Private Education Matters: February 2024

Private Education Matters

admissions students

U.S. Supreme Court Declines To Hear Case On K-12 Admissions Policy.

The Supreme Court denied certiorari in Coalition for TJ v. Fairfax County School Board, a case involving public high school admissions policies. Thomas Jefferson High School for Science and Technology (TJ) is a highly ranked magnet school in Alexandria, Virginia. In 2020, TJ altered their admission criteria in order to diversify the student body dominated by AsianAmericans from a handful of affluent neighborhoods.

The new admissions system removed the application fee and allocated most slots proportionally among the school district’s middle schools, with applicants given a holistic evaluation based on GPA, the student “portrait sheet” (i.e., description of applicant’s skills), a problemsolving essay, and four “Experience Factors” (i.e., special education status, eligibility for free or reducedprice meals, status as an English-language learner, and attendance at a historically underrepresented public middle school).

The Coalition for TJ, an advocacy organization of Fairfax County public school parents, filed suit alleging that the new admissions policy ran afoul of the Equal Protection Clause. The Coalition argued that, although the policy was facially race-neutral, the policy was adopted with a racially discriminatory purpose in that it intended to reduce the percentage of Asian-American students who enrolled at TJ and intended for the policy to act as a proxy in order to racially balance TJ.

In May 2023, the Fourth Circuit Court of Appeals found no violation to the Constitution’s Equal Protection Clause because Asian-Americans produced the highest admissions “success rate” of any group under the new admissions policy, with Asian-American students accounting for 48.59% of the applications and 54.36% of the admission offers. The Court of Appeals also ruled that there was no discriminatory intent under the new policy. TJ was not motivated by disadvantaging Asian-American students and the policy itself was not only race-neutral, it was fully raceblind. Each applicant’s name, race, ethnicity, and sex were excluded from the applications.

The Supreme Court’s decision declining to hear this case means that TJ can continue with their current admissions policy.

Justice Alito and Justice Thomas dissented from the Supreme Court’s decision, warning that TJ’s admissions model creates a blueprint for schools to evade the Supreme Court’s recent decision striking down affirmative action in college admissions.

Coal. for TJ v. Fairfax Cnty. Sch. Bd. (2024) ___U.S.___ [___L.Ed.2d___].

Note:

LCW covered the Fourth Circuit’s decision in the June edition of Private Education Matters.

Court

Upholds Student Expulsion Because School Exempt From ADA And Rehabilitation Act.

R.R.D. is a former student at Archbishop Wood High School, a private school affiliated with the Roman Catholic Church. In September 2021, at the start of his sophomore year, R.R.D. sought a medical exemption from the School’s COVID-19 masking requirement. A note from his physician stated that R.R.D. suffered from mask induced epistaxis (i.e., nosebleeds), and recommended social distancing and frequent handwashing as an alternative accommodation to wearing a mask.

The School granted R.R.D’s request, placed a sticker on the back of his student ID to denote the exemption, and required R.R.D. to maintain at least six feet distance from others. Masked students, in comparison, needed to remain only three feet apart. In class, R.R.D.’s desk was moved to accommodate the six feet distance. As the only student without a mask, R.R.D. claimed that teachers in the hallway would repeatedly demand his ID for proof of his mask exemption, and on some occasions, a teacher directed him to sit in the back of the auditorium, considerably farther than six feet from others.

R.R.D. felt harassed by this treatment, and it was his personal belief that six feet of social distancing was medically unnecessary. R.R.D.’s father also expressed disagreement with the School’s COVID-19 protocols. Nonetheless, R.R.D., his father, nor his doctor made any specific requests to alter R.R.D.’s accommodation. During this same period, R.R.D. experienced repeated bullying from another student, unrelated to the mask exemption or distancing requirement. R.R.D. did not notify teachers or administrators about the bullying until a fistfight broke out between the two students. Both students were suspended and eventually expelled for the fight.

R.R.D. filed suit, claiming that the mask induced epistaxis constituted a disability that the School failed to accommodate under the Rehabilitation Act and the Americans with Disabilities Act (ADA). R.R.D. also alleged that the School retaliated against him for requesting

an accommodation, by allowing him to face harassment and bullying by teachers. Lastly, R.R.D. claimed the School acted negligently in failing to protect him from this harassment and bullying.

The Rehabilitation Act applies to any program or activity receiving federal financial assistance. R.R.D. argued that the Rehabilitation Act applied here because the School received federal financial assistance in the form of a Paycheck Protection Program (PPP) loan. The School argued that the PPP loans did not constitute federal financial assistance, and even if they did, the government forgave the School’s PPP loan before the alleged violations occurred. The School spent all the federal assistance and then received the loan forgiveness letter. It was only after the loan was forgiven that this alleged conduct occurred. The Court concluded that the School could not continue to “accept” federal funds after spending all the approved funds and subsequently receiving a letter of forgiveness.

For R.R.D.’s claims under the ADA, the School argued that Title III of the ADA did not apply because they are a religious organization. To determine whether a corporation is a religious organization, courts often look at the religious and secular characteristics and weigh them to determine whether the entity’s purpose and character are primarily religious.

The Court considered nine factors: (1) whether the entity operates for a profit; (2) whether it produces a secular product; (3) whether the entity's articles of incorporation or other pertinent documents state a religious purpose;

(4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue; (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; (6) whether the entity holds itself out to the public as secular or sectarian; (7) whether the entity regularly includes prayer or other forms of worship in its activities; (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and

(9) whether its membership is made up by coreligionists.

