Private Education Matters
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Current events
President Trump’s Executive Orders, Federal Updates, & Upcoming Supreme Court Cases.
President Trump Issues Executive Order, “Expanding Educational Freedom and Opportunity for Families”
On January 29, 2025, President Trump signed an Executive Order (EO) titled “Expanding Educational Freedom and Opportunity for Families,” aimed at increasing school choice and expanding alternatives to K-12 public schools, including private, faith-based, and charter school options. President Trump also issued a fact sheet to accompany the EO.
Key Provisions
The EO directs the Department of Education to issue guidance within 60 days on how states can use federal funds to support K-12 scholarship programs that provide families with alternatives to public schools.
The EO also directs the Department of Education to prioritize school choice programs in the Department’s discretionary grant programs. Relatedly, the EO directs the Department of Education and Department of Labor to review discretionary grant programs and develop a plan within 90 days to prioritize funding for school choice initiatives.
The EO requires the Department of Health and Human Services to issue guidance within 90 days on whether block grants for children and families can be used to support private and faith-based educational alternatives.
The EO directs the Department of Defense to assess and report within 90 days on ways that militaryconnected families can use federal education funds to attend private, faith-based, or charter schools starting in the 2025-26 school year. Similarly, the EO directs
the Department of the Interior to review and explore within 90 days the mechanisms for families of students eligible for Bureau of Indian Education schools can use federal education funds to attend private, faith-based, or charter schools starting in the 2025-26 school year.
Application to Schools
This EO does not impose new legal obligations for schools. The reports that these agencies issue in accordance with the EO may result in expanded school choice programs.
Other Executive Orders
In light of the numerous and rapid executive orders being issued by the President, LCW recognizes the need for timely and reliable updates. LCW is now issuing a weekly roundup of new Presidential Executive Orders that may impact independent schools in California.
Executive Orders issued so far that may impact schools are:
• Protecting the American People against Invasion
• Ending Radical Indoctrination in K-12 Schooling
• Additional Measures to Combat Anti-Semitism
• Ending Illegal Discrimination and Restoring MeritBased Opportunity
• Keeping Men Out of Women’s Sports
• Keeping Education Accessible and Ending COVID-19 Vaccine Mandates in Schools
For more information, please refer to the Special Bulletins linked above.
The U.S. Department of Education's Office for Civil Rights has issued a Dear Colleague Letter reaffirming that discrimination based on race, color, or national origin is illegal under Title VI of the Civil Rights Act of 1964. The letter references the Supreme Court's 2023 decision in Students for Fair Admissions v. Harvard, which clarified that the use of racial preferences in college admissions is unlawful. It emphasizes that any consideration of race by educational institutions must meet "strict scrutiny," being narrowly tailored to achieve a compelling interest, such as remedying specific past discrimination or addressing imminent safety risks. The letter states that “diversity,” recognized in earlier Supreme Court decisions as a compelling interest in educational settings, as well as “social justice” and “equity,” are not compelling interests.
The letter clarifies that the Department interprets the Court’s opinion to prohibit the use of race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. The letter admonishes schools against using students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining a student’s race and favoring or disfavoring such students, as well as against using non-racial information as a proxy for race. Educational institutions that receive federal financial assistance have until February 28, 2025 to comply with these standards or may risk losing their federal funding. More information can be found in LCW’s Week 2 Executive Order Roundup.
The U.S. Department of Education has initiated an investigation into the California Interscholastic Federation (CIF) for permitting transgender athletes to participate in female sports teams, a practice that conflicts the Keeping Men Out of Women’s Sports Executive Order, which is aimed at restricting such participation. CIF has stated its intention to continue following California state law, which allows transgender students to compete according to their gender identity, despite the federal directive.
In addition, in response to the Executive Order on Ending Illegal Discrimination and Restoring Merit-Based Opportunity, the Department of Justice issued a memo titled, Ending Illegal DEI And DEIA Discrimination and Preferences, stating that it will investigate, eliminate, and penalize illegal DEI preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.
The National Labor Relations Board’s (NLRB) acting general counsel recently issued a memo to all regional NLRB offices, rescinding a series of memos that were issued by the former President Biden-appointed general counsel. The rescinded memos include those instructing NLRB regional offices to expand remedies for employees, those with guidance on the rights of student-athletes, and those with instructions on when severance and non-compete agreements infringe on employees’ labor rights. The full list of rescinded memos can be found here.
Upcoming Supreme Court Cases
Over the last month, the Supreme Court has also announced that it will hear a number of education-related cases, including the following:
• Mahmoud v. Taylor, a case in which a group of Maryland parents argue that requiring their children to participate in instruction featuring LGBTQ-themed storybooks violates their First Amendment right to freely exercise their religion.
• Oklahoma Statewide Charter School Board v. Drummond, a case concerning the establishment of St. Isidore of Seville Catholic Virtual School as the nation's first publicly funded religious charter school.
• A.J.T. v. Osseo Area Schools, a case that will determine whether students alleging disability discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act must prove that school officials acted with "bad faith or gross misjudgment" to obtain relief.
LCW is closely monitoring developments in relation to these various Executive Orders, Supreme Court cases, and other federal updates.
negligence
California Court Upholds Jury Verdict, Finds No Negligence in Teacher’s Intervention During Student Fight.
