Private Education Matters
Grace Chan
Partner | San Francisco
Jordan Carman
Associate | San Diego
Stephanie Lowe
Senior Counsel | San Diego
Hannah Dodge
Associate | San Francisco
TUITION
Court Dismisses Parents’ and Student’s Claims Against School for Failure to Disclose Misconduct by Staff.
Sonoma Academy is a private high school with approximately 300 students, charging around $50,000 annually in tuition and fees. Plaintiffs David and Jody Suchard paid for their child to attend from 2015 to 2017, and plaintiff Jane Doe paid for her own tuition from 2018 to 2021. The plaintiffs’ lawsuit alleged that from 2002 to 2020, the School employed three staff members who engaged in sexual abuse, assault, or inappropriate conduct toward students (not the plaintiffs or their children), and that the School failed to disclose these incidents to the School community or authorities.
The allegations centered most extensively on Marco Morrone, a longtime teacher accused of grooming students, making inappropriate comments, assigning sexually explicit material, and engaging in boundary violations. The complaint detailed numerous instances in which students, parents, or counselors raised concerns about Morrone and others over the years, and alleged that administrators failed to act appropriately or notify others, including failing to make mandated reports under the Child Abuse and Neglect Reporting Act (CANRA). In 2021, the School’s Board of Trustees retained an outside investigator to look into the concerns. That investigator’s report concluded that the School, including the former Head of School and assistant Head of School, were informed of multiple incidents between 2004 and 2020.
The plaintiffs sought to create a class action lawsuit with the class of people of those who paid tuition from 2003 to 2020 for students who graduated before July 2020. They alleged that Sonoma Academy's concealment of staff misconduct induced them to believe the School was safe, and had they known the truth, they would not have paid the School’s high tuition. They asserted claims under California’s Unfair
Competition Law (UCL), as well as for constructive fraud and fraud by concealment, and sought damages, restitution, and injunctive relief.
The trial court ruled in favor of Sonoma Academy. The plaintiffs appealed.
Unfair Competition Law Claim
The plaintiffs argued that the School’s failure to disclose incidents of sexual misconduct and its failure to comply with mandated reporting laws amounted to unfair business practices under the UCL. They claimed they were injured economically by paying tuition they otherwise would not have paid.
The Court of Appeal rejected this argument, holding that the plaintiffs lacked standing to bring a UCL claim. To have standing under the UCL, a plaintiff must have suffered an economic injury “as a result of” the defendant’s conduct. The Court relied heavily on the California Supreme Court’s decision in Kwikset Corp. v. Superior Court, which permits standing where a plaintiff relied on a misrepresentation and paid more or received less than they otherwise would have.
However, the Court distinguished this case from Kwikset. The plaintiffs here did not allege that their own children were mistreated, that their education was compromised, or that they were aware of the misconduct at the time they paid tuition. The alleged misconduct affected other students, and the plaintiffs’ children received the education they paid for. The Court emphasized that the plaintiffs’ alleged harm was “conjectural and hypothetical,” not concrete or particularized. The risk that their children might have been harmed, or that the School community was unsafe, did not materialize in their individual cases.
The plaintiffs attempted to analogize their claim to consumer cases where sellers failed to disclose product defects. But the Court found these cases inapposite, noting that in each of those cases, the plaintiffs received less than what they had bargained for—e.g.,
defective electronics or undisclosed fees. In contrast, here, the plaintiffs’ students received the promised education, and the plaintiffs could not point to any aspect of the educational service that was diminished or devalued due to the nondisclosures.
The Court held that a moral or ethical objection to the School’s conduct is not an economic injury sufficient to support UCL standing.
Fraud Claims
In their two remaining fraud-based claims (constructive fraud and fraud by concealment), plaintiffs alleged on behalf of themselves and a putative class, that the School breached its duty to disclose to them material facts: that there were reports of sexual abuse, harassment, and assault, that the School employed three sexual predators who were not fit to interact with minors, and that the School had failed to report instances of sexual improprieties. The plaintiffs also alleged that the School had a duty to disclose the information under CANRA.
The Court dismissed the claim for constructive fraud. Constructive fraud requires a fiduciary or confidential relationship, which the plaintiffs attempted to ground in their tuition payments and the School's role as an educator. But the Court found no legal or factual basis for concluding that the School had a confidential relationship with tuition payers. The plaintiffs were not unusually vulnerable, nor did the School undertake a fiduciary role akin to that of a trustee or legal guardian.
As for the fraud by concealment claim, the Court rejected several alternate bases for a duty to disclose. First, the plaintiffs failed to establish a confidential relationship. Second, although a duty to disclose can arise where one party has exclusive knowledge of material facts, the Court found that knowledge about misconduct at the School was already circulating among students and parents. Public complaints, rumors, and student advocacy efforts were cited in the complaint itself, undermining the argument that only the School knew about the misconduct.
Further, the Court found that common issues did not predominate, which is required for a class action suit. Whether any given tuition payer was misled or would have chosen differently had they known about the staff misconduct would require individualized inquiries.
Because members of the School community had differing levels of awareness and rumors were already circulating, the plaintiffs could not establish reliance or causation in a way that applied uniformly across the proposed class.
The Court found no abuse of discretion in the trial court’s decision and affirmed dismissal of all claims against Sonoma Academy.
Suchard v. Sonoma Acad. (Mar. 21, 2025) ___Cal.App.5th___ [2025 Cal.App. LEXIS 183].
Note:
The decision emphasizes that for tuition payers to prevail under California’s Unfair Competition Law, they must show a personal, concrete, and economic injury resulting from the school’s conduct. Where parents and students receive the educational services they paid for, they cannot claim economic harm based solely on undisclosed misconduct affecting others.
