Private Education Matters
EMPLOYEES
Contributors:
Grace Chan Partner | San Francisco
Hannah Dodge Associate | San Francisco
Christopher Fallon Partner | Los Angeles
Madison Tanner Associate | San Diego
nlra
NLRB Rules Religious Pre-School Is Exempt From Its Jurisdiction.
The Jewish Community Center of Greater Columbus (JCC-GC) operates three early childhood education facilities in Columbus, Ohio serving approximately 400 children, ranging from infants to five-year-olds. JCC-GC’s curriculum incorporates Jewish religious instruction, including Hebrew language lessons and celebrations of Jewish holidays, and follows Jewish customs such as Kashrut dietary laws and Shabbat observance.
The Ohio Council 8, American Federation of State, County & Municipal Employees, and AFL-CIO filed a petition under Section 9(c) of the National Labor Relations Act (NLRA) seeking to form a union for the approximately 117 teachers at JCC-GC’s Early Childhood Learning Community facilities.
The central issue in the case was whether the National Labor Relations Board (Board) had jurisdiction over the JCC-GC or whether it was exempt as a religious institution under the framework established in Bethany College, 369 NLRB No. 98 (2020). Under the Bethany College test, the Board evaluates three key factors: (1) whether the employer held itself out as providing a religious educational environment, (2) whether it was a nonprofit, and (3) whether it was affiliated with or controlled by a recognized religious organization.
The JCC-GC is registered as a 501(c)(3) nonprofit organization and according to their tax documents, operates as “a nonprofit human services organization offering a varied program that is Jewish in nature.” JCC-GC facilities are licensed by the Ohio Department of Jobs and Family Services but are not classified as non-chartered, non-public schools by the Ohio Department of Education.
The JCC-GC is governed by a Board of Trustees, whose membership is limited to individuals from the Jewish community of Greater Columbus. The JCC-GC also
maintains affiliations with Jewish religious institutions, including Beth Tikvah Synagogue and the Va’ad Ho’ir, a rabbinic authority that supervises the organization’s kosher dietary practices. These elements, the JCC-GC argued, demonstrate that it is a religious educational institution exempt from the Board’s jurisdiction.
The union, however, contended that the JCC-GC is not a religious school but rather a general human services agency that happened to operate a childcare center. It pointed to the fact that the JCC-GC is regulated as a childcare facility rather than a religious school under Ohio law and argued that Bethany College should be applied only to higher education institutions, not preschools. The union also maintained that requiring Board members to be part of the Jewish community did not necessarily mean the organization was controlled by a religious entity.
The Board ruled that the Bethany College test was not limited to institutions of higher education and applied in this case because the JCC-GC is a “religious educational institution.”
The Board also found that the JCC-GC met all three criteria under Bethany College
Under the first prong, the Board found that the JCCGC holds itself out as a religious educational institution by incorporating Jewish values and traditions into its preschool curriculum, including Hebrew language instruction and the observance of Jewish holidays. Additionally, the organization’s employee and parent handbooks emphasize its Jewish identity, requiring adherence to Kashrut dietary laws and Shabbat observance, reinforcing its religious nature.
Under the second prong, the Board noted that the JCCGC is organized as a 501(c)(3) nonprofit organization, a fact that was undisputed by both parties.
Under the third prong, the Board determined that the JCC-GC is affiliated with religious organizations through its relationship with the Va’ad Ho’ir (rabbinic
authority), Beth Tikvah Synagogue, and religious oversight of its kosher food policies. Furthermore, the Board of Trustees, which governs the JCC-GC, requires that all members be part of the Jewish community, demonstrating religious affiliation and oversight sufficient to satisfy this prong.
Additionally, the Board determined that while the JCCGC offers secular programming, its religious identity was deeply integrated into its operations. Because the JCC-GC satisfied the Bethany College test, the Board concluded that it lacked jurisdiction over the organization and dismissed the petition.
Jewish Community Center of Greater Columbus, 372 NLRB No. 121 (2025).
Note:
This case affirms that the Bethany College test does not only apply to higher education institutions. The Bethany College test is a relatively simple test to meet, meaning that many religious schools may satisfy the criteria and be exempt from the National Labor Relations Act.
New Administration, New Labor Policies: How
Changes to Federal Guidance May Benefit California
Private Schools.
The National Labor Relations Board (NLRB) is an independent federal agency responsible for enforcing U.S. labor laws. It oversees private-sector employees’ rights to form unions, engage in collective bargaining, and even draft policies or severance agreements. California private schools fall under the jurisdiction of the NLRB even if they are not unionized.
Changes in Presidential administrations often influence the NLRB’s positions, as board members are appointed by the sitting president and typically reflect the administration’s labor policies. This year seems no different. On February 14, 2025, the NLRB’s Acting General Counsel, William B. Cowen, rescinded several memoranda issued during the Biden administration. This action followed the Executive Order issued by President Trump titled “Initial Rescissions of Harmful Executive Orders and Actions,” which mandated the review and rescission of certain policies from the previous administration.
General Counsel memoranda do not have the authority of law or regulation. Rather, the memoranda are issued
to NLRB field offices and Washington offices by the General Counsel to provide policy guidance. The rescinding of the Biden era memoranda, suggest a significant shift in the NLRB’s priorities.
Here are some of the key changes affecting California private schools:
1. Severance Agreements: The rescission of Memorandum GC 23-05 withdraws prior NLRB guidance restricting non-disparagement clauses and confidentiality agreements in severance agreements. In a severance agreement, the employer typically offers the employee a sum of money in exchange for the employee relinquishing certain rights, such as the right to sue the employer. The memo had advised that the use of non-disparagement and confidentiality provisions in severance agreements violated employees’ rights under Section 7 of the National Labor Relations Act (NLRA) as they could prevent employees from discussing workplace misconduct, discrimination, or union-related activities. The rescission action intimates fewer limitations on including these types of provisions in severance agreements.
