Private Education Matters
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Grace Chan Partner | San Francisco
Hannah Dodge Associate | San Francisco
ministerial exception
Ninth Circuit Rules Ministerial Exception Extends Beyond Religious Disputes.
Yaakov Markel, an Orthodox Jewish man, served as a mashgiach (kosher supervisor) for the Union of Orthodox Jewish Congregations of America (OU) from 2011 to 2018. OU operates the largest kosher certification program in the United States and supports the Orthodox Jewish community through various religious, youth, and educational programs. OU, a 501(c)(3) nonprofit, generates significant revenue from its certification program, which it uses to further its religious mission.
A team administers OU’s kosher program. Markel’s role as a mashgiach involved ensuring the kosher integrity of grape products at two wineries. Grape products are subject to strict Jewish dietary laws, requiring supervision by observant Orthodox Jews to ensure that the grapes are sufficiently cooked under Jewish dietary law. To qualify for his position, Markel provided a certification letter from an Orthodox rabbi affirming his knowledge of kosher laws, Sabbath observance, and compliance with Jewish dietary practices.
Over time, Markel said his relationship with his supervisor, Rabbi Nachum Rabinowitz, deteriorated. Markel alleged that Rabbi Rabinowitz promised him a promotion and raise that never materialized and that OU failed to compensate him for overtime. OU denied these claims, ultimately leading to Markel's resignation and subsequent legal action. Markel filed suit and raised claims of wage and hour violations, fraud, and misrepresentation.
The case centered on the First Amendment’s ministerial exception, which protects religious institutions from employment-related lawsuits involving certain
key employees integral to their religious mission. In particular, the ministerial exception prevents governmental interference in a religious institution's decisions regarding faith and governance.
The ministerial exception is categorical, encompassing all adverse personnel or employment actions between religious institutions and their employees, and disallows lawsuits for damages based on lost or reduced pay. Therefore, so long as OU qualified as a religious organization and Markel was considered a minister, the exception would apply to each of Markel’s employment related claims.
The trial court, in a matter of first impression in the Ninth Circuit, held that Markel’s position as a mashgiach qualified under the ministerial exception and that OU was a religious organization. As such, the trial court concluded that Markel’s claims were categorically barred by the ministerial exception. Markel appealed.
On appeal, Markel contended that OU could not invoke the exception because its kosher certification program was revenue-generating and operated in a competitive market. The defendants (OU and Rabbi Rabinowitz) asserted that the ministerial exception barred Markel's claims because OU is a religious organization and emphasized that maintaining kosher standards is an essential aspect of Orthodox Judaism.
The Court of Appeals agreed with the defendants and held that despite generating revenue through its kosher certification program, OU qualified as a religious organization. Its activities, including youth and educational programs, aligned with its religious mission to support the Orthodox Jewish community. The fact that OU profited or competed with for-profit companies did not make the organization non-religious for the purposes of the ministerial exception.
Markel also argued that his role did not qualify under the ministerial exception because his duties were primarily secular, involving supervision of food production rather than religious functions. The defendants argued that Markel, as a mashgiach, served a key religious role central to its mission and that Markel’s responsibilities of maintaining the kosher standards of grapes involved religious duties integral to their faith.
The Court of Appeals concluded that Markel's duties as a mashgiach—ensuring compliance with kosher laws—were essential to OU's religious mission. Following Supreme Court precedent, the Ninth Circuit emphasized that the term “minister” extended to various religious functionaries beyond ordained clergy, including those performing duties vital to a religious institution’s mission. Here, the Court concluded that Markel was responsible for ensuring the kosher integrity of the grape products, and “keeping kosher” is essential to Orthodox Judaism.
The Court also took the opportunity to clarify the scope and purpose of the ministerial exception. Markel argued that the exception should not apply because his dispute with OU was secular. In other words, Markel asked the Court to create a rule that if a religious purpose does not animate the relevant employment decisions, the ministerial exception should not apply.
The Court rejected this argument. The Court underscored that religious decisions, even if facially secular, often intertwine with religious doctrine, and courts must avoid entanglement in such matters. The Court noted that distinguishing between secular and non-secular issues could lead to unconstitutional judicial action because it would force the Court to scrutinize religious decisions and attempt to understand certain religious beliefs.
Relatedly, the Court reiterated that the ministerial exception forbids courts from requiring religious institutions to provide a religious justification before invoking the exception, as doing so would offend the Free Exercise Clause.
Lastly, the Court extended the ministerial exception to claims against individual supervisors, such as Rabbi Rabinowitz, noting that litigation involving minister-on-minister disputes risks excessive entanglement with religious institutions.
The Ninth Circuit affirmed the trial court's grant of summary judgment in favor of OU.
Markel v. Union of Orthodox Jewish Congregations of Am. (9th Cir. Dec. 30, 2024) 2024 U.S. App. LEXIS 32832.
Note: This case supports the ministerial exception’s broad applicability to disputes involving ostensibly secular matters, such as wage and hour and compensation claims.
discrimination
Judge Finds Pre-School Director
Was Fired For Encouraging Employees
To Burn Through Sick
Time Rather Than Race Discrimination.
Dr. Caroline Diaz, an Asian American woman of Filipino, Chinese, and Japanese descent, began her employment as the Preschool Director of Westminster Schools in Atlanta in 2015. Her responsibilities included compliance with licensing, recruiting teachers, and strategic oversight of the nursery's operations.
From 2015 to 2019, Dr. Diaz said she received favorable evaluations under her initial supervisor, Brent Ivey, then-Director of Auxiliary Programs and later the Director of Human Resources. In 2019, Kelley Day, a Caucasian female hired as the Risk and Auxiliary Manager, became her supervisor. Dr. Diaz expressed dissatisfaction with Day's leadership, claiming that Day lacked understanding of the rules and regulations governing preschool programs.
Tensions arose over operational decisions, including staffing and scheduling, particularly during the COVID-19 pandemic. For example, Dr. Diaz said she sent an email to Day shortly after the School reopened in August 2020, raising concerns about supervision, staffing, and the timing of classroom cleaning.
Dr. Diaz alleged that the conflict escalated in 2020 when Dr. Diaz raised concerns about Day's management style, including that Day scrutinized her every action and was bordering on bullying and harassment. Dr. Diaz also reported that Day made inappropriate comments, including questioning her English proficiency and stating that it “must be hard to be Asian because [Asian people] caused the virus.” Day also allegedly refused to allow Dr. Diaz to discipline a Black teacher because “people like her play the race card.”
