August 2026
Private Education Matters
Table Of Contents 03 Admissions
14 Governance
04 Parents
15 Business & Facilities
05 Hazing
17 Benefits Corner
07 Athletics
20 LCW Best Practices Timeline
EMPLOYEES
22 Did You Know?
08 Wage & Hour 11 Discrimination
23 Cases We Are Watching 24 Consortium Call of The Month
13 Workplace Safety
Contributors: Bryce Bakewell Graduate Law Clerk | Los Angeles Grace Chan Partner | San Francisco Jordan Carman Associate | San Francisco Hannah Dodge Associate | San Francisco
Andrew Dorado Juliana Pech Senior Counsel | Los Angeles Associate | Los Angeles Christopher Fallon Madison Tanner Partner | Los Angeles Associate | San Diego Ailin Nevarez Associate | Los Angeles Cynthia O’Neill Partner Emeritus | San Francisco
Connect With Us! Copyright © 2026 Requests for permission to reproduce all or part of this publication should be addressed to Jacqueline Reid, Marketing Manager at 310.981.2000. Cover Photo: Attributed to pexels.com
Private Education Matters is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Private Education Matters should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.
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Internal Admissions Materials And Applicant Data Lead DOJ To Find Title VI Violations At Duke Law. On August 6, 2026, the U.S. Department of Justice issued a findings letter concluding that Duke University School of Law violated Title VI in admissions for its incoming classes of 2023, 2024, and 2025. The DOJ conducted the compliance review because Duke Law receives federal financial assistance and evaluated its practices under the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA), which limited the consideration of race in college admissions. According to the DOJ, Duke Law continued to intentionally consider race in deciding which applicants to admit after SFFA. The DOJ relied heavily on Duke Law’s internal communications and admissions materials. Among other things, the DOJ identified internal discussions about continuing to achieve a racially diverse student body following SFFA, including consideration of admissions strategies that could further the School’s diversity goals. The DOJ pointed to applicationreview guidance that instructed admissions reviewers to tag applicants with a “Diversity/Services” tag if their answer related to diversity of perspective and experience. Reviewers also used tags to capture applicant characteristics commonly correlated with race, such as being first-generation or a Pell Grant recipient. Although Duke Law’s published policies stated that reviewers did not see applicants’ racial demographic data and that the School would not monitor racial composition during decision-making, the DOJ concluded that these other factors operated as “racerelated proxies” because, in its view, the record demonstrated they were being used to advance racial diversity objectives.
August 2026
Admissions review identified the number of Latino, Black, and Asian/Asian American students in the entering class, while describing a goal of continuing to develop effective “race-neutral admissions policies.” The DOJ concluded that the combination of these communications, admissions procedures, and internal tracking demonstrated an intent to influence racial outcomes despite the School’s formal race-neutral policies. The DOJ further relied on applicant-level admissions data. According to the Department’s analysis, in 2025, a Black applicant had approximately 3.5 times the probability of admission as an Asian applicant with similar LSAT and undergraduate GPA credentials. The DOJ also identified differences in median LSAT scores among admitted applicants and concluded that Black and Hispanic applicants had a substantially higher likelihood of admission than similarly credentialed White and Asian applicants. The Department stated that these disparities persisted after SFFA and could not, in its view, be explained by race-neutral considerations. The Department is seeking a voluntary resolution agreement with Duke University to bring its admissions practices into compliance with Title VI; the findings letter does not reflect a court ruling or final adjudication of liability. The full findings letter can be found here, and the press release can be found here. Note: Although Title VI does not apply to private schools that do not receive federal financial assistance, private schools remain subject to other nondiscrimination laws, including 42 U.S.C. section 1981, which prohibits race discrimination in contracting (e.g., enrollment contracts). The DOJ’s analysis provides a useful reminder that facially race-neutral admissions criteria may still create legal risk if evidence suggests they are being used as proxies for race or for the purpose of producing particular outcomes.
The Department also cited internal communications and annual admissions reviews that continued to track racial outcomes. For example, a 2024 internal • www.lcwlegal.com •
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Parents Parents Successfully Challenge Termination Of Children’s Enrollment Following Curriculum Dispute. Doug and Nicole Turpin had two children enrolled at Charlotte Latin School, a private school in North Carolina. According to their complaint, the School began changing its curriculum and approach to issues involving race and gender identity during the 2020-2021 school year, including by teaching their sixth-grade child allegedly polarizing concepts such as “Republicans are white supremacists” and reading books on sexuality and gender that they alleged were not age-appropriate. The Turpins disagreed with some of those changes and joined other parents in forming an informal group called “Refocus Latin,” which sought to raise concerns with School leadership about the School’s curriculum and culture. Members of Refocus Latin eventually met with the School’s Board of Trustees. The Turpins alleged that before and during the meeting, trustees repeatedly assured participating parents that they would not face retaliation for raising concerns. After the presentation, however, the School informed the group that administrators and trustees would not engage in further group discussions and directed parents to address concerns about their own children individually with administrators. The Turpins subsequently requested an individual meeting and specifically expressed concern that their child might experience “blowback” because they were raising concerns. A School administrator responded that the School’s teachers did not retaliate and assured them that “there will be no blowback.” A few days later, Doug Turpin met with the Head of School and Head of Middle School. During the meeting, the Head of School accused Turpin and other Refocus Latin parents of presenting materials stating that students and faculty of color were not qualified to be at the School. According to the complaint, the parents’ presentation contained no such statement. The Head of School then informed Turpin that the School was immediately terminating both children’s enrollment agreements. The School’s enrollment agreement incorporated a parent-school partnership provision stating that a “positive, collaborative working relationship” between the School and parents was essential to the School’s mission. Under that provision, the School reserved the right to discontinue enrollment if it concluded that a parent’s actions made such a relationship “impossible” or “seriously interfere[d]” with the School’s mission. The Turpins sued, asserting numerous claims. The trial court dismissed virtually all the claims, and the North Carolina Court of Appeals largely affirmed. The North Carolina Supreme Court reversed in part, concluding that the Turpins sufficiently pleaded claims for breach of contract, fraud, unfair and deceptive trade practices, and defamation. On the breach of contract claim, the Supreme Court focused on the language of the enrollment agreement. Although