DISCIPLINE
Court Rules Private School Had Discretion to Enforce Costume Policy In Nutcracker Production.
C.T. attended Deerfield Academy from 2019 until early 2022, participating extensively in its dance program. In 2021, she was cast as the Sugar Plum Fairy soloist for The Nutcracker but was informed that she would need to wear a costume provided by the School’s Dance Department, as was the School’s longstanding policy. Despite being aware of this requirement, C.T. ordered a custom tutu from an outside vendor, believing it would improve her performance. She and her mother later requested permission for her to wear it, but the Dance Director, Jennifer Whitcomb, and the School’s Costume Designer, Karen St. Pierre, denied the request, emphasizing the importance of costume uniformity. C.T. continued with the purchase anyway.
As the performance neared, C.T. missed a scheduled fitting for her assigned costume and ultimately arrived at the technical rehearsal in her custom tutu. During this time, C.T. met with a school counselor, expressing stress and anxiety over the costume issue. She asked him to advocate on her behalf, but he declined, stating that while he could confirm her anxiety diagnosis, he could not say it was medically necessary for her to wear her own costume.
Although allowed to rehearse that day, C.T. was again instructed to wear the Deerfield-provided costume for the final show. C.T.’s mother spoke with Deerfield’s Head of School, arguing that the refusal to allow C.T. to wear her custom tutu was an undue burden and negatively affecting her daughter’s mental state. The Head of School declined to intervene in the costuming decision.
The day of the performance, after repeated refusals to commit to wearing the School’s costume, C.T. and her mother confronted Whitcomb. Whitcomb perceived the encounter as aggressive and called security. C.T.
then left the studio. Based on her conduct, Whitcomb and her colleagues concluded that C.T. had opted out of the performance, and another dancer took her place. C.T. later claimed that she had changed her mind and attempted to rejoin the production, but she was denied participation.
C.T. and her mother sued, alleging that Deerfield Academy breached its contract by failing to protect C.T. from disability discrimination and retaliated against her for requesting an accommodation. She also brought claims against Whitcomb for negligent infliction of emotional distress and against Deerfield for negligently retaining Whitcomb.
On the breach of contract claim, the Court found that the Student Handbook, which C.T. cited as the source of Deerfield’s contractual obligations, expressly stated that it was not a legal contract. Massachusetts law recognizes that handbooks may create enforceable obligations under the “reasonable expectation” standard, but in this case, the Court held that the general commitments in the Handbook, such as providing a respectful educational environment, were too vague to be legally binding. Even if a contract had existed, the Court found no evidence that Deerfield had engaged in discrimination or retaliation. The School had consistently enforced its costuming policy, and there was no record that C.T. had submitted a formal request for a disability accommodation before the performance. A post-incident investigation by the School also concluded that no specific disability request had been made prior to the event.
Additionally, Deerfield argued that C.T.’s claims were barred by the Enrollment Agreement, which her parents had signed as a condition of her attendance. The Enrollment Agreement contained a broad waiver and release, stating that Deerfield was not liable for claims arising out of academic or disciplinary decisions. The Court found that even if C.T.’s removal from the performance was considered disciplinary, the Agreement provided Deerfield with broad discretion over such decisions.
On the negligent infliction of emotional distress claim, C.T. argued that Whitcomb had a duty to protect her emotional well-being and that her removal from the performance caused her severe distress. The Court rejected this argument, holding that private school administrators do not owe students a general duty to shield them from emotional harm absent special circumstances. Whitcomb’s enforcement of the School’s policies did not constitute negligence, and the Court noted that C.T.’s own mental health provider had declined to recommend that she be allowed to wear her custom tutu as a medical necessity. The Court emphasized that granting C.T. an exception could have disrupted the faculty’s authority and the experience of other students, particularly the dancer who had been reassigned to the Sugar Plum Fairy solo at the last minute.
On the negligent retention claim, C.T. alleged that Deerfield had improperly retained Whitcomb despite her reputation as a harsh instructor. She relied on anecdotal accounts from students who referred to Whitcomb as “Bitchcomb” and claimed she was inflexible. However, the Court found no evidence that Deerfield had received formal complaints about Whitcomb or that school administrators were aware of any misconduct that would make her unfit for her position. Mere assertions that a teacher is strict or unpopular do not support a claim for negligent retention.
Finding no triable issues, the Court granted summary judgment in favor of Deerfield Academy and Whitcomb on all claims.
Thomas v. Whitcomb (D.Mass. Mar. 19, 2025) 2025 U.S.Dist. LEXIS 50732.
Note: This case illustrates the importance of consistently enforcing school policies.
Court Upholds Expulsion of Student Who Misrepresented Credentials in Recommendation Letter.
Rhoma Mirza, a Pakistani-American Muslim student, began the Physician Assistant (PA) Program at the College of Mount St. Vincent in 2022. In September 2023, she submitted a letter of recommendation for a
friend through a centralized application system, signing the letter as “Rohma Mirza, PA-C.” This designation stands for “Physician Assistant—Certified” and is reserved for graduates who have passed the national certifying exam and hold a license.
The student handbook clearly stated that PA students must identify themselves as “PA Student” or “PA-S” and are prohibited from misrepresenting themselves as certified physician assistants (PA-C). It further warned that misrepresentation of credentials—such as using the PA-C designation—constituted a serious ethical violation that could result in dismissal from the program, even without prior disciplinary history.
The College viewed Mirza’s signature as a misrepresentation of credentials and referred the matter to its Professional Conduct Review Committee (PCRC), which found the act to be an ethical violation. In accordance with the discipline policy outlined in the student handbook, the matter proceeded through four levels of review, including the PCRC, the Academic Progress Committee (APC), the PA Program Director, and the Provost. At each stage, the decision to dismiss Mirza from the program was upheld.