2. Electronic Monitoring and Workplace Surveillance: The withdrawal of Memorandum GC 23-02 signals a more lenient approach to protections for employees regarding workplace surveillance and electronic monitoring. Specifically, the memo stated that monitoring employees through AI-productivity tracking, keystroke logging, and facial recognition software could have a chilling effect on employees’ ability to engage in protected activities.
3. Non-compete Agreements: Memoranda GC 23-08 and GC 25-01 had stated the NLRB’s interpretation that non-compete agreements in employment contacts and severance agreements were violations of the NLRA. The NLRB had instructed that the provisions restricted employees’ ability to seek better job opportunities and discouraged collective action. California, however, has separate laws prohibiting non-compete agreements except in limited situations.
4. Unfair Labor Practices: Memoranda GC 21-06 and GC 21-07 had suggested expanded consequences for employers found guilty of unfair labor practices. Specifically, they supported employees seeking remedies for emotional distress, reinstatement rights, and funding for organizing efforts. The rescission
of these memoranda hint that the NLRB will likely take a more lenient approach in penalizing employers for unfair practice charges in the future.
Overall, the rescission of the memoranda allow greater employer control over the workplace, at least from the standpoint of federal NLRB enforcement. Private schools should bear in mind this shift when assessing the risk of taking certain employment actions, such as including certain details in severance agreements. At the same time, the substantial protections afforded employees under California law remain, which private schools must continue to consider when making employment decisions. LCW attorneys are closely monitoring President Trump’s Executive Orders and any associated developments. Please also see LCW’s Executive Order Summaries here
EMPLOYEES
Title vii
Court Finds School’s Decision to Fire Transgender Employee Not Protected By Religious Exceptions to Title VII.
Ellenor Zinski, formerly employed as an Information Services Apprentice at Liberty University’s IT Helpdesk, was hired in February 2023. At the time of hiring, she was known as Jonathan Zinski and was assigned male at birth. She performed IT-related tasks, including troubleshooting classroom equipment and assisting students and staff, and consistently received positive performance evaluations.
On July 5, 2023, Zinski informed Liberty’s Human Resources department that she identified as a transgender woman, was undergoing hormone replacement therapy, and intended to legally change her name. She explicitly stated that her gender transition would not affect her work performance and did not request accommodations.
Liberty did not initially respond. Over the next month, Zinski followed up multiple times, experiencing severe anxiety and distress while awaiting an official response. Eventually, on August 8, 2023, she was called to a meeting with Liberty’s Chief Information Officer and the Executive Vice President of Human Resources, where she was handed a letter terminating her employment. The letter stated that her transition violated Liberty’s religious beliefs and doctrinal
statement, which affirms a biblical view of sex and gender.
Zinski filed a lawsuit under Title VII of the Civil Rights Act, arguing that Liberty unlawfully terminated her employment due to sex discrimination, as defined by Bostock v. Clayton County (2020), a U.S. Supreme Court case that established that discrimination based on transgender status is a form of sex discrimination. The parties did not dispute that Liberty dismissed Zinski due to her transgender status. However, Liberty moved to dismiss the case, arguing that various religious exemptions and doctrines allowed it to terminate Zinski based on its faith-based opposition to gender transition.
First, Liberty argued that the religious exceptions under sections 702 and 703 of Title VII applied. These exceptions allow religious institutions to make hiring decisions on the basis of religion. Liberty argued that the decision to fire Zinski was religious discrimination, protected under Title VII’s exceptions, rather than sex discrimination. The Court rejected this argument, holding that while religious employers may base hiring decisions on religious preferences, Title VII does not exempt them from prohibitions against sex discrimination. Citing Bostock v. Clayton County, the Court emphasized that discrimination against transgender employees is inherently sex-based and thus unlawful under Title VII.
The University also invoked the Religious Freedom Restoration Act (RFRA), claiming that enforcing Title
VII would substantially burden its religious exercise. The Court found RFRA inapplicable, as it only applies when the government—not a private party—is involved. Even if RFRA did apply, the Court reasoned that Title VII would likely pass strict scrutiny because of the government’s compelling interest in preventing workplace discrimination. The Court rejected Liberty’s argument that allowing Zinski to remain employed would force the University to endorse beliefs contrary to its faith. Instead, the Court found that the law did not require Liberty to affirm or adopt Zinski’s gender identity—only to refrain from unlawful discrimination in employment decisions.
Liberty next contended that the ministerial exception, a doctrine that exempts religious institutions from certain employment discrimination claims when hiring or firing ministers, barred Zinski’s claim, arguing that all its employees were expected to uphold religious doctrine. The Court rejected this defense, too, finding that Zinski’s IT role was purely secular and lacked the religious responsibilities required to qualify as a ministerial position.
The University also invoked the First Amendment’s expressive association doctrine, which is a principle that protects an organization's right to associate (or not associate) with individuals if forced association would significantly interfere with the group’s ability to express its message. Here, Liberty argued that employing Zinski would compromise its religious message. The Court distinguished this case from Boy Scouts of America v. Dale, where the Supreme Court found that requiring a private organization to retain a gay scoutmaster interfered with its messaging. Because Zinski had no teaching or public-facing role in shaping Liberty’s religious beliefs, the Court concluded that her presence would not impair the University’s ability to express its faith-based views.
Finally, Liberty argued that the ecclesiastical abstention doctrine, which bars courts from adjudicating disputes over religious doctrine, precluded judicial review of its employment decision. The Court disagreed, clarifying that while religious institutions have autonomy over theological matters, courts may enforce neutral laws, including Title VII. Since the case involved employment discrimination rather than an internal church dispute, the doctrine did not apply.
Finding that none of the defenses applied, the Court denied Liberty’s motion to dismiss and allowed Zinski’s complaint to proceed.
Zinski v. Liberty Univ., Inc. (W.D.Va. Feb. 21, 2025) 2025 U.S.Dist.LEXIS 31362.