the agreement gave Charlotte Latin considerable discretion to discontinue enrollment, that discretion was expressly tied to two conditions: the School had to conclude that the parents’ actions either made a positive, collaborative relationship impossible or seriously interfered with its mission. The Turpins alleged that neither condition existed and that the School knowingly invoked those contractual grounds as a false pretext for terminating enrollment for some other reason. Charlotte Latin acknowledged during the litigation that the termination provision could not be invoked as a pretext or in bad faith. The Court therefore concluded that the parents had adequately stated a breach claim and were entitled to proceed to discovery regarding the School’s actual reasons for terminating enrollment. The Court also permitted the Turpins’ fraud claim to proceed based on the School’s “no blowback” assurance. The parents alleged that School officials already intended to terminate their children’s enrollment when they promised there would be no blowback, and that the promise was designed to induce Turpin to attend the meeting so the School could create a purported justification for ending the students’ enrollment. The Court stressed that proving this theory would be
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difficult, but under North Carolina’s liberal notice-pleading standard, the allegations were sufficient to survive a motion to dismiss. Finally, the Court revived the parents’ defamation claims arising from the School’s communications about the Refocus Latin presentation. After terminating the enrollments, the School allegedly told its community that the parents had asserted that diverse students and faculty “have not earned their positions and honors” and suggested that students and faculty of color were less qualified than their white counterparts. The presentation, however, criticized the School’s use of DEI goals and race-conscious criteria in admissions and hiring and advocated for a return to what the parents characterized as merit-based decision-making. The Supreme Court held that these were not necessarily equivalent statements: criticizing race-conscious admissions or hiring practices does not, by itself, amount to saying that individuals who may have benefited from those practices are underqualified. The Court also distinguished between expressing an opinion that someone is “racist” and falsely attributing a specific racist statement to that person. Whether the parents actually said that students and faculty of color had not earned their positions was objectively verifiable and therefore potentially actionable as defamation. And although the School’s communication did not identify the Turpins by name, the Court held they had sufficiently alleged that the statements concerned them because they belonged to the relatively small, identifiable group of parents that prepared and presented the materials. The Supreme Court therefore reversed the dismissal of these claims and remanded for further proceedings. Turpin v. Charlotte Latin Schs., Inc. (Aug. 14, 2026) 2026 LX 490179. Note: LCW has covered this case previously. Schools should exercise caution before communicating details about a dispute with a parent or family to the broader school community. In addition to potential defamation claims where a communication inaccurately attributes statements or conduct to a parent, California’s strong privacy protections provide an additional reason to limit communications to only information that is truly necessary and appropriate to share.
Hazing Washington Supreme Court Holds University Owed Duty To Student Based On Oversight Of Recognized Fraternity. S.M. enrolled at Washington State University (WSU) as a freshman in 2019 and pledged Gamma Chi, a chapter of the Alpha Tau Omega fraternity. During the fraternity's annual "Big-Little" initiation event, new members were expected to consume alcohol as part of the ritual. After drinking heavily first at the fraternity's off-campus house and later at the chapter house, S.M. died from acute alcohol intoxication. His parents brought a wrongful death action against WSU, alleging that the University negligently failed to protect him despite years of knowledge about alcohol abuse and hazing within the fraternity. Although the fraternity houses were located off campus and owned by affiliated organizations rather than the University, WSU maintained an extensive relationship with its recognized fraternities. In exchange for official recognition, fraternities received numerous benefits, including use of the University's name and trademarks, recruitment assistance, access to incoming student contact information, inclusion in University marketing materials, advising services, participation in campus events, and, for certain chapters, the ability to house first-year students who would otherwise be required to live on campus. In return, fraternities agreed to comply with University policies governing alcohol, hazing, risk management, and student safety, and were subject to ongoing oversight by WSU's Center for Fraternity and Sorority Life. • www.lcwlegal.com •
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WSU's agreements prohibited alcohol at fraternity social events, prohibited underage drinking at fraternity functions regardless of location, and expressly banned hazing, including hazing involving alcohol. The University also retained authority to investigate violations, require educational programming, impose probation, suspend or revoke recognition, withdraw freshman housing privileges, and permanently terminate a fraternity's recognition. The record in this case demonstrated that WSU had long recognized fraternities as presenting heightened risks associated with alcohol misuse and hazing. Years before S.M.'s death, University task forces concluded that fraternity members, particularly first-year male students, were disproportionately involved in serious alcohol-related incidents. WSU also had substantial knowledge of Gamma Chi’s troubled history: the University had previously sanctioned the chapter for alcohol-related hazing, received a 2017 report that a first-year student had been forced to consume large quantities of alcohol and subjected to aggressive hazing, and met with chapter and national fraternity leadership regarding continuing alcohol-related concerns. WSU also received reports that underage drinking continued at the fraternity's off-campus residence used by members, and University officials knew that incoming members remained vulnerable despite prior intervention efforts. The trial court granted summary judgment in favor of WSU, concluding that the University owed no legal duty to S.M. The Washington Court of Appeals reversed, and the Washington Supreme Court affirmed. The Washington Supreme Court held that WSU owed S.M. a duty of reasonable care based upon its special relationship with the fraternity. The Court explained that such a duty may arise when an institution: (1) maintains a continuing relationship with a third party; and (2) possesses sufficient ability to control that third party's conduct to prevent foreseeable harm. The Court concluded that both elements were satisfied. First, WSU's longstanding relationship with Gamma Chi gave it detailed knowledge of the fraternity's repeated alcohol violations, hazing practices, and the particular risks facing first-year pledges. In fact, in the months leading up to S.M.’s death, leadership from the fraternity and its national chapter met with WSU to discuss concerns about alcohol and first-year students at the off-campus housing. Second, the University exercised meaningful control over the fraternity through annual recognition agreements, required riskmanagement policies, regular meetings with University advisors, mandatory educational programming, investigations, sanctions, probation, and the ultimate ability to revoke recognition entirely. According to