Private Education Matters: April 2023

Private Education Matters

Gifts

New School Could Not Claim Donor’s Gift After Original School Closed.

In April 2012, Fred Rettich executed a will that contained a residuary clause in favor of Our Lady of Mercy School (OLM) or its successors, for general uses and purposes. A residuary clause designates the remaining items in an estate after the estate pays off any debts, expenses, taxes, and gifts. OLM is part of the Archdiocese of Hartford, Connecticut.

Rettich had expressed that it was important to him that residents of Madison, Connecticut be able to send their children to a Catholic school in Madison. Prior to the execution of his will, Rettich had donated $500,000 to OLM. OLM sent a letter to Rettich that marked the anniversary of that donation and informed him that $200,000 of the donated funds had been used by OLM to establish an endowment to “ensure OLM’s future.” Rettich’s will made no reference to his earlier donation or to any endowed funds or existing trust benefiting OLM. Rettich died on September 27, 2013, and his residual estate amounted to $4,745,110.86. The estate sent that amount by check to OLM.

In January 2018, it was announced that OLM and another parish school in Branford, Connecticut called Saint Mary School would be closing. The Archdiocese indicated that it would create a new school, East Shoreline Catholic Academy (ESCA), which would be located on Saint Mary’s campus. ESCA would be operated by the same three parishes that operated OLM and Saint Mary’s.

In February 2018, a group of parents of students attending OLM formed a corporation, Our Lady of Mercy School of Madison, Inc., with the intent to form a new Catholic school in Madison that would keep the current mission and vision of OLM intact. Since its founding, this corporation claimed that it raised over $1 million in additional pledges to augment the endowment

by Rettich, filed for 501(c)(3) status, developed a financial plan, identified a sponsor of independent Catholic schools, and developed a curriculum. The corporation is in the process of hiring a principal and teachers for the school.

In April 2018, the corporation and former students filed suit, alleging that the Archdiocese has a duty to convey Rettich’s endowment back to the corporation, or back to Rettich’s estate for distribution.

The Archdiocese filed a motion to dismiss, arguing that the plaintiffs did not have standing to bring the action because, under Connecticut law, only the attorney general has such standing. The corporation argued that they did have standing because the “special interest exception” to that rule applied. The trial court concluded that the special interest exception did not apply to outright charitable gifts, and that, even if it did, plaintiffs failed to establish that the exception applied to their claim. On appeal, the Court of Appeal concluded that Rettich’s bequest was an outright gift to OLM and the special interest exception did not apply in cases where a charitable gift is unencumbered by specific restrictions on the way to use the gift. The Court of Appeal upheld the trial court’s ruling.

On appeal to the Supreme Court of Connecticut, the corporation again argued that the gift was not unrestricted and that the special interest exception should apply.

The Supreme Court of Connecticut ruled that Rettich’s “general use and purposes” language was in fact an unrestricted gift, and the only limitation on the gift is that the gift should be used in furtherance of the duties imposed by an organization’s charter or articles of incorporation.

The Supreme Court of Connecticut stated that, under the law, a donor who made a completed charitable contribution has no standing to bring a claim to enforce the terms of his or her gift or trust unless he or she

expressly reserved the right to do so. The attorney general is only able to enforce the terms of a gift or trust and has the duty to represent the public interest in protecting any gifts, legacies, or devises intended for public or charitable purposes. The special interest exception to this rule typically applies when a person can show he or she is a member of a small identifiable class that the charity is designed to benefit. For example, if the purpose of a charitable trust is to pay the salary of a pastor of a church, the pastor and the church both have special interest standing to enforce the trust.

When a gift is unrestricted, the organization is the sole beneficiary. Here, there were no terms or restrictions on the gift that show it was for the benefit of a particular person. Courts have previously held that students enrolled in an educational institution constitute a constantly fluctuating group. A certain student or group of students would not have standing to bring an action to enforce the terms of a trust that was created to benefit the institution because this would undermine the purpose of the rule (i.e., that only the attorney general has standing to bring such an action in order to limit the number of potential litigants).

As a result, the Supreme Court of Connecticut upheld the Court of Appeals ruling and determined that the plaintiff corporation did not have standing under the special interest exception to bring an action to enforce the bequest.

Derblom v. Archdiocese of Hartford (2023) 247 A.3d 600.

Note: This case presents interesting issues for schools to consider when they have large donations or endowments from a trust or estate and later the school closes or merges with another school.

new to the Firm!

Olga Y. Bryan, an associate in the San Diego office, advises clients on labor, employment, and wage and hour matters. She has defended employers in litigation claims for a variety of issues including discrimination, retaliation, harassment, wrongful termination, and wage and hour class violations.

U.S. Supreme Court Rules Deaf Student Can Seek Both Administrative And Compensatory Relief From School District.

Miguel Luna Perez attended schools in Michigan’s Sturgis Public School District from ages nine through 20. Because Perez is deaf, the District provided him with aides to translate classroom instruction into sign language. Perez and his parents alleged that the aides were either unqualified or absent from the classroom for hours on end. One aide allegedly attempted to teach herself sign language. Along the way, the District purportedly awarded Perez inflated grades and advanced him from grade to grade, regardless of his progress. Based on the District’s misrepresentations, Perez and his family believed Perez was on track to graduate from high school with his class, but then, months before his graduation, the District revealed it would not award him a diploma.

In response, Perez and his family filed an administrative complaint with the Michigan Department of Education alleging that the District failed to provide Perez with a free and appropriate public education, as required by the Individuals with Disabilities Education Act (IDEA). The parties reached a settlement, under which the District promised to provide all forward-looking equitable relief Perez sought, which included additional schooling at the Michigan School for the Death.

After settling his administrative complaint, Perez filed a lawsuit under the Americans with Disabilities Act (ADA), seeking backwardlooking relief in the form of compensatory damages. The District sought to dismiss the case, arguing that under IDEA, specifically, 20 U. S. C. §1415(l), Perez could not bring an ADA claim without first exhausting all of IDEA’s administrative dispute resolution procedures. The trial court agreed and dismissed the suit. The Court of Appeals for the Sixth Circuit affirmed the trial court’s holding. Perez appealed to the Supreme Court.

Section 1415(l) of IDEA notes that nothing restricts the abilities of individuals to seek

“remedies” under the ADA or “other Federal laws protecting the rights of children with disabilities.” The statute also offers an exception about exhausting administrative processes before bringing a civil action under other federal laws. The parties disagree about what this exception means. Perez reads the exception as requiring a plaintiff to exhaust the administrative processes only to the extent a plaintiff pursues a suit under another federal law for remedies IDEA also provides. As a result, Perez argues that his ADA claim is not foreclosed because he only seeks compensatory damages, which IDEA cannot supply. The District reads the exception as requiring the plaintiff to exhaust administrative claims before pursuing another suit under another federal law if the suit seeks relief for the same underlying harm IDEA exists to address. As a result, the District argued that Perez could not bring a claim under the ADA.