Note:
This court’s decision underscores that while religious institutions enjoy certain legal protections, including the religious exception to Title VII, they remain subject to Title VII’s prohibition on sex-based discrimination, which can extend to discrimination against transgender employees.
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leaves
California Museum Not Required to Provide Indefinite Leave as Accommodation.
George Manos's, an HVAC technician who had been working at the J. Paul Getty Trust (the "Getty") in 2011, job required significant physical labor, including standing, climbing, and lifting heavy equipment. In 2018, he complained to Human Resources (HR) that he was being threatened, harassed, and belittled by his supervisors and colleagues. He also related that two days earlier, he felt “so stressed out” after a conversation with one of these colleagues that he began to have chest pains and went to the hospital. Getty’s HR department conducted an internal review, and Manos ultimately stated that he was not feeling harassed, only that he wanted to work in a more civil environment.
The following year, in June 2019, Manos suffered a workplace injury when he fell off a ladder and fractured his left leg. He went on medical leave and requested multiple extensions, each supported by documentation from his physician stating that he was unable to perform any work. Initially, his doctor estimated that he might be able to return to work in November 2019, but as the months passed, Manos continued to seek additional leave extensions, each time noting that he remained unable to work.
Once Manos’ 12 weeks of protected leave expired, the Getty continued to accommodate Manos’s requests for over a year, placing him on inactive status and informing him that his return was not guaranteed if he did not return within 90 days. In April 2020, Manos submitted another request for leave without a definite end date. The Getty then asked him to complete an interactive process questionnaire, where he was given the opportunity to propose accommodations that might allow him to return to work. In his responses, Manos confirmed that he was unable to stand, walk without assistance, squat, kneel, or lift heavy objects. He also stated that he was not requesting any accommodations at that time but rather continuous
leave. His doctor estimated that his impairment would last another 12 to 18 months.
After reviewing the completed questionnaire, the Getty’s HR team concluded that this amounted to a request for indefinite leave, which they determined was unreasonable. In June 2020, the Getty terminated Manos’s employment, stating that he could not return to work in the foreseeable future.
In February 2021, Manos filed a lawsuit against the Getty, arguing that his termination violated the Fair Employment and Housing Act (FEHA). He alleged that the Getty had failed to accommodate his disability and had not properly engaged in the interactive process to identify potential accommodations. He also claimed that his firing was retaliatory, either for his 2018 harassment complaints or for his requests for accommodations.
The Getty moved for summary judgment, contending that Manos had been granted more than a year of leave, had failed to propose any accommodations that would allow him to return to work, and remained unable to work even after his termination. The Getty further argued that there was no causal link between his 2018 harassment complaint and his termination in 2020. Additionally, the Getty pointed out that there were no vacant positions at the time that Manos could have filled, as all available jobs still required physical capabilities that he did not have.
The trial court granted summary judgment in favor of the Getty. On the claims of failure to accommodate and failure to engage in the interactive process, the trial court found that Manos had only requested additional leave as an accommodation, which the Getty provided for over a year, and that he did not identify any accommodations that would allow him to return to work. The trial court emphasized that employers are not required under California law to provide indefinite leave as an accommodation, particularly when there is no reasonable certainty that an employee will be able to return to work in the near future. The trial court also
pointed out that Manos had not responded to the Getty’s specific request to suggest reasonable accommodations that could allow him to return to work.
On the retaliation claim, the trial court found no evidence that Manos’s termination was linked to his harassment complaints from 2018. The trial court noted that two years had passed between his complaints and his termination and that he had been on medical leave for over a year before his termination. Since there was no temporal proximity or other evidence linking his prior complaints to his termination, the trial court ruled that Manos had failed to establish a causal connection. Additionally, the trial court rejected Manos’s alternative argument that the Getty retaliated against him for requesting accommodations, concluding that there was no evidence of retaliatory intent. The trial court further held that Manos’s argument regarding an available security officer position was raised too late, as it had not been included in his complaint.
Because Manos’s claims under FEHA were dismissed, his claim for wrongful termination in violation of public policy also failed. The trial court ruled that without an underlying violation of law, there was no basis for a wrongful termination claim.
On appeal, the California Court of Appeal affirmed the trial court’s ruling. The appellate court agreed that indefinite leave is not a reasonable accommodation under California law and that the Getty had engaged in a good-faith interactive process by allowing Manos multiple opportunities to request accommodations, which he failed to do. The Court of Appeal also found that the trial court properly dismissed the retaliation claim, emphasizing the lack of a causal link between Manos’s prior complaints and his termination. In affirming the decision, the appellate court held that the Getty had fulfilled its legal obligations and was justified in terminating Manos’s employment when it became clear that he could not return to work and that no reasonable accommodations were available. As a result, Manos’s claims were rejected and summary judgment on behalf of the Getty was affirmed.
Manos v. J Paul Getty Trust (Feb. 21, 2025) ___Cal.App.5th___ [2025 Cal. App. Unpub. LEXIS 1042].
Note:
This case reinforces that while employers, including private schools, must engage in the interactive process and provide reasonable accommodations, they are not required to grant indefinite leave when an employee cannot identify a reasonable return date.
STUDENTS
harassment
Court Rules Cooper Union Must Face Lawsuit Over Alleged Antisemitic Harassment on Campus.
A group of ten Jewish students at The Cooper Union for the Advancement of Science and Art, a private college located in New York City, alleged that, following Hamas’s October 7, 2023, attack on Israel, there were multiple incidents on campus that they say created a pervasive atmosphere of intimidation and hostility, including:
• Repeated vandalism of posters featuring hostages taken by Hamas, which Jewish students had put up in an effort to raise awareness. These posters were allegedly torn down and destroyed multiple times, leaving only scraps of paper behind.
• On October 23, 2023, the defacement of the School’s Foundation Building’s windows with signs describing Jews as “settlers” and justifying Hamas’s attack as a “reaction” to Jewish presence in Israel.
• Antisemitic graffiti found in a bathroom stall, where the phrase “From the River to the Sea” was written in a font associated with Mein Kampf, Adolf Hitler’s antisemitic manifesto.