the Court, these measures demonstrated sufficient control even though WSU did not directly manage the fraternity's day-to-day activities or own the off-campus property where the hazing occurred. The Court distinguished its recent decision in Barlow v. State, which had declined to impose a duty based solely on the relationship between a university and its students. In Barlow, a WSU student was assaulted by another WSU student at an off-campus party. Unlike an individual student, Gamma Chi maintained an ongoing contractual relationship with the University that afforded WSU significant oversight and enforcement authority. Because WSU had voluntarily created that oversight structure, promoted fraternity participation, and retained the power to enforce safety requirements, the Court concluded that the University could owe a duty to take reasonable steps to ensure its anti-hazing and alcohol policies were actually followed. The Court emphasized that it was deciding only the existence of a legal duty, not whether WSU actually breached that duty. The case was remanded for further proceedings on the negligence claims. Martinez v. Wash. State Univ. (July 30, 2026, No. 104108-0) 2026 WL 2196394. Note: Although this case arose in the university fraternity context, its reasoning may have broader implications for private schools that formally recognize, sponsor, or oversee student organizations, athletic teams, clubs, performing arts programs, or other extracurricular activities. The decision suggests that when a school affirmatively promotes an organization and retains authority to monitor and discipline it, those actions may also create a corresponding duty to reasonably enforce those rules.
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ATHLETICS Court Allows Former Student-Athletes’ Claims To Proceed Years After Alleged Coaching Abuse. Eighteen former members of the University of California, Berkeley women’s swimming and diving team sued the University, alleging that longtime head coach Teri McKeever subjected athletes to years of verbal, emotional, and psychological abuse and that the University knew about her conduct but failed to protect them. The swimmers participated in the program at various times between 2000 and 2020. Their lawsuit asserted negligence, negligent supervision or retention, negligent failure to warn, train, or educate, and negligent infliction of emotional distress. According to the complaint, Coach McKeever’s program relied on coercion, public shaming, intimidation, isolation, and fear. The swimmers alleged that she had violent outbursts, publicly berated athletes, commented negatively on their weight, forced them to train through injuries, threatened scholarships, and subjected swimmers to unsafe training practices. Each season, McKeever allegedly targeted certain swimmers for degrading treatment, routinely yelling at and attacking them in front of the team. The swimmers also described a significant power imbalance: McKeever controlled competition opportunities and scholarships, could affect athletes’ ability to transfer, and had substantial influence in elite swimming outside the University. The swimmers alleged that the environment resulted in significant physical and psychological harm and caused some athletes to quit the team or leave the University. The complaint also alleged a lengthy history of notice to the University. According to the swimmers, University officials had received concerns regarding McKeever’s conduct as early as 1994, before any of the plaintiffs joined the team. Over the ensuing years, athletes and parents raised complaints with athletics administrators, and the University’s Office for the Prevention of Harassment and Discrimination interviewed former swimmers about McKeever in 2018 and 2020 after receiving allegations of misconduct by McKeever. An internal performance evaluation also reportedly documented McKeever making personalized attacks on swimmers, athletes’ fear of attending practice, and fear of retaliation. Yet, according to the complaint, University officials did not take meaningful corrective action, instead only discussing with McKeever the power dynamics and how her words and actions can have a profound impact. At the same time, the University continued to publicly endorse McKeever. It created a scholarship bearing her name, inducted her into its Hall of Fame, and renewed her contract through 2024 while describing her as an “iconic coach.” The plaintiffs alleged that these actions together with the University’s responses to complaints reinforced their belief that McKeever’s behavior represented legitimate elite-level coaching rather than abuse. That distinction became critical because many of the alleged events occurred well outside the applicable two-year statute of limitations. In May 2022, the Orange County Register published an investigative report describing allegations of widespread abuse by McKeever and the University’s alleged failure to respond to complaints dating back to at least 2014. The swimmers alleged that it was only after the article appeared that they understood that their individual experiences were part of a broader pattern and began to recognize the treatment they had experienced as potentially wrongful. After the article, the University commissioned an independent investigation, which ultimately concluded that McKeever had created a hostile environment for swimmers on the basis of race, national origin, and disability. The investigation determined that McKeever violated University policies against bullying and abusive conduct. The University terminated her employment in January 2023.
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The trial court dismissed the former swimmers’ lawsuit as untimely, but the California Court of Appeal reversed. Under California’s discovery rule, a claim may not accrue until the plaintiff discovers, or has reason to discover, the factual basis for the claim. The Court concluded that the swimmers had sufficiently alleged that, despite knowing they were suffering under McKeever’s coaching, they did not know or have reason to suspect that the coaching itself was wrongful. The Court relied on allegations concerning the coach-athlete power dynamic, the athletes’ youth and lack of Division I experience, the normalization of harsh coaching practices, and the University’s own conduct. When athletes or parents complained, they were met with silence, reassurances about McKeever, or investigations that resulted in her remaining in place. Meanwhile, the University continued publicly celebrating and rewarding her. The Court of Appeal found that those circumstances could reasonably have reinforced the athletes’ perception that what they were experiencing was an accepted part of elite athletics. The Court emphasized the unusual nature of the environment, describing it as a “closed environment” in which the boundary between challenging coaching and abuse had been obscured for these athletes. At the pleading stage, the Court was unwilling to conclude as a matter of law that the 2022 news report could not have provided the context that caused the swimmers to recognize the alleged wrongdoing for the first time. However, because their allegations raised at least a factual question regarding when they reasonably discovered their claims, dismissal based on the statute of limitations was improper. The Court reversed and sent the case back to the trial court. Touhey v. Regents of the University of California (June 16, 2026) ___ Cal.App.5th ___ [2026 WL 1732324]. Note: The decision is a reminder that the passage of time does not always eliminate potential liability. Although statutes of limitations provide important protection against stale claims, the discovery rule may delay accrual where a plaintiff plausibly alleges that the surrounding circumstances, including the school’s own conduct, prevented the plaintiff from reasonably recognizing that the conduct was wrongful.