The Supreme Court believed that Perez’s view better aligned with the statute’s terms. It viewed the administrative exhaustion requirement as only applying to suits that seek relief also available under IDEA. Here, Perez brought a suit under another federal law for compensatory damages, a form of relief that is not provided under IDEA. The Supreme Court noted that the District’s concern in ruling for Perez might frustrate Congress’ wish to route claims about educational services to administrative agencies with special expertise in such matters. However, that was not enough for the Supreme Court to interpret the text of the IDEA differently.

The Supreme Court reversed the holding and remanded the case back to the lower courts to determine whether the damages that Perez sought are available under the ADA.

Luna Perez v. Sturgis Public Schools (2023) 143 S.Ct. 859.

Note:

While this case concerns a public school district and does not apply to private schools, it provides helpful guidance to private school practices on certain best practices, such as keeping parents informed on students’ progress, checking that reasonable accommodations are appropriately supporting students’ functional limitations, and uniformly and consistently applying academic standards.

Maine’s “Nonsectarian” Requirement For Tuition Assistance Payments Violates Free Exercise Clause And Student Still Has Standing In Case.

Maine’s Constitution provides that every school-age child in the state be provided with an opportunity to receive benefits of a free public education. However, as a rural state with remote geography and low population density, fewer than half of Maine’s school districts operate a public secondary school of their own. To address this problem, Maine enacted a tuition assistance program for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district makes payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments so long as they are “nonsectarian.”

On June 21, 2022, the United States Supreme Court held that Maine’s nonsectarian requirement for tuition assistance violated the Free Exercise Clause of the First Amendment of the Constitution and remanded the case back to the federal Maine trial court for further proceedings.

On September 21, 2022, the Plaintiffs filed a motion for entry of judgment. Makin, the Commissioner of the Maine Department of Education, responded to Plaintiffs’ motion stating that the Plaintiffs no longer have interest or standing in the case and it should be dismissed as moot. Makin’s position was that Plaintiffs originally brought the suit on behalf of four public school students who professed a desire to attend a religious school. In the nearly five years that have elapsed since, however, three of the four children have graduated high school, so those parents no longer have a cognizable interest in the outcome of the litigation. The fourth child, referred to as R.N., transferred in 2019 from a private religious

school to a public high school, and then to a private, non-religious high school, where he is now in his junior year. Makin argues that R.N. can no longer claim that “but for” the Maine statute, R.N. would attend a religious school at public expense. R.N.’s parents acknowledge that their son gets to decide where to complete his final year of high school, and there is no evidence that he wants to transfer to a religious school.

Plaintiffs, on the other hand, argue that, consistent with the Supreme Court’s ruling, the Court should enter a simple declaratory judgment regarding the unconstitutionality of the nonsectarian requirement and a simple injunction barring its enforcement. Plaintiffs argue that they have standing because they have lost the opportunity to seek religious education.

The Court concluded that the Plaintiffs do have standing, and Chief Justice Roberts was careful to note the status of the children as students when the litigation commenced. Although one of the children had graduated at the time of the Supreme Court’s opinion, Justice Roberts focused equally on this student as the other student remaining in the case. The Court also noted that they are compelled to carry out the mandate from the Supreme Court, and to rule that a party does not have standing now would be contrary to the direct orders from the Supreme Court. The Court denied Makin’s motion, and after the parties submit proposed language for a declaratory judgment and permanent injunction, the Court will grant the Plaintiffs’ Motion for Entry of Judgment, Including Injunctive Relief.

Carson v. Makin (D. Me., Apr. 6, 2023) 2023 WL 2814131.

Note:

LCW previously reported on an earlier decision in this case in the June 2022 Private Education Matters. Similar cases have been filed in California, challenging California’s law that only secular private schools can participate in federal funding under the Individuals with Disabilities Education Act that is administrated through the state. The case filed in California cited Carson v. Makin to argue that the state’s program was unconstitutional. LCW will monitor this case for further developments.

student misconduct

Student Raises Concerns About School’s Investigation Of Misconduct And Discipline Following Video Of Student Using A Racial Slur.

In January 2021, a video clip circulated of a senior high school student at the Wardlaw-Hartridge School using a racial epithet. The video is a two-second clip, recorded approximately two years prior to it being circulated, of the student using the n-word. Another Wardlaw student emailed the video clip to Wagner’s Director of Admissions and the head coach of its soccer program on January 3, 2021. Three days later, the video clip was posted on Instagram and TikTok, and then deleted the same day. A third Wardlaw student participated in creating the accounts or posting the clip.

Wardlaw administrators met with or spoke to the student in the clip and her parents several times about the video clip over the next three months. On at least one occasion, Wardlaw questioned the student in the clip over Zoom and recorded it but did not notify her parents. On another occasion, Wardlaw required the student to appear before a “judging board” comprised

of teachers and students but did not allow her parents or lawyer to attend the hearing. Wardlaw did not investigate or hold a similar hearing for any students suspected to be involved with circulating the clip, despite the student in the clip and her parents’ complaints to administrators that these students were bullying and harassing her. Wardlaw also did not investigate the video clip’s authenticity, despite the parents and student expressing concern that the clip appeared to have been doctored and fabricated.

Wardlaw’s investigative findings were that the student in the clip failed to immediately acknowledge that the video was real, failed to be truthful with the judiciary board, and belatedly took responsibility and expressed desires to learn and make amends. Wardlaw disciplined the student in the clip, and neither allowed her to attend in-person classes or activities for the remainder of the academic year, nor walk in the graduation ceremony. Wardlaw gave her assignments to complete at home, and required her to see a therapist. If she satisfied these conditions, Wardlaw would issue her diploma at the end of the school year. Wardlaw also withheld her honors and awards and delayed the release of her transcript and letters of recommendation for college applications.

The student in the clip had signed a National Letter of Intent (NLI) to play for Wagner College’s soccer program, and Wagner College rescinded its offer of admission and scholarship for violating the NLI by engaging in serious misconduct.

The student and her parents (Plaintiffs) brought claims against Wardlaw, Wagner College, and the two students alleged to have disseminated the clip (Defendants). The Plaintiffs asserted several claims, including: breach of contract; violation of the student’s freedom of speech under the New Jersey State Constitution; intentional and willful disregard or gross negligence; violations of Title VI of the Civil Rights Act of 1964; negligent infliction of emotional distress; intentional inflection of emotional distress; interference with economic, educational, and financial relationships. The Defendants moved to dismiss the claims.

Wardlaw argued that the parents lacked standing to bring Title VI claims on their daughter’s behalf because they could not show that they were injured nor could they show any facts of discrimination. The Court determined that the Plaintiffs appeared to assert a theory of liability under Title VI based on an allegedly racially hostile environment at Wardlaw. The Plaintiffs argued that Wardlaw failed to stop and discipline members of

the student body that created an organization based on race who were instrumental in the bullying and harassment of the student in the clip, which ultimately led her to disciplinary actions and sabotaged her college acceptance and scholarship. Wardlaw argued that: (1) the parents do not have standing to bring a claim; (2) Wardlaw does not receive federal funds requiring them to comply with Title VI; and (3) the parents fail to allege that Wardlaw took any action towards them because of their race or national origin.

