Private Education Matters
WeLCOME BACK TO SCHOOL
As schools return for another school year, LCW wanted to highlight important dates, events, and new and potential legislation relevant for independent schools in California.
Important Dates & Events
• September 24, 2024: LCW Webinar – Election 2024: Helping Private Schools Navigate the Global and Social Climate in an Election Year. Presented by Julie Strom and Grace Chan. Another Presidential election season is upon us in 2024, and it will likely be a time of charged debate and strong opinions. This webinar will help schools understand how to navigate thorny issues, such as what to do when employees feel they have a right to express their political views at work or in the classroom, and how to handle student concerns that they are being treated differently because of their political allegiances. Using interactive case studies, this webinar will explore the unique challenges for schools in handling these difficult issues, provide guidance on promoting respectful dialogue, and also discuss what election-related conduct is permissible under the law.
• October 1-15, 2024: Private School Affidavit. All private schools must annually file an Affidavit
or statement with the California Department of Education (CDE) (Education Code Section 33190). The statutory filing period is October 1 through 15; however, the filing system is open throughout the school year beginning August 1 and ending June 30 to accommodate new schools and home schools. More information about the information that must be reported in the Affidavit can be found in the Best Practices Timeline and on the California Department of Education’s website
New Laws and Bills We Are Watching
• Cal/OSHA Passed a New Indoor Heat Standard: Effective July 23, 2024, the California Occupational Safety and Health Standards Board (Cal/OSHA) adopted a new standard for Heat Illness Prevention in Indoor Places of Employment (8 Cal. Code Regs section 3396). The standard requires employers to take the following steps: for indoor workplaces where the temperature reaches 82 degrees Fahrenheit, employers must take steps to protect workers from heat illness. Some of the requirements include providing water, rest, cooldown areas, and training. Additional requirements apply when the temperature reaches 87 degrees, and include: cooling down the work area;
implementing work-rest schedules; and providing personal heat-protective equipment. If employees wear clothing that restricts heat removal or work in high radiant heat areas, the additional requirements apply at 82 degrees. Finally, Cal/OSHA also requires that this rule is written in a plan, which can be incorporated into an employer’s injury and illness prevention program (IIPP). More information about the Indoor Heat Standard can be found here.
• CRD Proposed Regulations to Protect Against AI Employment Discrimination: The California Civil Rights Council recently proposed regulations to protect against discrimination in employment resulting from the use of artificial intelligence, algorithms, and other automated decision-making systems. The proposed regulations aim to address how employment discrimination protections apply to the emerging technologies. More information about the proposed regulations can be found here.
• SB 1047 – The Safe and Secure Innovation for Frontier Artificial Intelligence Systems Act: SB 1047’s purpose is to regulate the development and use of advanced artificial intelligence (AI) models. The bill requires developers to assess risks and harms before training AI models, and requires developers to report AI safety incidents to the state. Under this bill, developers may be held liable for the misuse of their AI models. This bill is expected to be voted on this month, and if passed, would go into effect in January 2025.
affirmative action
Federal Court Determines That Race-Based Grant Program Likely Violates Federal Law.
On June 3, 2024, a Federal Court of Appeals ruled against the Fearless Fund, a venture capital firm with a nonprofit foundation running a program called the “Strivers Grant Contest,” to provide $20,000 grants to businesses owned by Black women. Specifically, the Court of Appeals ruled that a preliminary injunction halting the program should be imposed pending a full legal challenge to the program’s race-based nature.
The lawsuit was filed last year by the American Alliance for Equal Rights (Alliance), which was also involved in the 2023 Students for Fair Admissions Supreme Court case challenging affirmative action in college admissions. Now, in this Fearless Fund case, the Alliance argues that the Foundation’s contest violates Section 1981 of the 1866 Civil Rights Action, a federal law prohibiting race discrimination in contracting. The grant application contest was open only to businesses that are at least “51% black woman owned,” which the Foundation explains is consistent with its mission to bridge a gap in venture capital funding for women of color founders. The Alliance represents several business owners who wish to participate in Fearless Fund’s contest but are not black women.
When the Alliance initially filed the case, the trial court denied the Alliance’s request for an injunction to prevent the Foundation from operating the program during the pendency of the case. The Alliance appealed that denial, arguing before the Eleventh Circuit Court of Appeals that the Foundation was effectively entering into a contract with the grant recipients based on race, violating Section
1981’s ban on race discrimination in contracting. The Fearless Foundation argued that it was not engaged in contracting, but charitable giving, and that the First Amendment protected the Foundation’s program because the contest is a form of expressive conduct reflecting its commitment to the black women-owned business community.
The Court of Appeals rejected these arguments, holding that the program likely violates Section 1981 and, therefore, the Foundation must pause its program pending a final ruling at the trial court. In reaching that conclusion, the Court of Appeals first reasoned that the contest was not purely charitable giving, but involved contracting, because it required a winner to give the Foundation the right to use a winner’s name and likeness as a condition for receiving a grant, among other reasons. The Court of Appeals also reasoned that the First Amendment guarantees a right to engage in association to advance beliefs and ideas, but does not protect the act of discriminating based on race. Therefore, the Foundation’s refusal to entertain applications from business owners who are not black females likely violates federal law.
This ruling only applies to whether the court should issue a preliminary injunction during the pendency of the underlying challenge to the case. There is not yet a final ruling. Additionally, the Eleventh Circuit’s rulings are not binding in California and therefore, do not change California law.
However, it is important to take note of this ruling. The court’s reasoning and the ongoing legal challenges to similar race-based programs have potentially farreaching implications.
LCW attorneys are closely monitoring further developments in the Fearless Fund case. They are available to discuss these developments with schools seeking to understand the potential implications for their practices.