I.C., then a 15-year-old student at Dominguez High School in the Compton Unified School District (District), was injured during a classroom fight. I.C. and a friend, C.L., began horse playing and slap-boxing in their art class when their teacher, Marco Godinez, saw them and told them to stop. The two students stopped briefly, but then began punching one another. Godinez attempted to intervene. During the struggle, Godinez lost his balance and fell onto I.C., breaking the student’s leg. The incident was captured on video by another student.
I.C. sued Godinez and the District for negligence, arguing that the teacher should not have intervened due to his weight (375 pounds) and physical condition. In particular, Godinez suffered from sciatica, had gone to the emergency room for back pain three days prior to the fight, and had been using a walker to get around.
I.C. also argued that the District failed to adequately train teachers on safe methods for breaking up student fights. The District provided training to teachers through its Non-Violent Crisis Intervention and Positive Behavioral Interventions and Supports programs, which focused on de-escalation techniques and maintaining a positive classroom environment. However, the District did not provide specific training on physical intervention or restraint techniques, instead allowing teachers to use discretion in handling student altercations.
After a 15-day jury trial, the jury determined that neither Godinez nor the District was negligent and assigned equal responsibility (50%) to I.C. and C.L. for the incident.
I.C. filed a judgment notwithstanding the verdict,
which is a motion that asks the trial court to overturn the jury's verdict on the grounds that no reasonable jury could have reached that conclusion based on the evidence presented. I.C. argued that the evidence did not support the jury’s conclusion that neither Godinez nor the District was negligent. I.C. argued that Godinez acted negligently by physically intervening in the fight despite his physical limitations and lack of training. He also contended that the District failed to properly train its teachers on safe intervention techniques, creating an unreasonable risk of harm.
The Court of Appeal disagreed and upheld the jury’s finding. The Court reasoned that:
• The jury reviewed the video evidence multiple times and concluded that Godinez did not act unreasonably.
• Witnesses, including another student involved in the fight, testified that Godinez fell accidentally while trying to protect the students from injury.
• The District’s training program, which focused on de-escalation and professional discretion rather than strict physical intervention techniques, was consistent with national education standards.
• Since the jury’s verdict was supported by substantial evidence, the Court of Appeal concluded that the trial court properly denied the motion.
I.C. also argued that he should be given a new trial because the trial court erred by refusing to give special jury instructions emphasizing the special duty of care owed by schools to students. In particular, I.C. argued that schools have an affirmative duty to take reasonable steps to protect students, school authorities must provide adequate supervision and proper training to staff, and the District’s duty includes protecting students from foreseeable harm, even from third parties.
The Court of Appeal again disagreed. It reasoned that the jury was already properly instructed on negligence, including the duty of care owed by school personnel. The core issue was not whether the District had a duty to protect students (which was undisputed), but whether Godinez acted negligently, which the jury resolved in his favor.
The Court found that the rejected instructions would not have changed the outcome since the standard of care was adequately covered by the instructions given.
Finally, I.C. argued that the trial court improperly excluded I.C.’s expert, Douglas Dickerson. The trial court excluded Dickerson because he lacked relevant expertise in teacher training and classroom management. The appellate court affirmed, noting that:
• Mr. Dickerson’s background was in law enforcement and juvenile delinquency, not in education policy or teacher training.
• His testimony would not have provided meaningful insight into how teachers should intervene in student altercations.
• The jury could evaluate the video evidence themselves without needing an expert to interpret what happened.
Additionally, the trial court also excluded the District’s expert on school safety policies, ensuring neither side had an expert advantage.
The California Court of Appeal affirmed the trial court’s ruling, rejecting all of I.C.’s arguments.
I.C. v. Compton Unified School Dist. (Jan. 15, 2025) ___Cal.App.5th___ [2025 Cal. App. LEXIS 62].)
Note:
Although this case concerns a public school district, private schools also have a duty of care to protect students.
discrimination
University’s Pay Practices Upheld
as NonDiscriminatory Despite Gender-Based Disparity.
Jennifer Williams, a seasoned professional in athletic administration, began her tenure at Alabama State University (ASU) in 2016 as the Deputy Director of Intercollegiate Athletics. She was hired at a $95,000 salary and tasked with managing the University’s 18 sports programs, budgeting, and personnel oversight. By 2017, Williams was promoted to Interim Athletic Director, earning $125,000. In 2018, Williams became the permanent Athletic Director with an increased salary of $135,000—higher than her male predecessors, who earned $125,000.
Williams’ background included roles at DePaul University and North Carolina A&T State University, which focused primarily on development and marketing rather than direct athletic administration. She had only two years of direct experience in athletics leadership by the time she assumed the role of Athletic Director at ASU. Despite her relatively limited experience, ASU adjusted its hiring criteria to accommodate her qualifications.
In May 2021, Williams resigned, taking a position at a different organization, and was celebrated by ASU with a press release and a farewell event. After her departure, ASU adjusted its job posting for the Athletic Director position to seek candidates with 7-10 years of leadership experience and, if possible, a doctoral level degree.
Dr. Jason Cable, the eventual hire, held a Ph.D. in Higher Education Administration and had over 13 years of progressively senior experience in athletic administration, including a role as Senior Associate Commissioner of the Southwestern Athletic Conference, the conference in which ASU competes. Dr. Cable’s salary was negotiated at $170,000 to reflect his advanced qualifications and extensive experience.