Here, the Court considered that the School is a non-profit organization; with an expressly religious mission and curriculum; it is supported and directly supervised by the Archdiocese of Philadelphia; and it requires students to participate in religious instruction and prayer. The Court concluded that Title III did not apply to the School and dismissed R.R.D.’s ADA claims.

Finally, for R.R.D.’s negligence claim, R.R.D. argued that the School owed him a duty to be protected from harassment and bullying and that the School breached this duty by segregating him from his peers and allowing him to be harassed and bullied by administrators, teachers, and students. R.R.D. argued that if the School did not act in this way, R.R.D. would not have been expelled.

The Court looked to the facts of the case and determined that there was no evidence that any school staff even knew about the issues between the two students until their fight, and R.R.D. even said that he told no one at the School about the threats or bullying. R.R.D.’s father likewise did not make any complaints or requests to the School. R.R.D. asked his guidance counselor to change lunch periods, but did not say why he was asking and students often asked to change their lunch periods to align with friends’ schedules. Similarly, the Court found no evidence that R.R.D.’s accommodations played a role in the bullying, fight,

or expulsion. R.R.D. admitted that their fight was not related to his mask exemption or social distancing requirements. The School expelled R.R.D. for violating its fighting policy, just as they did the other student, who had no mask exemption.

R.R.D. claimed that the School acted negligently by requiring him to socially distance and separating him in classes, but R.R.D. affirmatively requested that the School accommodate him through social distancing. The Court found no evidence of teachers acting unreasonably in carrying out R.R.D.’s exemption. In fact, the Court found that this strict enforcement of public health protocols could not be deemed negligence or harassment because it was done to protect students as recommended by public health officials. The Court dismissed R.R.D.’s negligence claim and granted summary judgment in favor of the School.

Dipietro v. Archbishop Wood High Sch. (E.D.Pa. Jan. 16, 2024) 2024 U.S.Dist.LEXIS 8177.

Note:

This case outlines the factors a court will consider when determining whether a religious school is subject to Article III of the ADA. Regardless, however, religious schools should be aware that if they agree to provide accommodations in line with the ADA, courts will hold them to the same standard as non-religious schools.

pre-schools

Pre-School Capacity Based

On Attendance At One Time Rather Than Total Enrollment.

Pacific Oaks is an early childhood education center for children and families in Pasadena, California. The Pre-School offers part-time classes in the morning or afternoon, as well as full day childcare. The part-time programs take place in different yards on school grounds.

The Department of Social Services (DSS) issued a license to Pacific Oaks to operate a day care center. The license set a total capacity at 77.

In July 2013, Pacific Oaks applied to increase the preschool programs’ capacity to 140. DSS denied the application. In August 2013, Pacific Oaks emailed certain parents that due to the denial of the application, the School would not be able to provide a space for their children for the 20132014 school year. In October 2013, Pacific Oaks again applied to increase their capacity to 140. DSS granted the application in April 2014.

A group of parents filed suit, alleging that the School was operating at overcapacity and in violation of its existing license, and knowingly concealed this information from the parents. The parents also claimed that Pacific Oaks falsely advertised that it had “state-of-the-art” play yards and facilities.

The case was stayed while the parents worked to establish a class action claim. Eventually, in February 2020, the parties filed for summary adjudication. The parents argued that Pacific Oaks engaged in unlawful and fraudulent conduct because Pacific Oaks violated the DSS license capacity limit when it enrolled more than 77 students each year during the class period. The trial court denied the parents’ motion, finding the term “capacity,” did not mean the total number of children enrolled at the facility. Rather, the capacity had to be measured based on time of day, and Pacific Oaks’ different programs had less than 77 students present on campus at one time.

The parents appealed, arguing that Pacific Oaks engaged in unlawful conduct by operating in violation of the capacity limit set forth in their DSS license. In particular, the parents argued that more than 77 children were enrolled at Pacific

Oaks during each year in issue, and the term “capacity limitation” in the licensing regulations refers to enrolled children, irrespective of how many might be physically present at the facility at any particular time.

The Court of Appeals disagreed with the parents. In looking at the plain language of the regulations, “capacity” is defined as “the maximum number of children authorized to be provided care and supervision at any one time.” The Court of Appeals determined that the phrase “at any one time” meant the number of children who may be physically present at a childcare facility while under the facility’s care and supervision. Here, the enrollment numbers did not reflect the number of children simultaneously present, or expected to be present, under Pacific Oak’s care and supervision.

The Court of Appeals also considered that counting enrolled children does not assist in determining whether the facility has sufficient physical space or whether it can maintain required teacher-student ratios.

Furthermore, the Court of Appeals determined that measuring capacity by counting children in attendance is consistent with the California Child Day Care Facilities Act, the statute authorizing the regulations. Using the parents’ approach for measuring capacity would restrict the amount of potentially available child care, and the Court of Appeals was mindful of California’s shortage of regulated child care, with only a small fraction of families receiving child care who need it. For example, using the parents’ analysis, if a facility with a capacity limitation of 20 provided care to one group of 15 children in the morning, and another group of 15 children in the afternoon, with no overlapping times when all 30 children are present, the facility would violate its license. While there are times that enrollment does reflect attendance for a facility, that was not the case here. The Court of Appeals upheld the trial court’s ruling.