Mirza sued and argued that the signature was an innocent mistake, possibly the result of a template or confusion about the acronym, which she claimed she thought stood for “PA Candidate.” She asserted that the error was harmless, quickly corrected, and did not mislead anyone. She further alleged that the disciplinary proceedings were tainted by religious and ethnic bias and that administrators, particularly one faculty member, harbored anti-Muslim and anti-Pakistani sentiments. Mirza claimed she had been singled out for disciplinary action due to her background and advocacy for her classmates.
Article 78 proceedings are legal actions in New York that are used to challenge the actions of administrative bodies or public (or quasi-public) institutions. In Mirza’s Article 78 proceeding, she sought an order declaring the expulsion arbitrary and capricious, mandating her reinstatement, awarding damages, and granting declaratory and injunctive relief. She also asserted several additional civil causes of action, including breach of contract, civil rights violations under 42 U.S.C. sections 1981, 1985, and 1986, and defamation.
The Court began by emphasizing the narrow role of judicial review in academic disciplinary decisions by
private colleges. It reaffirmed that courts may not substitute their judgment for that of school officials unless the disciplinary action is clearly arbitrary, capricious, or in bad faith, or if the college fails to follow its own procedures. The Court found that, here, the College had substantially complied with its internal policies as set forth in the student handbook, which explicitly warns that misrepresentation of PA status is grounds for dismissal. The Court noted that Mirza had been notified of the proceedings, had participated in the initial hearing, had the opportunity to appeal, and failed to attend the APC hearing, despite receiving notice. Her appeals to the program director and the provost were fully considered and denied based on the seriousness of the ethical breach.
The Court rejected Mirza’s argument that she was denied due process. It explained that private colleges are not required to provide constitutional due process, but rather must substantially adhere to their own published procedures. The College’s refusal to reschedule the hearing Mirza missed was consistent with its stated policies.
The Court also dismissed the argument that the penalty of expulsion was so excessive as to “shock the conscience.” While it acknowledged the severity of the outcome and the personal investment Mirza had made in her education, the Court found that the sanction was proportionate to the ethical violation in a profession where misrepresentation of credentials carries significant consequences. The decision to expel her was supported by multiple levels of academic judgment and did not warrant judicial intervention.
The Court also dismissed Mirza’s civil rights claims under federal statutes. Her allegations of a conspiracy to violate her rights under 42 U.S.C. sections 1985 and 1986 were found to be conclusory and unsupported by factual evidence. The Court emphasized that there was no proof of a “meeting of the minds” or coordinated action among faculty members to discriminate against her.
42 U.S.C. Section 1981 guarantees equal rights under the law, specifically the right to make and enforce contracts without discrimination based on race, color, or ethnicity. The Court determined that Mirza’s claim under Section 1981 failed because she did not clearly allege racial discrimination, and the statute does not protect against discrimination based on religion or national origin. The Court noted that no similarly situated students were identified who received different treatment.
Her breach of contract claim was also dismissed. The Court held that they were duplicative of her Article 78 claims and therefore could not be pursued separately. Even if they were considered on their merits, the Court found that the College had complied with the student handbook, and that Mirza had not fulfilled her obligations under the alleged contract due to her ethical violation.
Finally, the Court rejected the defamation claim. The statements at issue were made within the College’s internal disciplinary process, had not been published externally, and were protected by a qualified common interest privilege. The Court held that Mirza’s allegations of malice were insufficient to overcome that privilege.
The Court concluded by denying all of Mirza’s requested relief, including reinstatement, damages, and declaratory relief. It granted the College’s motion to dismiss the entire Article 78 petition and civil complaint and entered judgment in the College’s favor.
Mirza v. Coll. of Mount Saint Vincent, 2025 NYLJ LEXIS 943.
Note:
This decision reinforces the importance for schools to follow their policies, including those related to discipline and conduct. In California, private schools must afford a student accused of serious misconduct with fair procedure, which includes notice of the charges and a meaningful opportunity to be heard.
Title ix
U.S. Department of Health and Human Services Finds Maine Violated Title IX by Allowing Transgender Athletes to Participate in Women’s Sports.
On February 5, 2025, President Trump signed Executive Order 14201, titled “Keeping Men out of Women’s Sports." The order directs federal agencies to enforce Title IX in a manner that excludes transgender female athletes from participating in women's sports, basing eligibility strictly on biological sex.
Since 2005, the Maine Human Rights Act has prohibited discrimination based on gender identity, including in educational settings. In 2024, the Maine Principals’ Association (MPA) updated its policies to explicitly allow transgender students to compete on sports teams matching their gender identity.
On February 21, 2025, the U.S. Department of Education’s (DOE’s) Office for Civil Rights (OCR) launched a Title IX investigation into the Maine Department of Education and Maine School Administrative District #51 (MSAD #51). MSAD #51 oversees Greely High School, where a transgender student competes on a girls’ sports team. DOE’s OCR stated that it initiated the investigation “amid allegations that [the Maine Department of Education and MSAD #51] continues to allow male athletes [transgender girls] to compete in girls’ interscholastic athletics and that it has denied female athletes female-only intimate facilities, thereby violating federal anti-discrimination law.”
That same day, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) initiated a Title IX compliance review of the Maine Department of Education and the University of Maine System. HHS stated that the review was “based on information that Maine intends to defy” Executive Order 14201 by permitting transgender female athletes to compete in women’s sports.
On February 22, the U.S. Department of Agriculture (USDA) initiated a Title IX compliance review of the University of Maine System (UMS) due to concerns that the State of Maine was not complying with Executive Order 14201.