Am. All. for Equal Rights v. Fearless Fund Mgmt., LLC (11th Cir. 2024) 103 F.4th 765.
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ministerial exception
Ninth Circuit Finds The Ministerial Exception Is Not Limited To Teachers And Religious Leaders.
San Francisco Zen Center is the largest Soto Zen Buddhist church in North America. The Center is a religious training institution and offers several different types of programs for individuals interested in learning about and training in Zen Buddhism. Some programs are offered to the general public, while other programs are reserved for those who live full-time at the temple and are part of a residential program.
Residents participate in both “formal practice” and “work practice.” Formal practice includes morning and evening meditations, as well as services, tasks, classes, and events. Work practice includes cooking, dishwashing, bathroom cleaning, preparing guest rooms, and participating in ceremonial tasks. Both formal and work practices are necessary parts of the Zen Buddhist practice. Attendance at formal practice and work practice is mandatory.
Alex Behrend learned about the Center by searching online for volunteer opportunities after he suffered serious injuries in a car accident and had been diagnosed with post-traumatic stress disorder (PTSD). Due to his injury, Behrend could not work in his previous career, which made it difficult to afford stable housing. Behrend continued to volunteer and participate in programming as a non-resident. In 2016, Behrend was given one month’s notice of losing his housing and the Center’s head of practice encouraged Behrend to apply for the residential program. Behrend was part of the residential program as a guest student, and later as a Work Practice Apprentice (WPA). He received room, board, and a stipend. For his work practice assignment, he checked guests into lodging, handled and processed payments, prepared guest
rooms, prepared conference rooms, and event spaces, cleaned and folded laundry, and answered guests’ questions. Later, Behrend was assigned to the kitchen where he cooked and washed dishes.
In September 2018, the Center reassigned Behrend to the maintenance crew, but that work exacerbated his PTSD symptoms and when he sought employment on another work crew, his request was denied. Behrend alleged that the Center’s course of dealing after September 2018, including demanding he move out in January 2019, was disability discrimination in violation of the Americans with Disabilities Act (ADA). He also alleged disparate treatment, failure to engage in the interactive process, failure to provide reasonable accommodation, retaliation, and termination.
The trial court granted the Center’s motion, finding that the Center is a religious organization and that Behrend fit within the ministerial exception. Behrend appealed, arguing that he was not a minister because he performed mostly menial work and did not have a key role in making internal church decisions or transmitting the faith to others.
The ministerial exception is grounded in the First Amendment and exempts certain religious organizations’ “ministers” from certain employment laws. The ministerial exceptions preserves religious organizations’ independent authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.
On appeal, Behrend argued that the exception only covered those with “key roles” in preaching and transmitting the faith to others.
The Court of Appeals disagreed, reasoning that there is no rigid formula for deciding when an employee qualifies as a minister. The Court of Appeals explained
that the role of the Court is to take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception. That purpose is to ensure the independence of religious institutions in matters of faith, doctrine, and church government.
Here, the Court of Appeals found that the ministerial exception protected the Center’s ability to determine who may serve in its WPA program. Even though the work performed was mostly menial work, there was no dispute that work itself was an essential component of Zen training and, as a WPA, Behrend had a role in carrying out the Center’s mission.
The Court rejected Behrend’s argument that he was not a minister because his role was not key to the Center’s ability to preach and transmit their faith to others. The Court reasoned that if the ministerial exception required an individual to be high up in a religious organization, then cloistered nuns or monks might be disqualified. The precedent did not support this argument, and the Court of Appeals foreclosed the argument that the ministerial exception only applied to religious leaders and teachers. The Court of Appeals noted that Behrend lived and worked full time at the temple as a monk, performing vital religious duties. The Center was, therefore, given the freedom to select, supervise, and remove a minister without interference by secular authorities.
The Court of Appeals affirmed the trial court’s ruling.
Note:
LCW previously covered this case. This case establishes that the ministerial exception does not only apply to teachers and religious leaders, but rather, anyone performing a vital role in carrying out a religious organization’s mission.
v. San Francisco Zen Ctr., Inc. (9th Cir. 2024) 2024 U.S. App. LEXIS 17536.
Behrend
disabilities
Teacher Requests Remote Work But Fails To Engage In The Interactive Process.
Harold Smith is a teacher who worked for the Shelby County Board of Education (SCBE) public school system for 27 years. In early March 2020, the COVID-19 pandemic resulted in SCBE transitioning to virtual instruction. Shortly before the 2020-2021 school year, Smith took leave under the Family Medical Leave Act (FMLA) to undergo heart and kidney transplant surgeries.
About six months later, Smith’s medical providers released him to return to work. The letter explained that working virtually would be the safest option given his immunosuppressed status, but SCBE should discuss with his doctor and Smith whether he would be required to return to work in person. The letter included precautions if required to be in the presence of others, including wearing a mask and social distancing.
Smith worked remotely in accordance with the SCBE’s policy for all teachers at the time. Within a month of his return to work, however, the SCBE informed employees and students that in-person instruction would resume on March 1, 2021. Smith requested to continue remote teaching due to his health status, and provided a second letter from his providers, which “recommended” and “requested” work from home until July 2021.
In response, the School provided two on-site accommodation options as well as offering a possible leave of absence. The onsite accommodations would have permitted remote teaching from either Smith’s classroom or the gymnasium, while the students were in a nearby computer lab with an educational assistant present. Smith rejected these options and requested working from home. The School reiterated that it was unable to grant his requested accommodation and instructed Smith to follow SCBE’s sick leave protocols if he was unable to report in-person. Smith did not respond and did not follow these protocols. Eventually, SCBE suspended Smith and Smith never returned to work, eventually resigning.