At the same time, throughout 2020, at least three nursery teachers resigned and, before leaving, raised concerns about Dr. Diaz’s management style.
In March 2021, Dr. Diaz authored an article in Education Week addressing antiAsian racism, which she later shared with Westminster staff. Soon after, she reported further racial comments by Day to the HR Director, Christa Hansen, but alleged that her complaints were dismissed and that Hansen encouraged her to “lay low and be agreeable.”
Later, Dr. Diaz accepted a position at another school without disclosing this decision to Westminster. Members of Westminster’s leadership team learned of her new employment offer through third parties, including from other Westminster employees.
Shortly afterward, in April 2021, allegations emerged that Dr. Diaz encouraged staff to “stick it to Westminster” and leave early each day as retaliation against Westminster. On May 4, 2021, Antoinette Boyd, a senior administrator at Westminster, conducted an investigation about whether Dr. Diaz told other employees to disingenuously take sick leave. Boyd concluded that one of these employee’s attendance records showed seven instances of leaving early in the month of April. Accordingly, Boyd terminated Dr. Diaz’s employment, citing insubordination, unprofessional behavior, and a toxic workplace environment as reasons for the dismissal.
Dr. Diaz filed a number of claims, including race and national origin discrimination and retaliation under Title VII and breach of contract against Westminster and her supervisors.
Title VII prohibits race and national origin discrimination in employment. To establish a Title VII claim, courts often apply a burden-shifting framework. Under this framework, the plaintiff first bears the burden of establishing a prima facie case of discrimination by showing that (1) they are
a member of a protected class; (2) they were qualified for their position; (3) they suffered an adverse employment action; and (4) they were treated less favorably than similarly situated employees outside their protected class. If the plaintiff succeeds, an inference of discrimination arises, shifting the burden to the employer to articulate legitimate, non-discriminatory reasons for its actions. Once the employer provides such reasons, the burden shifts back to the plaintiff to show that these reasons are pretextual, meaning they are false, and that discrimination was the real motive.
Here, Dr. Diaz is a member of a protected class as an Asian American of Filipino, Chinese, and Japanese descent, and the School did not dispute this. Dr. Diaz was subject to an adverse employment action when she was terminated.
Dr. Diaz alleged that a hostile work environment was created by Day and Hansen’s biased actions and comments. Westminster argued that Dr. Diaz’s termination resulted from legitimate concerns about her management, including complaints from subordinates and her instruction to misuse sick leave.
This case was handled by a magistrate judge. Magistrate judges generally do not have the authority to issue final rulings, but will make findings and recommendations to a trial court judge, who will later rule on the case.
Here, the magistrate judge found that, while Dr. Diaz satisfied some elements of her prima facie case, Dr. Diaz failed to show that she was treated less favorably than similarly situated employees. Westminster also offered legitimate reasons for her termination—such as allegations of workplace misconduct, fostering a toxic environment, and a pattern of unprofessionalism. Dr. Diaz failed to present sufficient evidence to demonstrate these reasons were pretextual, leading the judge to recommend granting summary judgment in favor of Westminster as to the Title VII discrimination claim.
For Dr. Diaz’s retaliation claim, Dr. Diaz must show proof of protected activity (e.g., complaints about discrimination), an adverse employment action, and a causal connection between the two.
Dr. Diaz argued her termination was retaliation for reporting racial comments and publishing an article about antiAsian racism. Westminster argued that the decision was based on workplace misconduct and unprofessionalism, unrelated to any protected activity.
The magistrate judge again agreed with the School. The judge concluded that writing an article about a general industry trend did not qualify as protected activity. Similarly, Dr. Diaz’s complaints to Hansen about racial comments made by Day did not constitute opposition to an unlawful employment practice, and therefore not protected activity. The judge also concluded that Dr. Diaz failed to establish a causal connection between her alleged protected activities and her termination. Boyd, the decision-maker, was unaware of Dr. Diaz’s complaints or the article. Thus, the judge recommended granting summary judgment on the retaliation claims, as well.
A breach of contract claim requires evidence that Westminster failed to fulfill its contractual obligations. Dr. Diaz claimed Westminster owed her unpaid salary for the final months of her employment, a $2,000 COVID-19 bonus, and an educational stipend. Westminster contended it had paid Dr. Diaz more than what she was owed under the contract based on the prorated contract amount and the date of termination, the bonus was contingent on her completing the school year, and the stipend was contingent on her signing a promissory note, which she did not sign.
The judge found no evidence supporting Dr. Diaz’s claims for additional compensation and recommended granting summary judgment in Westminster’s favor.
Diaz v. The Westminster Schools, Inc. (N.D. Ga. Dec. 11, 2024) No. 1:22-cv-02707-TCB-RGV.
Note:
This case is an important reminder that schools should keep detailed documentation of employee performance concerns and any investigations, as this evidence can be critical in showing that a school’s decision was unrelated to an employee’s protected status(es).
Safety
Court Affirms School’s Right to Temporary and Permanent Restraining Order Against Former Employee's Threats.
Lowry Yarbrough was an employee and contractor of Sacred Heart Catholic School in Hattiesburg, Mississippi. In February 2023, Yarbrough’s employment had ended due to his failure to comply with administrative requests involving his duties as a maintenance worker at the athletic complex.
Following his termination, Yarbrough allegedly made several troubling remarks, including, “It's about to get ugly,” during a meeting with Karyn Charles, the School’s principal, and another school administrator. The statement alarmed school officials, prompting them to call the police, who escorted Yarbrough off campus.
A few months later, on June 9, 2023, Yarbrough allegedly sent flowers with a handwritten note to Charles. The note read, “Matthew 18 May [God's] wrath be just & swift for the pain you have caused to that family. SEC. 97-37-17.” The reference to “SEC. 97-37-17” pertains to a Mississippi statute regarding weapons possession on educational property.
Subsequently, Yarbrough allegedly left a voicemail with the diocesan superintendent stating, “Sacred Heart has crossed the line this time, and they have met their match. I'm done.” The voicemail was allegedly related to Yarbrough’s belief that Sacred Heart had not provided a favorable reference for his children, who had transferred to another private school. Additionally, the School said that Yarbrough anonymously ordered flowers for Charles from a florist, using the pseudonym “James Smith,” the name of another School employee. The School knew that the flowers were from Yarbrough because Yarborough still provided his own phone number.