Williams filed suit, bringing claims under the Equal Pay Act (EPA) alleging wage discrimination based on sex; the ClarkeFigures Equal Pay Act (CFEPA), a state-law equivalent to the EPA; and Title IX, claiming sex-based discrimination in employment terms and conditions. Williams argued that the $35,000 pay disparity between her and Dr. Cable for the same role was discriminatory and unjustified under these laws.
The trial court found in favor of ASU and Williams appealed.
For EPA and CFEPA claims, plaintiffs must show wage disparity between sexes for jobs requiring equal skill, effort, and responsibility performed under similar conditions. Once the plaintiff establishes a prima facie case, the burden shifts to the employer to prove that the difference in pay is justified by one of four exceptions: (1) seniority systems; (2) merit systems; (3) systems measuring earnings by quantity or quality of production; or (4) differentials based on factors other than sex.
Williams alleged that ASU paid her less than Dr. Cable solely due to her sex. She argued that the additional qualifications and experience cited for Dr. Cable were either irrelevant or exaggerated.
ASU contended that the pay disparity was based on Dr. Cable’s objectively superior qualifications, including his terminal degree, extensive administrative experience, and unique role in the sports conference’s leadership. These factors constituted a “differential based on factors other than sex,” under the EPA and CFEPA.
The Court found that Williams established a prima facie case of wage disparity, as her successor, a male, was paid more for the same position.
However, the Court determined that ASU met its burden of proving a legitimate, nondiscriminatory basis for the disparity. Dr. Cable’s qualifications—such as his Ph.D.,
extensive administrative experience, and pivotal role in the conference—justified the higher salary. ASU’s decision to increase the job requirements post-Williams’ resignation further supported this conclusion.
The Court emphasized that ASU’s decision to pay Dr. Cable a higher salary stemmed from legitimate business considerations, including his qualifications and market demands. Williams’ prior salary, while lower, reflected her limited experience in athletics administration and the University’s accommodation of her qualifications at the time of her hiring.
The Court of Appeals also dismissed Williams' Title IX claim, citing the Eleventh Circuit's recent decision in Joseph v. Board of Regents of the University System of Georgia. That precedent clarified that Title IX does not provide an implied private right of action for employees alleging sex discrimination in employment. While Title IX allows students to bring claims of sex discrimination against federally funded educational institutions, the Court determined that such protections do not extend to employment disputes.
The Court of Appeals upheld the trial court’s summary judgment in favor of ASU on all three claims.
Williams v. Ala. State Univ. (11th Cir. 2024) 2024 U.S. App. LEXIS 32498.
Note:
This case serves as an important reminder that schools should have documentation supporting disparity in pay, particularly when increasing the base salary for a position after an employee leaves.
LCW In The News
To view these article and the most recent LCW attorney-authored articles, please visit: www.lcwlegal.com/ news.
• Recently published in Reuters and Westlaw Today, LCW Partner Mark Meyerhoff and Senior Counsel David Urban explore the doctrine of claim preclusion as a defense in lawsuits filed by faculty challenging their termination, particularly in cases involving academic freedom claims under the First Amendment. Meyerhoff and Urban explain how administrative hearings can serve as a critical defense, potentially barring subsequent litigation if the issues have already been adjudicated. They provide a hypothetical example illustrating how a faculty member’s lawsuit, claiming a violation of academic freedom, could be dismissed based on claim preclusion if the administrative process met fairness standards. Meyerhoff and Urban emphasize the importance of understanding this defense for public colleges and universities, advising institutions to leverage administrative hearings as a strategic tool to minimize the risk of costly litigation.
To access the full article, please click the following link: https://today.westlaw.com/Document/ I8e4a6656d7f311ef9414a3339bb4cd91/View/FullText.html?transitionType=SearchItem&contextData=(sc. Search)
ministerial exception
Court Holds That School Principal Falls Under The Ministerial Exception.
Peter Chapla served as the principal of Father Judge High School, a Roman Catholic school, from June 2018 to June 2022. The School is operated by the Office of Catholic Education and the Archdiocese of Philadelphia and is explicitly focused on developing young adults through Catholic value-based education.
Chapla applied for the principal position in 2018 and was required to submit a letter from his pastor confirming his active participation in a Roman Catholic parish. Chapla obtained the letter and later accepted the position. Upon being hired, he was formally inducted during a Mass where he pledged to administer the School with the authority of the Office of Catholic Education and the Oblates of St. Francis de Sales.
As principal, Chapla had major responsibility for the School’s religious education program. His duties included:
• Overseeing campus ministry and religious retreats, including proposing and implementing faculty retreats focused on Catholic spirituality.
• Attending and participating in every school Mass, sometimes serving as a Eucharistic minister.
• Leading prayers at faculty meetings and sending prayerful messages to the school community.
• Supervising and evaluating theology teachers, assessing their adherence to Catholic teachings.
• Encouraging the incorporation of Salesian virtues into school programming.
Despite his role in the School’s religious mission, Chapla alleged that his termination in June 2022 was abrupt and motivated by age and health-related discrimination. He then filed suit under multiple employment discrimination statutes, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), the Pennsylvania Human Relations Act (PHRA), and the Philadelphia Fair Practices Ordinance (PFPO).
