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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: We fight the woke and the legislatures. We fight the

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Speaker 2: woke and the schools. We fight the woke and the corporations.

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Speaker 2: We refuse to surrender to the woke mob. This state

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Speaker 2: is where woke goes to die.

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Speaker 1: Florida Republican Governor Ron De Santis advances anti woke agenda

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Speaker 1: in the classrooms of the state, pushing laws to curtail

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Speaker 1: instruction and gender, sexuality, and racial identity in public schools. Now,

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Speaker 1: private schools aren't subject to such state laws, but that

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Speaker 1: doesn't mean they're immune to the culture wars. Conservative leaning

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Speaker 1: parents have voiced opposition to private schools in other ways,

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Speaker 1: including filing lawsuits that face a number of challenges because

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Speaker 1: private schools are not bound by the US Constitution. Telling me,

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Speaker 1: as Sarah Schwartz of New England Bay Schwartz Hannem she

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Speaker 1: represents hundreds of private schools. Is there a trend of

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Speaker 1: parents suing schools over issues involving diversity, equity and inclusion.

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Speaker 3: Yeah, absolutely, there is a trend in that area. I

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Speaker 3: would say it is part of a larger trend. So

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Speaker 3: it seems to be the sort of mini trend that

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Speaker 3: is getting the most attention, but it is really part

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Speaker 3: of a much larger pattern of parents seeing educational institutions

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Speaker 3: a lot more than they used to.

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Speaker 1: Tell us a little more about the mini trend and

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Speaker 1: the larger trend.

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Speaker 3: Sure, so I've started with the larger trend. You know.

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Speaker 3: I've been doing this for thirty years. And in the

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Speaker 3: old days, we would see a few lawsuits a year

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Speaker 3: against educational institutions, everything from Ivy League colleges to nestex

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Speaker 3: to small community colleges to private schools and everything in between.

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Speaker 3: Nowadays we see that many in a week, and it's

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Speaker 3: part of our crazy world we're living in right now,

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Speaker 3: and it's part of the post pandemic society. It's definitely

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Speaker 3: a trend that has exacerbated and accelerated since the pandemic.

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Speaker 3: I think there are a lot of reasons for that.

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Speaker 3: I'll start with kind of the pandemics related parts. During

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Speaker 3: the pandemic, there was a lot of angst about how

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Speaker 3: children were educated, and in the public school world there

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Speaker 3: was sort of one set of issues. In the college

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Speaker 3: world there was another set of issues. And in the

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Speaker 3: private school world, which is really where we're focused today.

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Speaker 3: What we saw was parents saying, we're sending thirty forty

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Speaker 3: sixty eighty one hundred thousand dollars a year to send

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Speaker 3: our child to your school and they're not getting what

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Speaker 3: we're paying for. And that's fundamentally I think, where a

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Speaker 3: lot of this started, and the angst and anger about

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Speaker 3: is there a masking requirement, is there a vaccine requirement?

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Speaker 3: Are you hybrid, are you virtual? Are you in person?

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Speaker 3: What are you requiring? You know, all of this really

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Speaker 3: got start up, and then the whole diversity piece, which

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Speaker 3: is a mini trends is another sort of east of

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Speaker 3: the puzzle related no questions, but not the only example

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Speaker 3: of litigation we're seeing. We're seeing a huge increase in

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Speaker 3: litigation generally, and the diversity angle is one aspect of that.

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Speaker 1: Before we get any deeper into this, will you explain

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Speaker 1: the difference between parents suing a public school and parents

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Speaker 1: suing a private school, so you know, just.

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Speaker 3: To be very clear, we represent hundreds of private schools,

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Speaker 3: We represent higher ed institutions. We do not represent public schools.

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Speaker 3: But the public schools are governed by a whole variety

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Speaker 3: of federal and state laws that are completely different because

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Speaker 3: they are state actors. So for example, the Constitution does

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Speaker 3: not govern private actors that governing state actors. So these

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Speaker 3: you know, First Amendment rights things like that do not

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Speaker 3: exist to the same it's been in private schools as

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Speaker 3: they do in public school So there's a whole legal structure,

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Speaker 3: a lot of laws applicable to public schools that do

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Speaker 3: not apply to side of school. On the higher edge side,

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Speaker 3: you have all of that. You have, you know, plenty

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Speaker 3: of federal funding issues, sometimes state funding issues, and you

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Speaker 3: have the overlay of title mode which creates a whole

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Speaker 3: other layer of bureaucracy and administrative process that is required

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Speaker 3: do process, et cetera. Now, some of our private schools

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Speaker 3: are covered by Title NIND but you know, fewer than

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Speaker 3: ten that private set. So as a result, our legal

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Speaker 3: structure is quite different in the private school arena than

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Speaker 3: in the public or in higher it.

