WEBVTT - Parents Sue Elite Schools Over 'Woke' Instruction

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 2>We fight the woke and the legislatures. We fight the

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<v Speaker 2>woke and the schools. We fight the woke and the corporations.

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<v Speaker 2>We refuse to surrender to the woke mob. This state

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<v Speaker 2>is where woke goes to die.

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<v Speaker 1>Florida Republican Governor Ron De Santis advances anti woke agenda

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<v Speaker 1>in the classrooms of the state, pushing laws to curtail

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<v Speaker 1>instruction and gender, sexuality, and racial identity in public schools. Now,

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<v Speaker 1>private schools aren't subject to such state laws, but that

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

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<v Speaker 1>parents have voiced opposition to private schools in other ways,

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<v Speaker 1>including filing lawsuits that face a number of challenges because

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<v Speaker 1>private schools are not bound by the US Constitution. Telling me,

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<v Speaker 1>as Sarah Schwartz of New England Bay Schwartz Hannem she

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<v Speaker 1>represents hundreds of private schools. Is there a trend of

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<v Speaker 1>parents suing schools over issues involving diversity, equity and inclusion.

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<v Speaker 3>Yeah, absolutely, there is a trend in that area. I

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<v Speaker 3>would say it is part of a larger trend. So

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<v Speaker 3>it seems to be the sort of mini trend that

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<v Speaker 3>is getting the most attention, but it is really part

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<v Speaker 3>of a much larger pattern of parents seeing educational institutions

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<v Speaker 3>a lot more than they used to.

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<v Speaker 1>Tell us a little more about the mini trend and

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<v Speaker 1>the larger trend.

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

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<v Speaker 3>I've been doing this for thirty years. And in the

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<v Speaker 3>old days, we would see a few lawsuits a year

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<v Speaker 3>against educational institutions, everything from Ivy League colleges to nestex

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<v Speaker 3>to small community colleges to private schools and everything in between.

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<v Speaker 3>Nowadays we see that many in a week, and it's

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<v Speaker 3>part of our crazy world we're living in right now,

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<v Speaker 3>and it's part of the post pandemic society. It's definitely

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<v Speaker 3>a trend that has exacerbated and accelerated since the pandemic.

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<v Speaker 3>I think there are a lot of reasons for that.

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<v Speaker 3>I'll start with kind of the pandemics related parts. During

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<v Speaker 3>the pandemic, there was a lot of angst about how

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<v Speaker 3>children were educated, and in the public school world there

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<v Speaker 3>was sort of one set of issues. In the college

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<v Speaker 3>world there was another set of issues. And in the

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

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<v Speaker 3>What we saw was parents saying, we're sending thirty forty

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<v Speaker 3>sixty eighty one hundred thousand dollars a year to send

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<v Speaker 3>our child to your school and they're not getting what

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

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<v Speaker 3>lot of this started, and the angst and anger about

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<v Speaker 3>is there a masking requirement, is there a vaccine requirement?

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<v Speaker 3>Are you hybrid, are you virtual? Are you in person?

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<v Speaker 3>What are you requiring? You know, all of this really

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<v Speaker 3>got start up, and then the whole diversity piece, which

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<v Speaker 3>is a mini trends is another sort of east of

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<v Speaker 3>the puzzle related no questions, but not the only example

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<v Speaker 3>of litigation we're seeing. We're seeing a huge increase in

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<v Speaker 3>litigation generally, and the diversity angle is one aspect of that.

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<v Speaker 1>Before we get any deeper into this, will you explain

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<v Speaker 1>the difference between parents suing a public school and parents

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<v Speaker 1>suing a private school, so you know, just.

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<v Speaker 3>To be very clear, we represent hundreds of private schools,

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<v Speaker 3>We represent higher ed institutions. We do not represent public schools.