On February 25, 2025, the U.S. Department of Justice (DOJ) issued a formal letter warning to Maine Governor Janet Mills. Attorney General Pam Bondi asserted that federal law overrides state law and that “requiring girls to compete against boys in sports and athletic events violates Title IX.” The letter warned that the DOJ is prepared to take “all appropriate enforcement actions” to ensure compliance, including litigation or terminating federal funds.
On March 5, 2025, HHS expanded its investigation, adding the Maine Principals’ Association (MPA) and Greely High School to the compliance review.
On March 11, 2025, USDA suspended funding to UMS, affecting various agricultural and research programs. UMS assured USDA that its athletic programs comply with state and federal laws, as well as the National Collegiate Athletic Association's (NCAA) updated policy, which restricts athletes assigned male at birth from competing in women's sports. USDA restored the funding on March 13, 2025.
On March 17, 2025, HHS issued a formal determination letter, concluding that the Maine Department of Education, the MPA, and Greely High School had violated Title IX by permitting transgender female athletes to compete in girls’ sports. HHS gave the entities 10 days to voluntarily comply. HHS warned that if they failed to do so, it would refer the case to the DOJ for legal action.
Note:
Title IX only applies to private schools that accept federal funding. Nonetheless, this matter represents one of the first major enforcement actions under Executive Order 14201 and demonstrates a coordinated effort by HHS, DOE, the DOJ, and USDA to enforce the Trump administration’s interpretation of Title IX. Under this interpretation, eligibility for women’s sports must be based strictly on biological sex.
discrimination EMPLOYEES
Failure to Apply for Position Dooms Discrimination Lawsuit Against UCLA Extension.
Ali Abbassi, a Persian Muslim man, was an employee at UCLA Extension, a division of the University of California, Los Angeles.
In November 2018, Abbassi was appointed as the Interim Senior Director of Marketing for UCLA Extension. UCLA Extension’s policy required an open recruitment process for director-level positions but allowed interim appointments in cases of immediate need. However, interim appointees were not guaranteed permanent positions. Despite this policy, Abbassi believed he would automatically receive the permanent Senior Director of Marketing position without undergoing the recruitment process. This assumption was contrary to multiple clarifications from UCLA Extension’s Associate Director of Human Resources and other supervisors, who informed him that his position was strictly interim.
During his time as Interim Senior Director, Abbassi had a contentious relationship with his supervisors. His work was occasionally praised but also criticized. He cited several incidents that he believed demonstrated unfair treatment. On one occasion, an interim co-dean publicly questioned him about a missed promotional email, which he perceived as an attempt to ridicule and berate him. In another instance, he had a disagreement with an interim co-dean who, while in a meeting, aggressively dismissed him from her office when he attempted to provide documentation supporting his position. Additionally, he experienced a reduction in his department’s budget, which he believed was a deliberate
effort to set him up for failure. After a new dean took over in January 2020, he received further criticism regarding his financial analysis and marketing strategies. He alleged that this new dean ignored him in meetings, canceled previously scheduled discussions, and excluded him from certain decision-making processes.
Despite these conflicts, there was no evidence that his supervisors made comments about his national origin or religion. Two colleagues provided general statements about a “toxic” work environment and alleged “discrimination, lies, retaliation, and setups,” but these claims lacked specifics.
In January 2020, the new dean identified a need to restructure the marketing department. Instead of filling the Senior Director of Marketing role permanently, the dean created a new position, Executive Director of Strategic Communications and Marketing, which had different responsibilities. UCLA Extension conducted a national search for the new role, consistent with its stated hiring policies. Abbassi was informed of the job posting and encouraged to apply but chose not to. The position was ultimately filled by another candidate. In October 2020, Abbassi took medical leave and formally resigned from UCLA Extension on May 17, 2021.
Abbassi filed a lawsuit on February 18, 2021, against the Regents of the University of California, asserting a number of claims, including under the Fair Employment and Housing Act (FEHA) for discrimination based on race and national origin, and harassment based on race and national origin. The Regents filed a motion for summary judgment, which the trial court granted, dismissing Abbassi’s claims. Abbassi appealed.
On Abbassi’s discrimination claim, the Court of Appeal applied the McDonnell Douglas burden-shifting framework, under which an employer must provide a legitimate, nondiscriminatory reason for an adverse employment decision. The Court found that UCLA Extension had met this burden by demonstrating that the new dean restructured the marketing department to create a different position, conducted a national search for that role, and encouraged Abbassi to apply, which he chose not to do. The burden then shifted to Abbassi to establish pretext, but the Court of Appeal concluded that he failed to present specific, substantial evidence that UCLA Extension’s stated reasons were false or that discriminatory animus played a role in the hiring decision. Abbassi’s contention that he was treated differently from other employees was unpersuasive because there was no evidence that the three interim directors who had been appointed to permanent roles without a national search were similarly situated to him. Furthermore, general complaints about a toxic work environment and claims of unfair treatment were insufficient to support a finding of discrimination, particularly in the absence of any evidence that decision-makers harbored animus toward Abbassi’s race or religion. The Court also noted that because Abbassi had not applied for the restructured position, his claim that he was denied the role due to discrimination was inherently flawed.
On Abbassi’s harassment claim, the Court of Appeal reiterated that under FEHA, workplace harassment must be severe or pervasive enough to create a hostile work environment. The Court found that Abbassi’s allegations primarily concerned workplace criticisms, budgetary decisions, and management choices, none of which are considered harassment under FEHA. The Court emphasized that mere workplace disagreements and supervisory decisions do not constitute unlawful harassment unless they are motivated by discrimination and rise to the level of conduct that fundamentally alters an employee’s work environment. While two of Abbassi’s coworkers described UCLA Extension as a toxic workplace, their statements were general and lacked evidentiary support linking them to Abbassi’s claims of discrimination or harassment. The Court concluded that the alleged conduct, which included criticisms of Abbassi’s job performance, budget reductions, and exclusion from certain meetings, was not sufficiently severe or pervasive to support a harassment claim.