Employees
WAGe & Hour California State Officials Urge California Supreme Court Not To Extend Ministerial Exception To Wage And Hour Claims. The California Supreme Court is considering an important question for religious employers: whether the First Amendment’s ministerial exception categorically prevents employees who qualify as “ministers” from bringing minimum wage and overtime claims against religious organizations, even when resolving those claims would not require a court to decide questions of religious doctrine or governance. The California Attorney General and Division of Labor Standards Enforcement (DLSE) recently filed briefs urging the Court to reject such a categorical rule. The dispute arises from the San Francisco Zen Center (Center), a nonprofit Zen Buddhist organization that operates three residential training centers. The Center also engages in revenue-generating activities, including renting guest rooms to the public. Participants in the Center’s residential training program perform both religious practices, such as meditation, and work that supports these operations. They receive room and board and relatively small monthly stipends.
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Annette Lorenzo participated in the Center’s program from 2015 until 2019. Her duties included cleaning guest rooms, doing laundry, checking in guests, working in the kitchen and bathhouse, and preparing lunches for guests. When she left the Center in 2019, her monthly stipend was approximately $198. Lorenzo subsequently filed a claim with the California Labor Commissioner seeking unpaid wages, and the Labor Commissioner awarded her approximately $149,000 in minimum wages, overtime, liquidated damages, interest, and waiting-time penalties. The Center appealed and argued that the ministerial exception barred Lorenzo’s claims. The trial court agreed, but the Court of Appeal reversed. For purposes of the appeal, Lorenzo conceded that the Center was a religious institution and that she qualified as a minister; the issue therefore became whether ministerial status alone categorically prevents a worker from pursuing minimum wage and overtime claims. The Court of Appeal concluded that it does not, reasoning that the exception bars claims requiring inquiry into a religious organization’s internal governance, faith, or doctrine, but does not necessarily bar claims seeking compensation for work already performed. The California Supreme Court granted review of that issue and the Supreme Court’s decision has not been issued yet. In its brief, the Attorney General emphasizes the distinction between the ministerial exception and the broader church autonomy doctrine. The ministerial exception protects a religious organization’s constitutional authority to select, supervise, and remove individuals who perform important religious functions. The U.S. Supreme Court applied that principle in two cases (Hosanna-Tabor and Our Lady of Guadalupe), the latter of which involved teachers at religious K–12 schools. According to the Attorney General, however, those cases concerned challenges to employment termination decisions; the Supreme Court has never held that ministerial status creates a general exemption from minimum wage and overtime requirements. The Attorney General and DLSE argue that determining how many hours Lorenzo worked and what statutory wages she was owed does not interfere with the Center’s decision about who should serve as a minister. The Attorney General also points directly to the potential consequences for religious schools, arguing that Our Lady of Guadalupe adopted a broad understanding of who may qualify as a minister and that many K–12 teachers at religious schools could fall within that definition. In the State’s view, categorically extending the ministerial exception to wage-and-hour laws could therefore remove minimum wage and overtime protections from a substantial number of religious-school employees who perform important religious functions. Note: Religious schools should watch this case closely, particularly in light of the California Attorney General’s position urging the California Supreme Court to adopt a narrower view of the ministerial exception. The Attorney General’s briefing signals a potential shift toward allowing wage-and-hour laws to apply even to employees who perform important religious functions, rather than treating ministerial status as a categorical bar to such claims. LCW will continue to monitor this case.
Department Of Labor Issues New Guidance On Remote Work And Compensable Commute Time. The U.S. Department of Labor's Wage and Hour Division recently issued two opinion letters addressing how the Fair Labor Standards Act (FLSA) applies when non-exempt employees perform work at home before, after, or around their commute. Together, the letters distinguish between an ordinary commute undertaken primarily for the employee's benefit, which generally is not compensable, and travel that is sufficiently intertwined with work performed for the employer's benefit that it may become compensable. In FLSA2026-9, the DOL considered employees who voluntarily split their workday between home and the office. The examples included an employee who worked from home before driving to the office to avoid rushhour traffic, an employee who performed additional work from home before beginning a regular office shift, and an employee who left the office early enough to catch the last bus and finished working after arriving home. The • www.lcwlegal.com •
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DOL concluded that the travel between home and the office remained an ordinary, noncompensable commute in each situation, even though it occurred between periods of compensable work. According to the DOL, allowing employees to alter the timing of their commute for their own convenience does not transform an otherwise ordinary commute into compensable worktime merely because it occurs in the middle of the workday. FLSA2026-10 illustrates where the analysis can change. There, a field service engineer received assignments at home each morning and was required to call clients and other engineers to arrange appointments before traveling to the first client site. The DOL distinguished the few seconds the employee spent receiving each assignment, which it considered incidental to commuting in an employer-provided vehicle, from the more substantial time spent calling clients and coordinating appointments, which was integral to the employee's job and therefore compensable. Those work activities could also affect whether the travel itself was compensable. For example, where the employee was required to spend most of the hour immediately before leaving home making client calls and then immediately drive to the first worksite at a time and in a manner dictated by the employer, the DOL concluded that the drive no longer had the characteristics of an ordinary commute and was compensable. Similarly, if the employee began making required client calls while driving, the employee's workday began with those calls, and the remaining travel to the first client site could be compensable. The two letters draw an important distinction for employers offering remote or hybrid work arrangements. Performing work at home before or after a commute does not automatically make the commute compensable. However, schools should be cautious when requiring non-exempt employees to perform substantial work immediately before or during their commute, particularly where the employer controls the timing and manner of the travel. The DOL emphasized that whether travel is an "ordinary" commute can depend on the totality of the circumstances and whether the travel primarily benefits the employee or employer. Note: LCW recommends that schools offering flexible schedules or hybrid work arrangements to non-exempt employees establish clear expectations about when employees may perform work remotely and how that time should be recorded. In addition, it is important to note that these opinion letters address employers' obligations under the federal FLSA only. California has its own standards for determining compensable worktime, so schools should also separately evaluate state-law requirements.