Smith filed suit, alleging discrimination based on a failure to accommodate his disability under the Americans with Disabilities Act. The SCBE moved for summary judgment, arguing in part that in-person attendance was an essential function of Smith’s job and that he failed to engage in the interactive process when he rejected the SCBE’s reasonable
accommodations and cut off communications. The trial court determined that Smith failed to engage in the interactive process. Smith appealed.
On appeal, Smith argued that: (1) the SCBE’s proposed accommodations were unreasonable and (2) he fulfilled his responsibility to engage in the interactive process and satisfied his burden of proposing a reasonable accommodation.
To establish a failure to accommodate claim, an employee must show: (1) he is an individual with a disability, and (2) he is otherwise qualified for his job, by demonstrating he can perform the essential functions of the job, with or without a reasonable accommodation. Entitlement to relief also requires good faith engagement in the interactive process. The Court of Appeals noted that when there is more than one reasonable accommodation, the choice of accommodation is the employer’s.
Here, the SCBE responded to Smith’s request with alternatives to his proposed accommodation, which took into consideration the risks communicated by Smith’s doctors. Even though Smith’s proposed accommodation may have been reasonable, Smith was obligated to continue on with the interactive process. To this end, the Court of Appeals found that Smith withdrew from the interactive process. The School had multiple communications with Smith—they attempted to follow up with proposals that Smith made, and continued to explore options even after Smith’s suspension. When an individual rejects an employer’s reasonable accommodation, the Court of Appeals noted that the individual is no longer considered a “qualified individual with a disability” under the ADA.
The Court of Appeals also considered the SCBE’s decision to reject Smith’s proposed accommodations. The SCBE explained that remote environments decrease student learning and the ability to conduct effective supervision. Smith even agreed that virtual instruction was not in his student’s best interests and working virtually hindered his ability to perform handson work. Smith failed to show that the SCBE’s proposed accommodations were inadequate. For example, the letters from Smith’s medical team never stated that he was required to work from home or that he have complete isolation from others. These questions may have been resolved if Smith continued to communicate with the SCBE, however, Smith’s failure to work with the SCBE resulted in a breakdown in the interactive process.
The Court of Appeals upheld the trial court’s ruling.
Note:
Remote work is a commonly requested reasonable accommodation, and for some positions, it may be reasonable. In this case, the school district had legitimate concerns about allowing a teacher to teach virtually, offered alternative accommodations that would have addressed the teacher’s functional limitations, and continued to engage in the process in good faith, even after the employee stopped responding.
Smith v. Shelby Cnty. Bd. of Educ. (6th Cir. 2024) 2024 U.S. App. LEXIS 19388.
nlrb
Sections Of Separation Agreement Were Overly Broad Despite Savings Clause.
On November 9, 2022, Meta notified over 7,000 of its non-supervisory employees that they were being laid off. Each affected employee was offered a Separation Agreement and Release, which stated that, in exchange for waiving any actual or potential claims and resolving any disputes they may have regarding their employment and separation, the employees would receive enhanced severance pay. Each signed Separation Agreement included a confidentiality and non-disparagement clause.
On February 21, 2023, the National Labor Relations Board (NLRB) found that McLaren Macomb hospital violated employees’ rights under the National Labor Relations Act (NLRA) when it offered overly broad confidentiality and non-disparagement clauses in its severance agreements. The confidentiality provision required the employee not to disclose the terms of the agreement to any third person, other than their spouse, or professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency. The nondisparagement provision required that the employee not to make statements to employees or to the general public which could disparage or harm the image of employer, its parents and affiliated entities and their officers, directors, employees, agents and representatives. The agreement stated that breach of either section could result in substantial monetary and injunctive sanctions against the employee.
The next day, February 22, 2023, a former Meta employee who signed one of the Meta Separation Agreements, filed a charge with the NLRB. The NLRB General Counsel argued that the non-disparagement clause was substantially similar to the ones found in McLaren Macomb, because they required employees to refrain from making any disparaging, critical, or otherwise detrimental comments to any person or entity concerning Meta’s products, operation, or circumstances surrounding their separation. The General Counsel argued that the confidentiality provision was also substantially similar to the one found unlawful in McLaren Macomb, because it required employees not to disclose to others any terms of the agreement, other than their spouse, immediately family, accountant, tax advisor, arbitrator, or court of law. The concern was that employees could not discuss the terms of the Separation Agreement with other employees in similar situations, and would chill them from discussing labor issues and disputes with third parties, including the public. The General Counsel argued that this ran afoul to the NLRA.
Meta argued that the Separation Agreement differed from McLaren Macomb because Meta included safe harbor sections (also known as a savings clause) that made clear that employees were not limited in their ability to assist the NLRB in an investigation of an alleged violation or to assist other employees in this regard. Specifically, the savings clause stated that employees were free to initiate communication with, cooperate, and provide relevant information to the Board and were free to participate and assist in an investigation or proceeding related to an NLRA violation.
The Administrative Law Judge (ALJ) found that the nondisparagement clause as written would chill employees
from engaging in protected conduct, including making comments to seek assistance and support from other employees. Similarly, the NLRB found the confidentiality section would discourage employees from discussing the terms of their Separation Agreement with fellow employees or third parties, including the public.
The ALJ also found that the savings clause did not go far enough because it did not cover all of the rights protected under the NLRA. It allowed employees to communicate with and assist the Board, but did not explain what types of disclosures and commentary were permitted. The placement of the savings clause was four and five pages away from the non-disparagement and confidentiality clauses, which the ALJ found was too remote to provide meaningful clarification to the limitations. Finally, the sections did not contain time limits. Taking these reasons together, the ALJ found that the sections violated McLaren Macomb.
The ALJ applied the McLaren Macomb decision retroactively and ordered Meta to cease and desist from using these sections of the Separation Agreement. Meta was also required to post a notice that it would no longer enforce the confidentiality and non-disparagement clauses in the Separation Agreements.