Baker v. Pacific Oaks Education Corp. (2024) 99 Cal. App.5th 77.

Note:

This case provides clarity for pre-schools operating in California, particularly those who provide separate programs in the morning and afternoon.

Titleix

University Not Liable For Anonymous List Accusing Students Of Misconduct.

In March 2022, an anonymous group of New York University (NYU) students published a Google spreadsheet, known as the “Blacklist,” accusing several NYU students of sexual misconduct. The spreadsheet contained three anonymously submitted entries about John Doe, a senior at NYU. One entry labeled John Doe a narcissist and two entries accused him of sexual misconduct. Posters containing a QR code linked to the spreadsheet were posted around the NYU campus, primarily in women’s restrooms.

Doe became aware of the spreadsheet on April 5, 2022, about one month before classes ended at NYU and roughly six weeks before Doe’s graduation, when a friend notified him of rumors arising from the spreadsheet’s circulation. Doe alleged that the spreadsheet was created with the purpose of enabling female and non-binary NYU students to post unfounded sexual misconduct against male students.

Doe made failed attempts to reach out to the purported creators of the spreadsheet to request them to remove the entries about him. Doe reported the spreadsheet to several NYU faculty and staff. Thereafter, a Lieutenant from Investigations and Victim Services at NYU Campus Safety contacted Doe and the two met to discuss the accusations lodged against Doe and the effect it had on his mental health. The Lieutenant referred Doe to various resources for mental health assistance and said she would continue to monitor the situation. The Lieutenant also looked into the spreadsheet and told Doe that NYU Campus Safety was unable to shut it down.

On April 11, NYU issued a statement to the student body, advising students against using the spreadsheet as a means of reporting sexual misconduct. The statement cautioned that “public anonymous claims” of sexual misconduct made via the spreadsheet meant that all parties involved were deprived of impartiality and the process to which they should be entitled. The statement urged accusers to instead use NYU’s official channels to report misconduct. In late April, the spreadsheet was taken down.

Doe claimed that as a result of the spreadsheet, during his final weeks at NYU, he was removed from a classmate’s film shoot and no longer booked to work on professional gigs. Doe claimed that he suffered bullying, harassment, and ostracism by other students, including students pretending not to hear him when he spoke, ignoring his messages, changing seats if he sat near them, and walking the other way to avoid him. In response, NYU provided Doe with academic accommodations for the remainder of the school year, and after graduation, provided him with a letter stating that he had never been subject to an investigation at the School.

Doe filed suit under two Title IX theories. First, Doe alleged that NYU discriminated against him on the basis of his sex by failing to adequately address his complaints of harassment, which Doe claimed amounted to deliberate indifference, and which would make the University liable for his peers’ sexual harassment. Second, Doe alleged that as a result of NYU’s inaction, he was subject to a hostile educational environment.

For a school to be liable under Title IX for peer harassment, the plaintiff must demonstrate that a federally funded educational institution was

deliberately indifferent to and had actual knowledge of sexual harassment that was so severe, pervasive, and objectively offensive that it could be said to have deprived the plaintiff access to the educational opportunities or benefits of attending the institution. A plaintiff must also show that the school exercised substantial control over both the harasser and the context in which the known harassment occurs.

Doe argued that even though he repeatedly reported the harassment, NYU took no action to investigate the origins of the Blacklist or pursue disciplinary action against its creators. Instead, Doe argued, NYU encouraged the female students to report the potential misconduct.

NYU argued, as a threshold matter, that Doe’s peer harassment claim should be dismissed because Doe failed to show that either that the students published the spreadsheet out of a desire to harass him for being male (i.e., on the basis of sex) or that he was subject to a systemic deprivation of educational opportunities.

The Court agreed with NYU. The Court further reasoned that even assuming that Doe met the threshold requirements to state a Title IX claim, NYU’s response was not unreasonable. The Court found that NYU took the steps it could to respond to Doe’s reports, including referring Doe to mental health assistance and victim’s support services; investigating whether it could unilaterally shut down the list (and determining that it could not); providing academic accommodations to Doe; providing Doe with a letter stating that he had never been subject to a Title IX investigation; and issuing a public statement that encouraged individuals to report concerns to NYU through official channels.

The Court considered that NYU could not easily demand the students to identify themselves and take disciplinary action against them because it would have been disciplining students for online speech on nonuniversity accounts.

The Court also considered that Doe had not sufficiently alleged that NYU exercised “substantial control” over the alleged harassment. There was no evidence that the spreadsheet was created using NYU resources; shared or administered by any NYU account or device; hosted

on NYU services; or otherwise within NYU’s ability to edit or delete it. NYU Campus Safety looked into the spreadsheet and told Doe there was nothing it could do to shut down the page. The mere fact that the spreadsheet was created by NYU students and could be accessed by a QR code displayed on posters around campus was not enough to establish substantial control. Therefore, the Court dismissed the peer harassment claim.

For Doe’s hostile educational environment claim, Doe argued that NYU failed to promptly and adequately respond to Doe’s repeated complaints about the Blacklist and resulting fallout.

To establish a hostile educational environment claim under Title IX, a plaintiff must show that he subjectively perceived the environment to be hostile or abusive and that the environment objectively was hostile or abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his educational environment. For an educational institution to be liable, however, the plaintiff must show that the school had actual knowledge of the discrimination and failed to adequately respond, which occurs when the school provides no response or if it provides a response that amounts to deliberate indifference or discrimination.