• On October 25, 2023, an incident in the library where a group of approximately 100 pro-Palestinian protesters allegedly pushed past campus security, attempting to locate Cooper Union’s president, and then surrounded the School’s only library, where Jewish students wearing recognizably Jewish attire had taken refuge. The demonstrators allegedly banged on the doors and windows, shouted demands to be let in, and waved Palestinian flags. Jewish students trapped inside the library sent panicked messages to friends and family and called for police intervention. Despite security concerns, Cooper Union allegedly allowed the demonstrators to leave on their own without facing disciplinary action.
According to the ten Jewish students, Cooper Union took no disciplinary action against the students involved in these incidents, failed to condemn the library attack as an act of antisemitic harassment, and left Jewish students feeling unsafe on campus. Plaintiffs brought a variety of claims, including a hostile educational environment claim under Title VI, a breach of contract claim, and a negligence claim.
Title VI – Hostile Educational Environment
Under Title VI of the Civil Rights Act of 1964, schools that receive federal funding can be held liable for failing to address severe and pervasive harassment based on race, color, or national origin. In the educational context, actionable discrimination includes an institution’s “deliberate indifference” to known instances of student-on-student harassment.
To succeed on a hostile educational environment claim, plaintiffs must prove: (1) severe or pervasive harassment; (2) harassment was motivated by national origin; (3) actual knowledge by the institution; (4) deliberate indifference by the institution – the School’s response (or lack thereof) must have been clearly unreasonable; and (5) deprivation of educational benefits –the harassment must have prevented the plaintiff from fully accessing the educational opportunities provided by the School. Here, the Court found that the plaintiffs plausibly alleged that the harassment they faced was both severe and pervasive. The repeated vandalism of their hostage posters, the defacement of campus property with antisemitic messages, and the intimidation they endured in the library collectively contributed to an atmosphere of hostility.
The plaintiffs argued that these acts were not merely expressions of political opinion but were directed at them specifically because they were Jewish and visibly identifiable as such. They contended that the protest chants and graffiti, particularly in the immediate aftermath of the October 7 attacks, reflected antisemitic intent rather than general criticism of Israeli policies. The
Court acknowledged that while much of the speech at issue could be considered political and protected under the First Amendment, some conduct—particularly the library incident and acts of vandalism—went beyond protected speech and could form the basis for a Title VI claim.
The plaintiffs alleged that Cooper Union had actual knowledge of the hostile environment, as Jewish students repeatedly reported harassment, vandalism, and intimidation. Yet, rather than take action, the School failed to discipline students involved in the library attack, vandalism, or threats. Furthermore, despite policies prohibiting unauthorized postings, Cooper Union allowed anti-Israel protest signs to remain up for hours but removed pro-Israel materials immediately. The Plaintiffs also argued that the School handed back removed protest signs to the students who put them up, encouraging further violations, and that the School President allegedly locked herself in her office during the library attack, then fled through a back exit, leaving Jewish students trapped inside.
The Court found that Cooper Union’s failure to intervene, its lack of disciplinary action, and its inconsistent enforcement of policies plausibly constituted deliberate indifference and allowed the claim to proceed.
Breach of Contract
The Plaintiffs also argued that Cooper Union violated its own Student Code of Conduct, Human Rights and Title IX Policy, Posting Policy, Campus Safety and Security Policy, and Building Access Policy. Cooper Union countered that its policies included general statements, rather than promises, and that the School retained discretion over how to enforce its policies and had no contractual obligation to discipline students.
The Court ruled that while the School had discretion to enforce its policies, it could still be held liable if it acted in bad faith by failing to enforce its disciplinary policies. As a result, the breach of contract claim was allowed to proceed regarding enforcing disciplinary policies but was dismissed as it related to broader policy statements (e.g., commitments to diversity and inclusion).
Negligence and Premises Liability
The plaintiffs alleged that Cooper Union failed to provide a safe environment and protect students from foreseeable harm. However, the Court dismissed these claims, ruling that emotional harm alone was insufficient for negligence liability under New York law.
Gartenberg v. Cooper Union for the Advancement of Sci. & Art (S.D.N.Y. Feb. 5, 2025) 2025 U.S.Dist.LEXIS 20844.
Note:
This case highlights potential legal risks for private schools that fail to address discrimination complaints, even in politically charged environments. Schools should enforce their disciplinary policies consistently, maintain campus security protocols, and ensure that protest activities do not escalate into harassment.
gender identity
Court Rules in Favor of School District’s Gender Identity Policy, Rejecting Parental Rights Challenge.
Parents Stephen Foote and Marissa Silvestri sued the Ludlow School Committee, School administrators, and individual educators, alleging that the School violated their constitutional rights by using their child’s preferred name and gender pronouns at school without informing them. The case centered on the School’s “protocol,” which required staff to respect a student’s gender identity at school while withholding this information from parents unless the student consented.
The dispute began during the 2020-21 school year when B.F., the parents’ eleven-year-old child, began questioning their gender identity after watching LGBTQ-related videos suggested by the School-issued computer. Later that year, B.F. confided in a teacher about feelings of depression and struggles with selfimage. The teacher notified the child’s mother, who appreciated the outreach and requested that no further private conversations take place between School staff and the child about mental health matters.
Unbeknownst to the parents, in February 2021, B.F. sent an email to teachers and staff announcing a gender identity change and requesting to be referred to by a new name and pronouns. The School counselor met privately with B.F. and directed School staff to use the student’s chosen name and pronouns in school but to revert to the birth name and assigned gender when communicating with the parents.
The parents discovered the change in March 2021 when a teacher disclosed the information. Concerned that School officials had intentionally concealed their child’s gender identity, they confronted the School about the
lack of notification. The School, in response, defended its policy by citing guidance from the Massachusetts Department of Elementary and Secondary Education, which recommended that schools respect a student’s asserted gender identity while avoiding disclosure to parents unless the student consented. The superintendent and other officials justified the policy as necessary to ensure a safe and inclusive learning environment, particularly for students who might face rejection or harm at home due to their gender identity.