Note:
This is one of the first cases applying the NLRB’s recent decision in McLaren Macomb and it provides helpful guidance to schools as they provide severance agreements to employees upon separation. In this case, the judge found that the savings clause did not go far enough and that the decision applied retroactively. LCW is prepared to assist schools issuing severance agreements.
Meta Platforms, Inc., 2024 NLRB LEXIS 332 (N.L.R.B. July 19, 2024).
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arbitratioN
Unconscionable Provisions in an Arbitration Agreement Do Not Automatically Void the Entire Agreement.
Charter Communications Inc. (Charter) has nearly 100,000 employees and requires that all employees agree to use their alternative dispute resolution program called Solution Channel. When hired, employees must electronically sign a Mutual Arbitration Agreement (Agreement) and agree to the Solution Channel Guidelines.
Charter hired Angelica Ramirez in July 2019, and she signed the Agreement and agreed to adhere to the Solution Channel Guidelines. Charter fired Ms. Ramirez in May 2020. She filed suit against Charter alleging claims for discrimination, harassment, and retaliation under the Fair Employment and Housing Act (FEHA), and a claim for wrongful discharge.
Charter relied on the Agreement and moved to compel arbitration and to recover related attorneys’ fees. Ms. Ramirez argued that the Agreement was both procedurally and substantively unconscionable. The Agreement included the following: (1) a provision stating which claims were covered or excluded from arbitration; (2) imposed a shortened filing period for certain claims; (3) limited the discovery available in arbitration; and (4) permitted Charter to recover attorneys’ fees if it successfully compelled arbitration. Charter argued that the Agreement was conscionable and if not, the unconscionable provisions should be severed, and the rest of the Agreement should be enforced.
Arbitration agreements are typically conscionable unless there is a lack of mutuality, and one side is unfairly treated. In this case, the Court found that lack of mutuality on its own is insufficient to prove unconscionability. The lack of mutuality must also be without reasonable justification.
The Supreme Court of California made the following
findings regarding the four contested Agreement provisions:
• Covered and Excluded Claims Provision – The lack of mutuality made the “covered and excluded claims” provision substantively unconscionable as it required arbitration of claims Charter was likely to initiate, and exempted many types of claims that could be brought by an employee.
• Shortened Claim Limitations Periods – Parties may agree to shorten claim filing periods, but those shortened limitations periods must be reasonable. Charter’s Agreement unreasonably and substantially shortened Ms. Ramirez’s time to fully pursue a FEHA claim, rendering it substantively unconscionable.
• Limits on Discovery – Parties may agree to have an arbitrator limit discovery for arbitration, but adequate discovery is indispensable for the vindication of FEHA claims. The Court based the assessment of whether a limitation on discovery is unconscionable on factors that can be examined without relying on subsequent developments. Charter’s agreement was ambiguous as to if the arbitrator could order additional discovery. If a contract provision is open to two interpretations, one that would make it valid and the other that would render it void, a court should follow the interpretation that renders it valid. The Court found this provision was conscionable if it was interpreted to mean that the arbitrator has the authority to order additional discovery if necessary to have a fair trial.
• Attorneys’ Fees – Charter’s Agreement required an award of attorneys’ fees to the party who successfully compels arbitration. This provision was unconscionable as an arbitration agreement imposed as a condition of employment cannot require an employee to pay attorneys’ fees unless the action was frivolous, unreasonable, or groundless.
Significantly, the Court did not decide whether it would sever these unconscionable provisions and enforce the remainder of the Agreement or render the entire Agreement unenforceable. The Court reversed the Court of Appeal’s decision and remanded this issue to the Court of Appeal for further consideration and stated, “the court cannot refuse to enforce an agreement simply by finding that two or more collateral provisions are unconscionable as written.”
Note:
LCW covered this case previously. This case is important because it illustrates ways a court may find arbitration agreement provisions unconscionable and that agreements with more than one unconscionable provision are not automatically void. Employers should exercise caution when preparing arbitration agreements with employees to ensure the provisions are reasonable and to avoid including provisions that are substantively unconscionable, which could render the entire arbitration agreement unenforceable.
Ramirez v. Charter Communications, Inc. (July 15, 2024) ___Cal.5th___ [2024 Cal. LEXIS 3696].
Retaliation
56-Day Gap Between EEO Complaint And Termination Did Not Establish Retaliation.
Meyer Kama sued the administrator of his former employer, the Transportation Security Administration (TSA), alleging Title VII retaliation. The TSA terminated Kama’s employment based on his failure to cooperate in an investigation into whether he received illegal compensation for assisting other employees during internal agency investigations.
Kama did not dispute that the TSA's reason for terminating him was a legitimate and non-retaliatory reason, but instead claimed that this reason was merely a pretext to cover up unlawful retaliation. To establish this claim, Kama relied primarily on the temporal proximity between the date of his last formal EEO complaint and the date of his termination. Kama contended that the 56-day interval established illegal pretext by proximity alone. He also cited other circumstantial evidence to support his pretext claim. The trial court disagreed and granted TSA’s motion for summary adjudication.
The Ninth Circuit Court of Appeals held that the temporal proximity between Kama’s last formal EEO complaint and the date of his termination was not sufficient, by itself, to support his claim. The 56-day period was considerably longer than the time periods in nearly all of the cases that Kama relied upon. Also undermining Kama’s temporal proximity argument was the fact that there was a strong temporal link between his noncooperation and his termination. The Court of Appeals also rejected Kama’s list of circumstantial evidence. The Ninth Circuit affirmed the trial court’s grant of the motion for summary adjudication.
Meyer Kama v. Mayorkas (9th Cir.) 2024 U.S. App. LEXIS 17666.
DISCRIMINATION students
Department Of Education Finds
Carmel Unified School District Violated Civil Rights Law.