The School, the Archdiocese, and the Office of Catholic Education (Defendants) moved for summary judgment, arguing that the Ministerial Exception barred Chapla’s claims. The Ministerial Exception is a legal doctrine rooted in the First Amendment, which prevents courts from interfering in employment disputes involving religious leaders or key employees responsible for conveying religious doctrine.
The ministerial exception applies to employees with significant religious responsibilities, even if they do not hold an official ministerial title. Courts consider multiple factors in determining whether an employee is a “minister,” including the employee’s title and job description, participation in religious rituals, religious teaching responsibilities, and the employer’s expectations of the employee’s religious role.
Applying this framework, the Court found ample evidence that Chapla’s position was religious in nature, emphasizing: his formal induction during Mass, where he pledged to uphold Catholic values; his direct oversight of religious education, campus ministry, and theology faculty; his active participation in school Masses, retreats, and religious programming; and his role in integrating Salesian virtues into the School’s curriculum.
Chapla argued that his job was primarily administrative, but the Court rejected this distinction, holding that the ministerial exception is not negated by the presence of administrative duties, and that what matters most is whether the employee played a key role in conveying the religious mission of the institution. Here, the Court found that Chapla was responsible for living the mission day in and day out, serving as a “pastor” of the School, and overseeing the Catholic culture of the School. The Court also reasoned that an employee who supervises spiritual functionaries performs spiritual functions themselves, as Chapla did in overseeing the theology teachers.
The Court ruled that Chapla’s role as principal was ministerial in nature, making him subject to the ministerial exception. Because the First Amendment prohibits courts from interfering in religious employment decisions, Chapla’s claims under the ADA, FMLA, ADEA, PHRA, and PFPO were barred as a matter of law. The Court granted summary judgment in favor of the School and dismissed the case.
Chapla v. Father Judge High Sch. (E.D.Pa. Jan. 29, 2025) 2025 U.S.Dist.LEXIS 15417.
Note:
This case reinforces that the ministerial exception extends beyond ordained clergy and can apply to lay employees with significant religious responsibilities.
new to the Firm!
Hannah Casey is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she supports clients with advice and counsel on education, labor, and employment law matters.
Jack Jackson is an Associate in the Fresno office of Liebert Cassidy Whitmore, where he provides legal counsel to public agencies on a wide range of municipal and employment law matters.
Nicole A. Powell is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she provides advice and counsel on labor and employment law matters.
Title ix
Court Holds Title IX Claim Against Private School For Teacher Misconduct Is Time-Barred.
St. Peter-Immanuel Lutheran Church and School, located in Milwaukee, Wisconsin, employed Elizabeth Dillett as both a kindergarten teacher and the School's athletic director in 2015. J.S. had previously attended the School, graduating in 2014, and later worked there as a part-time janitor.
In January 2015, when J.S. was 14 years old, he began working under Dillett’s supervision. Initially, their interactions were allegedly professional and appropriate, but Dillett began engaging in behaviors that progressively escalated into misconduct. J.S. contended that these behaviors included providing food and gifts to J.S., offering him rides home from school, engaging in sexual conversations that became more explicit over time, and ultimately engaging in repeated sexual intercourse with him.
At some point before December 2015, rumors began circulating within the School community regarding Dillett's alleged sexual relationships with multiple former students, including J.S. A concerned parent, whose child had heard these rumors, reported the allegations to Amy Peuchner, the School’s principal at the time. Peuchner allegedly dismissed the concerns, characterizing the matter as a private issue between J.S.’s mother and Dillett, rather than one requiring formal school intervention.
Following this report, Peuchner organized a meeting attended by the complaining parent, J.S.’s mother, and Dillett. During this meeting, Dillett allegedly denied the accusations and J.S.’s mother requested a formal school investigation, but her request was denied.
Meanwhile, J.S. remained unaware of the meeting, and his inappropriate relationship with Dillett continued for at least four more months.
In April 2016, J.S.’s father discovered explicit text messages between his son and Dillett. When confronted, J.S. admitted to the relationship. His parents immediately confronted Dillett about her conduct, reported the matter to Child Protective Services (CPS), and triggered an investigation, which ultimately led to Dillett’s arrest and incarceration.
Despite these events, J.S. alleged that he remained in psychological denial regarding the nature of the relationship. He claimed that only on March 30, 2023, through therapy, did he come to understand that he had suffered emotional and psychological harm as a result of Dillett’s misconduct. Additionally, J.S. contended that he did not learn until May 14, 2024 that a concerned parent had previously reported the relationship to the School.
J.S. filed a lawsuit on July 2, 2024, asserting a Title IX claim against St. Peter-Immanuel Lutheran Church and School, arguing that the School failed to act upon notice of teacher-student sexual misconduct. J.S. also alleged a number of state claims, including battery, intentional infliction of emotional distress, and breach of fiduciary duty against Dillett, and vicarious liability against St. Peter-Immanuel for Dillett’s actions.
St. Peter-Immanuel filed a motion to dismiss, arguing that the Title IX claim was untimely under Wisconsin’s six-year statute of limitations for personal injury claims. St. Peter-Immanuel also argued that the court should decline to exercise jurisdiction over the remaining state law claims, as the sole federal claim (Title IX) was timebarred.
