Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: We fight the woke and the legislatures. We fight the
Speaker 2: woke and the schools. We fight the woke and the corporations.
Speaker 2: We refuse to surrender to the woke mob. This state
Speaker 2: is where woke goes to die.
Speaker 1: Florida Republican Governor Ron De Santis advances anti woke agenda
Speaker 1: in the classrooms of the state, pushing laws to curtail
Speaker 1: instruction and gender, sexuality, and racial identity in public schools. Now,
Speaker 1: private schools aren't subject to such state laws, but that
Speaker 1: doesn't mean they're immune to the culture wars. Conservative leaning
Speaker 1: parents have voiced opposition to private schools in other ways,
Speaker 1: including filing lawsuits that face a number of challenges because
Speaker 1: private schools are not bound by the US Constitution. Telling me,
Speaker 1: as Sarah Schwartz of New England Bay Schwartz Hannem she
Speaker 1: represents hundreds of private schools. Is there a trend of
Speaker 1: parents suing schools over issues involving diversity, equity and inclusion.
Speaker 3: Yeah, absolutely, there is a trend in that area. I
Speaker 3: would say it is part of a larger trend. So
Speaker 3: it seems to be the sort of mini trend that
Speaker 3: is getting the most attention, but it is really part
Speaker 3: of a much larger pattern of parents seeing educational institutions
Speaker 3: a lot more than they used to.
Speaker 1: Tell us a little more about the mini trend and
Speaker 1: the larger trend.
Speaker 3: Sure, so I've started with the larger trend. You know.
Speaker 3: I've been doing this for thirty years. And in the
Speaker 3: old days, we would see a few lawsuits a year
Speaker 3: against educational institutions, everything from Ivy League colleges to nestex
Speaker 3: to small community colleges to private schools and everything in between.
Speaker 3: Nowadays we see that many in a week, and it's
Speaker 3: part of our crazy world we're living in right now,
Speaker 3: and it's part of the post pandemic society. It's definitely
Speaker 3: a trend that has exacerbated and accelerated since the pandemic.
Speaker 3: I think there are a lot of reasons for that.
Speaker 3: I'll start with kind of the pandemics related parts. During
Speaker 3: the pandemic, there was a lot of angst about how
Speaker 3: children were educated, and in the public school world there
Speaker 3: was sort of one set of issues. In the college
Speaker 3: world there was another set of issues. And in the
Speaker 3: private school world, which is really where we're focused today.
Speaker 3: What we saw was parents saying, we're sending thirty forty
Speaker 3: sixty eighty one hundred thousand dollars a year to send
Speaker 3: our child to your school and they're not getting what
Speaker 3: we're paying for. And that's fundamentally I think, where a
Speaker 3: lot of this started, and the angst and anger about
Speaker 3: is there a masking requirement, is there a vaccine requirement?
Speaker 3: Are you hybrid, are you virtual? Are you in person?
Speaker 3: What are you requiring? You know, all of this really
Speaker 3: got start up, and then the whole diversity piece, which
Speaker 3: is a mini trends is another sort of east of
Speaker 3: the puzzle related no questions, but not the only example
Speaker 3: of litigation we're seeing. We're seeing a huge increase in
Speaker 3: litigation generally, and the diversity angle is one aspect of that.
Speaker 1: Before we get any deeper into this, will you explain
Speaker 1: the difference between parents suing a public school and parents
Speaker 1: suing a private school, so you know, just.
Speaker 3: To be very clear, we represent hundreds of private schools,
Speaker 3: We represent higher ed institutions. We do not represent public schools.
Speaker 3: But the public schools are governed by a whole variety
Speaker 3: of federal and state laws that are completely different because
Speaker 3: they are state actors. So for example, the Constitution does
Speaker 3: not govern private actors that governing state actors. So these
Speaker 3: you know, First Amendment rights things like that do not
Speaker 3: exist to the same it's been in private schools as
Speaker 3: they do in public school So there's a whole legal structure,
Speaker 3: a lot of laws applicable to public schools that do
Speaker 3: not apply to side of school. On the higher edge side,
Speaker 3: you have all of that. You have, you know, plenty
Speaker 3: of federal funding issues, sometimes state funding issues, and you
Speaker 3: have the overlay of title mode which creates a whole
Speaker 3: other layer of bureaucracy and administrative process that is required
Speaker 3: do process, et cetera. Now, some of our private schools
Speaker 3: are covered by Title NIND but you know, fewer than
Speaker 3: ten that private set. So as a result, our legal
Speaker 3: structure is quite different in the private school arena than
Speaker 3: in the public or in higher it.