The Department of Education Office for Civil Rights (OCR) recently completed its investigation into Carmel Unified School District after a student complained that the District discriminated against its students on the basis of shared Jewish ancestry and subsequently retaliated against her.
In particular, the student claimed that the District violated Title VI of the Civil Rights Act when it did not promptly respond to complaints about antiSemitic drawings during the 2021-2022 school year, and that the District threatened to arrest her if she attended a District event after she alleged shared ancestry discrimination.
OCR found that there were at least nine incidents involving anti-Semitic vandalism in 2021-2022.
OCR found that during the 2023-2024 school year six more incidents were reported. Due to high staff turnover, the District said that no records could be found for the 2022-2023 school year.
OCR found that these concerns were raised to the District through multiple avenues at the times they occurred, including during Board of Education meetings and task force meetings, even though the District claimed that it did not receive any formal complaints, and no students reported feeling harassed or subject to a hostile environment.
In repeated instances of anti-Semitic graffiti in the bathroom, District staff reviewed handwriting samples, watched campus security recordings, and monitored the bathrooms before and after class, but were unable to find the person responsible. For the graffiti found on desks, rulers, and another student’s skin, one student was suspended.
Administrators visited classrooms to discuss hate speech, graffiti, and consequences of such actions, but they did not specifically discuss the symbols drawn or the meaning behind them. The District did not provide proof that it offered counseling to those who witnessed or were victimized by the harassment.
OCR found that although the District investigated these incidents and took some steps to stop them (including disciplining students), the District
failed to take effective steps to eliminate the known hostile environment and prevent its recurrence, as evidenced by the fact that incidents continued throughout the 2021-2022 school year and into the 2023-2024 school year.
In response to the investigation, the District agreed to address the incidents of alleged harassment dating back to 2021, revise and disseminate its harassment policies and procedures, and develop a new way to track complaints. The District also agreed to educate students and parents on the types of discrimination that Title VI prohibits and how students and parents can report those violations.
As for the retaliation concern, OCR did not find any evidence of retaliation. The student claimed that the Superintendent threatened to arrest her if she attended a certain event, but the District denied ever doing anything to suggest arrest. OCR reviewed emails between the student and the District and likewise did not find evidence that the District threatened arrest.
The outcome letter can be found here and the resolution agreement can be found here.
UCLA Ordered To Ensure Equal Access To Jewish Students Following Pro-Palestine Protests.
On April 25, 2024, a group of pro-Palestine protestors occupied a portion of the UCLA campus known as Royce Quad and established an encampment. Royce Quad is a major thoroughfare and gathering place, and borders several campus buildings, including the library. The encampment was rimmed with plywood and metal barriers, and protestors established checkpoints and required passersby to wear a specific wristband to cross through. The encampment entrances were guarded by protestors. People who supported the existence of the state of Israel were kept out of the encampment. Protestors blocked students’ pathways to classroom.
Three Jewish students filed suit against UCLA, asserting that they had a religious obligation to support the Jewish state of Israel and felt as though they could not cross the encampment or access
the library without disavowing Israel or subjecting themselves to a risk of violence. The encampment lasted for a week, at which point UCLA directed the ULCA Police Department and outside law enforcement agencies to enter and clear the encampment.
Since the encampment, protestors have continued to attempt to disrupt campus, including briefly occupying areas of campus and erecting barricades to block access to parts of campus. Most recently, on June 10, protestors set up an unauthorized encampment with tents, wooden shields, and water-filled barriers that restricted access to the general public and disrupted final exams.
Based on these facts, the three Jewish students asserted a variety of claims including violations of their constitutional rights, such as the Equal Protection Clause, the Free Speech Clause, and the Free Exercise Clause; claims for violations of their federal civil rights, including Title VI of the Civil Rights Act; and claims for violations of their state constitutional and civil rights under California law.
In response, UCLA challenged the Jewish students’ standing to sue. UCLA argued that the students failed to allege an imminent likelihood of future injury because their remedial actions following the encampment made any future injury speculative at best. UCLA created a new Office of Campus Safety and transferred day-today responsibility for campus safety to an Emergency Operations Center. The Court found that while these actions were commendable, they did not minimize the risks that the students would not be excluded from UCLA’s ordinarily available programs, activities, and campus areas based on their sincerely held religious beliefs. The Court noted that as recently as June 10, students’ final exams were disrupted and access to campus was diminished. Furthermore, the relative quiet on UCLA’s campus over the last few months could be attributed to the summer break. It therefore remains to be seen how effective the policy changes would be with a full campus.
UCLA also challenged the students’ standing to sue on the grounds that the students did not plead facts demonstrating that UCLA would be the cause of any future injury that they would suffer. To have standing, a plaintiff must show that the injury is fairly traceable to the action of the defendant, and not some independent action of a third party. Here, the Court found that UCLA misconstrued the students’ injuries. The injuries were not just exclusion from certain programs,
activities, and campus areas; rather, the injuries were that these programs, activities, and campus areas were provided to other students knowing that the plaintiffs and students like them were excluded based on their religious exercise.
The Court determined that the students had standing to sue, and next considered the merits of the students’ claim. For a court to order a preliminary injunction, the moving party must show that they are likely to succeed on the merits, they are likely to suffer irreparable harm in the absence of the relief, the balance of equities tips in their favor, and an injunction is in the public interest. Here, the Court found that the students had met this burden. UCLA, a state actor, excluded certain students from campus resources while others retained access to those resources, raising questions about the Jewish students’ rights to freely exercise their religion. The likelihood of injury was high, with the Court finding that there was a risk that protests will return in the fall that will again restrict certain Jewish students’ access to programs, activities, and campus areas. The Court balanced the equities and found that the potential infringement on constitutional violations weighed in favor of the Jewish students.