The School said that these incidents caused significant fear for Charles, the School staff, students, and their families. The School reported the matter to law enforcement, which advised Charles to pursue criminal charges. Charles testified that she remained terrified and considered the cryptic note and reference to a statute on weapons particularly menacing given the broader context of school violence.
Sacred Heart sought injunctive relief against Yarbrough, specifically a restraining order to prevent Yarbrough from coming near Charles and from coming on or near specified Sacred Heart properties. The School claimed that Yarbrough’s actions constituted a credible threat to the safety of the School community and infringed upon the School’s duty to ensure a safe environment for its students and staff.
The trial court granted the petition and Yarbrough appealed.
Injunctive relief under Mississippi law requires a showing of a substantive legal right that has been violated or is at risk. Yarbrough contended that the petition for injunctive relief lacked this underlying substantive cause of action. He argued that his actions were misinterpreted, asserting that the note accompanying the flowers symbolized forgiveness, not a threat. He denied any intention to harm and claimed that references in the note were misunderstood.
Sacred Heart argued that Yarbrough’s conduct, including threats and cryptic messages, posed an imminent threat to the safety of the School community. The School emphasized its legal duty to protect students and staff from harm, citing the heightened importance of school safety given recent incidents of school violence nationwide.
The Mississippi Court of Appeals agreed with the School and affirmed the trial court's decision to grant both preliminary and permanent injunctions against Yarbrough.
The Court agreed that the injunction must be accompanied by an underlying claim, but concluded that Sacred Heart had demonstrated a legally cognizable claim based on its right and obligation to protect its community from foreseeable harm. The Court detailed multiple incidents, including the threatening note, voicemail, and prior confrontations, as evidence of an ongoing and credible threat posed by Yarbrough. The Court found Yarbrough’s testimony unconvincing, citing contradictions such as his use of a pseudonym when sending the flowers.
Finding that the School had demonstrated an underlying cause of action, the Court then evaluated the four factors for granting injunctive relief: (1) the plaintiff must demonstrate a substantial likelihood of success on the merits of their claim; (2) the injunction must be necessary to prevent irreparable harm that cannot be remedied by other legal means; (3) the threatened harm to the plaintiff must outweigh any harm the injunction may cause to the defendant; and (4) the injunction must align with the public interest.
• Likelihood of Success on the Merits: Sacred Heart had a strong case based on its legal duty to provide a safe environment.
• Irreparable Harm: The School demonstrated a credible threat that could not be addressed adequately through other legal remedies.
• Balance of Harms: The injunction minimally impacted Yarbrough, especially as he no longer worked at or had children attending the School.
• Public Interest: The Court highlighted the heightened importance of protecting schools from threats, particularly those referencing weapons.
The Court also found that the permanent injunction was warranted given Yarbrough’s history of threatening behavior and the lack of any adequate alternative remedy. The injunction did not prohibit Yarbrough from using public roads near the School, and any potential harm to him was outweighed by the School’s need to ensure safety.
Yarbrough v. Sacred Heart Cath. Sch. Of Hattiesburg (App. Jan. 14, 2025) 2025 Miss. App. LEXIS 26.
Note:
This decision is a good reminder that schools have the option to seek injunctive relief in extraordinary circumstances, including in response to credible threats against their community.
Negligence
Instructor's Improper Technique and Heightened Risk Lead to $46
Million Verdict in Brazilian JiuJitsu Injury Case.
Jack Greener began training in Brazilian Jiu-Jitsu in 2015 and had approximately six months of experience across multiple dojos before joining the Del Mar JiuJitsu Club (Club) in San Diego, California. The Club was owned and operated by M. Phelps, Inc.
Greener was a white belt student, and although inexperienced compared to higher belt levels, he had competed in amateur tournaments and demonstrated proficiency higher than the typical white belt.
Jiu-Jitsu classes at the Club included students of all belt levels. Sessions involved warm-ups, technique demonstrations, and sparring. In Brazilian Jiu-Jitsu, sparring partners typically do not disclose their moves in advance, and instructors are expected to prioritize safety and control.
One day, Greener sparred with his instructor, Francisco Iturralde. At one point, Greener was in a “turtle position” (elbows and knees on the ground, head tucked). Greener said that Iturralde applied a “seatbelt grip” to control Greener but deviated from standard technique. His grip immobilized Greener's arm, leaving his head and neck unsupported. Greener alleged that Iturralde then attempted a risky maneuver requiring precise control. During execution, he lost control but proceeded with the move anyway, causing Greener to sustain a catastrophic neck injury.
Greener sued Iturralde for negligence and M. Phelps, Inc. for vicarious liability, alleging the instructor’s actions unreasonably increased the risks inherent in Brazilian Jiu-Jitsu sparring.
At trial, Greener’s expert witness testified that the grip and maneuver were improperly executed, significantly increasing the risk of injury. He stated that an expert instructor like Iturralde should have abandoned the move upon losing control.
The Club’s expert defended the technique as common in Brazilian Jiu-Jitsu, but admitted on crossexamination that proper head and neck control was lacking. Iturralde himself acknowledged that he recognized the potential for harm but claimed he could not stop once the maneuver began.
Under California’s primary assumption of risk doctrine, instructors are typically not liable for injuries caused by inherent risks of a sport. However, liability may arise if: (1) the instructor intentionally caused harm or acted recklessly (Option 1); or (2) the instructor unreasonably increased the risks inherent in the sport (Option 2).
Greener argued that Iturralde’s actions went beyond inherent risks by improperly executing a maneuver and failing to adjust or abandon it upon recognizing the danger.
The defendants claimed that the primary assumption of risk doctrine applied, shielding them from liability unless recklessness could be shown. They argued that the maneuvers were within the range of typical Brazilian Jiu-Jitsu activity.
The trial court instructed the jury on Option 2 of the primary assumption of risk doctrine finding it most applicable to the facts. The jury found for Greener, awarding $46 million in damages.
The defendants appealed, arguing that the trial court erred on instructing the jury to apply the Option 2 standard, and that the trial court excluded evidence, mostly about Greener’s prior experience and Iturralde’s teaching.