Speaker 1: Does suing schools over so called wokeness get the most
Speaker 1: attention because it's a culture wars issue, or are a
Speaker 1: lot of parents finding that private school curriculum is too
Speaker 1: progressive for them.
Speaker 3: You know, I think it is a function of our
Speaker 3: polarized political society. Now that's my own guest work. Right,
Speaker 3: I don't know. I'm not a psychologist, I'm not a sociologist.
Speaker 3: I'm on an education unemployment book, right. But my sense
Speaker 3: is that our polarized political society, where the two extremes
Speaker 3: are super vocal and the middle of the spectrum is
Speaker 3: pretty quiet a lot of time, means that the two
Speaker 3: extremes are what we hear about in the press. And
Speaker 3: so I think that while we do see a lot
Speaker 3: of these lawsuits, they are simply getting more attention because
Speaker 3: they're part of our polarized political society. I'll give you
Speaker 3: an example. Though, we handle a lot of upset parent
Speaker 3: cases that don't make its litigation, which is the good
Speaker 3: news because in my perfect world I can resolve these
Speaker 3: matters short of litigation for our schools. But in the
Speaker 3: last month I have handled cases where parents were upset
Speaker 3: about how Lord of Flies, the pot to kill a
Speaker 3: mocking bird, two different schools, two different parts of the country,
Speaker 3: and a Frank sessions, So how we're teaching the Diary
Speaker 3: of Van Frank and things like that, just by simple example,
Speaker 3: completely unrelated parts of the literature that kids study in
Speaker 3: private school. Each of those triggering parental upset and how
Speaker 3: they were taught. And it could be, for example, that
Speaker 3: the Jewish families are upset about how I am Frank
Speaker 3: is being taught, and it could be that other families
Speaker 3: are upset about how it's being taught. And there are
Speaker 3: two sides or three sides or four size on each
Speaker 3: of these, and you never know which one is going
Speaker 3: to get the most upset and start writing angry letters.
Speaker 1: You mentioned three books that when I went to school
Speaker 1: and the Dark Ages were taught, and when my daughter
Speaker 1: went to school, we're taught. So a lot of times
Speaker 1: in the past, I think that parents have problems, but
Speaker 1: now they're escalating it to bringing complaints or lawsuits about
Speaker 1: things that maybe in the past they wouldn't have.
Speaker 3: Yeah, I think that's fair. I think that parental expectations
Speaker 3: of how their children are are taught have evolved a
Speaker 3: lot since you and I were in school, and that's
Speaker 3: part of what we're seeing. Parents are a lot more
Speaker 3: involved in their children's lives than you know, those of
Speaker 3: us who are middle aged now and grew up with
Speaker 3: a very different experience of parental involvement in children's lives.
Speaker 3: And so I think part of what we hear about
Speaker 3: helicopter parents and now plow parents. You know, long list
Speaker 3: of prescriptions. They're very involved, and so they care a
Speaker 3: lot more about how literature is taught than they used to.
Speaker 3: And it's not just about nature. That's just an example, right,
Speaker 3: but it's an example that's been getting a lot of
Speaker 3: attention for I use it.
Speaker 1: What are the obstacles to challenging the curriculum at a
Speaker 1: private school?
Speaker 3: Well, that's a great question. I mean, first and foremost,
Speaker 3: there are private schools of all stripes and flavors in
Speaker 3: this country. In most states, you can find private schools
Speaker 3: of all stripes and flavors and colors and everything else.
Speaker 3: And so finding the right private school for you and
Speaker 3: your family is the first place I go with this.
Speaker 3: In other words, if a family doesn't like the curriculum
Speaker 3: at ABC school, they should try to EXPLI these school
Speaker 3: rather than trying to make ABC school change its curriculum.