The parents sued Ludlow, the School Committee, and individual educators in federal court, alleging violations of their substantive due process rights under the Fourteenth Amendment of the U.S. Constitution. Specifically, they claimed that the School’s actions interfered with their fundamental right to direct their child’s upbringing, usurped their authority over medical and mental health decisions, and violated their familial privacy rights.
The trial court dismissed the lawsuit, ruling that the parents failed to state a claim because the School’s actions did not constitute medical treatment and failed to meet the constitutional threshold of conduct that “shocked the conscience,” which is required to establish a substantive due process violation. The parents appealed.
Under the Fourteenth Amendment Due Process Clause, no state may deprive any person of life, liberty, or property, without due process of law. The clause protects against government infringement of both procedural and substantive rights. The parents argued that the School’s conduct restricted their parental right to control the upbringing, custody, education, and medical treatment of their child.
The Court of Appeals acknowledged that parents have a longstanding constitutional right to direct their child’s
upbringing. However, the Court emphasized that this right is not absolute and must be balanced against the state’s interest in protecting students.
The parents argued that social transitioning—using a student’s chosen name and pronouns—constituted medical treatment, and that the School improperly provided mental health treatment without parental consent. The Court of Appeals rejected this argument, finding that using a preferred name and pronouns did not qualify as medical treatment. The Court distinguished this case from precedents involving medical procedures, such as Parham v. J.R., which involved the institutionalization of a child for mental health treatment. It found no evidence that Ludlow engaged in any clinical intervention, ruling that affirming a student’s gender identity at school did not require parental authorization.
The parents next argued that Ludlow’s educators interfered with their parental rights by facilitating their child’s social transition through curricular and administrative decisions, including a librarian’s assignment on pronouns, teachers’ use of the student’s chosen name, and a counselor’s guidance on bathroom access. The Court rejected this claim, too, emphasizing that public schools have broad discretion over curriculum and student interactions and that the Due Process Clause does not grant parents the right to control educational policies. The Court distinguished this case from prior cases, noting that those prior decisions protected parents’ right to choose an educational program, not to dictate a school’s curriculum. Because Ludlow’s actions fell within its authority to foster an inclusive learning environment, the Court found no constitutional violation.
The parents further claimed that the School actively misled them by using different names and pronouns at school and at home, thus interfering with their parental authority. The Court of Appeals found this argument unpersuasive, distinguishing the case from others where schools actively concealed medical interventions. Unlike cases where schools coerced students into medical procedures without parental knowledge, Ludlow’s policy simply honored the student’s request for privacy regarding gender identity. The Court determined that non-disclosure alone did not amount to a constitutional violation and that parents remained free to engage with their child on these issues outside of school.
The Court of Appeals affirmed the trial court’s dismissal, ruling that Ludlow’s policy did not violate the parents’ constitutional rights.
Foote v. Ludlow Sch. Comm. (1st Cir. 2025) __ F.4th __ [2025 U.S. App. LEXIS 3979].
Note:
Although this case involved a public school, the arguments raised may be relevant for private schools navigating similar situations. There is likely to be further developments regarding gender identity policies following President Trump’s recent executive orders, and LCW will monitor these matters for further updates.
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MISCONDUCT
Court Allows Multiple Claims to Proceed in Lawsuit Against High School Related To Legacy
Complaints of Sexual Harassment and Assault.
Sixteen plaintiffs, including former students and parents of students at Mount Saint Mary High School in Oklahoma, alleged that they experienced sexual harassment or assault at the School, either by fellow students or staff, and that administrators ignored or mishandled reports of abuse. The alleged misconduct occurred between 2005 and 2022, with some plaintiffs only realizing the extent of the School’s inaction after a 2021 media investigation exposed a systemic pattern of abuse.
The lawsuit detailed multiple instances where School officials, including the former principal, allegedly downplayed or dismissed complaints of sexual misconduct. Plaintiffs cited instances where administrators accused victims of lying, pressured them into silence, or retaliated against those who reported assaults. Among the claims, Jane Doe 1 alleged that after reporting a sexual assault by a fellow student in 2020, School officials misled her guardian, minimized the incident as mere “flirtation,” and suggested she use a different stairwell to avoid her assailant. Another plaintiff, Jane Doe 2, claimed she was assaulted on a school bus after an athletic event, but when she reported the incident, the School principal allegedly forced her to apologize to her attacker and warned that pursuing the complaint would jeopardize her future. Other plaintiffs described School officials protecting male students and teachers accused of harassment, enforcing sexist policies, and failing to investigate reports of sexual abuse.
Some victims claimed they did not report their assaults at the time because the School created a culture of victim-blaming and intimidation. Plaintiffs also alleged that School officials actively concealed reports of sexual misconduct, preventing them from understanding the scope of abuse at the School and delaying their ability to file lawsuits.
The plaintiffs brought several legal claims against the School, the Archdiocese, and the Sisters of Mercy, including Title IX violations, negligence, breach of contract, intentional infliction of emotional distress (IIED), and vicarious liability. The defendants moved to dismiss the case.
Title IX Claims
Mount Saint Mary argued that, as a private religious school, it was not subject to Title IX. However, plaintiffs countered that the School receives federal funding, making it subject to Title IX protections against sexbased discrimination.
To establish liability under Title IX, plaintiffs must show that the school (1) had actual knowledge of the harassment; and (2) was deliberately indifferent to it, meaning the School's response (or lack thereof) was “clearly unreasonable” and denied victims equal access to education.
The Court found that plaintiffs plausibly alleged a pattern of sexual misconduct that School officials knew about but failed to address. The Court also determined that administrators' responses—such as forcing students to apologize to their assailants and threatening academic consequences for reporting abuse—met the standard for deliberate indifference, allowing the Title IX claims to proceed.