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Speaker 1: Does suing schools over so called wokeness get the most

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Speaker 1: attention because it's a culture wars issue, or are a

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Speaker 1: lot of parents finding that private school curriculum is too

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Speaker 1: progressive for them.

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Speaker 3: You know, I think it is a function of our

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Speaker 3: polarized political society. Now that's my own guest work. Right,

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Speaker 3: I don't know. I'm not a psychologist, I'm not a sociologist.

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Speaker 3: I'm on an education unemployment book, right. But my sense

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Speaker 3: is that our polarized political society, where the two extremes

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Speaker 3: are super vocal and the middle of the spectrum is

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Speaker 3: pretty quiet a lot of time, means that the two

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Speaker 3: extremes are what we hear about in the press. And

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Speaker 3: so I think that while we do see a lot

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Speaker 3: of these lawsuits, they are simply getting more attention because

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Speaker 3: they're part of our polarized political society. I'll give you

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Speaker 3: an example. Though, we handle a lot of upset parent

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Speaker 3: cases that don't make its litigation, which is the good

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Speaker 3: news because in my perfect world I can resolve these

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Speaker 3: matters short of litigation for our schools. But in the

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Speaker 3: last month I have handled cases where parents were upset

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Speaker 3: about how Lord of Flies, the pot to kill a

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Speaker 3: mocking bird, two different schools, two different parts of the country,

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Speaker 3: and a Frank sessions, So how we're teaching the Diary

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Speaker 3: of Van Frank and things like that, just by simple example,

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Speaker 3: completely unrelated parts of the literature that kids study in

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Speaker 3: private school. Each of those triggering parental upset and how

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Speaker 3: they were taught. And it could be, for example, that

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Speaker 3: the Jewish families are upset about how I am Frank

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Speaker 3: is being taught, and it could be that other families

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Speaker 3: are upset about how it's being taught. And there are

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Speaker 3: two sides or three sides or four size on each

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Speaker 3: of these, and you never know which one is going

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Speaker 3: to get the most upset and start writing angry letters.

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Speaker 1: You mentioned three books that when I went to school

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Speaker 1: and the Dark Ages were taught, and when my daughter

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Speaker 1: went to school, we're taught. So a lot of times

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Speaker 1: in the past, I think that parents have problems, but

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Speaker 1: now they're escalating it to bringing complaints or lawsuits about

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Speaker 1: things that maybe in the past they wouldn't have.

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Speaker 3: Yeah, I think that's fair. I think that parental expectations

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Speaker 3: of how their children are are taught have evolved a

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Speaker 3: lot since you and I were in school, and that's

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Speaker 3: part of what we're seeing. Parents are a lot more

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Speaker 3: involved in their children's lives than you know, those of

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Speaker 3: us who are middle aged now and grew up with

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Speaker 3: a very different experience of parental involvement in children's lives.

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Speaker 3: And so I think part of what we hear about

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Speaker 3: helicopter parents and now plow parents. You know, long list

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Speaker 3: of prescriptions. They're very involved, and so they care a

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Speaker 3: lot more about how literature is taught than they used to.

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Speaker 3: And it's not just about nature. That's just an example, right,

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Speaker 3: but it's an example that's been getting a lot of

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Speaker 3: attention for I use it.

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Speaker 1: What are the obstacles to challenging the curriculum at a

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Speaker 1: private school?

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Speaker 3: Well, that's a great question. I mean, first and foremost,

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Speaker 3: there are private schools of all stripes and flavors in

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Speaker 3: this country. In most states, you can find private schools

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Speaker 3: of all stripes and flavors and colors and everything else.

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Speaker 3: And so finding the right private school for you and

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Speaker 3: your family is the first place I go with this.

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Speaker 3: In other words, if a family doesn't like the curriculum

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Speaker 3: at ABC school, they should try to EXPLI these school

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Speaker 3: rather than trying to make ABC school change its curriculum.