The Court of Appeals held that Option 2 was the appropriate instruction because Iturralde acted more like a co-participant during sparring than an instructor. While sparring, he had superior knowledge and control, creating an elevated risk for Greener by improperly executing the maneuver. The Court noted that Greener was not injured due to a move he was challenged or directed to perform; instead, he was injured by his instructor’s unilateral choices to
immobilize him and apply moves, which increased the risk of injury to him. As the instructor, the Court concluded that Iturralde was rightly held to a different standard than the students.
The Court emphasized that an instructor’s role carries heightened responsibilities. Iturralde’s failure to maintain proper control and his decision to proceed despite recognizing danger constituted unreasonable risk-enhancing conduct.
The Court rejected arguments that imposing liability would chill participation in sports like Jiu-Jitsu. Instead, it concluded that liability in such cases promotes safety and preserves the integrity of the sport.
The Court also upheld the trial court’s exclusion of certain defense evidence as cumulative or irrelevant, including videos of unrelated Jiu-Jitsu matches and testimony about Greener’s past wrestling experience.
The Court affirmed the trial court’s $46 million judgment.
Greener v. M. Phelps, Inc. (2024) ___Cal.App.5th___ [2024 Cal. App. LEXIS 845].
Note:
This case shows that an employer’s and coach’s liability in sports injury cases can depend on whether the instructor unreasonably increased risks beyond those inherent in the sport.
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Artificial intelligence Students
Court Upholds Public School’s Discipline For Student’s AI Use.
R.N.H., a current senior at Hingham High School, is a three-sport varsity student-athlete with a high GPA at the top of his class. He received a perfect score on the ACT, intending to apply early action to elite colleges and universities, which require applications to be submitted as early as Fall 2024.
At the beginning of the 2023-2024 academic year, Hingham High School students were taught rules regarding academic integrity and the use of AI during their English classes. These rules explicitly instructed students not to use AI for assignments unless explicitly permitted and instructed. It also required students to cite AI during approved use, including creating an appendix describing how and why AI tools were used.
R.N.H. and another student, both juniors at the time, were tasked with creating a script for a short documentary as part of an Advanced Placement (AP) U.S. History project associated with National History Day.
While AI tools were permitted for brainstorming and identifying sources, they were expressly prohibited for generating the script or substantive content. The script R.N.H. and his partner submitted was flagged as AI-generated by Turnitin.com, a plagiarism detection software, and further confirmed by other tools such as Revision History, Draft Back, and Chat Zero.
In particular, large portions of the script were directly copied and pasted from an AI tool, Grammarly.com, without any attribution. The script also contained fabricated citations (i.e., hallucinations), including books that did not exist. Although R.N.H.’s submission did contain citations, it did not cite any AI tools.
R.N.H. met multiple times with his teacher and the head of the Social Studies Department. R.N.H. admitted that he had used Grammarly to “generate ideas” and “create portions” of the draft script, copying and pasting language directly from Grammarly into his submission. The School concluded that R.N.H.’s conduct constituted cheating and was a violation of the School’s Academic Integrity policies.
R.N.H. and his partner received failing grades on two parts of the multi-part project, but they were permitted to start from scratch, each working separately, to complete and submit the final project. As a result, R.N.H. received zeros on two components of the multi-part assignment, which significantly lowered his grade in the course from a B or B-minus to a C-plus.
R.N.H. was also required to attend a Saturday detention and was initially rejected from the National Honor Society (NHS); however, he was later allowed to reapply and was admitted.
R.N.H.’s parents filed suit on behalf of R.N.H. The parents alleged violations of the Due Process Clause of the U.S. Constitution and the Massachusetts Declaration of Rights, and asked the Court to issue a preliminary injunction to expunge R.N.H.’s disciplinary record to remove the Saturday detention and to raise his grade in AP U.S. History from a C-plus to a B.
The parents argued that the Academic Integrity Policy in the handbook was vague and did not specifically prohibit R.N.H.’s use of AI. They also argued that the disciplinary measures imposed were disproportionate, particularly in light of the emerging and evolving nature of AI technology.
The School argued that the policies on academic integrity, including prohibitions on unauthorized technology use, were clearly communicated to the
students. R.N.H. knowingly violated these policies by copying and pasting AI-generated content without attribution. The School argued that this was a straightforward case of academic dishonesty and that it acted within its discretion to impose reasonable disciplinary measures that aligned with its policies.
The framework for granting a preliminary injunction requires the Court to consider four factors: (1) likelihood of success on the merits—the plaintiff must show a strong chance of prevailing at trial; (2) irreparable harm—the plaintiff must demonstrate harm that cannot be remedied through damages or later relief; (3) balance of equities— the Court weighs the potential harm to the plaintiff if relief is denied against the harm to the defendant if granted; and (4) public interest—the Court assesses the broader societal impact of granting or denying the injunction.
The Court first analyzed the likelihood of success on the merits of the parents’ due process claims. There are two types of due process: Procedural and Substantive Due Process. Procedural Due Process requires that individuals be given notice and an opportunity to be heard before being deprived of a property or liberty interest. Substantive Due Process protects against government actions that are so arbitrary and egregious as to “shock the conscience.”
On the Procedural Due Process claim, the Court found that R.N.H. was given ample notice and opportunities to explain his actions. Multiple meetings were held with R.N.H., his parents, and school officials. The process exceeded the minimal requirements established in precedential cases for short-term disciplinary actions in public schools.
On the Substantive Due Process claim, the Court ruled that the School’s actions did not “shock the conscience.” The disciplinary measures were reasonable and proportionate to the violation. The evidence demonstrated that R.N.H. was aware of the rules and knowingly submitted AI-generated content without attribution. There was no evidence that the School officials were hasty in concluding that R.N.H. had cheated. Nor were the consequences the School imposed so heavy-handed as to exceed the School’s discretion in such matters.
As a result, the parents failed to show a strong likelihood of prevailing on their due process claims and did not meet the standard for granting the preliminary injunction.
Nonetheless, the Court considered the remaining factors as follows:
• Irreparable Harm: While the parents argued that R.N.H. suffered irreparable harm, including damage to his reputation and college prospects as he submits college applications, the Court noted that this alone did not justify injunctive relief because it was impossible to know whether any particular mark on a high school transcript would have a material effect on an applicant’s admission.
• Balance of Equities: The Court found that granting an injunction would undermine educators’ authority to enforce academic standards and potentially encourage a wave of legal challenges to routine disciplinary actions, outweighing any harm R.N.H. might suffer.
• Public Interest: The Court emphasized the importance of allowing school officials to enforce academic standards without undue interference from litigation.