The parents argued that they have standing by virtue of the in loco parentis doctrine, and that Wardlaw breached the duty of care it owed to parents of its students. The Court ruled that the in loco parentis doctrine applies to negligence claims, not to establishing standing to bring a claim. As such, the parents have not suffered an injury as a result of Wardlaw’s alleged violation of Title VI. The Court also noted that the Plaintiffs failed to allege that Wardlaw received federal funding to subject them to Title VI and the Plaintiffs failed to show that there was a severe or pervasive harassment at Wardlaw based on a student’s race. Only two incidents the Plaintiffs raised were allegedly based on the student in the clip’s race— the Wardlaw student’s two social media posts. These two posts were four months apart and did not rise to the level of severe or pervasive harassment. As a result, the Court dismissed the Plaintiffs’ Title VI claims against all Defendants.

This case was brought in federal court, and the only federal claim was the Title VI claim, which the Court dismissed. The Court remanded the case to the New Jersey state court to address the remaining state law claims.

Wysocki v. Wardlaw-Hartridge School (D.N.J., Mar. 31, 2023) 2023 WL 2728807.

Note:

While one claim in this case was dismissed, LCW will monitor the state law claims for future developments. Here, the student raised concerns about the School’s investigation, namely that she was recorded without consent, not allowed to have a parent or lawyer in the room while she was questioned, and that the School did not properly investigate the other students involved in the incident. When schools are investigating incidents, it is important to keep these concerns in mind and ensure their investigative process is fair and complies with any relevant school policies and/or legal requirements.

University’s Decision To Suspend Student Following Allegation Of Sexual Assault Was Upheld Due To Policy In Handbook.

On Saturday, October 15, 2016, Dhameer Bradley, Malik St. Hilaire, and Nikki Yovino, all students at Sacred Heart University, attended an off-campus party in Bridgeport, Connecticut. During the party, Bradley and St. Hilaire engaged in sexual intercourse with Yovino in a bathroom. After leaving the bathroom, Yovino told her friends who were with her at the party that Bradley and St. Hilaire had sexually assaulted her. The next morning, Yovino went to the hospital and reported the sexual assault to the hospital staff. The hospital staff performed a sexual assault examination and contacted the police. At the hospital, Yovino gave a statement to the police officer alleging that she was sexually assaulted by Bradley and St. Hilaire.

On Monday, the police contacted the University’s dean of students about the allegations and told the dean of students that an investigation was underway. The next day, Bradley was suspended from the university on the basis of the allegations of sexual assault that had been made to the police department. The suspension barred Bradley from participating in any university classes or sponsored events, and from playing on the football team. On the advice of counsel, Bradley withdrew from the University a few weeks later, which caused him to lose his football scholarship. Yovino later recanted her allegations and pleaded guilty to charges of falsely reporting an incident in the second degree and interfering with an officer, both in violation of Connecticut laws. Despite her guilty pleas, Yovino continues to maintain the sexual conduct was not consensual, however, that issue was not before this court. The University later reinstated Bradley as a student, and he returned to complete his studies, graduating in December 2018. His scholarship to play football, however, was not restored.

Bradley and St. Hilaire sued Yovino and the University. The only claim against the University was for breach of contract. Bradley argued that the student handbook obligated the University and its officials to treat Bradley with “respect, dignity, and compassion,” and mandated that “a presumption of guilt should not be made as a result of any allegations.” The handbook, Bradley argued, created a contract between the University and its

students, and the University breached that contract when it suspended Bradley on the basis of an uncorroborated accusation of sexual assault by a fellow student, and without any prior investigation by the University into the allegation. Bradley requested monetary damages to compensate for the loss of football scholarship and academic credits lost due to his withdrawal.

The trial court granted the University’s motion for summary judgment, finding that although the student handbook created an enforceable contract between the University and its students, the handbook also authorized the University’s immediate suspension of students facing allegations of serious criminal activity without further investigation. Bradley appealed.

The Court of Appeals agreed with the trial court and found that there was no dispute that the student handbook formed an enforceable contract between Bradley and the University. The handbook authorized the dean of students to suspend a student immediately if the dean of students deemed it necessary to preserve the benefit and welfare of the University’s community. The handbook also authorized the dean of students to suspend a student facing allegations of serious criminal activity. The language in the handbook gave the dean of students discretion as necessary to serve the welfare and safety of the University’s community. Based on the information the dean of students received from the police officer, he imposed an immediate suspension on Bradley pending an investigation in order to provide safety to the University community’s welfare. The handbook did not require the University to investigate allegations of serious criminal activity before suspending a student. The Court of Appeals affirmed the trial court’s ruling and granted the motion for summary judgment, dismissing the case.

Bradley v. Yovino (Conn. App. Ct. 2023) 218 Conn.App. 1.

Note:

This case acts as an important reminder that a school’s handbook creates a binding contract between schools and students, and schools should follow the processes in their handbook when there is an allegation of sexual assault.

Spotlighton:

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U.S. Department Of Education Resolves Investigation At University Of Vermont In Response To Allegations Of Anti-Semitic Incidents.

On April 3, 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) resolved the investigation of a complaint regarding the University of Vermont’s failure to respond to anti-Semitic harassment. OCR is responsible for enforcing Title VI of the Civil Rights Act of 1964 and its corresponding implementing regulations, which prohibit discrimination on the basis of race, color, or national origin, including shared ancestry or ethnic characteristics, under any program or activity that receives Federal funding from the Department of Education.

The Complainant alleged that the University failed to respond appropriately to three different incidents:

• In April and May 2021, a teaching assistant made a series of anti-Semitic public tweets.

• On September 24, 2021, students threw “small rocks” and “items with a sticky substance” at the University’s Hillel building. When one student living in the dormitory portion of the building called out and asked them to stop throwing things, one of the students outside responded, “Are you Jewish?”

• In May 2021, two student groups excluded Jewish students from group membership and one of the groups made anti-Semitic comments on social media.

OCR concluded that the University’s Affirmative Action and Equal Opportunity Office declined to investigate any of the complaints, even though the Complainant filed several complaints notifying the University of serious allegations of harassment. OCR also concluded that the responsive steps the University did take were delayed, not designed to rectify concerns communicated, and may have discouraged students and staff from raising further concerns with the University or with participating in the OCR investigation.

In response to these findings, and to ensure full satisfaction of its obligations under Title VI, the University entered into a resolution agreement, committing the University to review and revise its policies and procedures, train university staff on investigating Title VI complaints, and issuing a statement with a commitment to address discrimination based on shared ancestry, among other tasks. For more details, the letter to the

University of Vermont is available here and the resolution agreement is available here

Note:

The Department of Education Office of Civil Rights (OCR) investigated the University of Vermont for their failure to properly investigate and address complaints of anti-Semitic behavior by students and faculty. While OCR only has jurisdiction over institutions who accept federal funding, this investigation is an important reminder that all schools should follow their policies, including with respect to the investigation and handling of allegations of misconduct.

covid-19

Three More COVIDRelated Tuition Refund Cases Advance Through Court System.