Here, the Court found that Doe may have pled facts that established that he was subject to a hostile environment, but he failed to show that NYU failed to adequately respond. As the Court established for the first claim, Doe failed to show that NYU’s response to the spreadsheet and resulting harassment amounted to deliberate indifference. Therefore, the Court dismissed the hostile environment claim.

Doe v. Sacks (S.D.N.Y. Feb. 2, 2024) 2024 U.S.Dist.LEXIS 18687.

Note:

While Title IX only applies to recipients of federal funds, the facts in this case are instructive for schools navigating similar situations. Important takeaways from this case include that there was no evidence that the student spreadsheet was created using school resources or email addresses, and that the school was somewhat limited in how it could respond to the spreadsheet due to their lack of control over the spreadsheet and the free speech rights of students.

How to Customize LCW’s Model

Workplace Violence Prevention Plan (“WVPP”) and Implement the Required WVPP Training for Employees

In 2023, in order to address growing concerns about violence in the workplace, the legislature passed and the Governor signed into law Senate Bill 553. The new law amends Labor Code section 6401.7 and adds Labor Code section 6401.9, requiring California employers to establish and implement by July 1, 2024 a Workplace Violence Prevention Plan (“WVPP”) and provide effective training to employees on the requirements of the new law and the employer’s WVPP.

This package includes LCW’s model WVPP and template training materials. The webinar will provide valuable insight and explanation as to how to customize the WVPP for your unique workplace specific issues as well as how to implement and maintain an effective WVPP moving forward. This training will also provide detailed guidance regarding the customization of LCW’s training materials to effectively train your employees on issues specific to your workplace(s).

Registration Includes:

• Model Workplace Violence Prevention Plan (with notes on how to customize for your organization).*

• Checklist of plan/training requirements.

• Slides you can customize and use to train your workforce.

• Ninety-minute webinar that will cover how to customize both the Plan and the training.

• Three-month access to the recording of the webinar.

• The Department of Industrial Relations (DIR) has indicated that they might issue guidance on these requirements. Should they do so prior to June 30, LCW will provide one update to both the model plan and template training documents. *DIR changes/updates after plan effective date is not included.

Who Should Attend:

Department Heads, Managers, Supervisors, Human Resources, and Risk Management.

DEI employees

Applicant Cannot

Challenge University’s DEI Statement Requirement Because He Never Applied For Position.

Around 2016, the University of California (UC) established the Advancing Faculty Diversity (AFD) program to support projects that increase racial and gender balance on University campuses. The AFDfunded pilot program at UC Santa Cruz encouraged search committees to use Diversity, Equity, and Inclusion (DEI) statements in the faculty selection process and engage in more in-depth discussion with applicants about their statements. Over time, UC Santa Cruz allegedly began to place more emphasis on faculty candidates’ diversity statements and created detailed rubrics for evaluating diversity statements. The University published a “starting rubric” that assigns high scores for applicants’ DEI statements that express certain sociopolitical ideas and low scores for those that express otherwise. The University’s website also provided a list of “common myths” about DEI faculty recruitment and a page for resources on Antiracism.

John D. Haltigan holds a Ph.D. in Development Psychology and was previously an Assistant Professor at the University of Toronto. On July 21, 2022, UC Santa Cruz posted an open hiring announcement for a tenure-track position in Developmental Psychology. The Psychology Department required a DEI statement in order to apply and urged each candidate to review the scoring rubric posted on the University’s website. The posting stated that the initial screening of candidates would only be performed using the DEI statement and a research statement.

Dr. Haltigan alleged that he desired a position at the University, but that the DEI statement requirement made his application futile due to his views. Dr. Haltigan alleged that if he were to apply for the July 2022 opening or any other openings at UC Santa Cruz,

he would be compelled to alter his behavior and either remain silent or recant his views in order to conform to the beliefs of the University administration. In light of these concerns, Dr. Haltigan did not apply or prepare any application materials for the July 2022 opening.

In May 2023, Dr. Haltigan filed suit against UC Santa Cruz, seeking a preliminary injunction to stop the University from enforcing the DEI statement requirement against him.

UC Santa Cruz filed a motion to dismiss for lack of standing. In their motion, UC Santa Cruz argued that Dr. Haltigan did not suffer an injury because he only expressed some future intentions to apply to the position, and never submitted himself to the application process he sought to challenge.

Dr. Haltigan argued that he was ready and able to apply but that any application submitted would have been futile. The Court was not persuaded.

First, the Court found that a general interest in applying was not enough. Here, Dr. Haltigan had not undertaken any preparations in anticipation of applying to the July 2022 position or any future UC Santa Cruz positions. Dr. Haltigan had applied to other positions with less stringent DEI requirements, but the Court determined that this was not enough to show an imminent or concrete injury arising from UC Santa Cruz’s application process.

Second, the Court determined that Dr. Haltigan had not submitted himself to the process and the University’s policies did not unambiguously show that an application would have been futile. The application process was subjective, and it was possible that UC Santa Cruz may have accepted Dr. Haltigan’s application on the basis of his standalone qualifications or relevant research background. There was no direct and disqualifying consideration stemming from an applicant’s DEI statement, and therefore there was no evidence that Dr. Haltigan’s application would have been futile.

The Court dismissed Dr. Haltigan’s claims.

Haltigan v. Drake (N.D.Cal. Jan. 12, 2024) 2024 U.S.Dist.LEXIS 6944.