As a result, the motion for a preliminary injunction was denied.
Harris v. Adams (D.Mass. Nov. 20, 2024) 2024 U.S.Dist.LEXIS 210951.
Note:
While this case involved a public school, and therefore does not apply to private schools, it is one of the first cases dealing with discipline related to student AI use and is illustrative of some of the nuances when considering discipline for improper AI use. Private schools in California must provide fair procedure when disciplining students, which, similar to this case, requires notice of the allegations and an opportunity to respond. In addition, this case highlights the importance of being clear about the parameters for use of AI should a school permit students to use AI for schoolwork.
disabilities
Court Finds Peer Bullying And School’s Response To Bullying Is Unrelated To Student’s Disability.
The St. Paul’s School for Girls is a private day school for girls in Maryland. From April 4, 2020 through September 2021, the School was a recipient of a loan under the Paycheck Protection Program (PPP), which required the School to comply with federal civil rights law.
A.B.F. was a high school student at the School between 2017 and 2021. A.B.F. had a learning disability and anxiety disorder, and entered an Individualized Education Plan (IEP) with the School to accommodate her needs.
A.B.F.’s mother expressed dissatisfaction with the School’s handling of her daughter's IEP accommodations. In particular, in February 2020, her mother requested specific disability accommodations to allow A.B.F. to participate in Advanced Placement (AP) English courses. The School’s upper school head, Christina Ferrens, allegedly instructed teachers to disregard these requests, labeling the mother as “crazy” and saying that the mother made a “federal case out of everything.”
A.B.F. said her challenges at the School also escalated due to bullying by peers, specifically led by K.P., a fellow student and a teacher’s daughter. From September 2019 to June 2021, the bullying included exclusion, malicious teasing and putdowns, manipulative behavior, and derogatory comments in group texts and social media, including during school hours. For example, in January 2020, a group of students “banished” A.B.F. from their friend group but continued to exchange angry texts about her and posted bullying images of A.B.F. online. The bullying reportedly caused significant emotional harm, absenteeism, and academic challenges for A.B.F.
A.B.F.’s mother claimed that her efforts to resolve the bullying with the School’s administration were met with indifference or inadequate action. Despite meetings with school officials, the School attributed the bullying
to “social dynamics” and, according to A.B.F., failed to investigate allegations seriously. For example, K.P.’s mother, a teacher at the School, allegedly apologized to A.B.F.’s mother, agreed to turn over the bullying text messages she had in her possession, and agreed to have her daughter apologize and self-report her conduct to the School. Yet, K.P.’s mother failed to follow through with those agreements. A.B.F. also alleged that Ferrens instructed K.P.’s mother not to share the text messages so that the School would not have report them to A.B.F.’s family or law enforcement.
In March 2020, A.B.F.’s parents filed formal complaints of bullying with the School. The parents claimed that the School failed to investigate the allegations of bullying due to Ferrens’ anger that A.B.F.’s family had advocated for disability accommodations the month prior.
A.B.F.’s family then filed suit arguing that the School’s decision to dismiss the bullying complaints, combined with its failure to fulfill obligations under A.B.F.’s IEP, led to claims of disability discrimination and retaliation under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as well as other state law claims.
Title III of the ADA prohibits discrimination based on disability in places of public accommodation, such as private schools. Remedies under Title III are limited to injunctive relief and do not allow for monetary damages.
A.B.F. argued that the School discriminated against her based on her disabilities by failing to address her educational needs and bullying complaints. She also alleged retaliatory actions against her parents for advocating for her rights.
The School argued that the ADA permits only injunctive relief and requires proof of immediate and ongoing harm. As A.B.F. had graduated in 2021, she lacked standing to seek injunctive relief. The Court agreed with the School, noting that A.B.F. failed to demonstrate a real and immediate threat of harm post-graduation, leading to dismissal of the ADA claims.
Section 504 of the Rehabilitation Act, 29 U.S.C. section
794(a) prohibits disability-based discrimination in programs or activities receiving federal financial assistance. It provides for monetary damages where intentional discrimination is proven.
To state a disability discrimination claim under section 504, a plaintiff must demonstrate: (1) they have a disability; (2) they are otherwise qualified to participate in the defendant’s program; and (3) they were excluded from the program, denied benefits, or otherwise discriminated against “solely by reason of” their disability.
A.B.F. argued that the School’s refusal to investigate bullying complaints was motivated by discriminatory intent regarding her disabilities. A.B.F., however, did not argue that the School failed to investigate her bullying allegations solely because she had a learning disability or anxiety. Instead, A.B.F. contended that the School failed to investigate the bullying allegations in retaliation for her right to disability accommodations in AP courses. In other words, the School acted with retaliatory intent.
The Court ruled that A.B.F.’s allegations did not demonstrate that the School’s actions were “solely by reason of” her disability, as required under the Rehabilitation Act and therefore dismissed this claim.
Retaliation claims under the Rehabilitation Act require showing that: (1) the plaintiff engaged in a protected activity under the Act; (2) the plaintiff suffered an adverse action; and (3) there was a causal connection between the protected activity and the adverse action.
A.B.F. contended that the School retaliated against her family because of her requesting disability accommodations. The Court found, however, that the parents engaged in protected activity when they had discussions regarding A.B.F.’s disability between February 15 and February 20, 2020. Because the School did not receive their PPP loan until April 4, 2020, the School was not subject to the Rehabilitation Act during the time of these conversations, and therefore these conversations were not considered protected activity. The Court dismissed this claim, as well.
The remaining claims included negligence and intentional infliction of emotional distress under Maryland law. The Court declined to exercise jurisdiction over these state law claims after dismissing the federal claims, allowing them to be refiled in state court within 30 days.
Fitch v. St. Paul's Sch. for Girls (D.Md. Dec. 11, 2024) 2024 U.S.Dist.LEXIS 223760.
Note:
In this case, the student and her family were unable to show a connection between the School’s response to peer bullying and the student’s disability. This case may be refiled in state court to address the family’s remaining claims. LCW will continue to monitor this case for developments.
discrimination
Court Finds That University Failed to Adequately Address Jewish-American Student’s Discrimination Complaints.
Yael Canaan, a Jewish-American student of Israeli descent, attended Carnegie Mellon University’s School of Architecture from 2018 to 2023.