New York University (NYU), like other colleges and universities around the country, transitioned to remote online courses in place of in-person classes, closed residence halls, and eliminated a host of in-person facilities and services during the Spring 2020 semester in light of the COVID-19 pandemic. Christina Rynasko brought a class action lawsuit against NYU seeking a partial refund of her tuition for the Spring 2020 semester on behalf of her adult daughter, Emily, then an undergraduate musical theater student at NYU’s Tisch School of the Arts. Rynasko argued that NYU did not deliver the educational services, facilities, access, and opportunities for which Rynasko paid, and therefore was entitled to a pro-rated refund.

Another student, Casey Hall-Landers, was enrolled at the Tisch School as a dance major during the Spring 2020 semester. Hall-Landers had to relocate back to her parents’ home on the West Coast and take classes at off hours or record the classes. She was deprived of access to NYU’s dance studio and no longer had access to the physical therapy services related to the dance instruction. Nonetheless, like Emily, Hall-Landers paid all required tuition and fees for the Spring 2020 semester.

Rynasko sued NYU in April 2020 on behalf of herself and a putative class, alleging breach of contract, breach of implied contract, unjust enrichment, money had and received, and conversion. Rynasko acknowledges that the closure of campus due to COVID-19 was justified, but

alleges that the campus closures and cancellations caused her significant loss and was seeking compensation.

NYU moved to dismiss the claim, arguing that Rynasko lacked standing to bring her claims because she had not suffered an injury due to the denial of in-person courses, activities and services to Emily. While the motion was pending, Rynasko filed a motion to add Hall-Landers as an additional named plaintiff and class representative.

The trial court determined that Rynasko did not have standing to assert her claims and declined to allow Rynasko to amend her complaint to add Hall-Landers as an additional plaintiff. The trial court concluded that there was no plausible breach of contract claim because NYU never promised to provide exclusively inperson instruction. Rynasko appealed.

The Court of Appeals determined that Rynasko was not a party to the contract between Emily and NYU, nor an intended third-party beneficiary of the contract, nor an assignee of Emily’s claims. The Court of Appeals stated that Rynasko’s payment of Emily’s tuition does not create an interest in the contract between Emily and NYU. Rather, Rynasko was no different from a hypothetical bank who loaned Emily the money to fund her education or a generous unrelated benefactor who gifted Emily the funds. Therefore, Rynasko lacked standing to sue for breach of contract.

However, the Court of Appeals disagreed with the trial court that an amendment to add Hall-Landers as a plaintiff would be futile. The Court of Appeals concluded that a reasonable factfinder could find that NYU had an implied contract with Hall-Landers

that included a general obligation to provide in-person courses, activities, services and facilities, given NYU’s extensive representations about the nature of student life at NYU. Although there was disclaimer language in a course catalog bulletin that NYU has broad discretion with respect to its courses and activity offerings, this was not enough to override all of NYU’s other representations. Notably, the Court of Appeals stated that NYU’s disclaimer language was not a force majeure clause because the disclaimer did not contemplate emergencies or allocating financial risk of those events to students.

The Court of Appeals, in reaching their conclusion, emphasized that they join several sister circuits who have reached similar conclusions in analogous cases. The Court of Appeals affirmed the trial court’s dismissal of the amended complaint, but vacated the trial court’s denial to add Hall-Landers as an additional named plaintiff.

Rynasko v. New York University (2d Cir. 2023) 63 F.4th 186.

Note:

This past month, students at NYU and two other universities (Illinois Institute of Technology, Loyola University Chicago) have prevailed in advancing their COVID-related tuition refund cases through the court systems. In the NYU case, it is compelling that the Court noted they may have ruled differently if there was a force majeure clause present in a contract between students and the university. Last week, the University of Colorado settled their COVID tuition refund case for $5.5 million. That payout is the third-largest settlement of more than a dozen that have been made in similar shutdown cases. LCW will continue to follow these cases for relevant updates.

Former Teacher’s Defamation Claim Dismissed Due To Ministerial Exception.

Rosenbaum Yeshiva of New Jersey (RYNJ) is an Orthodox Jewish school. One defining feature of Orthodox Judaism is a commitment to specific principles of behavior and conduct, such as restrictions on physical contact between unrelated people of different genders.

In 1988, Shlomo Hyman was hired as a Judaic studies teacher at RYNJ. His role as a rebbe (a rabbi who is an elementary school teacher) and Judaic studies teacher reflected his background and training as a rabbi. Hyman used titles of rabbi and rebbe and exclusively taught Judaic studies classes during his employment at RYNJ. Through his position, Hyman received an annual parsonage allowance from RYNJ. Parsonage is a tax benefit for rabbis and other religious figures that allows them to accept a portion of their salaries in the form of payment for their living expenses.

Hyman signed a new employment agreement each year, in which he agreed to abide by certain policies and standards of conduct for teachers that embodied the Orthodox Jewish religious standards and rules. Hyman also acknowledged receipt and understanding of the Staff Handbook, which set out standards of conduct for RYNJ teachers. The handbook said that teachers, in particular those who teach Orthodox Jewish religious law and practices, were expected to conform to the school’s religious

principles, such as refraining from touching students of the opposite gender that are in the third grade or older.

In February 2019, RYNJ learned of allegations of inappropriate interactions between Hyman and his former female students. After these allegations, Hyman was placed on administrative leave and the Yeshiva Board of Directors (Board) began an investigation into the allegations, hiring an outside law firm to conduct the investigation.

In May 2019, the law firm presented its findings to the Board and Head of School. The findings were that Hyman intentionally touched fifth and sixth grade female students, including massaging girls shoulders, touching girls on clothed parts of the body that he should not have touched, placing stickers on or near their chests, and creating classroom games that caused him to touch them. RYNJ terminated Hyman’s employment for violating the Orthodox Jewish standards of conduct set out in the Staff Handbook.

The Head of School informed the community via email that, following an independent investigation, Hyman was terminated for conduct that was unacceptable and inconsistent with how a rebbe should interact with students. The email was spread through the entire school community and similar Jewish communities. Hyman’s picture appeared on Jewish websites and the allegations were disseminated by bloggers. Hyman alleged that he was branded as a pedophile among the Jewish

community, impacting the possibility of him obtaining future employment in education.

In November 2019, Hyman sued RYNJ alleging a number of claims, including breach of contract, age discrimination, and defamation. The complaint said RYNJ conducted a “sham investigation” into “baseless allegations.” Based on the sham investigation, he was wrongfully terminated, and the malicious email to the school community falsely branded him as a pedophile in order to reduce the school’s payroll and to rebuild RYNJ’s image and reputation that the school does not take a casual view of pedophilia.

RYNJ moved to dismiss the complaint due to the ministerial exception. During the hearing, Hyman admitted he was a minister within the ministerial exception and agreed to dismiss the age discrimination claim. The judge granted RYNJ’s motion and dismissed the entire case, finding that since Hyman admitted to being a minister and the claims involved RYNJ’s employment decision, the judge could not allow the suit to continue under the First Amendment. Hyman appealed.