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discrimination Motion To Compel Arbitration Denied On Sexual Orientation Harassment Claim. Trevor Decloedt alleged that a coworker repeatedly condemned him for being gay, told him that homosexuality was sinful, threatened to kill him, and touched or forcefully grabbed his hair. Decloedt repeatedly reported the conduct to supervisors and human resources, but he alleged that they took no action. He alleged severe emotional distress, including suicidal thoughts, and that he was later terminated without a meaningful explanation. Decloedt sued RadNet Management, related RadNet entities, his former supervisor, and the coworker, asserting 11 state-law causes of action, including hostile-work-environment and sexual-harassment claims under California’s Fair Employment and Housing Act (FEHA). The employer moved to compel arbitration under an agreement Decloedt had signed when his employment began. The California Superior Court denied the motion, finding that Decloedt had alleged sexual harassment covered by the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which makes pre-dispute arbitration agreements unenforceable for cases relating to sexual harassment. The employer appealed, arguing that harassment based on sexual orientation was not “sexual harassment” under FEHA and that Decloedt’s allegations were not sufficiently severe or pervasive to state a viable harassment claim. The California Court of Appeal rejected those arguments and affirmed. Relying in part on the U.S. Supreme Court’s reasoning in Bostock v. Clayton County that discrimination based on homosexuality necessarily involves discrimination because of sex, the Court held that sexual-orientation harassment is a form of sexual harassment under FEHA. Sexual harassment does not have to involve sexual advances, sexual desire, or explicitly sexual conduct; the critical question is whether the employee was harassed because of sex. Decloedt’s allegations of repeated anti-gay condemnation, threats, unwanted physical contact, and an assault described severe or pervasive harassment motivated by hostility toward his sexual orientation. Because Decloedt sufficiently alleged at least one sexual-harassment claim, the EFAA exempted his entire case from compelled arbitration. Decloedt v. RadNet Management, Inc., No. B343963 (Cal. Ct. App. June 26, 2026; certified for publication July 7, 2026).
Court Upholds Dismissal Of Professor’s Discrimination Claims Following Student Complaints About Classroom Discussions. Dr. Linda Crawford was a tenured Spanish professor at Salve Regina University who had taught at the University since 2004. The events leading to her termination began during a November 2021 Spanish American Culture and Civilization class addressing gender and sexuality in Latin America. Crawford had assigned a reading that used outdated terminology to refer to transgender individuals, which a student considered offensive. During class, the student objected to the terminology and became outwardly upset. Several students subsequently met with Crawford’s department chair, who Crawford alleged encouraged them to keep a running list of criticisms about Crawford and to submit written complaints about her teaching. One student identified himself as a transgender gay man and criticized Crawford, in part, because she was a “white straight cis woman”; another complained about derogatory language concerning transgender people and expressed that classrooms should be safe spaces. The University subsequently held a group meeting with students regarding Crawford’s classes, during which some students accused her of using offensive language and hateful rhetoric toward LGBTQ+ individuals and • www.lcwlegal.com •
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people of color. Crawford alleged that she was neither informed of nor permitted to participate in the meeting and that the University failed to adequately investigate or verify the students’ allegations. The University thereafter restricted some of her duties and, approximately six weeks later, terminated her employment for cause, citing continued misconduct, failure to communicate, and failure to satisfy faculty responsibilities. According to Crawford, the University President identified the November classroom incident as the “catalyst” for her termination while also citing a longer history of concerns regarding her teaching. Crawford appealed her termination through the University’s internal faculty process. A Faculty Hearing Board ultimately upheld the decision with a 3-2 vote. The majority acknowledged problems with the investigation, including that some evidence had been collected prejudicially, haphazardly, and without adequate independence. Nevertheless, it concluded that Crawford had regularly used language that minimized others or promoted hurtful stereotypes, and it identified additional longstanding concerns involving her responsiveness to students and colleagues, grading practices, and classroom conduct. The majority noted that although Crawford’s lessons were crafted to explore stereotypes and foster educational dialogue, Crawford did not teach those topics in a culturally responsive way. The dissenting members believed the termination process was unfair and that evidence had been selectively gathered to support a predetermined outcome. After the University’s Board of Trustees unanimously affirmed her termination, Crawford sued, asserting discrimination based on gender, race, sexual orientation, age, and religion under federal and Rhode Island law, as well as hostile work environment and retaliation claims. The trial court dismissed the discrimination-related claims, and the First Circuit affirmed. The First Circuit focused primarily on causation. Although Crawford identified comments by students referencing her race, gender, and sexual orientation, the Court found no factual allegations connecting those comments to the University officials who actually decided to terminate her. For example, the student's statement that Crawford was a “cis white woman” could potentially demonstrate that student's bias, but the student was not a decisionmaker. Crawford did not allege facts showing that University decisionmakers endorsed that view, relied on it, or terminated her because of her protected characteristics. The Court reached a similar conclusion regarding Crawford’s allegations that her department chair encouraged students to complain about her. Crawford alleged that the chair was retaliating because of prior disagreements and a grievance she had filed against him, but she did not explain how those disputes related to a protected characteristic. Likewise, allegations that unidentified individuals objected to Crawford teaching certain subjects because she was a “cis white woman” were insufficient because Crawford did not identify who made the statements, when they were made, or whether they were communicated to or relied upon by the individuals responsible for her termination. The Court also rejected Crawford’s age and disparate-treatment theories. Her allegation that a male administrator accused of other misconduct received more favorable treatment lacked sufficient information to establish that he was similarly situated to Crawford. Likewise, allegations that she had been called “old school,” that a student sought an advisor with “fresh ideas and perspectives,” and that younger faculty received better offices were not tied to the individuals responsible for terminating her. The First Circuit also affirmed dismissal of Crawford’s hostile work environment claims. Although Crawford alleged numerous insults and accusations, including that she was racist, transphobic, homophobic, and hostile toward LGBTQ+ individuals and people of color, the Court explained that criticism of an employee’s perceived views about protected groups is not necessarily harassment because of the employee’s own protected status. Thus, even potentially harsh or offensive criticism did not establish that Crawford herself was being targeted because of her race, sex, sexual orientation, age, or religion. Finally, Crawford’s retaliation claims failed because she did not sufficiently allege protected activity occurring before her termination. She had previously filed a grievance against her department chair, but she did not allege that the grievance concerned discrimination prohibited by Title VII or Title IX. In addition, her participation in the