However, the Court dismissed certain Title IX claims as time-barred, applying Oklahoma’s two-year statute of limitations for personal injury claims. Some plaintiffs’ post-assault claims were dismissed because they had been aware of their injuries and the School’s inaction well before filing suit. However, pre-assault claims—alleging that the School’s failure to investigate past misconduct created a heightened risk of future harassment—were allowed to proceed, as plaintiffs argued that School officials actively concealed the extent of the problem, justifying tolling of the statute of limitations.
Negligence Claims
The School asserted that it had no legal duty to protect students from sexual misconduct by third parties. However, the Court ruled that under Oklahoma law, schools have a special duty of care toward students, particularly when they exercise control over student safety and discipline. Schools may be liable for negligence if they knew or should have known about prior misconduct and failed to take reasonable steps to prevent foreseeable harm.
The Court found that plaintiffs sufficiently alleged that the School had failed to address known risks, such as allowing students and staff accused of assault to remain at the School. Some plaintiffs claimed that they or others had reported misconduct before their own assaults occurred, but School officials failed to act, which was enough for the negligence claims to proceed.
Breach of Contract Claims
Plaintiffs argued that the School’s student handbook, tuition agreements, and policies constituted a binding contract, which promised a safe educational environment. Oklahoma courts have previously ruled that private schools’ written policies can be enforceable contracts, particularly when they contain specific promises regarding student safety and discipline.
The Court found that plaintiffs adequately alleged a breach of contract, as they claimed the School failed to enforce its policies on sexual misconduct and failed to protect students from known risks. However, the Court dismissed breach of contract claims against the Archdiocese and the Sisters of Mercy, ruling that plaintiffs failed to show that these entities had directly entered into contracts with students.
Intentional Infliction of Emotional Distress (IIED)
Oklahoma law requires that IIED claims involve conduct that is extreme and outrageous, and so severe that no reasonable person could endure it. The Court found that some plaintiffs alleged sufficiently extreme conduct, such as School officials forcing victims to apologize to their attackers, threatening students with academic punishment for reporting assaults, and allowing known abusers to remain at the School despite multiple complaints. These claims were allowed to proceed.
However, the Court dismissed certain IIED claims, ruling that feelings of shame, embarrassment, or discomfort— without evidence of severe, lasting psychological harm—were not enough to meet the high legal standard required under Oklahoma law.
Vicarious Liability of the Archdiocese and
Sisters of Mercy
Plaintiffs argued that the Roman Catholic Archdiocese of Oklahoma City and the Sisters of Mercy of the Americas exercised control over Mount Saint Mary, making them vicariously liable for its failures. The Court allowed these claims to proceed, finding that plaintiffs plausibly alleged that these entities played a role in shaping the School’s policies, training, and response to reports of misconduct.
However, the Court dismissed direct liability claims against the Archdiocese and Sisters of Mercy, ruling that plaintiffs failed to present specific allegations that these entities directly engaged in wrongdoing.
Doe v. Mount Saint Mary High Sch. Corp. of Okla. (W.D.Okla. Feb. 13, 2025) 2025 U.S.Dist.LEXIS 26166.
Note:
This case underscores the potential liability for sexual harassment complaints, which can arise both from the facts giving rise to the complaints and also from how a school responds to such complaints. The California Education Code requires that all schools in the state, including private schools, have a written policy on sexual harassment.
AFFIRMATIVE aCTION
Wisconsin Court Strikes Down Race-Based College Grant Program as Unconstitutional.
This case arose from a legal challenge brought by a group of Wisconsin taxpayers against the Higher Educational Aids Board (HEAB) and its executive secretary over the administration of a state-funded college grant program. The plaintiffs argued that the program violated the Equal Protection Clause of the Fourteenth Amendment, which guarantees every person the right to be treated equally by the State, without regard to race, by offering financial aid exclusively to students from certain racial, ethnic, and national origin groups while excluding others.
By way of background, Wisconsin’s grant program, first established in 1985 and expanded in 1987, provided financial aid for undergraduate students who were Black American, American Indian, Hispanic, or had Laotian, Cambodian, or Vietnamese ancestry. The program was explicitly race-conscious, limiting eligibility to these designated groups without considering other financially needy students. The plaintiffs contended that this amounted to unconstitutional racial discrimination, as similarly situated students of different racial or ethnic backgrounds—such as Middle Eastern, Thai, or Chinese students—were categorically ineligible for the grants, regardless of their financial need.
The trial court upheld the program as constitutional, denying the plaintiffs’ motion for summary judgment and granting summary judgment to HEAB. The plaintiffs appealed, and the Wisconsin Court of Appeals reviewed the case in light of the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA).
The Wisconsin Court of Appeals applied strict scrutiny, the highest standard of judicial review for laws that classify individuals based on race, national origin, or ancestry. Under this standard, the government must demonstrate that a race-based classification serves a compelling governmental interest and is narrowly tailored to achieve that interest. The Court found that HEAB failed to demonstrate that the program satisfied either requirement.
Initially, HEAB defended the grant program by arguing that it was necessary to increase student body diversity in Wisconsin’s private and technical colleges. However, the Court noted that after SFFA explicitly rejected student body diversity as a compelling interest for racebased decision-making, HEAB shifted its justification to retention and graduation disparities among minority students. The Court dismissed this revised rationale, stating that SFFA permits race-based classifications only in extraordinary circumstances, such as remedying specific past governmental discrimination or addressing prison safety concerns—neither of which applied here.
Furthermore, the Court found that the program was not narrowly tailored because it categorically excluded students from non-preferred racial and ethnic groups from eligibility, making race the determinative factor in grant decisions. Unlike the admissions policies in SFFA, which at least considered applicants on an individual basis, the Wisconsin grant program imposed an absolute racial classification that disqualified students solely based on race, national origin, or ancestry.