On appeal, Hyman argued that the ministerial exception only shields against employment discrimination claims, and does not apply to his defamation claims. He argued that the trial court’s logic would mean that a minister could never bring an action against their employer for any tort because his status as a minister alone would preclude the tort claim. Further, Hyman was no longer an

employee of RYNJ when the school emailed the letter, so he argued that it was not an employment claim.

RYNJ argued that the ministerial exception applies because Hyman is a minister and the defamation claims arise out of the school’s decision to terminate his employment as a religious studies teacher. The defamatory statement was RYNJ’s explanation of its employment decision. Ruling on the defamation claim would necessarily require a review of RYNJ’s termination decision, which is what the ministerial exception prohibits. Further, the letter was drafted in consultation with religious authorities, so a secular court would have to call into question a religious judgment regarding employment. RYNJ argued that the fact that Hyman was no longer an employee does not matter because a judge would still have to second guess RYNJ’s decision to terminate a religious teacher.

The Court noted that in New Jersey there is no published case directly addressing whether the ministerial exception applies to cases beyond employment discrimination cases. The Court considered other jurisdictions for guidance, including a California Appeals Court case. In California, the Court ruled that the ministerial exception applied to tort claims where the tortious acts and statements are part and parcel of the termination. The California case included claims of defamation, invasion of privacy, and intentional infliction of emotional distress after a church terminated an employee from his position as

worship director upon discovering he was a homosexual. After the worship director was terminated, the senior pastor told the congregation that the church fired the worship director because he had admitted to acts the church considered to be a sin. The California Appeals Court upheld the decision to dismiss the entire case, including the defamation claims, because the statements related to the hiring, firing, and discipline or administration of clergy. The California Appeals Court also rejected the argument that the ministerial exception has no application to statements that occur after termination if they were part of the process of termination.

Here, the Court of Appeals found the other jurisdictions’ reasoning persuasive and concluded that the ministerial exception applied to bar tort claims provided that, (1) the injured party is a minister formerly employed by a religious institution, and (2) the claims are related to the religious institution’s employment decision. In this case, Hyman conceded the fact that he was a minister, and his defamation claims were part and parcel and connected to RYNJ’s decision to terminate him. The Court of Appeals dismissed the case.

Hyman v. Rosenbaum Yeshiva of North Jersey (2023) 289 A.3d 826.

Note:

This case is a reminder that the ministerial exception in California may extend to claims that are part and parcel to employment termination decisions, giving religious schools more deference in making those decisions.

Court Determines The Ministerial Exception Is A Fact-Intensive Inquiry And Should Be Decided By Jury.

Faith Christian Academy is a Christian school in Colorado offering Bible-based education from kindergarten through high school. Both students and staff come from a wide array of religious perspectives. Gregg Tucker, a white male, began teaching high school at the School in 2000. Later, he taught courses on “Leadership” and “Worldviews and World Religions.” In 2014, the School hired Tucker for the additional job of chaplain, a position also referred to as the Director of Student Life. In 2017, Tucker was assigned the additional task of planning the School’s weekly “Chapel Meetings.” In January 2018, Tucker conducted a chapel meeting, which he called a symposium, on race and faith. Although the School initially praised Tucker on the presentation, the presentation was not well received by some parents and students, who threatened to pull their students and tuition dollars from the school. This prompted the School to fire Tucker.

Tucker filed a complaint with the Equal Employment Opportunity Commission (EEOC), who issued Tucker a right-to-sue letter. Tucker sued the School, alleging that the School fired him in retaliation for opposing a racially hostile environment under Title VII, and alleging wrongful termination in violation of public policy under Colorado common law.

The School moved to dismiss the action under the ministerial exception, which bars the government from interfering with the decision of a religious group to fire one of its ministers. The trial court ruled that the determination of whether Tucker qualified as a minister is disputed and must be decided by a jury. The School immediately appealed.

The question on appeal was whether a decision denying a religious employer summary judgment on a ministerial exception defense is an immediately appealable final order. Appeals courts are typically allowed to assess final decisions handed down by trial courts and decisions are final if they end the case. Collateral orders are an exception to this rule. Collateral orders are opinions that do not end a case but can be treated as final and can be appealed immediately. To be immediately appealable as a collateral order, the order must conclusively determine a disputed question, resolve an important issue completely separate from the action’s merits, and be effectively unreviewable on appeal from final judgment.

The Court of Appeals determined that this order was not an immediately appealable final order. The Court of Appeals noted that the determination of whether an employer is a minister for purposes of the ministerial exception is a fact-intensive inquiry that is based on the specific circumstances of a given case. Because there are genuinely disputed fact questions, the limited benefits

to immediate appeal are outweighed by the costs of disrupting the ordinary course of litigation. Trial judges and juries are better equipped to resolve this type of factual dispute. The Court of Appeals dismissed the School’s appeal.

The School then challenged the Court of Appeals’ decision by petitioning the Court of Appeals for a rehearing on the issue. In a divided ruling, a majority of the Court of Appeals panel found that the underlying decision was correctly decided and denied the immediate appeal. The dissenting members of the panel said that the ministerial exception should have blocked the litigation from the outset.

The School has now petitioned the Supreme Court to weigh in on the issue.

Tucker v. Faith Bible Chapel International (10th Cir. 2022) 53 F.4th 620; Tucker v. Faith Bible Chapel International (10th Cir. 2022) 36 F.4th 1021.

Note:

LCW will monitor this case for future developments. This case is important because it will determine whether a determination that the ministerial exception applies is immediately appealable. If it is, this will give judges more discretion to rule on these matters without the need for a lengthy jury trial.

Stay Updated on the Latest School Laws!

All 20 chapters of our Administrator Guide to California Private School Law and its Compendium have been updated for 2023.

If you are a Liebert Library member, you can view both the Administrator Guide to California Private School Law and its Compendium on our website.

If you are a Premium Liebert Library member, you can download the forms and checklists that are in the Compendium in the Forms and Checklists category.

Premium Perks on Liebert Library!

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1. Basic Membership - access to digital and fully-searchable versions of our Administrator’s Guide to California Private School Law and its Compendium. You can search and reference the most up-todate versions of these publications at any time. Consortium members receive a complimentary Basic Membership to the Library, where they can digitally access these materials.

2. Premium Membership - access to all of the benefits of our Basic Membership (see above), as well as the ability to download our entire collection of sample forms, policies and checklists in Word and PDF formats that can be used as templates for your school. We are also continually adding Model Policies that can be used to update existing school policies to our library. Premium Membership is only available to Consortium members. To learn more about the consortium program, contact Jaja Hung at jhung@lcwlegal.com

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laborrelations

NLRB Rules Academic Counselor And Clinical Counselor Are Able To Join Teachers Union.

The Chicago High School for the Arts is a preparatory visual and performing arts high school. The teachers are unionized and the union wanted to add the School’s Clinical Counselor and Academic Counselor to the teacher’s union. Confidential and managerial employees are excluded from the National Labor Relations Act’s (NLRA) jurisdiction and therefore cannot be members of a union. The case was brought before the National Labor Relations Board to determine whether these two employees were confidential or managerial employees.