Speaker 3: That's my feeling, you know. I mean, I represent over
Speaker 3: three hundred private school and I guarantee you that to
Speaker 3: kill a mocking bird is probably taught in fifty different
Speaker 3: ways among those schools, right, So find the one that
Speaker 3: works for you and your family rather than going on
Speaker 3: a campaign to change the school you go to or
Speaker 3: the school you too. How do parents challenge it? Well,
Speaker 3: in most instances, first they go to the teacher. If
Speaker 3: that doesn't work, they escalate it within the school. Could
Speaker 3: be to the head of the department, could be to
Speaker 3: an administrator like being at a lower school, could be
Speaker 3: to the head of school, could be to the one
Speaker 3: of trustee. It's not of that work. They tend to
Speaker 3: go and threatened litigation. Sometimes they just use the media
Speaker 3: as a way of exerting pressure before they even go
Speaker 3: to court. And then sometimes they go to court and
Speaker 3: these things get litigated. We are actually taking cases to
Speaker 3: trial for schools a lot more than we used. We
Speaker 3: had five childs scheduled in the last twelve months, which
Speaker 3: is a very high number. One of them went forward
Speaker 3: already for two weeks in federal courts. So the schools
Speaker 3: are actually trying cases to adjury a lot more than these.
Speaker 1: I'm sort of astonished that, you know, cases over what's
Speaker 1: being taught are being litigated in federal courts. What are
Speaker 1: the issues the.
Speaker 3: Case I'm telling you that was not actually a curriculum case.
Speaker 3: It was a case against the school on other grounds.
Speaker 3: A lot of the cases that we are seeing that
Speaker 3: are litigated are involving student discipline, which is again a
Speaker 3: very hot area for litigation against private schools. Sometimes it
Speaker 3: is a parent doing over a failure to discipline, for example,
Speaker 3: if they believe their child was the victim of a
Speaker 3: sexual assault, of sexual abuse, bullying, or hazing, and so
Speaker 3: they see the school of saying you didn't discipline a
Speaker 3: bully or a perpetrator in some way. Other cases involve
Speaker 3: a parent whose child was disciplined and they don't that
Speaker 3: and so they litigate that. And I can give you
Speaker 3: lots of examples of that. Again, we just handled one
Speaker 3: with an injunction in federal court for one of our schools,
Speaker 3: where a family sued for an injunction trying to get
Speaker 3: the court to force the school to take their child
Speaker 3: back to camps. So we're just being a lot of us.
Speaker 1: Do they sue for breach of contract? What are the
Speaker 1: grounds for the lawsuits like this?
Speaker 3: Sure? So breach of contract is one, and that's based
Speaker 3: in a whole bunch of different you know documents, if
Speaker 3: you will, breach of contract tends to the document based.
Speaker 3: It can be oral, verbal, So there's breach of contracts sometimes,
Speaker 3: and I don't want to be, you know, giving plaint
Speaker 3: of lawyers ideas here on how to flee school. But
Speaker 3: I'll give you some bread stress. You know. Sometimes they
Speaker 3: sue for intentional infliction of emotional distress, negligent infliction of
Speaker 3: emotional distress, all sorts of support claims. Oftentimes lawyers will
Speaker 3: sort of throw the scietti at the wall and see
Speaker 3: at six. Right, They'll file nine claims against thirty five
Speaker 3: different people and see what happens. So, for example, I
Speaker 3: think I have four lawsuits pending right now where a
Speaker 3: plantive lawyer sued every member of the board of trustees
Speaker 3: along with the school, the head of school administrators. Sometimes
Speaker 3: students are sued. We have, you know, forty defendants before
Speaker 3: we know it in some of these cases. So the
Speaker 3: different claims will correlate with the different actors. Right, A
Speaker 3: breach of contract isn't going to be against a student,
Speaker 3: for example, so they vary.
Speaker 1: Just to clarify, are there cases that go to court
Speaker 1: over the curriculum? Yes, there are, and what grounds would
Speaker 1: those be on?
Speaker 3: They tend to be breach of contract, promisory estoppel, which
Speaker 3: is one of those hot claims. I mentioned, which is essentially,
Speaker 3: you made a promise and didn't follow us through. So
Speaker 3: for example, you promised to educate my child in a
Speaker 3: certain way, and the way you're doing it is doing that.
Speaker 3: Those are the sorts of claims, and I would say
Speaker 3: fewer of those go to courts and the discipline cases,
Speaker 3: but they do, and fewer of them go all the
Speaker 3: way to trial.
Speaker 1: But at this one cases as do a lot of
Speaker 1: these go to arbitration because I assume there's some kind
Speaker 1: of contract with the school that you sign.