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<v Speaker 3>But the public schools are governed by a whole variety

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<v Speaker 3>of federal and state laws that are completely different because

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<v Speaker 3>they are state actors. So for example, the Constitution does

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<v Speaker 3>not govern private actors that governing state actors. So these

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<v Speaker 3>you know, First Amendment rights things like that do not

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<v Speaker 3>exist to the same it's been in private schools as

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

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<v Speaker 3>a lot of laws applicable to public schools that do

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<v Speaker 3>not apply to side of school. On the higher edge side,

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<v Speaker 3>you have all of that. You have, you know, plenty

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<v Speaker 3>of federal funding issues, sometimes state funding issues, and you

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<v Speaker 3>have the overlay of title mode which creates a whole

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<v Speaker 3>other layer of bureaucracy and administrative process that is required

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<v Speaker 3>do process, et cetera. Now, some of our private schools

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<v Speaker 3>are covered by Title NIND but you know, fewer than

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<v Speaker 3>ten that private set. So as a result, our legal

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<v Speaker 3>structure is quite different in the private school arena than

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<v Speaker 3>in the public or in higher it.

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<v Speaker 1>Does suing schools over so called wokeness get the most

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<v Speaker 1>attention because it's a culture wars issue, or are a

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<v Speaker 1>lot of parents finding that private school curriculum is too

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<v Speaker 1>progressive for them.

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<v Speaker 3>You know, I think it is a function of our

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

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<v Speaker 3>I don't know. I'm not a psychologist, I'm not a sociologist.

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

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<v Speaker 3>is that our polarized political society, where the two extremes

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<v Speaker 3>are super vocal and the middle of the spectrum is

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<v Speaker 3>pretty quiet a lot of time, means that the two

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<v Speaker 3>extremes are what we hear about in the press. And

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<v Speaker 3>so I think that while we do see a lot

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<v Speaker 3>of these lawsuits, they are simply getting more attention because

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

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<v Speaker 3>an example. Though, we handle a lot of upset parent

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<v Speaker 3>cases that don't make its litigation, which is the good

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<v Speaker 3>news because in my perfect world I can resolve these

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<v Speaker 3>matters short of litigation for our schools. But in the

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<v Speaker 3>last month I have handled cases where parents were upset

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<v Speaker 3>about how Lord of Flies, the pot to kill a

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<v Speaker 3>mocking bird, two different schools, two different parts of the country,

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<v Speaker 3>and a Frank sessions, So how we're teaching the Diary

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<v Speaker 3>of Van Frank and things like that, just by simple example,

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<v Speaker 3>completely unrelated parts of the literature that kids study in

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<v Speaker 3>private school. Each of those triggering parental upset and how

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<v Speaker 3>they were taught. And it could be, for example, that

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<v Speaker 3>the Jewish families are upset about how I am Frank

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<v Speaker 3>is being taught, and it could be that other families

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<v Speaker 3>are upset about how it's being taught. And there are

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<v Speaker 3>two sides or three sides or four size on each

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<v Speaker 3>of these, and you never know which one is going

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<v Speaker 3>to get the most upset and start writing angry letters.

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<v Speaker 1>You mentioned three books that when I went to school

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<v Speaker 1>and the Dark Ages were taught, and when my daughter

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

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<v Speaker 1>in the past, I think that parents have problems, but

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<v Speaker 1>now they're escalating it to bringing complaints or lawsuits about

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<v Speaker 1>things that maybe in the past they wouldn't have.

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<v Speaker 3>Yeah, I think that's fair. I think that parental expectations

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<v Speaker 3>of how their children are are taught have evolved a

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<v Speaker 3>lot since you and I were in school, and that's

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<v Speaker 3>part of what we're seeing. Parents are a lot more

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<v Speaker 3>involved in their children's lives than you know, those of

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<v Speaker 3>us who are middle aged now and grew up with

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<v Speaker 3>a very different experience of parental involvement in children's lives.

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<v Speaker 3>And so I think part of what we hear about

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<v Speaker 3>helicopter parents and now plow parents. You know, long list

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

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<v Speaker 3>lot more about how literature is taught than they used to.

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

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<v Speaker 3>but it's an example that's been getting a lot of

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<v Speaker 3>attention for I use it.

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<v Speaker 1>What are the obstacles to challenging the curriculum at a

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<v Speaker 1>private school?

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

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<v Speaker 3>there are private schools of all stripes and flavors in

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<v Speaker 3>this country. In most states, you can find private schools

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<v Speaker 3>of all stripes and flavors and colors and everything else.

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<v Speaker 3>And so finding the right private school for you and

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<v Speaker 3>your family is the first place I go with this.