Clinical Counselor

The School asserted that the School’s Clinical Counselor is a managerial employee under the NLRA and therefore should be excluded from the union. The School argued that the Clinical Counselor is a member of the School’s leadership team and is responsible for formulating and effectuating the department’s work plan related to student academic growth and emotional health. The School said the Clinical Counselor develops the calendar for student

services to the School’s outside clinical group, provides trainings to this outside group, and develops and effectuates mental health and safety protocols for the School.

The union, on the other hand, asserted that the Clinical Counselor does not possess any managerial responsibilities. She does not and has not formulated or effectuated any academic growth or emotional health plans, there is no “department” for which the Clinical Counselor acts in any managerial capacity, and the union has undisputed testimony that the Clinical Counselor does not develop, control, or maintain the outside clinical group’s calendar or activities for the students. The union showed that the Clinical Counselor does not develop or effectuate safety protocols or plans for the School, but rather the deans perform these functions.

Managerial employees are those who formulate and effectuate management policies. These employees are excluded from the NLRA because they are aligned with management, and an employer is entitled to the undivided loyalty of its members. In evaluating whether an employee is managerial, the job title is not controlling. The analysis is done on a case-by-case basis by examining their

actual job responsibilities, authority, and relationship to management.

The NLRB determined that the Clinical Counselor supports students with emotional and social needs, but she does not have any responsibilities regarding student behaviors on a regular basis. She is usually only involved if there is an emergency and when there is a mental health concern. She has no responsibilities for a student’s IEP or 504 Plan—case managers perform those functions. Outside clinicians who work with students on mental health issues do not report in any manner to the Clinical Counselor. The Clinical Counselor only attends leadership meetings about 25% of the time, and the main focus is for each participant to talk about priorities for the upcoming week. There have never been discussions of collective bargaining to date. The Clinical Counselor testified that she has never been told by the School that she was part of the administrative team (comprised of the principal, assistant principal, and deans), and she does not consider herself to be an administrator.

The NLRB found that the overwhelming evidence was that the Clinical Counselor’s decision-making is limited to routine discharge of

professional duties in projects to which she has been assigned. She is not conferred managerial status. As such, the Clinical Counselor should not be excluded from the union.

Academic Counselor

The School asserts that the School’s Academic Counselor is a confidential employee under the NLRA and therefore should be excluded from the union. The School argues that the Academic Counselor is part of the School’s leadership team and assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management polices with regard to labor relations. The Academic Counselor assists with revising the School’s schedules with regard to the workday for teachers, the student day, and instructional time. The School asserts that the Academic Counselor is responsible for making recommendations that impact teacher performance evaluations.

The union, on the other hand, asserts that the Academic Counselor does not assist or act in any confidentiality capacity to any member of management or anyone who formulates labor relations policies. The Academic Counselor testified, and the Interim Principal acknowledged, that the evidence showed that the Academic Counselor neither possessed nor is given any information or knowledge of teacher work schedules, what subjects teachers will be teaching, or what will and will not impact teacher evaluations. The Academic Counselor’s participation in leadership meetings consists of attendance, and there is not any discussion during these meetings about bargaining with the union, scheduling changes, workday changes, or teacher evaluations.

Confidential employees are excluded from bargaining units because they assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations. Confidential employees, in the course of their duties, have regular access to confidential information concerning the employer’s labor management policies and negotiations.

The NLRB determined that helping students pick courses and balancing student enrollment in classes did not constitute tasks that would render the Academic Counselor a confidential employee. The Academic Counselor does not select which courses will be offered, and the teachers make recommendations directly to the principal and assistant principal as to what they want to teach. The Academic Counselor’s undisputed testimony demonstrates that she receives no private or advance information on class or teacher schedules. While the Academic Counselor collects recommendations from teachers in each department, the principal and assistant principal make all final department structuring and course selection decisions without her knowledge or input. Collective bargaining, labor relations, teacher evaluations, schedule changes, and workday changes have not and currently are not being discussed at leadership meetings. Like the Clinical Counselor, the Academic Counselor has never been told she was part of the administrative team and does not consider herself to be an administrator. The Academic Counselor’s mere access to personnel or statistical information is not enough to consider her a confidential employee, and some teachers in the union have equal and earlier access to the same teacher scheduling information.

The NLRB found that the School failed to sustain its burden to show that the Academic Counselor should be excluded from the union.

The Chicago High School for the Arts and Chicago Teachers Union, Local 1, AFT/ IFT, AFL-CIO (March 17, 2023) 13-RC311310.

Note:

This case shows the fact-intensive analysis that is required in determining whether an employee is eligible to join a school’s teachers union. Here, the NLRB focused on the employees’ actual job responsibilities, authority, and relationship to management.

NLRB General Counsel Issues Memo On Severance Agreements In Light Of Recent NLRB Decision.

On February 21, 2023, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb, 372 NLRB No. 58, finding that McLaren Macomb hospital violated the National Labor Relations Act (NLRA) by offering employees severance agreements that required employees to broadly waive their rights under the NLRA. The severance agreements in this case contained overly broad non-disparagement and confidentiality clauses that tended to interfere with, restrain, or coerce employees’ rights under the NLRA. LCW issued a special bulletin on this case, which can be found here.

In light of the McLaren Macomb decision, private employers, such as schools, are deciding what changes need to be made to their severance agreements going forward. On March 22, 2023, the General Counsel for the NLRB issued a memorandum with answers to some common inquiries

in light of the McLaren Macomb decision. While this memorandum is not binding law, it does provide helpful guidance for schools and other private employers.

The memorandum clarified severance agreements are not banned. Lawful severance agreements can continue to be offered, maintained, and enforced, so long as the terms of the agreements are not overly broad. The memorandum also indicated that while supervisors are generally not protected by the NLRA, and therefore not subject to the McLaren Macomb decision, there are certain circumstances where a supervisor may have protections under the NLRA. For example, when a supervisor refuses to proffer an unlawfully overbroad severance agreement or when a supervisor refuses to act on their employer’s behalf in committing an unfair labor practice against employees, the supervisor would be protected by the NLRA.

The memorandum stated that the decision has retroactive effect, subject to a six-month statute of limitations. It also stated that severability clauses can typically be used to void only the provisions of a severance agreement that are overbroad or unlawful.

The memorandum noted that non-disparagement clauses can be used so long as they are drafted in a narrowly tailored way, for example, by limiting the non-disparagement clause to the definition of defamation, which is when an employee makes a maliciously untrue statement with knowledge that it is untrue or with reckless disregard for its truth or falsity. Similarly, confidentiality clauses may be considered lawful if they are narrowly-tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications.

The full memorandum can be found here

In light of the McLaren Macomb decision, many schools are reconsidering the terms of their severance agreements. For guidance, please reach out to LCW.

For more information on some of our upcoming events and trainings, click on the icons:

No Liability For Supervisor’s Off-Duty Sexting.