Note:

Hiring practices that create the perception that hiring decisions are based on an individual’s race or other protected classification can create legal risk. While this case was dismissed for procedural reasons, other lawsuits have challenged the use of mandatory faculty DEI statements.

new to the Firm!

Lucy Goodnough is an Associate in the San Francisco office where she practices in labor and employment law matters.

Whitney

an Associate in the San Francisco office, specializing in labor and employment law matters.

Lauren Tolar is

misconduct

Court Upholds Decision

To Terminate Professor’s Employment Based On Conduct That Occurred OffCampus And That Did Not Involve Students.

Dr. Gopal Balakrishnan was a tenured professor at the University of California (UC) Santa Cruz. In 2017, an anonymous letter was published online, accusing Dr. Balakrishnan of engaging in a pattern of sexual intimidation, harassment, and assault against young women and gender nonconforming people during his time as a professor. The letter contained seven anonymous firsthand accounts of alleged abuse and called the University to act. Over 150 people signed the letter to show their support.

Dr. Balakrishnan denied the accusations and blamed “the current context of national indignation around the issue of sexual harassment.” In response, the University said that it was aware of the letter and asked individuals with relevant information to contact the Title IX office to assist its investigation.

The University received multiple complaints about Dr. Balakrishnan’s conduct. Two of the more serious complaints involved Jane Doe and Anneliese H. The University engaged an outside investigator to conduct an investigation.

Jane Doe, a poet and academic from the East Coast, traveled to Berkeley in 2013 and attended a Poetry Summit. Doe, a friend, and Dr. Balakrishnan stayed overnight at the house of the professor who was hosting the Summit. The investigator concluded that one night, Dr. Balakrishnan climbed into bed and pressed himself against Jane Doe. The investigator concluded that Dr. Balakrishnan engaged in unwelcome physical conduct of a sexual nature, which was squarely within the definition of prohibited conduct under UC’s Policy on Sexual Harassment that was in place at the time of the

incident. However, the investigator could not substantiate a violation of this policy because it only applied to members of the University community.

Anneliese H., two days after graduating from UC Santa Cruz, attended a party at the off-campus apartment of her friend. There, for the first time, she met Dr. Balakrishnan, without realizing he was a professor. Dr. Balakrishnan offered to walk Anneliese home, and after arriving at her home, invited him inside. Anneliese was nearly blacked out, and Dr. Balakrishnan forced himself on Anneliese despite her clear directives. The investigator concluded that, again, it was more likely than not that Dr. Balakrishnan engaged in unwelcome physical conduct of a sexual nature, falling squarely within the definition of prohibited conduct under University policy. This conduct occurred after Anneliese had completed her coursework, but before her degree was conferred.

The University held an administrative hearing and ultimately dismissed Dr. Balakrishnan and denied him emeritus status.

Dr. Balakrishnan filed suit, alleging, among other claims, that the University lacked jurisdiction to discipline him with respect to Jane Doe or Anneliese H. because they were not University students.

The University argued that Dr. Balakrishnan’s conduct towards Jane Doe was subject to discipline because the Faculty Code of Conduct listed the types of unacceptable behavior, which included conduct against members of the community. “Community,” the University argued, meant the community at-large, rather than the University community.

Dr. Balakrishnan, on the other hand, argued that the Faculty Code only applied to matters “in the scope of their professional roles, not at an after-party for an off-campus poetry summit unaffiliated with the University.

The Court concluded that Dr. Balakrishnan’s behavior was not justified by the Faculty Code and that his behavior impaired the University’s central functions. For example, allowing this conduct to continue without consequence or sanction was clearly incompatible with sustaining an environment conductive to learning. The Court reasoned that neither Jane Doe nor her friend would want to work with Dr. Balakrishnan or anyone from the University in the future if they saw this behavior had no consequences.

Dr. Balakrishnan next argued the University had no jurisdiction over Anneliese H’s complaint because she was not a student or member of the University community when he sexually harassed her. The Court disagreed based on the evidence, which

showed that at the time of the party, the University had not yet audited Anneliese’s grades or conferred her degree. In any event, the Court also concluded that the University’s sexual harassment policy extended to incidents with members of the University community, a broad definition that included non-student participants in University programs, such as vendors, contractors, visitors, and patients.

The Court upheld the University’s decision to dismiss Dr. Balakrishnan.

Balakrishnan v. The Regents of the University of California (Feb. 1, 2024) ___Cal.App.5th___ [2024 Cal. App. LEXIS 68].

Note:

This case is an important reminder for schools that, based on its policies, employees can be disciplined for off-campus conduct.

discrimination

Non-Profit Customer Service Position Not Religious Enough To Permit Discriminatory Hiring Practices.

World Vision is a nonprofit organization that declares itself to be a “Christian ministry dedicated to sharing the gospel of Jesus Christ, primarily through humanitarian outreach to children and families around the world who are poor and underserved.” It operates in many ways like a Christian church and implements its programs through and as supported by local churches.

Upon hire, every World Vision staff member receives an employee guidebook to help them comply with World Vision’s mission, vision, and core values. The guidebook makes clear that prayer plays a central role in World Vision’s ministry. In World Vision’s view, the Bible confines marriage to be between a man and a woman. Accordingly, the World Vision Standards of Conduct prohibits sexual conduct outside of marriage between a man and a woman. To be eligible for employment at World Vision, an individual must be able and willing to affirm and comply with, among other things, the World Vision Standards of Conduct.