Speaker 3: So good question. So in general, there's a written enrollment agreements,
Speaker 3: which is the binding contract between family and school depending
Speaker 3: on how it's drafted, and thus tends to be the
Speaker 3: bosus for this. There can be other contractual bases as well,
Speaker 3: but that tends to be what people will argue, and
Speaker 3: so first and foremost that's what they'll be focused on,
Speaker 3: is the enrollment agreement and the commitments made by each
Speaker 3: party in that. Now you asked about arbitration. Many of
Speaker 3: our cases do good to arbitration. The only route by
Speaker 3: which they go to arbitration is if there is an
Speaker 3: enforceable arbitration clause included in that enrollment agreement. And in
Speaker 3: some of our enrollment agreements, we see that sometimes they're
Speaker 3: poorly drafted by lawyers and so they're not enforceable. Sometimes
Speaker 3: they're narrowly drafted and may not apply in the circumstance.
Speaker 3: So for example, they might only fly in a sexual
Speaker 3: assault case, where they might only apply in the discipline case.
Speaker 3: So there are cases going to arbitration. They are fewer,
Speaker 3: I believe than the court cases, but that is dependent
Speaker 3: on how the arbitration clause is written into the enrollment
Speaker 3: agreement and the aplicialbook state laws.
Speaker 1: Do some parents sue over the school's attempts to bring
Speaker 1: diversity to the student body, Yes, there.
Speaker 3: Are plenty of lawsuits depending on that, and those tend
Speaker 3: to be you know, Florida's getting a lot of attention,
Speaker 3: for example, on some of the laws they're passing, and
Speaker 3: so there tend to be lowsuits right now, sort of
Speaker 3: in both directions, those who want a certain curriculum and
Speaker 3: those who are opposing a certain curriculum. And there are
Speaker 3: lawsuits in both directions based on diversity and curriculums and
Speaker 3: things like that.
Speaker 1: And tell us a little bit more about this recent
Speaker 1: case you had in federal court oh sure.
Speaker 3: So the injunction case I mentioned was in federal court
Speaker 3: a family of a boy who had been expelled to
Speaker 3: the school and they were seeking reinstatement of the child.
Speaker 3: So basically, we expel the child for a number of
Speaker 3: significant examples of this conduct. And the parents did not
Speaker 3: agree with the disciplinary decision, and so they fought it
Speaker 3: within the school and then they took it support and
Speaker 3: they sought an injunction, which is equitable release, where they
Speaker 3: asked the judge to force the school to take the
Speaker 3: students back. The judge held a meni hearing, which is
Speaker 3: very common. It's like a mini trial or mourning of testimony,
Speaker 3: so he hears actual evidence from the administrators and the
Speaker 3: family and all that, and after that issued a decision.
Speaker 3: And the decision is phenomenal because it has just really
Speaker 3: helpful language for other schools who are facing, you know,
Speaker 3: challenges to their disciplinary decisions. And I'll read you a quote.
Speaker 3: One is, as a student in a private school, Doe,
Speaker 3: this child was you know, suing under a studentom So,
Speaker 3: Doe cannot invoke any rights of due process or equal
Speaker 3: protection unless they are rights conferred by contract. Now why
Speaker 3: do I applyag that? Because in a public school or
Speaker 3: in the context of higher ed we have a very
Speaker 3: different legal structure. But here in the private school world,
Speaker 3: this judge is knowledged due process with equal protections don't
Speaker 3: apply unless they are rights conferred by contracts by the
Speaker 3: enrollment groups. Very important, The second thing he said is
Speaker 3: quote this is the very end of the decision where
Speaker 3: he says he will not force the school to take
Speaker 3: this show back. School officials are clearly in the best
Speaker 3: position to set and enforce disciplinary rules, particularly in a
Speaker 3: residential setting, and except in the clearest of cases, judges
Speaker 3: are ill equipped to substitute their views from a pau
Speaker 3: That should be the quote that everybody leads going forward.
Speaker 3: Basically says judges aren't going to come in and second
Speaker 3: guess our private school, which is exactly as it should.
Speaker 1: Thanks for being on the show, Sarah, Sarah Schwartz of
Speaker 1: Schwartz Hannem And that's it for this edition of The
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Speaker 1: Wall Street Time. I'm June Grosso and you're listening to
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