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Speaker 3: That's my feeling, you know. I mean, I represent over

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Speaker 3: three hundred private school and I guarantee you that to

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Speaker 3: kill a mocking bird is probably taught in fifty different

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Speaker 3: ways among those schools, right, So find the one that

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Speaker 3: works for you and your family rather than going on

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Speaker 3: a campaign to change the school you go to or

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Speaker 3: the school you too. How do parents challenge it? Well,

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Speaker 3: in most instances, first they go to the teacher. If

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Speaker 3: that doesn't work, they escalate it within the school. Could

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Speaker 3: be to the head of the department, could be to

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Speaker 3: an administrator like being at a lower school, could be

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Speaker 3: to the head of school, could be to the one

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Speaker 3: of trustee. It's not of that work. They tend to

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Speaker 3: go and threatened litigation. Sometimes they just use the media

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Speaker 3: as a way of exerting pressure before they even go

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Speaker 3: to court. And then sometimes they go to court and

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Speaker 3: these things get litigated. We are actually taking cases to

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Speaker 3: trial for schools a lot more than we used. We

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Speaker 3: had five childs scheduled in the last twelve months, which

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Speaker 3: is a very high number. One of them went forward

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Speaker 3: already for two weeks in federal courts. So the schools

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Speaker 3: are actually trying cases to adjury a lot more than these.

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Speaker 1: I'm sort of astonished that, you know, cases over what's

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Speaker 1: being taught are being litigated in federal courts. What are

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Speaker 1: the issues the.

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Speaker 3: Case I'm telling you that was not actually a curriculum case.

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Speaker 3: It was a case against the school on other grounds.

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Speaker 3: A lot of the cases that we are seeing that

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Speaker 3: are litigated are involving student discipline, which is again a

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Speaker 3: very hot area for litigation against private schools. Sometimes it

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Speaker 3: is a parent doing over a failure to discipline, for example,

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Speaker 3: if they believe their child was the victim of a

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Speaker 3: sexual assault, of sexual abuse, bullying, or hazing, and so

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Speaker 3: they see the school of saying you didn't discipline a

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Speaker 3: bully or a perpetrator in some way. Other cases involve

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Speaker 3: a parent whose child was disciplined and they don't that

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Speaker 3: and so they litigate that. And I can give you

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Speaker 3: lots of examples of that. Again, we just handled one

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Speaker 3: with an injunction in federal court for one of our schools,

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Speaker 3: where a family sued for an injunction trying to get

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Speaker 3: the court to force the school to take their child

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Speaker 3: back to camps. So we're just being a lot of us.

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Speaker 1: Do they sue for breach of contract? What are the

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Speaker 1: grounds for the lawsuits like this?

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Speaker 3: Sure? So breach of contract is one, and that's based

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Speaker 3: in a whole bunch of different you know documents, if

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Speaker 3: you will, breach of contract tends to the document based.

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Speaker 3: It can be oral, verbal, So there's breach of contracts sometimes,

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Speaker 3: and I don't want to be, you know, giving plaint

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Speaker 3: of lawyers ideas here on how to flee school. But

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Speaker 3: I'll give you some bread stress. You know. Sometimes they

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Speaker 3: sue for intentional infliction of emotional distress, negligent infliction of

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Speaker 3: emotional distress, all sorts of support claims. Oftentimes lawyers will

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Speaker 3: sort of throw the scietti at the wall and see

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Speaker 3: at six. Right, They'll file nine claims against thirty five

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Speaker 3: different people and see what happens. So, for example, I

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Speaker 3: think I have four lawsuits pending right now where a

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Speaker 3: plantive lawyer sued every member of the board of trustees

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Speaker 3: along with the school, the head of school administrators. Sometimes

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Speaker 3: students are sued. We have, you know, forty defendants before

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Speaker 3: we know it in some of these cases. So the

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Speaker 3: different claims will correlate with the different actors. Right, A

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Speaker 3: breach of contract isn't going to be against a student,

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Speaker 3: for example, so they vary.

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Speaker 1: Just to clarify, are there cases that go to court

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Speaker 1: over the curriculum? Yes, there are, and what grounds would

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Speaker 1: those be on?

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Speaker 3: They tend to be breach of contract, promisory estoppel, which

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Speaker 3: is one of those hot claims. I mentioned, which is essentially,

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Speaker 3: you made a promise and didn't follow us through. So

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Speaker 3: for example, you promised to educate my child in a

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Speaker 3: certain way, and the way you're doing it is doing that.

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Speaker 3: Those are the sorts of claims, and I would say

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Speaker 3: fewer of those go to courts and the discipline cases,

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Speaker 3: but they do, and fewer of them go all the

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Speaker 3: way to trial.