In May 2021, a student leader allegedly posted inflammatory messages in a large Facebook group, exposing private emails and identifying Jewish students. Feeling unsafe, Canaan said she contacted University administrators, including the Dean of Students and the University President. Canaan alleged that the administrators expressed sympathy but took no substantive action.
Then, in May 2022, during a final review for a studio class project, Canaan alleged that Professor Mary-Lou Arscott interrupted Canaan, criticized her work, and made discriminatory remarks, including suggesting that her time would have been better spent investigating “what Jews do to make themselves such a hated group.” Despite reporting this to faculty and the School of Architecture’s Diversity, Equity, and Inclusion (DEI) Director, Canaan said that no significant action was taken. Instead, she said the administrative responses ranged from dismissive comments to delayed meetings.
Canaan said that subsequent efforts to resolve the issue occurred more than two months later, and included a mediated Zoom meeting with Professor Arscott, though it resulted in no acknowledgment of wrongdoing. During the meeting, and through follow-up emails, Professor Arscott allegedly recommended reading material that promoted antisemitic narratives, exacerbating Canaan’s distress.
Canaan said that other faculty members also allegedly retaliated against her following the mediated meeting with Professor Arscott. Canaan said this retaliation included issuing
Canaan unfair grades, denying her access to studio reviews, and creating an isolating academic environment. Administrators again provided limited or no assistance.
Canaan brought a number of claims against the University including discrimination, hostile educational environment, and retaliation claims under Title VI of the Civil Rights Act; a breach of contract claim; and an intentional infliction of emotional distress claim.
Title VI Claims
Under Title VI, a discrimination claim requires the plaintiff to show: (1) membership in a protected class, (2) adverse action in an educational context, (3) qualifications to continue their education, and (4) a causal connection between the adverse action and their protected status, which can be established through deliberate indifference. A hostile educational environment claim under Title VI adds the requirement that the harassment was severe or pervasive enough to deprive the plaintiff of access to educational opportunities.
Canaan alleged that faculty members made antisemitic remarks and that University administrators, despite being aware of her complaints, failed to take meaningful corrective actions. The University argued that Canaan failed to show intentional discrimination or sufficiently severe and pervasive harassment, asserting that administrative responses were adequate and the allegations lacked comparators to establish disparate treatment.
The Court found that Canaan plausibly alleged deliberate indifference by University administrators, satisfying the fourth element of the discrimination claim. Evidence of antisemitic comments by faculty, repeated complaints to administrators, and the lack of meaningful corrective action supported the inference that the University intentionally failed to address the discrimination.
For the hostile educational environment claim, the Court considered the cumulative
impact of the harassment, including faculty remarks, administrative inaction, and retaliatory conduct by other professors. The Court concluded that Canaan adequately demonstrated the harassment was both pervasive and severe enough to interfere with her educational experience, depriving her of access to academic benefits.
The Court reasoned that Title VI liability could attach because University decision-makers, including the Dean of Students and DEI administrators, were repeatedly informed of the harassment but took no meaningful action beyond superficial meetings. The Court said their failure to act, coupled with faculty behavior, created an atmosphere of deliberate indifference to Canaan’s protected rights.
Retaliation claims under Title VI require a plaintiff to show: (1) engagement in a protected activity, such as reporting discrimination; (2) an adverse action by the federally funded entity after or contemporaneously with the protected activity; and (3) a causal connection between the adverse action and the protected activity.
Here, Canaan alleged that professors retaliated against her after she reported antisemitic behavior, including giving her lower grades, denying her access to oneon-one instruction, and excluding her from academic opportunities. The University argued that these actions were taken by individual professors, not the institution itself, and that Canaan failed to notify the University in time to address the alleged retaliation. The Court disagreed, finding that Canaan adequately alleged that the University was aware of the retaliation—particularly through her complaints to administrators—but failed to act. The Court held that the allegations plausibly connected the adverse actions to her reporting of discrimination, allowing the retaliation claim to proceed.
Breach of Contract Claim
For the breach of contract claim, Canaan alleged that the University breached its contractual obligations as outlined in its anti-discrimination and anti-retaliation policies, Title IX Resource Guide, and procedural guidelines, which formed part of the contractual relationship between the University and its students. Canaan argued that this contractual relationship also included the “Statement of Assurance,” which was a policy that stated that the University “does not discriminate” in its programs or activities on the basis of characteristics such as race, color, national origin, religion, ancestry, and other protected categories.
The University argued that certain policies, like the Statement of Assurance, were aspirational and not enforceable, and that specific procedures under Title IX were not triggered because Canaan never filed a formal complaint.
The Court found that while general statements like the Statement of Assurance were not enforceable, the antiretaliation policy and Title IX Resource Guide contained specific and actionable promises that could support a breach of contract claim. It further held that Canaan plausibly alleged that the University discouraged her from filing a formal complaint, which could constitute a violation of its policies. As a result, the Court allowed parts of the breach of contract claim to proceed.
Intentional Infliction of Emotional Distress Claim
Finally, for the intentional infliction of emotional distress (IIED) claim, Canaan alleged that the University’s deliberate indifference to antisemitic harassment caused her severe emotional and physical harm, including depression and debilitating migraines. Under Pennsylvania law, an IIED claim requires showing that the defendant’s conduct was (1) extreme and outrageous, (2) intentional or reckless, and (3) caused severe emotional distress. Additionally, to hold an employer vicariously liable, the conduct must have been within the scope of employment and motivated, at least in part, by a purpose to serve the employer.
The University argued that the alleged conduct by its faculty, particularly Professor Arscott, was not extreme or outrageous enough to meet the legal standard and that there was no basis for vicarious liability because the actions were not tied to serving the University’s interests. The Court agreed with the University’s second argument, finding that Canaan failed to allege facts showing that the faculty’s actions were motivated by a purpose to serve the University. As a result, the Court dismissed the IIED claim without prejudice, allowing Canaan an opportunity to amend her complaint to address this deficiency.
Canaan v. Carnegie Mellon Univ. (W.D.Pa. Dec. 17, 2024) __ F.Supp.3d __ [2024 U.S.Dist.LEXIS 227575].
Note:
While Title VI only applies to private schools receiving federal funding, the case provides helpful guidance to schools responding to student complaints of discrimination, especially while navigating sensitive topics and current events.
defamation
Court Holds Statements By School President And Newspaper About Old Student Photographs Were Protected Opinions.