The Court agreed with St. Peter-Immanuel, finding that J.S.’s Title IX claim was untimely based on the six-year statute of limitations applicable to personal injury claims in Wisconsin. The Court held that a Title IX claim accrues when a school has actual notice of misconduct and fails to act. In this case, the School was put on notice in December 2015, when a concerned parent reported the allegations. The six-year statute of limitations began running at that time, meaning that
J.S. had until December 2021 to file his lawsuit. Because J.S. did not file suit until July 2, 2024, his claim was barred by the statute of limitations.
J.S. argued that his claim should be considered timely under Wisconsin’s discovery rule, which tolls accrual until the plaintiff discovers or with reasonable diligence should have discovered the claim. J.S. asserted that his claim did not accrue until March 30, 2023, when he realized his emotional injuries through therapy. The Court rejected this argument, holding that Wisconsin law does not allow delayed accrual based on psychological denial.
J.S. also argued that his claim should be considered timely under the doctrine of equitable tolling, reasoning that the limitations period should be tolled because he was unaware that the School had prior notice of Dillett’s misconduct. The Court rejected this argument, too, and found that J.S.’s mother was aware of the School’s inaction as early as April 2016, when she reported it to CPS.
Because the only federal claim (Title IX) was dismissed, the Court declined to exercise supplemental jurisdiction over J.S.’s state law claims. The Court granted St. Peter-Immanuel’s motion to dismiss with respect to the Title IX claim and dismissed J.S.’s state law claims without prejudice, allowing him to pursue them in state court if he chooses.
Strong v. St. Peter-Immanuel Lutheran Church (E.D.Wis. Jan. 27, 2025) 2025 U.S.Dist.LEXIS 13627.
Note:
LCW will continue to monitor this case, particularly for the vicarious liability claim should J.S. refile in state court. Vicarious liability is the legal principle that an employer may be responsible for the actions of their employees if engaging in conduct within the scope of their employment.
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discrimination Students
U.S. Department of Education Investigation
Finds UCLA Did Not Violate Civil Rights Laws.
The U.S. Department of Education’s Office for Civil Rights (OCR) conducted an investigation into a complaint filed against the University of California, Los Angeles (UCLA). The complainant alleged that UCLA failed to appropriately respond to a student’s complaint of harassment based on shared Jewish ancestry, in violation of Title VI of the Civil Rights Act of 1964.
The complaint stemmed from events surrounding the 2018 National Students for Justice in Palestine (NSJP) conference held on UCLA’s campus. The student alleged that he was subjected to antisemitic harassment during and after the conference and the University did not take adequate steps to address his concerns.
Under Title VI, institutions receiving federal funds must take prompt and effective action to address national origin-based harassment that creates a hostile environment. A violation occurs when: (1) a hostile environment exists based on national origin; (2) the institution has actual or constructive notice of the harassment; and (3) the institution fails to take prompt and effective steps to address the harassment and prevent its recurrence. OCR applies a totality-of-the-circumstances test to determine whether conduct is severe or pervasive enough to create a hostile environment.
UCLA enrolls over 45,000 students and hosts more than 1,200 student organizations, including groups representing both Jewish and Palestinian perspectives. The NSJP conference, held in November 2018, sparked significant controversy, with multiple stakeholders urging UCLA to either cancel or allow the event. In particular, the complainant, a student at UCLA, alleged that:
• While tabling near the conference venue, he and other students from Students Supporting Israel (SSI) were subjected to antisemitic rhetoric, including chants of
“from the river to the sea, Palestine will be free,” which he perceived as a call for the eradication of Israel.
• On another occasion, unidentified individuals dressed in “pro-Palestinian garb” shouted phrases like “free Palestine” and “go home” at him while he was walking on campus.
• He felt unsafe walking across campus, even though he did not directly encounter anyone who harassed him.
UCLA responded to the broader controversy surrounding the NSJP conference in multiple ways, including:
• Engaging with student organizations, including SSI, to provide support and coordinate counter-programming.
• Allowing SSI to host an alternative event near the conference venue.
• Ensuring a police presence at the conference.
• Issuing a public statement from the University chancellor addressing concerns about antisemitic rhetoric and reaffirming UCLA’s commitment to free speech.
Despite these actions, the student did not formally report harassment to UCLA administrators or file a complaint through any of the University’s reporting channels. UCLA officials, including the Vice Chancellor for Equity, Diversity, and Inclusion and the Director of Student Organizations, Leadership, and Engagement, stated that no student, including the complainant, reported specific incidents of harassment related to the conference.
OCR determined that there was insufficient evidence to conclude that UCLA violated Title VI. The investigation found that:
• UCLA took proactive steps to address concerns about the conference and maintained neutral policies regarding student events.
• The complainant did not file a formal complaint or report harassment through available University channels.
• University officials were aware of tensions on campus but were not informed of specific incidents of harassment requiring an institutional response.
• UCLA’s response to general concerns about the conference, including outreach efforts, safety measures, and support for counter-programming, was timely and reasonable.
Because UCLA did not have actual or constructive notice of a hostile environment and took reasonable measures to address concerns raised before the conference, OCR concluded that the University did not violate Title VI.
The full resolution letter can be found here.
Note:
Recently, there have been very few cases where OCR found that the educational institution took the necessary steps to comply with their legal obligations under Title VI. Although Title VI only applies to schools receiving federal funding, this letter provides helpful guidance to independent schools navigating similar situations.
AFFIRMATIVE aCTION
Court Denies Preliminary Injunction Due to Lack of Standing in Challenge to Racial Eligibility Criteria in McNair Program.