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Speaker 1: But at this one cases as do a lot of

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Speaker 1: these go to arbitration because I assume there's some kind

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Speaker 1: of contract with the school that you sign.

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Speaker 3: So good question. So in general, there's a written enrollment agreements,

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Speaker 3: which is the binding contract between family and school depending

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Speaker 3: on how it's drafted, and thus tends to be the

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Speaker 3: bosus for this. There can be other contractual bases as well,

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Speaker 3: but that tends to be what people will argue, and

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Speaker 3: so first and foremost that's what they'll be focused on,

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Speaker 3: is the enrollment agreement and the commitments made by each

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Speaker 3: party in that. Now you asked about arbitration. Many of

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Speaker 3: our cases do good to arbitration. The only route by

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Speaker 3: which they go to arbitration is if there is an

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Speaker 3: enforceable arbitration clause included in that enrollment agreement. And in

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Speaker 3: some of our enrollment agreements, we see that sometimes they're

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Speaker 3: poorly drafted by lawyers and so they're not enforceable. Sometimes

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Speaker 3: they're narrowly drafted and may not apply in the circumstance.

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Speaker 3: So for example, they might only fly in a sexual

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Speaker 3: assault case, where they might only apply in the discipline case.

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Speaker 3: So there are cases going to arbitration. They are fewer,

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Speaker 3: I believe than the court cases, but that is dependent

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Speaker 3: on how the arbitration clause is written into the enrollment

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Speaker 3: agreement and the aplicialbook state laws.

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Speaker 1: Do some parents sue over the school's attempts to bring

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Speaker 1: diversity to the student body, Yes, there.

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Speaker 3: Are plenty of lawsuits depending on that, and those tend

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Speaker 3: to be you know, Florida's getting a lot of attention,

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Speaker 3: for example, on some of the laws they're passing, and

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Speaker 3: so there tend to be lowsuits right now, sort of

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Speaker 3: in both directions, those who want a certain curriculum and

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Speaker 3: those who are opposing a certain curriculum. And there are

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Speaker 3: lawsuits in both directions based on diversity and curriculums and

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Speaker 3: things like that.

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Speaker 1: And tell us a little bit more about this recent

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Speaker 1: case you had in federal court oh sure.

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Speaker 3: So the injunction case I mentioned was in federal court

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Speaker 3: a family of a boy who had been expelled to

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Speaker 3: the school and they were seeking reinstatement of the child.

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Speaker 3: So basically, we expel the child for a number of

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Speaker 3: significant examples of this conduct. And the parents did not

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Speaker 3: agree with the disciplinary decision, and so they fought it

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Speaker 3: within the school and then they took it support and

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Speaker 3: they sought an injunction, which is equitable release, where they

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Speaker 3: asked the judge to force the school to take the

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Speaker 3: students back. The judge held a meni hearing, which is

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Speaker 3: very common. It's like a mini trial or mourning of testimony,

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Speaker 3: so he hears actual evidence from the administrators and the

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Speaker 3: family and all that, and after that issued a decision.

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Speaker 3: And the decision is phenomenal because it has just really

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Speaker 3: helpful language for other schools who are facing, you know,

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Speaker 3: challenges to their disciplinary decisions. And I'll read you a quote.

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Speaker 3: One is, as a student in a private school, Doe,

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Speaker 3: this child was you know, suing under a studentom So,

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Speaker 3: Doe cannot invoke any rights of due process or equal

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Speaker 3: protection unless they are rights conferred by contract. Now why

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Speaker 3: do I applyag that? Because in a public school or

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Speaker 3: in the context of higher ed we have a very

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Speaker 3: different legal structure. But here in the private school world,

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Speaker 3: this judge is knowledged due process with equal protections don't

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Speaker 3: apply unless they are rights conferred by contracts by the

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Speaker 3: enrollment groups. Very important, The second thing he said is

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Speaker 3: quote this is the very end of the decision where

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Speaker 3: he says he will not force the school to take

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Speaker 3: this show back. School officials are clearly in the best

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Speaker 3: position to set and enforce disciplinary rules, particularly in a

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Speaker 3: residential setting, and except in the clearest of cases, judges

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Speaker 3: are ill equipped to substitute their views from a pau

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Speaker 3: That should be the quote that everybody leads going forward.

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Speaker 3: Basically says judges aren't going to come in and second

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Speaker 3: guess our private school, which is exactly as it should.

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Speaker 1: Thanks for being on the show, Sarah, Sarah Schwartz of

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Speaker 1: Schwartz Hannem And that's it for this edition of The

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