Gallaudet University was established to provide higher education for the deaf. Over the last several years, the University and its fraternities have faced controversies on various matters related to race. For example, until the early 1990s, Kappa Gamma, the University’s oldest fraternity, utilized the Bellamy salute—a gesture created for the Pledge of Allegiance in the late 19th century but later associated with fascist regimes. In 1942, Congress amended the Flag Code to provide that the Pledge should be performed with the right hand over the heart, rather than the Bellamy salute. Nonetheless, a 1989 photograph depicts 34 members of Gallaudet’s Kappa Gamma chapter performing this salute. The image, showing members in three organized rows with outstretched arms, remained online since at least 2016.
In 2020, amidst heightened racial tensions following George Floyd’s death, this photo resurfaced online. Gallaudet’s president, Roberta Cordano, addressed this image in a public video, describing Kappa Gamma as the “face of systemic racism” and suspended the fraternity. Her remarks, delivered in American Sign Language (ASL), were subject to interpretation disputes. For example, the plaintiffs claimed she performed a version of the Bellamy salute during the statement.
The Washington Post also reported on the controversy, publishing articles with headlines such as “Gallaudet University suspends fraternity after antisemitic photo resurfaces” and referencing “recent photos” showing robes with pointed hoods alongside the older salute photo. While subsequent clarifications noted that the 1989 photo was not a factor in the fraternity's 2020 suspension, the plaintiffs alleged that these statements implied they were responsible for antisemitic or racist actions.
The plaintiffs were four alumni of Kappa Gamma, two of whom appeared in the 1989 photograph. All four sued Gallaudet and the Post for the statements and articles, alleging various defamation claims. The alumni alleged they suffered significant reputational and financial harm within the tight-knit deaf community. Two of the alumni claimed they lost longstanding jobs, while the other two alumni (one of whom died during litigation) claimed they experienced career and social fallout.
To establish a defamation claim under D.C. law, a plaintiff must show that the defendant made a false and defamatory statement about them, published it to a third party without privilege, acted with the requisite fault (negligence for private individuals or actual malice for public figures), and caused harm to the plaintiff’s reputation or finances. Defenses include truth, protected opinions, privilege, and consent, with actionable claims requiring provably false statements rather than subjective or rhetorical expressions. To plausibly allege that the statements at issue concerned them, the plaintiffs must also show that a reasonable listener could think that the defendants were referring to them.
Applying this framework, the trial court dismissed the complaint, finding that the statements did not concern the individual plaintiffs, and that either the statements were non-actionable statements of opinion, or that the statements were concededly true. The alumni appealed. On appeal, the alumni argued that the statements about the salute photograph directly implicated them, as they appeared in the photo, and that defamatory terms like “antisemitic” and “face of systemic racism” harmed their reputations. They contended the statements were false and lacked factual support.
The defendants maintained that the statements referred to the fraternity as a group, not individuals. They also argued that the terms used were non-actionable opinions.
The Court of Appeals held that statements about the 1989 photograph plausibly concerned the two plaintiffs who appeared in it, as their identities were readily ascertainable. However, statements unrelated to the photograph did not implicate them individually.
The Court also reasoned that terms like “systemic racism” and “antisemitic” were protected opinions rather than factual assertions. These terms, though inflammatory, were deemed imprecise and subjective, leaving readers to form their own judgments based on the photograph. As opinions, they were not defamatory.
Finally, the Court explained that descriptions of the photograph as depicting a Nazi salute were similarly protected, as the Bellamy salute undeniably resembles the Nazi salute, and any distinction was insufficient to prove falsity. The D.C. Circuit Court of Appeals affirmed the lower court’s decision and dismissed the case.
Note:
Schools should be aware that published statements by the school or its employees can result in defamation claims, even here, when denouncing racism.
cases we are watching
• Joyce Bell Limbrick, a Black woman and former Executive Senior Associate Athletic Director at the University of Southern California (USC), has sued USC, alleging that she was subjected to discrimination and harassment based on the intersection of her race and gender. Following the appointment of a new Athletic Director, Limbrick claims she endured racially and sexually discriminatory remarks, was stripped of key responsibilities, and was systematically excluded from leadership opportunities. Despite reporting this conduct and cooperating in internal investigations, she has asserted that she was wrongfully terminated under the pretext of poor performance shortly after receiving a merit-based salary increase. This case is among the first to invoke California’s new intersectionality bias provisions under the Fair Employment and Housing Act (FEHA).
• Lisa Mesi, a White woman and former principal of the Philadelphia High School for Girls, claims she was unjustly removed from her position and reassigned to a “Special Assignment” role after enforcing a long-standing graduation ceremony policy. The controversy arose when Mesi withheld diplomas from three Black students who violated the graduation ceremony policy by causing disruptions during the ceremony. Following public backlash and accusations of racism, the School District removed Mesi from her position. Mesi alleges that this was done without a formal investigation, and that she was replaced with a less qualified Black principal. Mesi alleges that her removal and reassignment was racially discriminatory and retaliatory for adhering to school policy, and refusing to issue a public apology.
• Eric Eiswert has filed suit against the Baltimore County Board of Education and a number of employees raising allegations of defamation, negligence, and civil rights violations following the creation and dissemination of a fabricated audio recording that falsely portrayed Eiswert, a high school principal, as making racist and antisemitic comments. The complaint alleges that Dazhon Darien, an athletic director at the school, used artificial intelligence tools to manipulate recordings of Eiswert’s voice into a defamatory audio clip. The audio was then distributed with the assistance of other school staff, resulting in widespread media attention, threats of violence, and significant reputational harm to Eiswert. Despite forensic evidence proving the audio was fake, the Baltimore County Public Schools (BCPS) allegedly failed to clear Eiswert’s name or reinstate him, instead reassigning him to a lower position.
did you know...?
• President Biden recently signed the Stop Campus Hazing Act into law, introducing federal requirements designed to combat hazing in higher education. The Act mandates the inclusion of hazing incidents in federally required Annual Security Reports (i.e., Clery Reports). The bill defines the term hazing to mean any intentional, knowing, or reckless act committed by a person against a student (regardless of that student's willingness to participate), that (1) is connected with an initiation into, an affiliation with, or the maintenance of membership in, an organization (e.g., a club, athletic team, fraternity, or sorority); and (2) causes or is likely to contribute to a substantial risk, above the reasonable risk encountered in the course of participation in the institution or the organization, of physical injury, mental harm, or degradation. Institutions are required to publish detailed hazing prevention policies and implement education programs to mitigate risks. While this law does not apply to K-12 schools, it nonetheless provides helpful guidance for schools navigating hazing incidents. The full text of the law can be found here .