Hanin Atalla and Erik Lund met in fall of 2017, when Atalla shadowed Lund at Rite Aid during her pharmacy school rotations. When Atalla’s rotation at Rite Aid ended, she attended a celebratory dinner with Lund and his wife and the two kept in touch. Atalla later began work at Rite Aid as a graduate intern and then hourly staff pharmacist; Lund was her supervisor. Atalla and Lund became close friends, celebrated a Friendsgiving, joked regularly, and frequently went to lunch. They texted on their personal cell phones about a range of personal matters, including travel and vacations, exercise, food, weight loss, restaurants and getting together for meals, family and relatives, birthdays, fashion, drinking and alcohol, work issues, their respective spouses, pets, and social media. They also dined together as couples with their spouses, including once for Atalla’s birthday.

Approximately one month after Atalla’s birthday, while Atalla was at home and Lund was at a hotel for personal business, Lund began texting Atalla on their personal cell phones about the alcohol he was preparing to drink at the hotel. Shortly thereafter, Lund texted her a “Live Photo” of him masturbating, followed by a text that said, “I am so drunk right now.” He then texted, “Meant to send to wifey,” to which Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Lund then sent several more texts stating, “Both of us” and “Race to the bottom” accompanied by a photo of his penis. Atalla texted, “Erik, stop please,” to which he replied, “You are right.” The exchange ended.

Rite Aid promptly fired Lund and Atalla said she would not be returning to work. She filed a claim for violation of the Fair Employment and Housing Act (FEHA) for sexual harassment, failure to prevent sexual harassment, and hostile work environment, among other things. The trial court granted Rite Aid’s motion for summary judgment, and Atalla appealed.

The California Court of Appeal affirmed the trial court because Atalla had not raised a triable issue of material fact that Lund was acting in the capacity of a supervisor in the text exchange. Rather, the Court agreed with the trial court and Rite Aid that Lund and Atalla had an extensive texting relationship that predated her employment, the exchange occurred outside the workplace and outside of work hours, and the exchange arose from their friendship (yet also ended it). Moreover, Atalla admitted that she and Lund were friends before she worked at Rite Aid and their friendship was not connected to her work at Rite Aid.

Because Atalla could not make the fundamental showing that Lund was acting in a supervisorial capacity, the Court affirmed the trial court’s ruling and dismissed the case.

Atalla v. Rite Aid, 2023 WL 2521909 (Cal. Ct. Appeal).

Note:

Texting and drinking do not mix. This supervisor lost both his job and a friend. In addition, he could have been personally liable for damages had he been texting in his capacity as a supervisor.

Administrator Failed To Show Termination Was Result Of Reverse Sex Discrimination.

The Orchard School is a non-profit and independent school in Indianapolis, Indiana. James Napier was hired by the School as a middle school teacher in 1996. Napier left for other employment in 2003 and returned to the School in 2016, taking the position of Middle School Director. As the Middle School Director, Napier supervised middle school teachers and the Middle School Coordinator.

Napier alleges that prior to his re-hiring, the Middle School Coordinator told him there was internal debate over whether to re-hire him because he was one more white male coming into the School. Prior to 2018, the entire Senior Administration Team was made up of white males and allegedly during Senior Administration Team meetings with the previous Head of School, the group occasionally expressed that there were too many white males in senior leadership positions. In mid-2017, the previous Head of School was notified that his contract would not be extended and the School undertook a search for the new Head of School. During this time, there were conversations about hiring a female head of school to increase diversity. Board members confirmed that the “white male issue” was discussed when searching for a new Head of School. In July 2018, Dr. Sherri Helvie became the Head of School. After Dr. Helvie was hired as the new Head of School, Napier’s position and job responsibilities remained the same, but he was shifted from the Senior Administrative Team to the Academic Leadership Team. Napier perceived this shift as a demotion, since he was no longer “in the know” on school decisions and had less access to the Head of School.

In October 2018, the School was informed that a Middle School English teacher intended to retire at the end of the school year. Napier began focusing on hiring to replace her, and specifically sought to hire a teacher then employed by another school. Napier discussed this candidate with Dr. Helvie, and Dr. Helvie instructed Napier to not post the position until she had a chance to speak with the head of the

other school. After some time, Napier did not hear from Dr. Helvie one way or another, and posted the vacancy. Upon learning of this, Dr. Helvie instructed for the post to be taken down.

Early in Dr. Helvie’s tenure as Head of School, she also undertook discussions with Napier regarding the Middle School Coordinator position and the Early Childhood/Elementary School Coordinator position. Dr. Helvie was reviewing these positions for possible elimination. Napier told the Middle School Coordinator that her job may be in jeopardy, despite Dr. Helvie’s instruction that their meetings on the topic remain confidential.

In March 2019, Napier was informed that his contract would not be renewed because Dr. Helvie had lost trust in him. Napier sued the School in August 2019 for sex discrimination. In December 2019, Napier filed a new application to return to his prior Middle School Director position. After that application was rejected, Napier filed a second lawsuit, alleging he was retaliated against for engaging in protected activity. The School moved for summary judgment.

To survive summary judgment in a reverse discrimination case, Napier must establish the following four elements to constitute a prima facie case: (1) background circumstances that demonstrate that a particular employer has reason or inclination to discriminate invidiously against men or evidence that there is something “fishy” about the facts at hand; (2) he was performing his job up to his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarlysituated individuals who are not men. If Napier establishes a case, the School then must show that the explanation was pretextual.

The Court concluded that Napier provided no evidence to show that Napier’s termination was a “fishy” circumstance. He was fired nine months after Dr. Helvie was hired, which is too remote to be suspicious, since she had sufficient time to work with and interact with Napier. Napier failed to provide evidence of reductions in job responsibilities for positions occupied by males at the School. Napier failed to show evidence that Dr. Helvie did not honestly believe her stated reasons for discharging Napier, namely his breach of her trust and confidences. Napier violated Dr. Helvie’s

instructions when he posted the position and he failed to maintain the confidences she entrusted to him about the Coordinator positions. Finally, the Court concluded that Napier did not provide similarly situated individuals who were not men and treated more favorably than Napier.

The Court determined that Napier failed to establish a prima facie case of sex discrimination.

In regard to Napier’s retaliation claim, the Court concluded that there was a great deal of evidence supporting the decision to not rehire Napier, in particular, that Napier had previously held the same position and had been let go because he did not perform up to the level expected by Dr. Helvie.

The Court granted summary judgment for the School and dismissed the case.

Napier v. Orchard School Foundation (S.D. Ind., Mar. 7, 2023) 2023 WL 2388715.

Note:

Although this employee felt the School was taking steps to eliminate white men from working at the School, this was not enough to establish that his termination was due to his sex, as the School was able to provide evidence to support the reasons for his termination, such as the Head of School’s loss of trust in the employee.

Changes Without Regulatory Effect To The FEHA Regulations Approved.

On March 20, 2023, the California Civil Rights Council’s Changes without Regulatory Effect to the Fair Employment and Housing Act Regulations were approved by the Office of Administrative Law and were filed with the Secretary of State. The Fair Employment and Housing Act Regulations now reflect the following changes:

1. Department and Council Name Change: The Department of Fair Employment and Housing was changed in July 2022 to the Civil Rights Department. The Fair Employment Housing Council was similarly changed to the Civil rights Council.