Accordingly, the judgment in favor of UCLA Extension was affirmed.
Abbassi v. Regents of the Univ. of Cal. (Mar. 10, 2025) ___Cal. App.5th___ [2025 Cal.App. Unpub. LEXIS 1427].)
Note:
In this case, the Court found that generalized complaints about a toxic work environment were not enough to meet FEHA’s standards without specific, substantive evidence of discrimination. Furthermore, this case is an important reminder that schools should consistently follow their policies. Here, UCLA’s policy was that interim positions were not guaranteed permanent roles, and applying this policy consistency indicated that the University did not act with discriminatory animus.
Ninth Circuit Dismisses Professors’
Challenge to California State University’s Anti-Discrimination Policy for Lack of Standing.
Sunil Kumar and Praveen Sinha are two professors at California State University (CSU). They are both of Indian descent and adherents of the Hindu religion.
CSU's anti-discrimination policy, first instituted as an interim measure in January 2022 and finalized in 2023, explicitly prohibits discrimination based on various protected categories, including race, ethnicity, gender, disability, and religion. As part of the policy, CSU added “caste” as a clarification under the category of “Race or Ethnicity,” stating that caste, color, and ancestry were already included within those protections. The policy did not define “caste,” nor did it mention Hinduism. CSU issued a Q&A document explaining that castebased discrimination would be analyzed using the same framework as other forms of discrimination.
Kumar and Sinha sued the University. They argued that the University’s decision to include “caste” as a protected category under its anti-discrimination policy unfairly associated Hinduism with a caste system, stigmatizing their religion and compelling them to self-censor religious discussions and practices. They brought claims under the First and Fourteenth Amendments, alleging violations of the Due Process Clause, Free Exercise Clause, and Establishment Clause. They sought declaratory relief to prevent CSU from enforcing the “caste” provision of the policy.
The trial court initially dismissed the plaintiffs’ Equal Protection claim for lack of standing and later dismissed their Free Exercise claim for failure to state a claim. The Due Process and Establishment Clause claims proceeded
to a bench trial, after which the trial court ruled in CSU’s favor, finding that the plaintiffs lacked standing on the Due Process claim and that the Establishment Clause claim failed on the merits. The plaintiffs appealed the dismissal of their Due Process, Free Exercise, and Establishment Clause claims.
The Ninth Circuit Court of Appeals affirmed the trial court’s decision, holding that the plaintiffs failed to establish standing, which requires a concrete and particularized injury that is actual or imminent. The Court applied a three-part test, which requires a plaintiff to demonstrate: (1) an intention to engage in conduct protected by the Constitution; (2) that the conduct is arguably proscribed by the challenged law; and (3) that there exists a credible threat of enforcement.
On the Due Process claim, the professors contended that the policy was unconstitutionally vague because it failed to define “caste,” leaving them uncertain about what conduct might be prohibited. However, the Ninth Circuit held that the plaintiffs lacked standing because they did not demonstrate that any of their religious practices could be interpreted as caste discrimination or harassment under the policy. They had explicitly stated that they opposed caste discrimination and did not believe caste was part of Hinduism. The Court ruled that their fear of enforcement was speculative and insufficient to establish an injury.
On the Free Exercise claim, the professors argued that the policy burdened their religious practices by associating Hinduism with caste. However, the Ninth Circuit found that they failed to show any actual burden on their religious exercise. Their objection to the policy was ideological rather than based on a concrete restriction on their ability to practice their religion. The Court emphasized that disagreement with a policy’s language or implications does not constitute a Free Exercise violation absent a substantial burden on religious practice.
On the Establishment Clause claim, the plaintiffs alleged that the policy improperly defined Hinduism by linking it to caste, thereby stigmatizing their religion. The Ninth Circuit recognized that Establishment Clause standing can be based on spiritual or psychological harm but found no evidence that CSU’s policy expressed hostility toward Hinduism. The Court noted that “caste” is a broad social concept that applies across multiple religions and cultures and is not uniquely associated with Hinduism. The trial court had found, based on the trial record, that the policy did not disparage or define Hinduism, and the Ninth Circuit held that this factual determination was not clearly erroneous.
Finally, the plaintiffs’ claim for declaratory relief was dismissed as derivative of their constitutional claims. Because they lacked standing for their underlying claims, they could not seek declaratory relief.
The Ninth Circuit affirmed the trial court’s dismissal of all claims, holding that the plaintiffs lacked standing to challenge CSU’s policy. The Court ruled that their concerns were speculative, as they had not demonstrated a credible threat of enforcement against them. Additionally, their objections to the policy’s language did not amount to a constitutional violation.
Kumar v. Koester (9th Cir. Mar. 12, 2025) 2025 U.S. App. LEXIS 5733.
Note:
While this case involved a public university, private schools should take note of the legal challenges that may arise when implementing anti-discrimination policies that intersect with religious and cultural identities and that include new or evolving categories, such as caste.
accomodations
Court Clarifies That Reasonable Accommodation Is Required Under The ADA Even If Employee Can Perform
Job Without It.
Angel Tudor worked as a teacher for Whitehall Central School District in upstate New York for approximately twenty years. Tudor suffered from severe post-traumatic stress disorder (PTSD) resulting from sexual harassment and assault by a supervisor in a previous job. Her PTSD symptoms were significant, including stuttering, vomiting from nightmares, and the need for psychiatric hospitalization. In 2008, in consultation with her therapist, Tudor requested and received a disability accommodation that allowed her to take a fifteen-minute break during each of her daily morning and afternoon prep periods when she was not responsible for overseeing students. These breaks enabled her to step off campus to manage anxiety symptoms, particularly because her symptoms were triggered by the workplace environment.
