California Civil Rights Council and the California Privacy Protection Agency (CPPA) have issued proposed regulations to protect against employment discrimination resulting from the use of artificial intelligence, algorithms, and Automated Decision-Making Systems (ADM). The public comment period will close on July 18, 2024. ADM is increasingly used in employment settings on a wide range of employmentrelated decisions, such as recruitment, hiring, and promotion. The tools have the potential to exacerbate biases and contribute to discriminatory outcomes, such as reinforcing gender and racial stereotypes. The proposed regulations clarify how existing rules protecting against employment discrimination apply to these emerging technologies.

• The Equal Employment Opportunity Commission (EEOC) recently found that a nursing facility in Washington violated Title VII of the Civil Rights Act when managers and staff intentionally and repeatedly misgendered an employee who disclosed their gender identity and pronouns to their employer. The EEOC investigation revealed that the gender- and sex-based harassment went on for more than a six-month period, and that despite receiving complaints about and objections to the harassment, the employer failed to act appropriately. The facility agreed to settle the case by paying monetary damages, revising its non-discrimination policies, conducting employee training, and providing additional training to managers and staff.

• California’s state assembly recently voted unanimously to pass a bill that would ban legacy preferences in admissions at public and private colleges in the state. The bill will now advance to a Senate vote. The bill follows the Supreme Court’s ruling last June banning affirmative action. LCW will monitor this bill as it moves through the legislative process.

Workplace Violence Prevention Plan

With the enactment of Senate Bill 553, the legislature amended Labor Code section 6401.7 and added Labor Code section 6401.9, requiring employers to adopt and implement a Workplace Violence Prevention Plan (WVPP) and corresponding training for their employees by July 1, 2024. LCW has developed a number of resources to help employers develop a WVPP for their worksites and training for their employees in order to comply with these new obligations.

lcw best timeline

JUNE

Conduct exit interviews:

• Conduct at the end of the school year for employees who are leaving (whether voluntarily or not). These interviews can be used to improve the organization and can help defend a lawsuit if a disgruntled employee decides to sue.

MID-JUNE THROUGH END OF JULY

Establish, implement, and maintain a Workplace Violence Prevention Plan, and train employees on the plan by July 1, 2024. (California Labor Code section 6401.9)

Update Employee and Student/Parent Handbooks:

• The handbooks should be reviewed at the end of the school year to confirm that the policies are legally compliant, consistent with the employment agreements and enrollment agreements that were executed, and current with the latest best practice recommendations. The school should also add any new policies that it would like to implement upon reflection from the prior school year and to prepare for the upcoming school year.

Conduct review of the school’s Bylaws (does not necessarily need to be done every year).

Review of insurance benefit plans:

• Review the school’s insurance plans, in order to determine whether to change insurance carriers. Insurance plans expire throughout the year depending on your plan. We recommend starting the review process at least three months prior to the expiration of your insurance plan.

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more.

practices

Each month, LCW presents a monthly timeline of best practices for private and independent schools. The timeline runs from the fall semester through the end of summer break. LCW encourages schools to use the timeline as a guideline throughout the school year.

• Workers Compensation Insurance plans generally expire on July 1.

• Other insurance policies generally expire between July 1 and December 1.

AUGUST

Conduct staff trainings, which may include:

• Sexual Harassment Training:

ƒ A school with five or more employees, including temporary or seasonal employees, must provide sexual harassment training to both supervisory and nonsupervisory employees every two years. Supervisory employees must receive at least two hours and nonsupervisory employees must receive at least one hour of sexual harassment training. (California Government Code section 12950.1.)

Question:

A high school administrator asked LCW whether paid student interns who are minors need to go through the fingerprinting process for background checks. These students are current students at the school and would be doing some work with the school over the summer for one month.

• Mandated Reporter Training:

ƒ Prior to commencing employment, all mandated reporters must sign a statement to the effect that they have knowledge of the provisions of the Mandated Reporter Law and will comply with those provisions. (California Penal Code section 11166.5.)

• Risk Management Training such as Injury and Illness Prevention and CPR.

Distribute Parent/Student Handbooks and collect signed acknowledgement of receipt forms, signed photo release forms, signed student technology use policy forms, and updated emergency contact forms.

Answer:

The LCW attorney advised that student interns who are current students at the school do not need to go through the fingerprinting process for background checks. California Education Code section 44237 requires a DOJ background check for all private school employees in a position requiring contact with minor pupils. However, this Education Code section also says that this requirement does not apply to a secondary school pupil (meaning 9th grade and above) working at the school he or she attends.

Liebert Cassidy Whitmore