The Ronald E. McNair Postbaccalaureate Achievement Program (McNair Program) was established by Congress in 1987 to assist disadvantaged students in preparing for doctoral studies. The Department of Education administers the program, awarding competitive five-year grants to higher education institutions to implement McNair projects.
The program's eligibility criteria include two distinct pathways for student participation: (1) low-income, first-generation college students; and (2) students from racial groups underrepresented in graduate education, as defined by statute and regulation. The racial eligibility criteria include Black (non-Hispanic), Hispanic,
American Indian, Alaska Native, Native Hawaiian, and Native American Pacific Islander students.
The Young Americans for Freedom, Young America’s Foundation, Avery Durfee, and Benjamin Rothove filed suit against the U.S. Department of Education and Secretary Miguel Cardona. The plaintiffs challenged the racial eligibility requirement, alleging that it violated the Equal Protection Clause of the U.S. Constitution and constituted an unlawful regulatory action under the Administrative Procedure Act (APA).
The individual plaintiffs, Avery Durfee, a third-year student at the University of North Dakota, and Benjamin Rothove, a sophomore at the University of WisconsinMadison, alleged that they wanted to apply for the McNair Program but refrained from doing so because they were ineligible under the racial criteria. They argued that the policy harmed their personal dignity and denied them equal treatment in the application process. In addition, Young America’s Foundation and Young
Americans for Freedom, both of which are student organizations, argued that they had other members who would apply to the McNair Program but were excluded due to their race.
The plaintiffs sought a preliminary injunction to prohibit the Department of Education from enforcing or implementing the racial eligibility requirements.
The plaintiffs advanced two main claims. First, they argued that the racial eligibility criteria constituted racebased discrimination and violated the Equal Protection Clause of the Fifth Amendment. Second, they claimed the Department of Education’s regulations improperly imposed racial classifications beyond the statutory authority granted by Congress.
The Department of Education did not directly dispute the merits of the Equal Protection claim, particularly in light of the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. Harvard (2023), which heightened scrutiny of race-based admissions policies. Instead, the government argued that plaintiffs lacked standing to bring the case.
To establish standing under Article III of the U.S. Constitution, a plaintiff must show (1) an injury-in-fact that is concrete and particularized, (2) a causal connection between the injury and the defendant’s conduct, and (3) that the injury is redressable by a favorable court decision.
The government argued that neither Durfee nor Rothove actually applied for the McNair Program, and even if they had applied, they would have been ineligible for other reasons, namely, not qualifying under the low-income, first-generation student category. The government also noted that the Department of Education does not directly control program admissions, as universities independently select participants.
In considering the injury-in-fact, the Court acknowledged that in an Equal Protection case, plaintiffs do not need to apply for a program to claim harm if the policy itself creates a barrier to equal treatment. However, the Court found the plaintiffs’ alleged injuries speculative since they had not even attempted to apply and were possibly ineligible for other reasons.
In terms of redressability, the Court reasoned that the Department of Education only administers funding but does not directly admit students to the program. The University of North Dakota and University of WisconsinMadison independently screen and select applicants, meaning an injunction against the Department would not compel those universities to change their admissions policies. The Department had already allocated funding for the McNair Program through 2027, so any relief would not affect current funding cycles. The Court noted that the University of North Dakota and the University of Wisconsin-Madison were not named defendants, meaning the Court had no authority to order them to change their admissions policies.
The Court also determined that the organizational plaintiffs, Young America’s Foundation and Young Americans for Freedom, failed to establish standing because if individual members lacked standing, the organizations could not assert claims on their behalf.
The Court dismissed the case without prejudice, meaning the plaintiffs may refile the lawsuit in the future with properly named defendants, including universities administering the McNair Program.
Young Americans for Freedom v. U.S. Dep't of Educ. (D.N.D. Dec. 31, 2024) No. 3:24-cv-00163.
Note: This case is another recent affirmative action challenge following the Supreme Court’s ruling in the Students for Fair Admission. For private K-12 schools, this case highlights the importance of reviewing affirmative action-based scholarship programs to ensure compliance with evolving legal standards, particularly as challenges to race-conscious policies continue. LCW will monitor this case for developments.
business&facilities
Permitting Third Party Discovery in Employee Arbitration Agreements.
In Vo v. Technology Credit Union, Thomas Vo was hired by Technology Credit Union (TCU) in 2020 and was required to sign an arbitration agreement at that time.
TCU terminated Mr. Vo after he contracted COVID-19 and was facing long-term health issues. Mr. Vo sued TCU for wrongful termination, discrimination, and harassment under the Fair Employment and Housing Act (FEHA).
TCU sought to enforce arbitration on Mr. Vo’s claims based on the signed arbitration agreement. Mr. Vo argued the arbitration process was unfair because it restricted his ability to perform discovery and collect evidence from third parties before the hearing.
The trial court denied TCU’s motion to compel arbitration, ruling that the arbitration agreement was unconscionable as it was unfairly one-sided. The court referenced Aixtron, Inc. v. Veeco Instruments Inc. (2020), which determined that the JAMS arbitration rules in place at the time did not permit arbitrators to compel third-party discovery before a hearing.
The judge concluded that this restriction could prevent Mr. Vo from securing critical evidence to support his claims, making the arbitration agreement fundamentally unfair.