In November or December 2020, Aubry McMahon saw a job posting for a position of customer service representative with World Vision. The posting stated that the customer service representative would help carry out the Christian organization’s mission, vision and strategies, and personify the ministry of World Vision, and required attendance at weekly Chapel services and regular prayer. World Vision said their customer service representatives play a crucial role in fundraising, which World Vision views as "a form of ministry in itself." World Vision customer service representatives fielded more than 15,000 prayer requests during the calendar year 2020.

McMahon applied and interviewed for the position, and the Organization extended a contingent offer to her. The offer letter stated that McMahon’s employment was dependent upon completing a nine-to-eleven week training and evaluation program. The same day World

Vision sent McMahon written confirmation of her job offer, McMahon asked the Organization about whether she would qualify for any time off as a new employee, as her and her wife were expecting their first baby. World Vision rescinded the offer due to McMahon’s inability to comply with the Standards of Conduct.

McMahon filed suit under Title VII, claiming that World Vision unlawfully discriminated against her based on sex, sexual orientation, and marital status.

World Vision argued that McMahon’s claims should be dismissed for a number of reasons, including because they were barred by: (1) Title VII’s religious organization exemption; (2) the ministerial exception; and (3) the bona fide occupational qualification defense.

Under Title VII, religious organizations have a constitutionally-protected interest in making religiously-motivated employment decisions and are exempt from Title VII’s prohibition against discrimination in employment decisions on the basis of religion. World Vision argued that as a religious organization, they were exempt from the entire subchapter of Title VII, regardless of the type of discrimination at issue. The Court disagreed. While Title VII allows for hiring decisions based upon religious preferences, religious employers are still subject to Title VII for claims based on sex and other protected grounds. Here, World Vision rescinded McMahon’s job offer based on a facially discriminatory policy, and McMahon was treated differently based on her sex, sexual orientation, and marital status.

Next, World Vision argued that it was allowed to rescind McMahon’s job offer because she was a minister and therefore subject to the ministerial exception. Rooted in the First Amendment, the ministerial exception ensures that courts stay out of employment disputes involving individuals holding certain important positions with churches and other religious institutions. The exception bars employment discrimination claims brought on behalf of ministers.

The Court determined that McMahon’s role was not that of a minister for a number of reasons. First, the job posting and offer letter were both

secular. Second, McMahon’s title lacked ministerial or religious substance. The nine-to-eleven week training and evaluation program would have had some religious components, but not enough to rise to the level of a minister. Furthermore, the Court reasoned that the position did not require any formal religious education or training, and instead required only a high school diploma or GED equivalent. Third, McMahon did not hold herself out to be a minister.

Fourth, McMahon would not have served important religious functions. World Vision argued that customer service representatives served important religious functions, such as confessing they are committed Christians, agreeing with World Vision’s core principals, communicating World Vision’s Christian faith, and participating in prayer activities and weekly chapel services. The Court found that all World Vision employees were expected to uphold these responsibilities, meaning that they did not hold a certain important ministerial position within the Organization. Furthermore, although there may have been times where a customer service representative prayed with customers, this was not a job requirement and failure to do so did not subject the representative to discipline or termination. In fact, World Vision did not ask McMahon any questions about donor prayers when interviewing McMahon. Since McMahon never actually worked for the Organization, the Court found it impossible to know how often the issue would have come up. The Court determined that, as a whole, the customer service representative position was a secular one and therefore the ministerial exception did not apply.

World Vision also argued that they were permitted to rescind the job offer under the bona fide occupational qualification defense, which permits an employer to discriminate on the basis of religion, sex, or national origin in instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. To prove this defense, World Vision must show that not being in a same-sex marriage is reasonably necessary to the normal operation of its business and that the requirement concerned job-related skills and aptitudes. Here, the Court was not convinced that was the case. The Court found no evidence that being in a same-sex marriage affected one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel. World Vision failed to show that excluding those in a same sex marriage was essential to the customer service representative position.

The Court granted McMahon’s motion for summary judgment and sent the case to trial to determine the relief McMahon should be granted.

McMahon v. World Vision, Inc. (W.D.Wash. Nov. 28, 2023) 2023 U.S.Dist.LEXIS 211417.

Note:

This case provides a relevant overview of the types of issues a court will tease out when religious employers, including schools, make employment decisions based on an individual’s protected classifications. This case was decided in Washington, and if appealed, may be decided by the Ninth Circuit and binding on California.

For more information on some of our upcoming events and trainings,

Labor Commissioner Finds That Teacher’s Assistant Not Given Adequate Time To Receive COVID Vaccine.

Diana Antonaros, a full-time teacher’s assistant at a private Catholic school in New York City was required under the New York City Department of Education (NYCDOE) to be vaccinated against COVID-19 by September 27, 2021 in order to maintain employment. Antonaros failed to provide proof of vaccination by the deadline and was deemed unable to meet an essential function of her job. The Department of Labor issued an initial determination that due to Antonaros’ failure to receive the vaccine, she was considered to have “quit without good cause.” Therefore, she was disqualified from receiving unemployment insurance benefits because she had voluntarily separated from her employment without good cause.

An Administrative Law Judge (ALJ) upheld the denial of benefits, finding that Antonaros had voluntarily left her employment without good cause, and the Unemployment Insurance Appeal Board affirmed the ALJS’s determination.