As a result, the Court issued the preliminary injunction. UCLA retained the flexibility to administer the University and the Court did not require specific policies, procedures, or acts that UCLA must take in response to the protests. However, the injunction requires that if any of UCLA’s ordinarily available programs, activities, and campus areas become unavailable to certain Jewish students, UCLA must stop providing those programs, activities, and areas to all students. How to make those unavailable programs, activities, and campus areas available again is left to UCLA’s discretion.
Note:
Although UCLA is not a private educational institution, student protests and encampments are occurring at schools across the nation. Private and public school high school students in California have free speech rights, and schools must navigate the complexities of allowing for student free speech while also ensuring that students are not being treated less favorably based upon their protected classifications, such as national origin or religion.
Frankel v. Regents of the Univ. of Cal. (C.D.Cal. Aug. 13, 2024) 2024 U.S.Dist.LEXIS 146433.
FIDUCIARY DUTIES
Loyalty To School Not Enough To Create Fiduciary Duty Between Nonprofit And Its Donors.
The 12th Man Foundation was created as a charitable organization to promote Texas A&M sports, including by financing athletic scholarships. In the 1970s, the Foundation decided to raise money by soliciting donations from prospective donors and telling them they would receive desirable seats to Texas A&M football games. The quality and quantity of seats varied depending upon the amount the Foundation received as a donation, the year the donation occurred, and the duration of the endowment. When Texas A&M joined the Southeast Conference (SEC), the University decided that the football stadium, Kyle Field, needed renovation. To raise funds, the Foundation adopted a similar fundraising procedure.
In developing the project, the Foundation decided it would need to relocate some of those donors who had previously donated funds and been promised seats. Some of these donors claimed that they were promised the “best available seats” in Kyle Field for the duration of their endowments. Even though these donors were offered other seats and parking in the rebuilt Kyle Stadium, they claimed these seats and parking were not what they were promised and were in locations that were less-desirable than what they were promised.
Anticipating that many of the existing donors might be dissatisfied, the Foundation offered to return the original donation to the donors. Some donors accepted the offer, while others wanted what they were originally promised. The dissatisfied donors sued, alleging breach of fiduciary duty and good faith and fair dealing, among other claims. The Foundation filed a motion to dismiss under the Texas Citizens’ Participation Act (TCPA), which is the state’s anti-SLAPP law. Anti-SLAPP laws are laws
designed to protect First Amendment rights; they allow defendants to quickly dismiss meritless lawsuits that are brought against a party for exercising their First Amendment rights.
To succeed on a TCPA claim, the moving party must show that the legal action is based on or in response to a party’s exercise of free speech, petition, or association. If the moving party establishes that one of these rights are implicated, the burden shifts to the plaintiff to show by clear evidence that their underlying case exists for the claim in question. If the plaintiff establishes their case, the burden shifts back to the moving party to show that an affirmative defense applies.
Here, the Court of Appeals found that the Foundation established their actions implicated their right to association—individuals joined collectively to promote their common interest in Texas A&M sports. The Court of Appeals also found that the Foundation showed that this was a matter of public concern, as the nonprofit’s activities were linked to a public university that was supported by public funds.
Because the Foundation established that the action was based upon the Foundation’s right to association, the burden shifted back to the dissatisfied donors to show that their underlying breach of contract claim had merit. The donors argued that the Foundation had a fiduciary duty of care, and the Foundation was liable to them because the officers and directors did not uphold their duty of good faith and fair dealing when they changed their seats and parking in Kyle Stadium. The Court of Appeals disagreed, finding that the duty of good faith and fair dealing of an officer or director is owed to the non-profit organization, not to the individual members of the organization.
The donors also argued that a special relationship existed based on “Aggie loyalty” and “Aggie core values,” giving
rise to a fiduciary obligation to the members. The Court of Appeals again disagreed. While the donors may have had expectations in relation to a gift or donation, that does not create a duty of good faith and fair dealing, nor does it establish a fiduciary relationship.
Finally, the donors argued that the Foundation “assured” the donors that in exchange for their generous, early, and loyal support, they would be awarded with the best available parking at the stadium. The Court of Appeals determined that these assurances did not create a fiduciary obligation. The Court of Appeals reversed the trial court’s ruling.
Note:
This case is relevant for schools as they fundraise and consider what promises they are making to donors. In this case, the Court did not find a fiduciary obligation existed, but there may be times where a donor and a school agree to certain terms and this can create a contractual obligation for schools and donors.
Tex. A&M Univ. 12th Man Found. v. Hines (Tex.Ct.App. June 13, 2024) 2024 Tex. App. LEXIS 4139.)
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Benefits CORNER
The IRS Issues FAQs About Educational Assistance Plans.
In June 2024, the IRS issued answers to frequently asked questions about educational assistance plans (EAP) under Section 127 of the Internal Revenue Code. Employers that provide educational assistance benefits to help employees pay for tuition, fees, books, supplies, and equipment may exclude the payments, up to $5,250 per year, from employees’ gross income if the benefit complies with Section 127. The IRS’s FAQs describe and clarify the benefit. Here are the highlights from the IRS’s FAQs:
The EAP must be a separate written plan. An employer cannot pay for an employee’s educational expenses under the premise that it has established an EAP unless there is a written plan describing and setting the terms of the EAP. To accompany the FAQs, the IRS created a sample plan for employers, which employers may customize.
Eligible Educational Expenses. EAPs are used to pay for educational expenses such as tuition, fees and similar expenses, books, supplies, and equipment. The benefit does not include payments for meals, lodging, transportation, tools or supplies that the employee can keep after completing the educational course, and does not include any courses involving sports, games, or hobbies unless they are related to the employer’s business or are required as part of a degree program. Out of the eligible expenses, employers may choose which eligible EAP benefits to offer as part of its plan and specify the benefits in the written EAP plan.