The California Court of Appeal reversed the trial court’s ruling. The appellate court relied on the California Supreme Court’s recent decision in Ramirez v. Charter Communications, Inc. (2024), which clarified that arbitration agreements should be interpreted to give arbitrators broad discretion in allowing necessary
discovery, including from third parties. The court took a pro-arbitration approach, emphasizing that arbitration rules should be read expansively to ensure fair access to evidence and due process.
As a result, the appellate court directed the trial court to grant TCU’s motion to compel arbitration and pause the lawsuit. This ruling reinforces the enforceability of arbitration agreements, particularly those structured to allow arbitrators to permit necessary discovery.
Employers should ensure their arbitration agreements are crafted carefully to explicitly allow for reasonable discovery to avoid enforceability challenges. Regularly reviewing arbitration agreements is key to ensure enforceability and keep up with evolving legal requirements.
Vo v. Technology Credit Union, 2025 WL 1234567 (Cal. Ct. App. 2025).
Considerations for Private Schools Planning to Allow Third Parties to Use Their Facilities.
Renting facility space can be a great way for a private school to generate additional revenue, especially during the summer months when school is not in session. However, schools must carefully consider the following factors before making these arrangements:
1. Utilizing a Lease or a Facilities Use Agreement (FUA)
A lease is an agreement granting a third party the exclusive right to occupy the school’s real property for
a specific period. The lease typically gives the tenant exclusive possession and use of the property, meaning the tenant may generally exclude the owner from the premises. A leasehold interest is typically transferable and irrevocable, unless otherwise stated in the lease agreement.
In contrast, a Facilities Use Agreement (FUA) typically conveys a license to use the facility for an event or a certain period of time, rather than providing a leasehold interest. Unlike a lease, an FUA does not grant extensive property rights. Instead, it permits a third party to use the school’s property for a specified purpose. A FUA is usually non-transferable, revocable, and can be either exclusive or non-exclusive.
Ultimately, the language of the FUA determines the rights a school will grant to the third party. If the school intends to provide a license for temporary use rather than an exclusive possessory interest, it should use an FUA rather than a lease.
2. Unrelated Business Income Tax (UBIT)
Unrelated Business Income Tax (UBIT) is a tax imposed on income generated by tax-exempt organizations from business activities that are not substantially related to their exempt purpose. This is important because excessive UBIT may jeopardize a private school’s tax-exempt status.
Determining whether income from facility use is subject to UBIT is highly fact-specific and depends on multiple factors.
Ways to Avoid UBIT:
• Rent to users aligned with the school’s educational purpose or mission (e.g., nonprofit organizations or educational groups).
• Charge reasonable fees for facility use rather than excessive market-rate rents.
• Ensure that facility rentals do not constitute a substantial or disproportionate portion of the school’s gross income.
• Avoid providing substantial services to facility users.
Acceptable incidental services: Heating, lighting, trash collection.
Services that may trigger UBIT: Event staffing, catering, event coordination.
Please be aware that renting facilities to for-profit or non-charitable entities may jeopardize a school’s property tax welfare exemption. Schools should consult with their legal counsel prior to making these types of arrangements.
3. Insurance and Indemnification
If a school allows a third party to use its facilities, the contract should include indemnification and insurance provisions to protect the school and to reduce potential liability and risk.
An indemnification provision can protect the school from lawsuits or claims related to incidents that occur during the third party’s use of the facility. The FUA should also include a duty to defend clause, requiring the third party to provide a defense for the school for any litigation or claims asserted against the school.
Users should also be required to maintain adequate insurance coverage based on the type of use of the school’s facilities and provide proof of that insurance before they use the facilities. Schools should check with their broker to ensure that the user provides sufficient coverage. The school should ensure endorsements on the policies name the school as an additional insured and waive rights of subrogation against the school.
4. Termination
Schools should ensure the FUA includes their right to terminate the FUA and stop the event at any time and for its own convenience, including during the event itself. This will give the school the right to immediately stop an event or use of its facilities if a user or that user’s guests or invitees are not following the school’s rules or are otherwise not complying with the FUA.
Final Considerations
Private schools should carefully evaluate these factors before agreeing to allow third parties to use their facilities. A well-drafted agreement is the best way to minimize risks and liability. Schools should consult trusted legal counsel before entering into any agreements to ensure all potential risks are fully assessed.
cases we are watching
• St. John Bosco High School and its head football coach, Jason Negro, are facing a lawsuit filed by three former employees, including the School’s former president, who allege that the program engaged in embezzlement to cover tuition costs for top recruits. The former employees allege that they were required to handle program revenues exclusively in cash without proper oversight or record-keeping, storing substantial amounts of cash in a personal office safe, and using funds for personal expenses such as staff retreats. The former employees also allege that assistant coaches were directed to deliver cash payments to cover players' overdue tuition, potentially violating California Interscholastic Federation bylaws. The former employees claim they were wrongfully terminated as a way to protect the football program from scrutiny over these alleged illegal activities.