2. California Family Rights Act (CFRA): Effective January 1, 2023, the list of individuals for whom an employee may take CFRA leave to care for include at least one “designated person.” A designed person is someone related to the employee by blood or whose association with the employee is equivalent to a family relationship.

3. Reproductive Health Decisionmaking: In September 2022, Governor Newsom signed the Contraceptive Equity Act of 2022, which took effect on January 1, 2023. This Act adds “reproductive health decisionmaking” as a protective characteristic under the Fair Employment and Housing Act’s employment provisions, and includes but is not limited to, a decision to use or access a particular drug, device, product or medical service for reproductive health.

These changes update the existing California Code of Regulations to accurately reflect recent updates in the law.

did you know...?

Recent Updates On Gender Equity In Athletics.

A West Virginia law (HB 3293) bans girls who are transgender from participating in school sports. B.P.J., a 12-year-old middle school transgender girl has lived as a girl since the fourth grade. She is receiving puberty-delaying treatment and estrogen hormone therapy, and has not and will not experience any of the physiological characteristics of puberty experienced by typical boys. Instead, she will develop physiological characteristics consistent with hormonal puberty of typical girls.

The Court of Appeals had precluded the law from being enforced while the appellate court considered B.P.J’s case. The State appealed to the Supreme Court in order to seek emergency relief. On April 6, 2023, the Supreme Court of the United States refused to intervene in the case.

The same day, the Biden Administration announced a proposed change to Title IX, which would make it illegal for schools to broadly ban transgender students from sports teams that align with their gender identity, rather than their assigned sex at birth. Over the past three years, at least 19 states have passed laws broadly banning transgender students from sports teams that do not align with their sex assigned at birth. If enacted, the Biden Administration’s proposed changes would render these policies illegal.

On April 13, 2023, the Department of Education Office for Civil Rights (OCR) published the proposed rule, which would require that “If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” Comments are due on or before May 15, 2023.

U.S. House Republicans recently passed a bill that would prohibit transgender women and girls from playing on sports teams consistent with their gender identity at federally supported schools and colleges. The bill was approved by a 219-203 party-line vote, but it is unlikely to advance further as the Democratic majority in the Senate will not support it and the White House has said that President Joe Biden would veto it. Nonetheless, this bill shows that this topic will continue to be a top political issue for Democrats and Republicans, and the impacts will be significant for schools.

The proposed rule can be found here. OCR also released a Fact Sheet on the proposed rule, which can be found here The new rule would apply to public K-12 schools, as well as colleges, universities, and other institutions that receive federal funding. LCW will monitor this topic for developments.

West Virginia v. B. P. J., by Jackson (2023) __ S.Ct.__ [2023 WL 2801383].

Consortium Call Of The Month

If you would like to receive more information about our Consortium services or would like to join, please contact Jaja Hung at jhung@lcwlegal.com.

Answer:

Question:

A handful of independent schools in California are jointly considering eliminating AP and IB Courses over the next few years. One of these schools asked LCW if there are any concerns with doing this.

In January 2021, the Department of Justice concluded an investigation into eight different independent schools in the Washington, D.C. Metro Area after the schools agreed to stop offering Advanced Placement courses by 2022. The Department of Justice considered whether the schools’ joint decision violated the Sherman Act, an antitrust law that requires free competition. The Antitrust Division’s investigation revealed that the schools likely did agree to eliminate AP courses by 2022, but each school told the Antitrust Division that they were not bound by any agreement with the other schools, presently or in the future. In light of the investigation, the Antitrust Division did not bring an enforcement action against the schools.

The attorney advised the School of the recent investigation by the Antitrust Division and told the School that it may consider coming to this decision on its own, rather than in conjunction with other schools. If the School does decide to make a joint decision with other schools, it should ensure that all schools are not bound by the agreement if they change their policies in the future.

lcw best timeline

MARCH- END OF APRIL

The budget for next school year should be approved by the Board.

Issue contracts to existing staff for the next school year.

Issue letters to current staff who the School is not inviting to come back the following year.

Assess vacancies in relation to enrollment.

Post job announcements and conduct recruiting.

• Resumes should be carefully screened to ensure that applicant has necessary core skills and criminal, background and credit checks should be done, along with multiple reference checks.

Summer Program.

• Advise staff of summer program and opportunity to apply to work in the summer, and that hiring decisions will be made after final enrollment numbers are determined in the end of May.

• Distribute information on summer program to parents and set deadline for registration by end of April.

• Enter into Facilities Use Agreement for Summer Program, if not operating summer program.

Transportation Agreements.

• Assess transportation needs for summer/next year.

• Update/renew relevant contracts.

MAY

Complete hiring of new employees for next school year.

Complete hiring for any summer programs.

If service agreements expire at the end of the school year, review service agreements to determine whether to change service providers (e.g., janitorial services, if applicable).

• Employees of a contracted entity are required to be fingerprinted pursuant to Education Code Section 33192, if they provide the following services:

ƒ School and classroom janitorial.

ƒ School site administrative.

ƒ School site grounds and landscape maintenance.

ƒ Pupil transportation.

ƒ School site food-related.

• A private school contracting with an entity for construction, reconstruction, rehabilitation, or repair of a school facilities where the employees of the entity will have contact, other than limited contact, with pupils, must ensure one of the following:

ƒ That there is a physical barrier at the worksite to limit contact with pupils.

ƒ That there is continual supervision and monitoring of all employees of that entity, which may include either:

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.

- Surveillance of employees of the entity by School personnel; or

- Supervision by an employee of the entity who the Department of Justice has ascertained has not been convicted of a violent or serious felony, which may be done by fingerprinting pursuant to Education Code Section 33192. (See Education Code Section 33193).

If conducting end of school year fundraising:

Raffles:

• Qualified tax-exempt organizations, including nonprofit educational organizations, may conduct raffles under Penal Code Section 320.5.

• In order to comply with Penal Code Section 320.5, raffles must meet all of the following requirements:

ƒ Each ticket must be sold with a detachable coupon or stub, and both the ticket and its associated coupon must be marked with a unique and matching identifier.

ƒ Winners of the prizes must be determined by draw from among the coupons or stubs. The draw must be conducted in California under the supervision of a natural person who is 18 years of age or older.

ƒ At least 90 percent of the gross receipts generated from the sale of raffle tickets for any given draw must be used by to benefit the school or provide support for beneficial or charitable purposes.

Auctions:

• The school must charge sales or use tax on merchandise or goods donated by a donor who paid sales or use tax at time of purchase.

ƒ Donations of gift cards, gift certificates, services, or cash donations are not subject to sales tax since there is not an exchange of merchandise or goods.

ƒ Items withdrawn from a seller’s inventory and donated directly to nonprofit schools located in California are not subject to use tax.

- E.g., if a business donates items that it sells directly to the school for the auction, the school does not have to charge sales or use taxes. However, if a parent goes out and purchases items to donate to an auction (unless those items are gift certificates, gift cards, or services), the school will need to charge sales or use taxes on those items.

Liebert Cassidy Whitmore