In 2016, however, following a change in administration, Whitehall implemented a blanket policy prohibiting teachers from leaving campus during prep periods. When Tudor attempted to take her previously approved breaks, she was reprimanded for insubordination. She explained that her breaks had been part of a long-standing accommodation, but school administrators said the documentation they had on file was insufficient. Rather than submit new documentation, Tudor took paid sick leave and then requested leave under the Family and Medical Leave Act. She ultimately returned in January 2017, at which point the School granted her a morning break and permitted an afternoon break only on days when a librarian was available to cover for her and watch her students. This partial accommodation continued through the 2017-18 and 2018-19 school years—whether this arrangement violated the Americans with Disabilities Act is the subject of a separate lawsuit.
At issue in this case was Tudor’s experience in the 2019-20 school year, when Tudor was
scheduled for an afternoon study hall rather than a prep period and no staff were available to provide coverage during that time. Tudor nevertheless took afternoon breaks on 91 out of 100 school days, but did so without formal approval, believing she was violating policy. This added to her anxiety, and she later testified that she continued working “under great duress and harm.” Tudor sued, alleging that Whitehall’s refusal to provide a guaranteed fifteen-minute break during the afternoon constituted a failure to accommodate her disability in violation of the ADA.
The trial court granted summary judgment for Whitehall, reasoning that Tudor’s ability to perform her essential job functions—despite the stress—meant she could not establish a viable ADA claim. The trial court focused on the third element of the ADA failure-to-accommodate framework, which requires a plaintiff to show they could perform the essential functions of the job with a reasonable accommodation. It interpreted this to mean that if an employee could perform those functions without an accommodation, then no claim could survive. Tudor appealed. The Second Circuit Court of Appeals rejected that reading as inconsistent with the text and purpose of the ADA.
The Court of Appeals emphasized that the ADA explicitly defines a “qualified individual” as someone who can perform the essential functions of the job “with or without reasonable accommodation.” This, the Court explained, means that an employee’s ability to do the job without accommodation does not eliminate their right to a reasonable one. The ADA prohibits discrimination based on disability, which includes an employer’s failure to make reasonable accommodations unless doing so would cause undue hardship. The Court of Appeals further observed that accommodations can include modified work schedules or job restructuring, and that the law does not require such accommodations to be strictly necessary— only reasonable.
The Court noted that several other federal appellate courts have similarly concluded that an employee who works through pain or hardship is not disqualified from seeking an accommodation that could alleviate the strain.
It emphasized that the reasonableness of an accommodation is a fact-specific inquiry and that bright-line rules, such as the one applied by the trial court, are generally disfavored in disability cases.
While the Court of Appeals vacated the judgment, it did not rule on whether Tudor’s request for an afternoon break was in fact a reasonable accommodation or whether Whitehall had other valid defenses, such as undue hardship. It left those questions for the trial court to consider on remand, noting that in a separate related case involving prior school years, the trial court had already identified genuine factual disputes regarding Tudor’s disability and the sufficiency of the School’s accommodation. The Court of Appeals concluded only that the ADA permits failure-to-accommodate claims even where the plaintiff can perform the job without the requested accommodation, provided the accommodation could reduce disability-related harm and is reasonable.
Tudor v. Whitehall Cent. Sch. Dist. (2d Cir. Mar. 25, 2025) ___ F.4th ___ [2025 U.S. App. LEXIS 6879].
Note:
This decision brings the Second Circuit Court of Appeals in line with other circuit courts, including the Ninth Circuit, where California is located. This case confirms that an employer’s duty to accommodate exists if an employee has a disability and is able to perform the essential functions of their job “with or without” an accommodation.
Schedule Back to School Trainings for Your Faculty and Staff!
On-Demand and in Person Trainings Including:
Preventing Harassment, Discrimination and Retaliation in the California Private School Environment
• Supervisory
• Non-Supervisory
Maintaining Professional Boundaries
California Mandated Reporter Training And more!
Contact Anna Sanzone-Ortiz at asanzone-ortiz@lcwlegal.com for more information and to schedule your school’s session.
investigations
Judge Rules School’s Investigation Was Too Cursory To Justify
Groundskeeper’s Termination.
Ron Brown, an African American employee at Life University, a private chiropractic school in Georgia, alleged that he was fired in retaliation for complaining about racial discrimination and that Life University’s proffered reasons for his dismissal—timekeeping violations and inappropriate conduct toward a coworker— were not worthy of belief. One of the key events underpinning his claims involved Brown reporting a temporary employee, Adamari Obregon, for falsifying her timesheets. Obregon was terminated shortly thereafter. Brown also alleged that Obregon’s supervisor, Javier Cabanas, who was in a romantic relationship with Obregon, retaliated against Brown by accusing him of falsifying his own timesheet. Cabanas’s accusation came just days after Obregon’s termination and ultimately led to Brown’s firing.
Brown filed suit, claiming that retaliation and race discrimination under Title VII and 42 U.S.C. Section 1981. The University filed a motion for summary judgment.
In their motion, Life University argued that Brown was terminated because he falsely claimed to have worked on a day he had called out sick and for allegedly berating another employee. The University claimed that its internal investigation, conducted by supervisors Colin Hilley and Lisa Ward, independently verified the timekeeping violation. However, the Court found that the investigation was minimal and failed to include basic followup, such as questioning Brown about the accusation or whether anyone else had access to his timekeeping credentials. In fact, 24 minutes after Hilley and Ward spoke with Brown about the accusations, Hilley and Ward read from an already typewritten letter that said they were firing him, “effective immediately.” Evidence in the record showed that someone else could have logged into the timekeeping system using Brown’s credentials, undermining the
University’s assertion that it had conclusively verified he had falsified his timesheet.