The EAP May Pay For Employee Loans Through 2025. Eligible expenses also include principal or interest payments on qualified educational loans if the loans have been incurred by the employee for their own education. The benefit cannot be used
to pay for loans for an employee’s spouse or dependent’s education. Paying for educational loans is a limited EAP benefit that only lasts through December 31, 2025 unless there is future legislation extending it.
The Educational Courses Do Not Need to Be Work-Related. A Section 127 EAP benefit does not have to be limited to work-related courses. It can apply towards courses that are unrelated to the job. The benefit applies to either undergraduate or graduate-level courses.
Annual Limit. Under Section 127, an employer may exclude up to $5,250 of EAP payments per calendar year. Any educational assistance payment above $5,250 in a calendar year is taxable. For any payments made as a reimbursement, the employer must reimburse the expenses in the same calendar year that the employee paid for the expense. Unused portions of the $5,250 cannot be carried over to the following calendar year.
A Section 127 EAP is one way to provide employees with a tax-free benefit to help them pay for educational expenses. Another way to provide a similar benefit is to pay for or reimburse employees for educational expenses as a working condition fringe benefit. A working condition fringe benefit has no annual limit on the amount but the educational expenses must be job-related and meet the IRS’s business expenses requirements.
The IRS’s FAQs about Section 127 educational assistance plans is available at: https://www.irs. gov/newsroom/frequently-asked-questionsabout-educational-assistance-programs. For more information and guidance about your agency’s educational assistance or reimbursement plan, please contact LCW.
Employees Challenge Employer’s Wellness Program Incentive.
Quad/Graphics, Inc. (Quad) offers its employees a choice to participate in an optional “wellness program,” where employees undergo a biometric screening that tests their blood sugar, blood pressure, cholesterol, triglycerides/highdensity lipoprotein, and body mass index. If employees undergo the screening and their test results meet certain standards, they receive a discount on their medical insurance premiums.
A group of employees (plaintiffs) who chose not to participate in the biometric screening sued Quad alleging violations of the Americans with Disabilities Act (ADA). Initially, Quad provided a grace period to give employees sufficient time to elect to participate in the biometric screening. During the grace period, all employees, including the plaintiffs, received the discount to their medical insurance premiums. After the grace period ended, only employees who completed the biometric screening and met the test standards continued to receive the discount. Since the plaintiffs had not participated in the biometric screening, their premiums went back to their original, baseline rates, which were approximately $34 higher than the discounted rates.
The plaintiffs claimed that Quad’s wellness program violated the ADA’s prohibition of employer-based medical examinations and inquiries. Under the ADA, covered employers are not allowed to require a medical examination or make inquiries that assess whether an employee is an individual with a disability unless the examination or inquiry is job-related and consistent with business necessity.
The ADA provides an exception for “voluntary” medical examinations, including ones that are part of an employee health program. The parties did not dispute that the biometric screening was a medical examination.
Quad filed a motion to dismiss the lawsuit. The District Court assessed whether the biometric screening was voluntary. Plaintiffs argued that the monthly charges to their insurance premiums were imposed because they failed to complete the biometric screening, which was a significant penalty. They argued the participation in the biometric screening was coercive and therefore, not voluntary. Quad claimed that employees who elected not to participate in the biometric screening were paying the original costs of the premiums. Quad argued that it was not a penalty, rather the employees who underwent the biometric screening were merely receiving a premium discount.
The District Court stated that the ADA did not include a definition of what “voluntary” means. The District Court determined that whether a medical examination is voluntary is a question of fact. It found that plaintiffs sufficiently alleged evidence to show that Quad’s wellness program and biometric screening was not voluntary based on the motion to dismiss standard and denied Quad’s motion to dismiss, thereby allowing the lawsuit to move forward.
Diment v. Quad/Graphics, Inc., 2024 U.S. Dist. LEXIS 103895.
cases we are watching
• During recent years, Pennsylvania State University (Penn State) has had ongoing financial challenges despite an endowment valued at around $5 billion. One trustee on Penn State’s Board felt the endowment could be higher if the endowment management fees were lower. As part of his role as a trustee, the trustee requested more details on the endowment management fee yet was only provided with publicly available data. The trustee alleged that his fellow trustees denied requests for more financial data, calling the requests unreasonable and overly burdensome. The trustee filed suit against Penn State because he felt unable to carry out his fiduciary duties with the proper level of diligence. The trustee also alleges that his fellow trustees imposed sanctions against him, banning him from committees and removing board social privileges.
• A Los Angeles County Superior Court judge recently ordered Los Angeles Unified School District (LAUSD) to turn over documents and data that it withheld related to Title I funding for the Archdiocese of Los Angeles. By way of background, low-income students in private and public schools receive Title I funding to pay for counseling, tutoring, teacher aides, and learning specialists. The funding is funneled through school districts, and there is an ongoing dispute between LAUSD related to how much funding should be allocated for the Archdiocese’s schools. In 2023-2024, LAUSD cut its total share allocated to private schools from between 2% and 2.6% to 0.5%. LAUSD ignored the Archdiocese’s requests for public documentation related to the cuts.
• The Supreme Court of New Jersey recently ruled that a Judaic Studies teacher employed by an Orthodox Jewish school was considered a minister and subject to the ministerial exception. In 2019, the School learned of allegations of inappropriate conduct by the teacher, including intentional physical conduct with female students, which is contrary to the Orthodox Jewish standards of conduct set forth in the staff handbook. The School terminated the teacher and then issued a letter to the School community regarding the decision to terminate his employment. The letter was disseminated on social media, costing the teacher future employment opportunities. The teacher sued, alleging defamation. LCW previously covered this case, when the appellate court ruled that the ministerial exception extended to tort claims because the claim was related to the religious institution’s employment decision. The Supreme Court of New Jersey affirmed, but clarified that it would not hear the case because doing so would entangle the court in matters of religious doctrine and violate the School’s First Amendment rights.