The Court also rejected HEAB’s argument that financial aid differs from admissions because it does not restrict classroom access. The Court reasoned that financial aid is still a zero-sum resource, and excluding students from consideration based on race necessarily disadvantages those who do not qualify. It further rejected the claim
that race-based grants free up other financial aid for non-minority students, calling it speculative and unsupported by evidence.
Finally, the Court criticized the grant program for lacking a clear end point. SFFA held that all race-based policies must have a sunset provision to ensure that they do not become permanent fixtures of discrimination. The Wisconsin grant program had no such limitation and had remained in effect for nearly 40 years.
The Court of Appeals reversed the trial court’s ruling and declared the grant program unconstitutional, ordering HEAB to discontinue its administration.
Rabiebna v. Higher Educ. Aids Bd. (Ct.App. Feb. 26, 2025) 2025 Wisc. App. LEXIS 190.
Note:
This decision underscores the increasing judicial scrutiny of race-based policies in education.
business&facilities
Sign-In Wrap Agreements May Not Provide Sufficient Notice to Consumers.
On February 27, 2025, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Chabolla v. ClassPass, Inc., addressing the enforceability of arbitration agreements presented through online “sign-in wrap” agreements - an agreement where users are informed that by proceeding with registration, they agree to the terms, typically via a hyperlink rather than an explicit acknowledgment like a checkbox.
Katherine Chabolla subscribed to ClassPass in January 2020. ClassPass is an online service that offers access to various fitness facilities and classes to allow users to try out different exercise experiences without a formal commitment with that facility. Due to the COVID-19 pandemic, ClassPass temporarily suspended billing consumers, but then resumed billing in 2021.
Ms. Chabolla filed a class-action lawsuit against ClassPass alleging that the resumption of charges violated California consumer protection laws, including the Automatic Renewal Law, Unfair Competition Law, and the Consumers Legal Remedies Act. ClassPass sought to compel arbitration in accordance with its online Terms of Use. ClassPass argued that that by signing up for the service, Ms. Chabolla agreed to these terms through a sign-in wrap agreement.
The Court of Appeals applied a two-pronged analysis to determine the enforceability of ClassPass’s arbitration agreement. First, the Court considered whether the consumer, Ms. Chabolla, was provided with a reasonably conspicuous notice of its Terms of Use. The Court reviewed the website’s design and overall clarity and found that the Terms of Use were not sufficiently clear or conspicuous. Next, the Court examined whether the consumer had manifested clear assent to the Terms of Use. Here, there was no clear assent to the arbitration clause because ClassPass did not sufficiently inform Ms. Chabolla that proceeding with the sign-up would constitute agreement to the Terms of Use, including the arbitration clause.
As a result, the Court affirmed the lower court’s decision and refused to compel arbitration as Ms. Chabolla did not clearly agreed to the Terms of Use and ultimately the arbitration provision.
This decision underscores the limitations of sign-in wrap agreements and the necessity for businesses to provide clear and conspicuous notice of contract terms. While clickwrap agreements (where users actively agree to terms) are typically enforceable, sign-in wrap agreements require careful design and disclosure to ensure users are properly informed. Moving forward, entities must ensure that users receive explicit notice and have an opportunity to clearly manifest assent to online terms—especially when including mandatory arbitration provisions.
Chabolla v. ClassPass, Inc., 2025 S.O.S. 23-15999 (9th Cir. Feb. 27, 2025)
workplace safety
Cal/OSHA’s COVID-19 Regulations Have Expired, Except The Recordkeeping Requirement.
On February 3, 2025, all but one subsection of Cal/OSHA’s COVID-19 response regulations, that were codified at Title 8 of the California Code of Regulations, expired.
The one subsection that remains in effect until February 3, 2026 is Subsection 3205(j) regarding Recordkeeping, which requires an employer to:
• “[K]eep a record of and track all COVID-19 cases” (emphasis added) with the employee's name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive COVID-19 test and/or COVID-19 diagnosis.
Ǟ One reasonable interpretation of the requirement to “track” all COVID-19 cases as stated within this remaining recordkeeping regulation is that employers are only required to maintain a record of COVID cases they are made aware of as a result of volunteered or widely-known information, as opposed to the active tracking that was required under the now-expired provisions.
• These records must be preserved for two years “beyond the period in which the record is necessary to meet the requirements” of now-expired sections 3205 through 3205.3.
Ǟ Thus, the retention period for a record starts from the last relevant date related to the record, such as the end of the employee’s infectious period or their return to work.
Ǟ For example, an employee who tested positive for COVID on January 1, 2025, but who never developed symptoms, may return to work in 10 days on January 11, 2025, under now-expired regulation section 3205 (b) (9)(B). The employer must maintain that record until January 11, 2027.
• Provide information on COVID-19 cases to the local health department with jurisdiction over the workplace, CDPH, Cal/OSHA, and NIOSH immediately upon request, and when required by law.
cases we are watching
• Oklahoma City Public Schools has agreed to pay $60,000 to former music teacher Michael McCullough to settle a lawsuit brought by the U.S. Department of Justice (DOJ), which alleged the district violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to renew his contract after he took leave for U.S. Air Force Reserve service. The consent decree requires the district to update its military leave policies, provide annual training to administrators, and post notices informing employees of their USERRA rights. The district must also submit quarterly reports to the DOJ detailing military leave requests and complaints of discrimination.
• A lawsuit has been filed against the University of California (UC) system and the U.S. Department of Education by a prospective student, his father, and Students Who Oppose Racial Discrimination (SWORD), alleging racial discrimination in UC’s admissions process. The plaintiffs claim that high-achieving Asian-American students are systematically disadvantaged due to UC's admissions policies, which they argue prioritize racial balancing over merit. Despite the prospective student’s exceptional academic and professional achievements—including a nearperfect SAT score, a 4.42 GPA, and a job offer from Google for a Ph.D.-level engineering position—his applications to five UC campuses were rejected or waitlisted. The complaint asserts that UC's policies violate the Fourteenth Amendment’s Equal Protection Clause, Title VI of the Civil Rights Act of 1964, and the California Constitution’s ban on race-based admissions. Additionally, the plaintiffs argue that the U.S. Department of Education’s race-based federal grant programs encourage unlawful racial preferences in admissions.