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internal proceedings challenging her termination could not support the claim because those proceedings occurred after the termination decision. Accordingly, the First Circuit affirmed dismissal of Crawford’s claims. Crawford v. Salve Regina Univ. (1st Cir. 2026) 178 F.4th 734. Note: Although the University ultimately prevailed on the discrimination claims, its own Faculty Hearing Board identified significant shortcomings in the investigation. A fair investigation that gathers information from appropriate sources, allows the employee to respond, and clearly documents the basis for the ultimate decision remains an important practice.
Workplace Safety Release In Separation Agreement Did Not Waive Employer’s Right To Seek Workplace Violence Restraining Order. Three employees complained that Adelanto Elementary School District Superintendent Michael Krause engaged in a years-long pattern that included angry outbursts, intrusive text messages, unsolicited photographs, monitoring them at or near their homes and workplaces, and jabbing his finger at two of them. The employees sought mental-health treatment and feared retaliation. The District terminated Krause’s employment pursuant to the terms of a separation agreement and general release. The agreement included provisions that required Krause to stay away from the employees and the District to waive all employment-related claims against Krause. Next, Krause successfully ran for a seat on the District’s Board of Trustees. The District then sought a workplace violence restraining order (WVRO) against Krause. The California Superior Court issued a WVRO that prohibited Krause from harassing, contacting, or disturbing the peace of the employees and generally
required him to remain 100 yards away from them and their workplace. The order permitted him to attend Board meetings under specified conditions. Krause appealed. Krause argued, among other things, that the District’s waiver of claims against him in the separation agreement barred the WVRO proceeding. The California Court of Appeal affirmed the WVRO with modifications. The Court held that an employer’s right to seek a WVRO on behalf of employees cannot be waived under California law because preventing workplace harassment and violence is an individual right and serves a fundamental public purpose. The Court held that the District proved that there was a reasonable probability of future harassment due to Krause’s repeated conduct, renewed presence as a Board member, and lack of insight or remorse. The Court modified the WVRO to accommodate Krause’s First Amendment rights and shortened the four-year duration of the WVRO to three years so it would not exceed the statutory maximum. Adelanto Elementary School District v. Krause, 121 Cal. App. 5th 699 (2026).
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GOVERNANCE Court Upholds Bylaws Eliminating Member Voting Rights But Invalidates Amendment To Church Articles For Improper Notice. Second Baptist Church of Houston, a Texas nonprofit corporation with approximately 94,000 adherents, historically operated under a member governance structure in which church members held significant voting rights, including the ability to vote on changes to the Church's Bylaws. In May 2023, the Church's Board of Trustees unanimously approved proposed amendments to its Articles of Incorporation and Bylaws and recommended that the congregation adopt them. Church members were notified through newsletters and announcements at worship services of a special meeting "to update our bylaws, to protect our ability to continue operating as a Biblical Church." At the meeting, the amendments were approved by a vote of 315-2. The amendments substantially changed the Church's governance structure. Among other things, the new Bylaws eliminated members' voting rights to elect the Senior Pastor, board members, and officers, amend governing documents, and approve certain expenditures and transactions. Governance authority instead shifted to a selfperpetuating "Ministry Leadership Team," which received broad authority over Church operations and assets. In 2025, Jeremiah Counsel Corporation (JCC), an organization formed by current and former Church members, sued the Church and several of its leaders. JCC alleged that Church leadership had misled members about the amendments' purpose and sought to invalidate the amendments and subsequent leadership and property decisions. The Texas Business Court first considered the church autonomy doctrine, which generally prevents civil courts from resolving disputes that would require them to decide questions of religious doctrine or interfere with a religious organization's internal governance. However, the Court emphasized that the doctrine does not provide religious organizations with blanket immunity from secular law. Because Second Baptist chose to organize as a Texas nonprofit corporation, courts could apply neutral principles of law to determine whether the Church complied with applicable corporate statutes and its governing documents. That distinction allowed the Court to examine whether the amendments were properly adopted. The Court held that determining whether the Church complied with statutory procedures for amending its Articles and Bylaws was a secular corporate-law question that did not require consideration of religious doctrine. Applying those neutral principles, the Court reached different conclusions regarding the Articles and Bylaws. Texas law required written notice to voting members containing the proposed amendment to the Church's Articles of Incorporation or a summary of the changes. The Church only provided notice of the Bylaws and provided no notice concerning the proposed amendment to the Articles. Therefore, the Court held that the amendment was invalid. By contrast, Texas law contained different meeting-notice requirements for churches, and the Church had satisfied the requirements applicable to the vote on its Bylaws. The Court also rejected JCC's argument that the Church's existing Articles independently guaranteed members the right to vote. Although the Articles referred to trustees being "elected" and described members voting on a prior amendment in 1978, they did not specify that trustees must be elected by the members or otherwise expressly guarantee member voting rights. Those rights instead appeared in the prior Bylaws. Accordingly, the Court concluded there was no conflict between the Articles and the 2023 Bylaws and upheld the new Bylaws eliminating member voting rights. At the same time, the church autonomy doctrine prevented the Court from going further and evaluating many of JCC's allegations concerning the motives and decisions of Church leadership. For example, JCC argued that