On appeal, Antonaros argued that she was not given enough time to comply with the vaccine mandate. The assistant principal notified Antonaros on Thursday, September 23, 2021 that NYCDOE teachers and staff needed to receive at least one dose of the COVID-19 vaccine by Monday (September 27, 2021). The assistant principal stated that NYCDOE mandate would include programs outside of public schools, but that, at the time of the email, she did not have guidance on what this mandate would mean for their school. The following day, Friday, September 24, 2021, the Archdiocese sent a letter advising individuals working in the Universal Pre-K Program, including Antonaros, that the Archdiocese of New York had just been notified that the mandate applied to them, and they were required to get the vaccine by the end of business on Monday.

Ms. Antonaros was unsure about the safety of the vaccine and wanted to speak with her doctor first, especially since she had already contracted COVID-19 and believed she may have built up an immunity. She was unable to reach her doctor because it was the weekend. On Monday, Antonaros and four other Universal Pre-K Program workers met with the School principal and told him they had not been provided enough time to comply with the mandate and asked for an extension. The principal refused.

The Labor Commissioner concluded that only providing four days, two of which were weekend days, to comply with the mandate was unreasonable. The Labor Commissioner remitted the matter for the Unemployment Insurance Appeal Board’s determination.

Matter of Antonaros (Commissioner of Labor) (App.Div.) 2024 NY Slip Op 00217.

Note:

Although this was a straightforward case specific to New York City’s COVID-19 mandate, this case is useful because it shows that the short turnaround time on mandating the vaccine was unreasonable, and therefore the employee may have been entitled to unemployment benefits.

did you know...?

• Senator Marco Rubio and Representative Greg Steube recently introduced the Safeguarding Charity Act, a federal bill that would clarify that tax-exempt status does not qualify as federal financial assistance. Over the last few years, two outlier cases in California and Maryland suggested that private school’s tax-exempt status amounted to federal financial assistance and subjected the schools to comply with certain federal laws. Last month, a ruling in Arizona stated that tax-exempt status is not a form of federal financial assistance. This bill, if enacted, would provide clarity on this issue; LCW will continue to monitor this legislation.

• A National Labor Relations Board official ruled recently that players on Dartmouth College’s men’s basketball team are employees and can vote to unionize. The ruling noted that the players, like graduate student assistants, act at the school’s direction, for its benefit, and for compensation. Although Ivy League Schools do not provide athletic scholarships for players, recruited athletes are given early notification of financial aid entitlements and equipment and apparel worth more than $1,000 per player per year. The School has significant control over the players work, controlling their play, practice, and schedule, and setting rules through a student-athlete handbook, that in many ways functions as an employee handbook. This ruling could change the landscape for college student athletes across the country.

• The U.S. Supreme Court declined to hear an ongoing affirmative action case involving the U.S. Military Academy at West Point. The plaintiff in that case, Students for Fair Admissions (SFFA), is the same plaintiff that brought the cases against Harvard and the University of North Carolina. When the Supreme Court issued its opinion last summer overturning affirmative action at colleges and universities, it made an explicit carve-out for military academies, noting that military academies may have “potentially distinct interests” in considering the race of their applicants. Less than three months later, SFFA claimed that West Point’s affirmative action policies were “worse than Harvard.” The West Point case is currently making its way through the lower courts, but SFFA sought an emergency injunction from the U.S. Supreme Court to stop West Point from considering race in admissions while the lower court’s proceedings continued. The Supreme Court declined. A similar case involving the U.S. Naval Academy is working its way through the lower courts, as well. LCW will continue to monitor these cases.

construction corner

LCW represents and advises private schools and colleges in various business, construction, and facilities matters, including all aspects of construction projects from contract drafting and negotiations to course of construction issues. Through this Construction Corner, LCW will be giving private schools and colleges monthly helpful tips on a variety of topics applicable to campus construction projects. LCW attorneys are available should you have any questions or need assistance with any construction projects no matter what phase you may be in currently.

Construction Payments And Mechanics Liens: When To Be Concerned And What To Do?

By: Abigail Clark

A mechanics lien is a legal claim against a property by an unpaid contractor, subcontractor, laborer, or supplier for work or materials they provided for improvements to the property. A mechanics lien can result in significant financial loss for a property owner if the unpaid claimant forecloses on the property subject to the lien. It can also affect the owner’s ability to borrow against, refinance, or sell the property, implicate the owner’s creditworthiness and ability to engage in future property transactions, and result in substantial legal cost and disruption.

Given the serious consequences of mechanics liens, property owners must understand the process for creating mechanics liens, learn to recognize when to be concerned, and take strategic action to mitigate risk associated with them.

In California, before recording a claim of lien, a claimant must first serve the property owner a preliminary 20-day notice, to notify the owner that the claimant will be working on the project. (Cal. Civ. Code sections 8400, 8202, 8204.) Claimants who have a direct contract with the property owner and laborers on the project do not need to file a preliminary notice. (Cal. Civ. Code section 8200, subd. (e).) This preliminary notice is NOT cause for concern: it is merely a notification of the claimant’s right to file a lien.

Owners should be aware of issues that may arise on a construction project that could trigger a claimant’s filing of a mechanics lien. The most common reason is when a contractor, subcontractor, laborer, or supplier is not paid as agreed. Other reasons claimants may file mechanics liens to protect their rights include disagreements over contract terms, scope of work, change orders, project cessation or delays, allegations of faulty or incomplete work, or the financial distress or bankruptcy of a party involved in the project.

