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