• A group called Students Against Racial Discrimination has filed a lawsuit against The Regents of the University of California, alleging that the UC system unlawfully uses racial preferences in admissions at all nine campuses, in violation of Title VI of the Civil Rights Act, 42 U.S.C. section 1981, and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs argue that these policies discriminate against Asian American and white applicants, allowing students from underrepresented racial groups to gain admission with lower academic credentials. The complaint also asserts that the UC system has implemented "holistic" admissions policies as a way to circumvent California’s Proposition 209, which prohibits race-based affirmative action in public education. The lawsuit seeks injunctive relief to prohibit the use of race in admissions decisions, prevent applicants from disclosing their race, and appoint a court monitor to oversee UC admissions to ensure compliance with antidiscrimination laws.
• Former preschool director Katherine Diaz and the Westminster Schools, a private school in Georgia, agreed to bear their own costs and expenses and drop Diaz’s case against the School. Diaz, who is of Filipino, Chinese, and Japanese descent, sued the School, alleging she faced disparaging comments from her supervisors, and that the School withheld her pay and threatened to expel her son who was enrolled there, if she spoke out against the School. Westminster argued that Diaz’s firing was due to her encouraging colleagues to call out of work in order to “stick it” to the School, and that none of the alleged racist comments constituted discrimination. LCW covered this case previously.
• The NCAA and a group of Division I volunteer baseball coaches have agreed to settle a proposed antitrust class action lawsuit that challenged the organization’s since-repealed “uniform wage fix” bylaw that prevented volunteer coaches from getting compensated market value for their services. The underlying lawsuit alleged that the NCAA conspired with member schools to illegally fix the number of assistant coaches that Division I baseball teams may employ, thereby setting compensation of additional “volunteer” coaches at zero dollars. The suit alleged that the NCAA and member schools violated federal and California antitrust law because the rules made it so the NCAA faced little competition from other buyers, allowing them to set prices or wages at a lower level than in a competitive market. The trial court had previously held that the arrangement was a horizontal price fixing scheme.
did you know...?
• Private nonprofits and faith-based groups impacted by the Los Angeles County Wildfires may be eligible for Federal Emergency Management Agency (FEMA) relief in order to restore damaged or destroyed facilities. To apply, organizations must submit a Request for Public Assistance (RPA) by March 9, 2025. Organizations are also advised to apply with the U.S. Small Business Administration for a low-interest disaster loan. More information, including eligibility requirements and the process for submitting the RPA, can be found here
• The Consumer Financial Protection Bureau has issued guidance asserting that employers must comply with the Fair Credit Reporting Act (FCRA) when using background dossiers, algorithmic scores, or other thirdparty consumer reports for employment decisions such as hiring, promotion, or retention. This includes obtaining the worker's consent before procuring a consumer report, providing necessary notices before and upon taking adverse actions based on the report, and ensuring that consumer reports are used solely for permissible purposes as outlined in the FCRA. This guidance also impacts employers utilizing third-party vendors for employee screening, monitoring, or assessment. The guidance can be found here.
• The Federal Trade Commission (FTC) has finalized updates to the Children's Online Privacy Protection Rule (COPPA), enhancing safeguards for children's online data. The revised rule mandates that parents must actively opt in to allow third-party targeted advertising involving their children, thereby prohibiting platforms and service providers from sharing or monetizing children's data without explicit parental consent. Under COPPA, schools may have certain obligations when it has students use third-party commercial apps that collect personally identifiable info about students under 13 years old. Specifically, if the School gives consent on behalf of parents, the FTC recommends that the School provide copies of the privacy policies to parents. In addition, some third-party companies, such as Google, require that schools obtain authorization from parents to provide the consent required under COPPA. The updated rule can be found here
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lcw best timeline
JANUARY/FEBRUARY
Review and revise/update annual employment contracts.
Conduct audits of current and vacant positions to determine whether positions are correctly designated as exempt/non-exempt under federal and state laws.
FEBRUARY 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.
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.
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.
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 not operating 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.
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.
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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:
In light of President Trump’s recent Executive Order regarding immigration, a school administrator reached out asking for best practices and considerations in the event of an ICE raid on campus.
Answer:
The LCW attorney advised that some best practices and considerations include the following:
• Designate an administrator or “point person” to contact, such as the Head of School, when an ICE agent arrives at the school.
• Request the individual’s name, badge or ID number, telephone number and business card before allowing the agent to enter the school.
• Ask the officer to produce any documentation that authorizes school access.
Unless there is “exigent circumstances,” the agent must produce a signed, federal judicial warrant, which may be a search and seizure and/or arrest warrant.
ICE may produce an administrative arrest, removal warrant, or an administrative subpoena. These documents are not judicial warrants and do not authorize an agent to access the school’s non-public areas or access otherwise private information.
• While a school must comply with a federal judicial warrant, LCW recommends, if feasible, consulting with legal counsel to evaluate the language in the documentation provided to determine the appropriate response.
• Take detailed notes.
Additionally, the attorney recommended that schools consult an immigration attorney for support in developing these policies.
The attorney also noted the following legal considerations for employees:
• California Labor Code section 90.2 requires that employers notify an employee within 72 hours following a federal agency’s request to inspect an employee’s I-9 Form.
• Section 7285.1 of California’s Government Code law currently prohibits employers from voluntarily allowing ICE agents to access to non-public areas of their workplaces or employee records without a judicial warrant.
• An employer may take an agent to a non-public area, where employees are not present, for the purpose of verifying the warrant.
• Section 7285.2 of California’s Government Code law prohibits employers from allowing ICE agents to access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.
For more information, the attorney directed the School to LCW’s Special Bulletin.
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