Once a claimant files and serves a claim of lien, property owners should immediately contact the contractor involved to facilitate payment, as well as an attorney to assist with defense against the lien. Among other things, an attorney will assist the owner with evaluating whether the claim of lien meets certain statutory requirements. Notably, the claim must include a statement of the claimant’s demand, and a clear “NOTICE OF MECHANICS LIEN, ATTENTION!” statement

in bold font, with several paragraphs of specific statutory language clearly describing the implications of the lien for the property. (Cal. Civ. Code section 8416.) The claimant must also record the claim of lien with the county recorder’s office of the county where the subject property is located. (Cal. Civ. Code section 8416.) Failure to comply with these requirements will render the lien invalid and unenforceable.

Property owners can help proactively manage mechanics lien risk by taking the following steps:

• Carefully Choose General Contractors and Ensure Transparency Regarding Subcontractors and Suppliers: Owners should hire licensed contractors, check their licenses and references, and research any prior lawsuits against or filed by them. Owners should also request a list of all subcontractors, suppliers, and others working on or for the project to ensure they know the full universe of potential lien claimants from the outset of the project.

• Negotiate Contractual Payment Terms: Property owners should clearly detail payment terms at the outset of a project in the construction contract, and include a payment schedule that states when specific phases of work start and end, as well as costs for each phase. Owners should also consider the use of joint check arrangements whereby the owner can make checks out to both the contractor and supplier or subcontractor to make sure potential lien claimants have been paid. However, such arrangements present additional challenges that may increase the risk of mechanics liens and should be carefully evaluated in light of the nature of the project and contractors involved.

• Require Contractors to Secure a Payment Bond: Owners can also require that their construction contractor secure a payment bond to assure that the various contractors and suppliers working on the project will be paid. This will not prohibit a claimant from filing a mechanics lien, but will give the claimant the option to assert a claim with the payment bond surety instead of filing a lien on the property.

• Utilize Indemnification and Release Clauses: Owners can also negotiate lien indemnification clauses that require general contractors to indemnify the owner for any amounts the owner has to pay subcontractors and suppliers who file and record a lien or other damages suffered as a result of the lien. Construction contracts can also include release provisions requiring the contractor to promptly obtain the release of any mechanics lien filed against the property.

• Secure Lien Waivers and Releases: In California, four statutory forms may be used to waive and release mechanics liens. Owners can seek conditional releases from possible lien claimants before making a payment, and unconditional releases from possible lien claimants following payment.

• File Notices of Completion and Cessation: Owners can reduce the amount of time a contractor or supplier has to record a lien claim by filing a Notice of Completion after work is completed, or a Notice of Cessation if there has been a complete cessation of work for more than 30 continuous days.

• File, Post, and Record Notices of Non-responsibility: Where a property owner receives a claim of lien, and has not contracted for the work being performed, it can use a notice of non-responsibility to avoid attachment of a mechanics lien to the property.

With the foregoing precautions and tools, owners can more effectively ensure timely payment for work performed and supplies rendered on their projects, and can help minimize the legal, financial, and operational challenges associated with mechanics liens.

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: Answer:

A school administrator asked LCW what legal requirements schools had in tracking attendance, and whether they needed to distinguish between excused and unexcused absences.

The attorney advised that, although the majority of the Education Code sections on truancy do not apply to private schools, private schools are legally required to regularly track absences under Education Code section 48222. The attorney also advised that while it may be easier not to distinguish between excused and unexcused absences, and that there is no legal obligation to do so, there are good reasons for doing so that the school might consider. The first is that it might help the school deal with situations where a student with chronic absences has absences that are not excused. The school may want to handle that differently from a student who has been ill, or has other good reasons for being away from school. The school might also want to have a policy about how many unexcused absences are permissible before a student is in danger of not moving on to the next grade. The same is true for absences overall. For example, if a student misses a significant portion of the year, even for a mix of excused and unexcused reasons, they may not have completed enough work to progress to the next grade. If a school wants to add a policy on absences, it would often be included in the student-parent handbook, and LCW can assist with that.

lcw best timeline

JANUARY/FEBRUARY

Review and revise/update annual employment contracts.

Conduct audits of current and vacant positions to determine whether positions are correctly designated as exempt/non-exempt under federal and state laws.

FEBRUARY- EARLY MARCH

Issue enrollment/tuition agreements for the following school year.

Review field trip forms and agreements for any spring/ summer field trips.

Tax documents must be filed if School conducts raffles:

• Schools must require winners of prizes to complete a Form W-9 for all prizes $600 and above. The School must also complete Form W-2G and provide it to the recipient at the event. The School should provide the recipient of the prize copies B, C, and 2 of Form W-2G; the School retains the rest of the copies. The School must then submit Copy A of Form W2-G and Form 1096 to the IRS by February 28th of the year after the raffle prize is awarded.

Planning for Spring Fundraising Event.

Summer Program:

• Consider whether summer program will be offered by the school and if so, identify the nature of the program and anticipated staffing and other requirements.

• Review, revise, and update summer program enrollment agreements based on changes to the law and best practice recommendations.

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 at 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.

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.

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:

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

ƒ 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 to benefit the school or provide support for beneficial or charitable purposes.

• 50/50 raffles may only be conducted by major league sports nonprofits.

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.

ƒ For example, 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