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<v Speaker 3>In other words, if a family doesn't like the curriculum

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<v Speaker 3>at ABC school, they should try to EXPLI these school

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<v Speaker 3>rather than trying to make ABC school change its curriculum.

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<v Speaker 3>That's my feeling, you know. I mean, I represent over

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<v Speaker 3>three hundred private school and I guarantee you that to

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<v Speaker 3>kill a mocking bird is probably taught in fifty different

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<v Speaker 3>ways among those schools, right, So find the one that

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<v Speaker 3>works for you and your family rather than going on

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<v Speaker 3>a campaign to change the school you go to or

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<v Speaker 3>the school you too. How do parents challenge it? Well,

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<v Speaker 3>in most instances, first they go to the teacher. If

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

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<v Speaker 3>be to the head of the department, could be to

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<v Speaker 3>an administrator like being at a lower school, could be

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<v Speaker 3>to the head of school, could be to the one

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<v Speaker 3>of trustee. It's not of that work. They tend to

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<v Speaker 3>go and threatened litigation. Sometimes they just use the media

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<v Speaker 3>as a way of exerting pressure before they even go

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<v Speaker 3>to court. And then sometimes they go to court and

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<v Speaker 3>these things get litigated. We are actually taking cases to

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<v Speaker 3>trial for schools a lot more than we used. We

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<v Speaker 3>had five childs scheduled in the last twelve months, which

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<v Speaker 3>is a very high number. One of them went forward

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<v Speaker 3>already for two weeks in federal courts. So the schools

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<v Speaker 3>are actually trying cases to adjury a lot more than these.

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

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<v Speaker 1>being taught are being litigated in federal courts. What are

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<v Speaker 1>the issues the.

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

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<v Speaker 3>It was a case against the school on other grounds.

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<v Speaker 3>A lot of the cases that we are seeing that

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<v Speaker 3>are litigated are involving student discipline, which is again a

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<v Speaker 3>very hot area for litigation against private schools. Sometimes it

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<v Speaker 3>is a parent doing over a failure to discipline, for example,

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<v Speaker 3>if they believe their child was the victim of a

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<v Speaker 3>sexual assault, of sexual abuse, bullying, or hazing, and so

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<v Speaker 3>they see the school of saying you didn't discipline a

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<v Speaker 3>bully or a perpetrator in some way. Other cases involve

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<v Speaker 3>a parent whose child was disciplined and they don't that

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<v Speaker 3>and so they litigate that. And I can give you

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<v Speaker 3>lots of examples of that. Again, we just handled one

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<v Speaker 3>with an injunction in federal court for one of our schools,

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<v Speaker 3>where a family sued for an injunction trying to get

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<v Speaker 3>the court to force the school to take their child

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

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<v Speaker 1>Do they sue for breach of contract? What are the

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<v Speaker 1>grounds for the lawsuits like this?

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

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<v Speaker 3>in a whole bunch of different you know documents, if

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<v Speaker 3>you will, breach of contract tends to the document based.

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

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<v Speaker 3>and I don't want to be, you know, giving plaint

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<v Speaker 3>of lawyers ideas here on how to flee school. But

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<v Speaker 3>I'll give you some bread stress. You know. Sometimes they

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<v Speaker 3>sue for intentional infliction of emotional distress, negligent infliction of

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<v Speaker 3>emotional distress, all sorts of support claims. Oftentimes lawyers will

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<v Speaker 3>sort of throw the scietti at the wall and see

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

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<v Speaker 3>different people and see what happens. So, for example, I

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<v Speaker 3>think I have four lawsuits pending right now where a

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<v Speaker 3>plantive lawyer sued every member of the board of trustees

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<v Speaker 3>along with the school, the head of school administrators. Sometimes

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<v Speaker 3>students are sued. We have, you know, forty defendants before

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<v Speaker 3>we know it in some of these cases. So the

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<v Speaker 3>different claims will correlate with the different actors. Right, A

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<v Speaker 3>breach of contract isn't going to be against a student,

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<v Speaker 3>for example, so they vary.

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<v Speaker 1>Just to clarify, are there cases that go to court

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<v Speaker 1>over the curriculum? Yes, there are, and what grounds would

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<v Speaker 1>those be on?