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members had been misled by the statement that the amendments were intended to allow the Church to continue operating as a "biblical church." The Court concluded that deciding whether that representation was false would require a judge or jury to determine what it means to operate as a "biblical church" and evaluate the sincerity of Church leaders' religious explanations, which is precisely the type of theological inquiry the First Amendment prohibits. Similarly, the Court declined to second-guess core governance decisions made under the new Bylaws, including the selection and removal of pastors, changes to Church leadership, and certain decisions regarding Church property. Once the Court determined that the Bylaws were validly adopted, evaluating whether those internal decisions were appropriate would impermissibly entangle the Court in religious governance. Ultimately, the Court invalidated the 2023 amendment to the Articles of Incorporation for failure to comply with statutory notice requirements but upheld the 2023 Bylaws, including the provisions eliminating member voting rights. Jeremiah Couns. Corp. v. Young, 2026 Tex. Bus. 46. Note: This case is a useful reminder for private schools to carefully review both their articles and bylaws before making governance changes. Rights contained in one governing document may not necessarily appear in another, and even religious organizations protected by church autonomy doctrines remain subject to neutral corporate-law requirements governing matters such as amendments, notice, and member rights.
BUSINESS & FACILITIES California Court Enforces Online Arbitration Agreement Where App Gave Users Clear Notice Of Terms Of Service. In Wilkins v. Cruise, LLC, the California Court of Appeal held that an arbitration agreement contained in an online Terms of Service was enforceable because the company’s mobile app gave users sufficiently clear notice that continuing through the account process meant agreeing to those terms. The Court reversed the trial court’s order denying arbitration and directed the trial court to compel the plaintiff’s claims to arbitration. Gino Wilkins was an employee of Cruise, LLC, an autonomous ride-hailing company. Wilkins was injured while riding in a Cruise autonomous vehicle, but at the time of the accident, he was not working as an employee. Instead, he was using Cruise’s ride-hailing service as a customer. Wilkins sued Cruise and two related General Motors entities for claims including negligence, product liability, and breach of warranty. The defendants sought to require Wilkins to arbitrate his claims based in part on an arbitration provision contained
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in the Terms of Service associated with his Cruise customer account. The trial court refused to compel arbitration, concluding that Cruise had not sufficiently established that Wilkins agreed to the arbitration provision. The Court of Appeal disagreed. The Court explained that contracts formed online are subject to the same basic rules as other contracts: users must have adequate notice of the contractual terms, and their actions must demonstrate agreement to those terms. Online agreements can take several forms. Some require a user to affirmatively click an “I agree” button (click-wrap agreement), some require a user to simply browse a site (browse-wrap agreement), while others provide notice that taking another action, such as signing up, signing in, or continuing to the next screen, constitutes agreement to linked terms and conditions (sign-in wrap agreement). Courts have held that sign-in wrap agreements can be enforceable if the user receives reasonably conspicuous notice of the terms and then takes an action that demonstrates agreement to them. Cruise used this type of sign-in process. During the account process, users encountered a screen stating in bold type: “By continuing, you agree to our Terms & Privacy Policy and confirm you are at least 18 years old.” Immediately below, the screen instructed users to read the Terms of Service and Privacy Policy, with links to both documents displayed in contrasting text. At the bottom of the screen was a prominent button containing an arrow that the user had to press to continue to the next screen. The Court concluded that this design provided adequate notice. The screen was uncluttered, contained only two sentences, and prominently told users that continuing meant agreeing to Cruise’s Terms of Service. The links to the Terms of Service and Privacy Policy were readily visible and could be accessed with one click. Nothing else on the screen distracted users from the notice. Given this presentation, the Court concluded that a reasonable user would understand that pressing the button to continue meant agreeing to the Terms of Service. The Court then considered whether the Terms of Service themselves gave users sufficient notice of the arbitration requirement. They did. Near the beginning of the Terms, bold language informed users that the document constituted a legally binding contract and specifically warned that Section 5 contained an arbitration agreement and class action waiver requiring most claims against Cruise to be resolved through individual binding arbitration. The table of contents also identified Section 5 as “Dispute Resolution and Arbitration,” and the arbitration section itself was clearly labeled and formatted consistently with the rest of the document. Wilkins argued that this was insufficient because, when viewed on a cell phone, the Terms of Service extended across approximately 31 screens, with the initial arbitration warning appearing on the third screen and the arbitration provision itself beginning on the twelfth. The Court rejected this argument. It emphasized that the arbitration provision was not hidden or difficult to identify and that requiring a user to scroll through an electronic agreement did not, by itself, make the terms inaccessible or unenforceable. The Court also rejected Wilkins’s argument that the arbitration language was ambiguous. Although one subsection stated that either party “may” initiate arbitration if a dispute could not be resolved informally, another expressly stated in bold capital letters that Cruise and the user mutually agreed to resolve disputes exclusively through final and binding individual arbitration. Reading the provisions as a whole, the Court concluded there was no reasonable ambiguity: a user could decide whether to pursue a claim, but if the user chose to do so, the agreed procedure was arbitration. Finally, the Court rejected the trial court’s alternative conclusion that arbitration should not be required because Wilkins had also sued two related General Motors entities that had not signed the agreement. Wilkins’s own complaint alleged that Cruise and the GM entities were related and acted as agents, joint venturers, or alter egos of one another, and he asserted the same claims based on the same underlying facts against all defendants. The Terms of Service also expressly extended the arbitration provision to Cruise affiliates and related parties. Under those circumstances, the Court concluded that the related GM entities could enforce the arbitration agreement and were not outside “third parties” whose presence would justify denying arbitration.