• A lawsuit challenging University of Texas at Austin’s admissions policy was recently dismissed. The lawsuit was initially filed in 2019 by Students for Fair Admissions (SFFA), the same group that prevailed in similar cases against Harvard and UNC. The lawsuit was previously dismissed in 2021. After the Supreme Court struck down affirmative action last summer, UT Austin changed its admissions policy, continuing with its holistic review approach, but no longer considering an applicant’s race or ethnicity in that process. SFFA motioned for the appeal to move forward, arguing that the new race-neutral policies were still in violation of the decision. The Court dismissed the appeal, reasoning that the case was moot and the revised admissions policy was lawful under the Supreme Court’s precedent.
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• On August 1, the state confirmed that beginning January 1, 2025, California’s minimum wage will increase from $16 per hour to $16.50 per hour for all employers, regardless of size. The hourly increase also affects minimum salary requirements for full-time exempt employees. Beginning January 1, 2025, the minimum salary for a full-time exempt employee will be $68,640. Note: some cities and counties have their own local minimum wage rates that require higher minimum wages, and private school teachers fall under a different salary test.
• The U.S. Department of Education recently released guidance focused on AI and Education, titled “Designing for Education with Artificial Intelligence: An Essential Guide for Developers.” The guidance provides recommendations for vendors and school administrators. The guidance can be found here
• The U.S. Department of Education released a Fact Sheet on Harassment Based on Race, Color, and National Origin on school campuses. The Fact Sheet describes prohibited harassment, including harassment that creates a hostile environment, and outlines schools’ response obligations. The Fact Sheet also provides several hypothetical examples of allegations the Office of Civil Rights might investigate, and whether a school has responded adequately to such information. The Fact Sheet can be found here
lcw best timeline
AUGUST
Conduct staff trainings, which may include:
• Sexual Harassment Training:
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.)
• Mandated Reporter Training:
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.
OCTOBER 1ST THROUGH 15TH
File Verification of Private School Instruction
• Every person, firm, association, partnership, or corporation offering or conducting private school instruction on the elementary or high school level shall between the first and 15th day of October of each year, file with the Superintendent of Public Instruction an affidavit or statement, under penalty of perjury, by the owner or other head setting forth the following information for the current year:
All names, whether real or fictitious, of the person, firm, association, partnership, or corporation under which it has done and is doing business.
The address, including city and street, of every place of doing business of the person, firm, association, partnership, or corporation within the State of California.
The address, including city and street, of the location of the records of the person, firm, association, partnership, or corporation, and the name and address, including city and street, of the custodian of such records.
The names and addresses, including city and
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.
street, of the directors, if any, and principal officers of the person, firm, association, partnership, or corporation.
The school enrollment, by grades, number of teachers, coeducational or enrollment limited to boys or girls and boarding facilities.
That the following records are maintained at the address stated, and are true and accurate:
The attendance of the pupils in a register that indicates clearly every absence from school for a half day or more during each day that school is maintained during the year. (Education Code Section 48222)
The courses of study offered by the institution.
The names and addresses, including city and street, of its faculty, together with a record of the educational qualifications of each.
• Criminal record summary information of applicants that have been obtained pursuant to Section 44237.
On Demand Training
At LCW, we have developed a comprehensive suite of on-demand training topics tailored for California’s educational institutions, allowing for freedom and flexibility in the learning process!
Our trainings seamlessly integrate with your organization’s Learning Management System. We offer the following SCORM packages: SCORM 1.2, SCORM 1.2 Success Factors, SCORM 2004 3rd Edition, SCORM 2004 4th Edition.
WHAT WE DO: WHY ON DEMAND?
OUR LIBRARY INCLUDES:
Mandated Reporting
Preventing Workplace Harassment
• Supervisory (2 hours)
• Non-Supervisory (1 hour)
Elimination of Bias
• Flexible Learning: Our program is designed for flexibility, allowing employees to learn at their own pace, ensuring maximum convenience and understanding.
• Discounted Rates: Take advantage of discounted rates for institutions purchasing multiple training sessions, making our offerings cost-effective and accessible.
• Certification: Participants can download a certificate of completion at the end of each course, recognizing and validating their achievements.
• Dedicated Support: LCW provides dedicated account support to enhance your training experience.
CONTACT US TODAY FOR MORE INFORMATION:
Email: on-demand@lcwlegal.com www.lcwlegal.com/events-and-training/ on-demand-training
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. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.
Question:
A private K-12 school asked whether private school employees are required to undergo CPR training?
Answer:
The attorney advised that, in general, there is no requirement for CPR training for independent schools. There are CPR training requirements for preschools, but that would not apply to a K-12 school.
With that being said, LCW does recommend providing the training since this is a requirement for employees in public schools and preschools. It is also a safety issue and potentially a negligence issue if something happens to a student at school. In addition, for a teacher’s certification, CPR certification must be renewed every 2 years.
The attorney advised that there also may be other reasons to have CPR training. For example, the School’s insurance provider may require it. It is also important for schools to adhere to the School’s stated policies. The School’s employee handbook may state that CPR training is required, and if that is the case, it is important to follow through with that.
The California Interscholastic Federation (CIF) also requires coaches to have completed a variety of trainings, including CPR training.
Lastly, California Education Code § 49414.7 allows private schools to voluntarily determine whether to make emergency stock albuterol inhalers available. It encourages schools to have a minimum of two trained school employees, which includes recommendations for CPR training. Similarly, California Education Code § 49414 states that private schools may voluntarily determine whether to make emergency epinephrine auto-injectors available, and if so, it makes similar recommendations for CPR training.
Liebert Cassidy Whitmore