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<v Speaker 3>They tend to be breach of contract, promisory estoppel, which

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<v Speaker 3>is one of those hot claims. I mentioned, which is essentially,

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<v Speaker 3>you made a promise and didn't follow us through. So

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<v Speaker 3>for example, you promised to educate my child in a

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<v Speaker 3>certain way, and the way you're doing it is doing that.

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<v Speaker 3>Those are the sorts of claims, and I would say

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<v Speaker 3>fewer of those go to courts and the discipline cases,

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<v Speaker 3>but they do, and fewer of them go all the

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<v Speaker 3>way to trial.

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<v Speaker 1>But at this one cases as do a lot of

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<v Speaker 1>these go to arbitration because I assume there's some kind

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<v Speaker 1>of contract with the school that you sign.

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

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<v Speaker 3>which is the binding contract between family and school depending

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<v Speaker 3>on how it's drafted, and thus tends to be the

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<v Speaker 3>bosus for this. There can be other contractual bases as well,

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<v Speaker 3>but that tends to be what people will argue, and

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

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<v Speaker 3>is the enrollment agreement and the commitments made by each

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<v Speaker 3>party in that. Now you asked about arbitration. Many of

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<v Speaker 3>our cases do good to arbitration. The only route by

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<v Speaker 3>which they go to arbitration is if there is an

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<v Speaker 3>enforceable arbitration clause included in that enrollment agreement. And in

0:12:46.800 --> 0:12:50.640
<v Speaker 3>some of our enrollment agreements, we see that sometimes they're

0:12:50.679 --> 0:12:54.840
<v Speaker 3>poorly drafted by lawyers and so they're not enforceable. Sometimes

0:12:54.840 --> 0:12:58.240
<v Speaker 3>they're narrowly drafted and may not apply in the circumstance.

0:12:58.360 --> 0:13:00.760
<v Speaker 3>So for example, they might only fly in a sexual

0:13:00.760 --> 0:13:03.680
<v Speaker 3>assault case, where they might only apply in the discipline case.

0:13:03.920 --> 0:13:07.960
<v Speaker 3>So there are cases going to arbitration. They are fewer,

0:13:08.200 --> 0:13:11.360
<v Speaker 3>I believe than the court cases, but that is dependent

0:13:11.440 --> 0:13:14.320
<v Speaker 3>on how the arbitration clause is written into the enrollment

0:13:14.320 --> 0:13:16.200
<v Speaker 3>agreement and the aplicialbook state laws.

0:13:16.760 --> 0:13:21.160
<v Speaker 1>Do some parents sue over the school's attempts to bring

0:13:21.240 --> 0:13:25.000
<v Speaker 1>diversity to the student body, Yes, there.

0:13:24.800 --> 0:13:27.800
<v Speaker 3>Are plenty of lawsuits depending on that, and those tend

0:13:27.840 --> 0:13:30.640
<v Speaker 3>to be you know, Florida's getting a lot of attention,

0:13:30.840 --> 0:13:33.080
<v Speaker 3>for example, on some of the laws they're passing, and

0:13:33.120 --> 0:13:35.320
<v Speaker 3>so there tend to be lowsuits right now, sort of

0:13:35.320 --> 0:13:38.839
<v Speaker 3>in both directions, those who want a certain curriculum and

0:13:38.920 --> 0:13:41.000
<v Speaker 3>those who are opposing a certain curriculum. And there are

0:13:41.080 --> 0:13:45.200
<v Speaker 3>lawsuits in both directions based on diversity and curriculums and

0:13:45.280 --> 0:13:45.959
<v Speaker 3>things like that.

0:13:46.679 --> 0:13:48.560
<v Speaker 1>And tell us a little bit more about this recent

0:13:48.640 --> 0:13:52.079
<v Speaker 1>case you had in federal court oh sure.

0:13:52.240 --> 0:13:55.240
<v Speaker 3>So the injunction case I mentioned was in federal court

0:13:55.640 --> 0:13:58.240
<v Speaker 3>a family of a boy who had been expelled to

0:13:58.559 --> 0:14:02.520
<v Speaker 3>the school and they were seeking reinstatement of the child.