• On January 9, 2025, a U.S. District Court in Kentucky struck down the Biden administration's 2024 Title IX regulations, which had expanded protections to include sexual orientation and gender identity. The judge ruled that the administration exceeded its authority by broadening the scope of Title IX beyond its original intent, deeming the regulations "arbitrary and capricious" and in violation of the Constitution. Schools subject to Title IX should instead follow the 2020 Title IX procedures. For private schools that do not receive federal funding, the ruling has a limited direct impact, as Title IX generally applies only to institutions receiving federal assistance. However, the decision may influence broader discussions around LGBTQ+ rights and anti-discrimination policies.
• The U.S. Department of Education's Office for Civil Rights (OCR) has reached resolution agreements with a number of schools leading up to the change in presidential administration this month. Among those schools are the University of California (UC) system concerning complaints of discrimination and harassment based on shared ancestry at five UC campuses: Los Angeles (UCLA), Santa Barbara (UCSB), San Diego (UCSD), Davis (UCD), and Santa Cruz (UCSC). The complaints alleged that Jewish and Muslim students faced discrimination during protests over the Gaza conflict in the spring of 2024. OCR's investigation found that the universities did not respond promptly or effectively to these incidents. Under the agreement, the UC campuses are required to enhance their reporting procedures, review past complaints, and provide additional training to employees and campus police to ensure compliance with federal civil rights laws. The resolution letter can be found here and the resolution agreement can be found here. OCR has also published a resource titled "Resolving a Hostile Environment Under Title VI: Discrimination Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics.” The resource provides numerous examples of Resolution Letters and Resolution Agreements that can be used as helpful guidance for schools navigating these types of situations.
lcw best timeline
NOVEMBER THROUGH JANUARY
Issue Performance Evaluations.
We recommend that performance evaluations be conducted on at least an annual basis, and that they be completed before the decision to continue employment for the following school year is made. Schools that do not conduct regular performance reviews have difficulty and often incur legal liability terminating problem employees - especially when there is a lack of notice regarding problems.
• Consider using Performance Improvement Plans but remember it is important to do the necessary follow up and follow through on any support the School has agreed to provide in the Performance Improvement Plan.
Compensation Committee Review of Compensation before issuing employee contracts.
The Board is obligated to ensure fair and reasonable compensation of the Head of School and others. The Board should appoint a compensation committee that will be tasked with providing for independent review and approval of compensation. The committee must be composed of individuals without a conflict of interest.
Review employee health and other benefit packages, and determine whether any changes in benefit plans are needed.
If lease ends at the end of the school year, review lease
terms in order to negotiate new terms or have adequate time to locate new space for upcoming school year.
Review tuition rates and fees relative to economic and demographic data for the School’s target market to determine whether to change the rates.
Review student financial aid policies.
Review, revise, and update enrollment/tuition agreements based on changes to the law and best practice recommendations.
File all tax forms in a timely manner:
Forms 990, 990EZ
• Form 990:
Tax-exempt organizations must file a Form 990 if the annual gross receipts are more than $200,000, or the total assets are more than $500,000.
• Form 990-EZ:
Tax-exempt organizations whose annual gross receipts are less than $200,000, and total assets are less than $500,000 can file either form 990 or 990EZ.
• A School below college level affiliated with a church or operated by a religious order is exempt from filing Form 990 series forms. (See IRS Regulations section 1.6033-2(g)(1)(vii)).
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.
• The 990 series forms are due every year by the 15th day of the 5th month after the close of your tax year. For example, if your tax year ended on December 31, the e-Postcard is due May 15 of the following year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.
• The School should make its IRS form 990 available in the business office for inspection.
Other required Tax Forms common to businesses who have employees include Forms 940, 941, 1099, W-2, 5500.
Annual review of finances (if fiscal year ends January 1st).
The School’s financial results should be reviewed annually by person(s) independent of the School’s financial processes (including initiating and recording transactions and physical custody of School assets). For schools not required to have an audit, this can be accomplished by a trustee with the requisite financial skills to conduct such a review.
The School should have within its financial statements a letter from the School’s independent accountants outlining the audit work performed and a summary of results.
Schools should consider following the California Nonprofit Integrity Act when conducting audits, which include formation of an audit committee:
• Although the Act expressly exempts educational
institutions from the requirement of having an audit committee, inclusion of such a committee reflects a “best practice” that is consistent with the legal trend toward such compliance. The audit committee is responsible for recommending the retention and termination of an independent auditor and may negotiate the independent auditor’s compensation. If an organization chooses to utilize an audit committee, the committee, which must be appointed by the Board, should not include any members of the staff, including the president or chief executive officer and the treasurer or chief financial officer. If the corporation has a finance committee, it must be separate from the audit committee. Members of the finance committee may serve on the audit committee; however, the chairperson of the audit committee may not be a member of the finance committee and members of the finance committee shall constitute less than one-half of the membership of the audit committee. It is recommended that these restrictions on makeup of the Audit Committee be expressly written into the Bylaws.
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 THROUGH 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 the 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.
Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.
Question:
A Director of Human Resources reached out to LCW with a question about parent volunteers. The administrator explained the School’s practice is to have parents who want to volunteer in their child's classroom to undergo a Live Scan. The administrator explained that the majority of parents have no issue with this, but the School had one parent who refused to undergo the process and demanded to be able to come on campus and volunteer in their child's class. The administrator asked how to respond.
Answer:
The LCW attorney advised that the School is permitted to require volunteers to undergo Live Scan. In fact, it is required of public schools and youth services organizations. There may be some situations where it does not seem necessary, such as a one-off event where the parent will not be alone with students or unsupervised at any time. However, in cases of regular volunteers who will be coming on campus frequently, it is certainly reasonable to have this requirement. The attorney advised that if this is the School’s practice, the School should let the parent clearly know this is the requirement to volunteer and absent them complying, they will not be permitted to serve as a volunteer. The School can lean on language in their family handbook, if the School has a policy covering this topic. The attorney advised that, of course, the parent can still come to campus for events like sports games, performances, parent-teacher conferences, etc. However, the School should be consistent so that the requirement is the same for all volunteers.
Liebert Cassidy Whitmore