The Court further emphasized that Brown, during the termination meeting, explicitly told Ward and Hilley that Cabanas had motive to retaliate against him, that Cabanas had access to his timekeeping login credentials, and that he had documented his sick day with his supervisor. The Court concluded that a jury could find that Ward failed to conduct a good-faith investigation and instead accepted a possibly retaliatory accusation at face value. Ward’s refusal to investigate further, even after hearing Brown’s explanation, raised a triable issue of fact regarding whether the timekeeping violation was a pretext for unlawful retaliation.
In addition to the timekeeping issue, the University asserted that Brown was also fired for verbally abusing another employee named Chris. Hilley claimed to have personally witnessed Brown yelling and using profanity, which allegedly caused Chris to leave work in tears and ultimately resign. Brown, however, denied raising his voice or using profanity and claimed Chris did not cry or quit because of the interaction. According to Brown, Chris completed his shift, returned to work days later, and ultimately left the position for unrelated reasons. The Court determined that the conflicting accounts raised a credibility issue for a jury to resolve. If a jury found Brown’s version credible, it could conclude that Hilley fabricated or exaggerated the incident to justify Brown’s termination.
On the race discrimination claim, the Court found that a jury could reasonably infer that Ward and Hilley served as mere “rubber stamps” for Cabanas’s report and failed to conduct an adequate or independent investigation. This, the Court reasoned, could support a finding that Cabanas’s alleged racial animus was the real cause of Brown’s termination. The Court rejected the University’s objection that the speed of the investigation was not evidence of insufficiency, noting that the investigation’s timing, cursory nature, and failure to pursue key information were all potentially relevant to pretext.
The Court concluded that Brown had produced sufficient evidence of retaliation and discrimination to survive summary judgment. It ordered the parties to mediation and stayed the proceedings pending the outcome.
Brown v. Life University, Inc., No. 1:23-cv-2487-MLB (N.D. Ga. Mar. 31, 2025).
Note:
This decision underscores the importance of conducting thorough and impartial investigations. Here, the court found that the University’s failure to ask basic questions or consider the employee’s explanation sufficient to support a claim that the employer’s stated reasons for termination might be pretextual for discrimination.
benefits corner
IRS Explains Notice Requirements for Employers to Skip Furnishing Form 1095-C.
Applicable large employers (ALEs) have a new option to skip furnishing Form 1095-C to full-time employees and employees enrolled in an employer-sponsored selfinsured plan (eligible employees) if certain conditions are met. On December 23, 2024, President Biden signed the Paperwork Burden Reduction Act (HR 3797) into law. This law adds an option where ALEs do not have to automatically furnish Form 1095-C to eligible employees and instead, ALEs will be treated as timely furnishing the required Form 1095-C if they provide a notice to eligible employees informing them that they can request a copy of their Form 1095-C (Notice). Please see our Special Bulletin describing the Paperwork Burden Reduction Act (HR 3797) for more information. The language in the Paperwork Burden Reduction Act states that the Notice to employees must be “clear, conspicuous, and accessible (at such time and in such manner as the Secretary may provide)....” It was initially unclear what type of notice would suffice to allow an ALE to skip furnishing Form 1095-C because the Secretary of Treasury had not issued any information.
The Internal Revenue Service (IRS) recently issued awaited guidance on the “time” and “manner” required for such Notice. (See IRS Notice 2025-15.) The IRS will
apply the time and manner requirements from Treasury Regulation section 1.6055-1(g)(4)(ii)(B)(1)-(3). Under these requirements, the Notice must:
1. Be posted in a clear and conspicuous notice in a location on the ALE’s website that is reasonably accessible to full-time employees;
2. State that employees may receive a copy of their statement upon request;
3. Explain how employees may request a copy of their Form 1095-C;
4. Include an email address and a physical address where employees can make a request for their Form 1095-C;
5. Include a telephone number that employees may use to contact the ALE with questions; and
6. Be written in plain, non-technical terms and with letters of a font size large enough to call a viewer’s attention that the information pertains to tax statements reporting health coverage. For example, a website that includes words on the main page reading “Tax Information” and a secondary page that includes the statement “IMPORTANT HEALTH COVERAGE TAX DOCUMENTS” in capital letters.
The Notice must be posted on the ALE’s website by the due date for furnishing Form 1095-C, including the automatic 30-day extension (i.e., 30 days after January 31). The notice must remain on the ALE’s website through October 15 of the year following the calendar year that the Form 1095-C covers (or the first business day after if it falls on a Saturday, Sunday or legal holiday.) For Form 1095-Cs covering tax year 2024, the required posting period would be March 3, 2025 to October 15, 2025.
If an employee requests their Form 1095-C, then the ALE must furnish the Form 1095-C to the employee no later than: (i) January 31 in the year following the calendar year the Form 1095-C covers; or (ii) 30 days after the request date.
The IRS only recently issued this guidance on February 21, 2025. Since the start date ALEs would be required to post the Notice (March 3, 2025) has passed, it is now too late for ALEs to follow the IRS’s guidance on the time and manner of the Notice to skip furnishing Form 1095-Cs for this year. Any ALEs interested in utilizing the option to skip furnishing Form 1095-Cs in the future should follow the IRS’s guidance on how, when, and where to post the notice and what to include in the Notice for future years.