0:14:02.600 --> 0:14:06.600
<v Speaker 3>So basically, we expel the child for a number of

0:14:06.800 --> 0:14:13.559
<v Speaker 3>significant examples of this conduct. And the parents did not

0:14:13.840 --> 0:14:17.200
<v Speaker 3>agree with the disciplinary decision, and so they fought it

0:14:17.240 --> 0:14:19.920
<v Speaker 3>within the school and then they took it support and

0:14:20.000 --> 0:14:23.200
<v Speaker 3>they sought an injunction, which is equitable release, where they

0:14:23.240 --> 0:14:25.520
<v Speaker 3>asked the judge to force the school to take the

0:14:25.560 --> 0:14:28.960
<v Speaker 3>students back. The judge held a meni hearing, which is

0:14:29.120 --> 0:14:32.360
<v Speaker 3>very common. It's like a mini trial or mourning of testimony,

0:14:32.400 --> 0:14:35.760
<v Speaker 3>so he hears actual evidence from the administrators and the

0:14:35.840 --> 0:14:38.760
<v Speaker 3>family and all that, and after that issued a decision.

0:14:38.880 --> 0:14:42.920
<v Speaker 3>And the decision is phenomenal because it has just really

0:14:43.000 --> 0:14:47.160
<v Speaker 3>helpful language for other schools who are facing, you know,

0:14:47.320 --> 0:14:50.480
<v Speaker 3>challenges to their disciplinary decisions. And I'll read you a quote.

0:14:50.600 --> 0:14:54.720
<v Speaker 3>One is, as a student in a private school, Doe,

0:14:55.240 --> 0:14:57.880
<v Speaker 3>this child was you know, suing under a studentom So,

0:14:58.080 --> 0:15:02.200
<v Speaker 3>Doe cannot invoke any rights of due process or equal

0:15:02.320 --> 0:15:06.040
<v Speaker 3>protection unless they are rights conferred by contract. Now why

0:15:06.080 --> 0:15:09.760
<v Speaker 3>do I applyag that? Because in a public school or

0:15:09.800 --> 0:15:12.560
<v Speaker 3>in the context of higher ed we have a very

0:15:12.600 --> 0:15:15.640
<v Speaker 3>different legal structure. But here in the private school world,

0:15:15.680 --> 0:15:20.080
<v Speaker 3>this judge is knowledged due process with equal protections don't

0:15:20.120 --> 0:15:22.880
<v Speaker 3>apply unless they are rights conferred by contracts by the

0:15:23.000 --> 0:15:26.760
<v Speaker 3>enrollment groups. Very important, The second thing he said is

0:15:27.200 --> 0:15:29.440
<v Speaker 3>quote this is the very end of the decision where

0:15:29.440 --> 0:15:31.880
<v Speaker 3>he says he will not force the school to take

0:15:31.920 --> 0:15:35.920
<v Speaker 3>this show back. School officials are clearly in the best

0:15:35.960 --> 0:15:40.520
<v Speaker 3>position to set and enforce disciplinary rules, particularly in a

0:15:40.560 --> 0:15:44.880
<v Speaker 3>residential setting, and except in the clearest of cases, judges

0:15:44.920 --> 0:15:48.400
<v Speaker 3>are ill equipped to substitute their views from a pau

0:15:48.760 --> 0:15:51.800
<v Speaker 3>That should be the quote that everybody leads going forward.

0:15:52.120 --> 0:15:54.760
<v Speaker 3>Basically says judges aren't going to come in and second

0:15:54.760 --> 0:15:57.480
<v Speaker 3>guess our private school, which is exactly as it should.

0:15:57.840 --> 0:16:01.200
<v Speaker 1>Thanks for being on the show, Sarah, Sarah Schwartz of

0:16:01.320 --> 0:16:03.920
<v Speaker 1>Schwartz Hannem And that's it for this edition of The

0:16:03.920 --> 0:16:06.880
<v Speaker 1>Bloomberg Law Show. Remember you can always get the latest

0:16:06.960 --> 0:16:10.080
<v Speaker 1>legal news on our Bloomberg Law podcasts. You can find

0:16:10.080 --> 0:16:14.640
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0:16:14.720 --> 0:16:18.520
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0:16:18.520 --> 0:16:21.760
<v Speaker 1>into the Bloomberg Law Show every weeknight at ten pm

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<v Speaker 1>Wall Street Time. I'm June Grosso and you're listening to

0:16:25.400 --> 0:16:25.960
<v Speaker 1>Bloomberg