• The Ohio Court of Appeals affirmed a trial court’s decision granting summary judgment in favor of the Sylvania City School District. Jennifer Swiech, a parent who sends her children to a private Catholic school, sued the district, arguing its bus transportation policy violated equal protection and free exercise of religion under the Ohio Constitution. Due to a bus driver shortage, the district moved private school students to a hub-and-spoke transportation model rather than direct bussing. The Court of Appeals ruled that the policy was rationally related to a legitimate government interest in transportation efficiency and did not target religion since all nonpublic school students, regardless of religious affiliation, were treated the same. The Court of Appeals also found no evidence that the policy coerced religious practice. As a result, Swiech’s claims were rejected, and her request for relief was denied. LCW covered this case previously
did you know...?
• The legal landscape is constantly shifting. Private schools should consider evaluating their current policies and practices with legal counsel, particularly in areas such as employment practices, student policies, and federal funding. Did you know that LCW provides comprehensive audit services to help private schools proactively identify and address potential legal risks? These services include:
º Hiring & Admissions - Ensuring legal compliance in hiring, admissions, and affinity practices while upholding nondiscrimination policies.
º Wage & Hour Compliance - Reviewing payroll, exemptions, breaks, and recordkeeping to mitigate California Labor Code risks.
º Federal Funding - Assessing legal obligations tied to participation in federal programs (e.g., E-Rate, FEMA, PPP loans).
º Handbooks - Aligning employee and student policies with state and federal laws on nondiscrimination, conduct, and leave policies
º Enrollment Agreements - Ensuring contracts protect your school, clarify tuition obligations, and comply with consumer protection laws.
• The U.S. Department of Education released a Frequently Asked Questions in connection with the Office for Civil Rights (OCR) February 14 Dear Colleague Letter. The Dear Colleague Letter made clear that the Trump Administration will not allow educational institutions that receive federal funds to discriminate on race. The FAQs provide information and guidance on topics including:
º Can schools separate students by race or encourage students to self-separate by race?
º Are DEI programs unlawful under Students for Fair Admissions v. Harvard?
º As part of their admissions process, may schools include application essay prompts that invite discussions of race?
º How will OCR investigate allegations of covert discrimination?; and
º How will OCR proceed with schools that it determines are out of compliance with Title VI?
• The California Civil Rights Department (CRD) has released its 2025 Pay Data Reporting Guidance, introducing a new race/ethnicity category, “Middle Eastern or North African” (MENA), aligning with recent federal changes. Employers (including private schools) with 100 or more employees, including those hired through labor contractors, must submit pay data reports by May 14, 2025, detailing wages, demographics, and workforce data by race, ethnicity, and gender. Failure to comply may result in fines of up to $100 per employee for a first offense and $200 per employee for subsequent violations. CRD has published a Pay Data Reporting Handbook with helpful guidance.
• The U.S. Equal Employment Opportunity Commission (EEOC) recently released two technical assistance documents—“What You Should Know About DEI-Related Discrimination at Work” and “What to Do if You Experience Discrimination Related to DEI Work”—to clarify how federal equal employment opportunity laws apply to workplace Diversity, Equity, and Inclusion (DEI) programs. The guidance provides that DEI initiatives must be implemented in a way that does not discriminate based on race, sex, or other protected characteristics. It also outlines how individuals can file a charge if they believe they have experienced discrimination related to DEI efforts. Read the full documents here:
º What You Should Know About DEI-Related Discrimination at Work
º What to Do if You Experience Discrimination Related to DEI Work
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.
Train the Trainer Program
Become a Certified Harassment Prevention Trainer for your Organization!
LCW Train the Trainer sessions will provide you with the necessary training tools to conduct the mandatory AB 1825, SB 1343, AB 2053, and AB 1661 training at your organization.
California Law requires employers to provide harassment prevention training to all employees. Every two years, supervisors must participate in a 2-hour course, and non-supervisors must participate in a 1-hour course.
Upcoming
Date:
QUICK FACTS:
Trainers will become certified to train both supervisors and non-supervisors at/for their organization.
Attendees receive updated training materials for 2 years.
Pricing: $2,000 per person. ($1,800 for ERC members).
Via Zoom
September 17, 2025 9:00 AM - 4:00 PM
INTERESTED?
To learn more about our program, please visit our website below or contact Anna Sanzone-Ortiz 310.981.2051 or asanzone-ortiz@lcwlegal.com.
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 at a private school contacted LCW about the recent U.S. Supreme Court decision regarding E-Rate reimbursements. The School received a small amount of E-Rate funds each year and asked whether participation in the E-Rate program meant that the school was now considered a recipient of federal funds, and therefore obligated to comply with certain federal laws such as Title IX, Title VI, and Section 504 of the Rehabilitation Act.
Answer:
The attorney advised that the U.S. Supreme Court's recent decision in Wisconsin Bell, Inc. v. United States ex rel. Heath addressed the applicability of the False Claims Act (FCA) to E-Rate reimbursement requests, particularly focusing on whether these requests qualify as “claims” under the FCA when any portion of the funding comes from the federal government. The Court concluded that they do, allowing for the pursuit of fraud allegations in the E-Rate program.
The attorney advised that the Supreme Court only ruled on this narrow issue. The Supreme Court did not rule whether participating in the E-rate program constituted accepting federal funds – only that participation could lead to an assertion of a violation of the FCA. The Court left to another day consideration of whether reimbursement renders private schools recipients of federal funds that trigger compliance with federal laws that would not otherwise apply.
With that being said, the attorney advised that the School may consider auditing its policies and practices to assess their compliance obligations and evaluate whether participation in programs like E-Rate and other programs may trigger legal requirements. The attorney advised that LCW is available to provide those types of audit services.
Liebert Cassidy Whitmore