See IRS Notice 2025-15 for more information, available at https://www.irs.gov/pub/irs-drop/n-25-15.pdf.
cases we are watching
• A California school district reached a settlement with the local archdiocese over a lawsuit alleging that the district unlawfully withheld services to students attending Catholic schools. The dispute centered on Title I funds, which are designated to support low-income students. The Archdiocese claimed that the district did not provide equitable services to eligible students attending Catholic schools, as required by federal law. The district claimed that the Archdiocese was not accurately reporting low income students. As part of the settlement, the district agreed to allocate additional resources to the affected schools. This resolution aims to address the educational needs of lowincome students in private religious schools within the district.
• The Federal Task Force to Combat Anti-Semitism, established under a 2020 executive order, announced it will visit ten universities that have faced antisemitic incidents since October 2023 to investigate whether the institutions failed to protect Jewish students and faculty from unlawful discrimination. The visits will include meetings with university leaders, students, staff, and local officials to assess the situation and determine if federal intervention is necessary. The targeted campuses include several in California such as USC, UCLA, and UC Berkeley.
• The U.S. Department of Justice has launched investigations into Stanford University, UC Berkeley, UCLA, and UC Irvine to ensure compliance with the U.S. Supreme Court’s 2023 ruling that ended affirmative action in college admissions. The ruling prohibits the use of race-based preferences aimed at increasing diversity, and the DOJ’s review is part of a broader initiative by the Trump administration to eliminate diversity, equity, and inclusion (DEI) programs in higher education.
did you know...?
• On February 11, Governor Gavin Newsom issued an Executive Order in response to the wildfires across Los Angeles and Ventura Counties. Recognizing the ongoing impact on childcare providers, the order directs the California Department of Social Services (CDSS), in collaboration with the Employment Development Department (EDD), to contact individuals whose childcare sites remain closed to inform them of their potential eligibility for Disaster Unemployment Assistance (DUA) and to assist them in accessing these benefits before the March 10, 2025 deadline. The Executive Order can be found here
• The California Civil Rights Council has released the final proposed regulations addressing the use of automated-decision systems in employment. The regulations clarify that employers using algorithmic tools— including artificial intelligence, machine learning, or data-driven software—to make employment decisions must comply with the Fair Employment and Housing Act (FEHA). Employers are prohibited from using automated systems that result in discrimination based on protected characteristics such as race, sex, age, disability, national origin, and pregnancy. The regulations require employers to avoid practices that produce disparate impacts or proxy discrimination, and emphasize that use of automated tools does not excuse compliance with state anti-discrimination laws. Employers must maintain records of algorithmic decisions, conduct anti-bias testing, and ensure that automated systems do not unlawfully screen out applicants or employees. The proposed regulations reinforce that employees may still pursue claims for discrimination, including related to hiring, promotions, and testing, even when decisions are made through automated technologies. If approved, these regulations will likely go into effect on July 1, 2025.
• S.B. 763 is a bill that was recently introduced in the California legislature that would significantly increase the penalties for violating the Cartwright Act, California’s antitrust law. It raises the maximum fine for corporate violators from $1 million to $100 million, increases the maximum fine for individuals from $250,000 to $1 million, and extends potential prison sentences for individuals to up to five years. Additionally, it introduces a new $1 million civil penalty for any person or business found in violation.
Premium Perks on Liebert Library!
lcw best timeline
MARCH THROUGH 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 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 operating a summer program.
Transportation Agreements
• Assess transportation needs for summer/next year.
• Update/renew relevant contracts.
MAY
Schools with more than 100 employees: submit annual pay data to the California Department of Civil Rights (due 5/14/25).
Complete hiring of new employees for next school year.
Complete hiring for any summer programs.
If service agreements expire at the end of the school year, review service agreements to determine whether to change service providers (e.g., janitorial services, if applicable).
• Employees of a contracted entity are required to be fingerprinted pursuant to Education Code Section 33192, if they provide the following services:
School and classroom janitorial.
School site administrative.
School site grounds and landscape maintenance.
Pupil transportation.
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.
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:
That there is a physical barrier at the worksite to limit contact with pupils.
That there is continual supervision and monitoring of all employees of that entity, which may include either:
* Surveillance of employees of the entity by School personnel; or
* Supervision by an employee of the entity who the Department of Justice has ascertained has not been convicted of a violent or serious felony, which may be done by fingerprinting pursuant to Education Code Section 33192. (See Education Code Section 33193).
If conducting end of school year fundraising:
• Raffles:
Qualified tax-exempt organizations, including nonprofit educational organizations, may conduct raffles under Penal Code Section 320.5.
In order to comply with Penal Code Section 320.5, raffles must meet all of the following requirements:
* 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.
* 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.
* 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.
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.
Items withdrawn from a seller’s inventory and donated directly to nonprofit schools located in California are not subject to use tax.
* 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.
December 9, 2025
10:00 a.m. - 11:00 a.m. Visit
new to the Firm!
Stephanie S. Ponek is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she assists employers with a wide range of workplace issues, including wage-and-hour compliance, discrimination and harassment claims, policy development, and litigation strategy.
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:
The Chief Financial Officer of a school reached out to LCW to ask for guidelines for compensating an hourly employee who traveled out of state to attend a training.
Answer:
The LCW attorney advised that employees, including non-exempt employees, are entitled to compensation for all hours worked, including for travel time when they are required to travel for work. When an employee is traveling to out-of-state trainings, that travel time is considered hours worked since that time is spent carrying out the School’s directives. For example, any time spent on an airplane, getting their baggage, traveling to the hotel, attending the conference or training, etc., is considered hours worked. The LCW attorney advised that the employee should be compensated for their travel time. Furthermore, if they are non-exempt, the School will also need to pay them for any overtime hours worked and ensure they are taking appropriate meal and rest breaks.
The attorney included some additional information about travel time from the Division of Labor Standards Enforcement (DLSE) on Wages and the DLSE Manual.
Liebert Cassidy Whitmore