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Accordingly, the Court reversed the order denying arbitration and directed the trial court to grant the defendants’ motions to compel arbitration. Wilkins v. Cruise, LLC (July 14, 2026, A173832) ___ Cal.App.5th ___. Note: Organizations should exercise care when agreeing to terms of use through websites, mobile apps, online registration systems, or other electronic platforms. As this case demonstrates, an organization may be bound by lengthy online terms even if its representative does not actually read them or click a separate “I agree” box. Where the platform provides clear notice that taking an action, such as clicking “continue,” constitutes agreement to linked terms, those terms may be enforceable. Organizations should therefore ensure that employees tasked with contracting for services on behalf of the organization understand that their online actions will bind the organization in the same manner as a contract and can limit an organization’s scope of remedies. Organizations should carefully review terms, including arbitration provisions, before proceeding.
Benefits Corner Can Time Theft Rise To The Level Of "Gross Misconduct" Under COBRA? A Federal Court Says Yes. When an employee is terminated, employers generally assume they need to provide a COBRA election notice so the employee has the opportunity to continue health coverage. But there is one important exception: COBRA’s continuation coverage requirements do not apply if the employee is terminated for gross misconduct. The challenge, of course, is that neither COBRA nor its implementing regulations define what "gross misconduct" actually means. As a result, employers have been left to rely on court decisions for guidance, and those decisions have often been highly fact-specific. A recent federal district court decision provides additional guidance by concluding that an employee's intentional time theft constituted gross misconduct, relieving the employer of any obligation to offer COBRA continuation coverage. Background COBRA generally requires employers to offer continuation health coverage to covered employees and their qualified beneficiaries following certain qualifying events, including termination of employment. However, an employee whose employment is terminated due to gross misconduct does not experience a COBRA qualifying event. As a result, the employer has no obligation to provide a COBRA election notice or offer continuation coverage.
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Despite the significance of this exception, Congress did not define "gross misconduct," and the COBRA regulations likewise provide no definition. Consequently, courts have developed the standard through case law, often emphasizing that the exception should be applied cautiously because an incorrect determination may expose an employer to COBRA penalties and other liability. The Court's Decision In Green v. Clement Auto Group, LLC, a federal district court in Missouri considered whether an employer properly denied COBRA coverage after terminating an employee for time theft. The employee had been approved for intermittent leave under the Family and Medical Leave Act but routinely clocked in before leaving work for medical appointments without recording leave. Although the employee admitted that he performed no work during the periods between clocking in and returning from his appointments, he nevertheless received compensation for those hours. Surveying decisions from multiple jurisdictions, the court observed that gross misconduct generally requires conduct that is significantly more serious than poor performance, negligence, or isolated lapses in judgment. Instead, conduct must be intentional, willful, wanton, deliberate, reckless, or demonstrate deliberate indifference to the employer's interests. Applying that standard, the court concluded that the employee's intentional falsification of time records and receipt of pay for unworked hours constituted gross misconduct. The court held that the employer had no obligation to provide COBRA continuation coverage following the employee's termination. What This Means for Employers Although this decision is not binding outside the federal district in which it was issued, it illustrates the type of conduct that courts may find sufficiently egregious to qualify as gross misconduct for COBRA purposes. The opinion reinforces that intentional dishonesty, particularly where an employee knowingly receives compensation for hours not worked, may satisfy the standard for gross misconduct. At the same time, employers should continue to exercise caution before relying on the gross misconduct exception. Courts have historically interpreted the exception narrowly, and an incorrect determination may result in liability for failing to provide required COBRA notices and continuation coverage. Before concluding that an employee was terminated for gross misconduct, employers should carefully evaluate: • Whether the misconduct was intentional rather than merely negligent or inadvertent. • Whether the employer has thoroughly documented the facts supporting the termination. • Whether the evidence demonstrates deliberate misconduct rather than poor performance or misunderstanding of workplace policies. • Whether the employer has consistently applied its disciplinary policies in similar situations. Practical Considerations For most involuntary terminations, the safest course remains providing a COBRA election notice. Employers should consider relying on the gross misconduct exception only when the facts clearly demonstrate intentional or egregious misconduct and the supporting evidence is well documented. When employers believe the exception may apply, consulting legal counsel before withholding COBRA rights can help reduce the risk of later claims that continuation coverage was improperly denied.
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While Green v. Clement Auto Group, LLC does not establish a nationwide rule, it offers useful insight into how courts may analyze the gross misconduct exception. The decision confirms that intentional time theft supported by substantial evidence may constitute gross misconduct sufficient to eliminate an employer's COBRA obligations. Nevertheless, because the exception remains highly fact-specific and is construed narrowly, employers should proceed carefully and ensure that any decision to deny COBRA coverage is supported by thorough documentation and a well-developed factual record.
IRS Increases Affordability Percentage For Affordable Care Act. The IRS has set the new Affordable Care Act (ACA) affordability percentage to 10.22% for 2027. This new affordability percentage is 0.26% higher than the current 2026 affordability percentage (i.e., 9.96%). (Rev. Proc. 2026-26 (July 27, 2026).) While the Internal Revenue Code originally set the affordability threshold to 9.5%, the Internal Revenue Service (IRS) retains the authority to release an adjusted percentage each year. (See 26 U.S.C. section 36B(c)(2) (C)(i).) From 2015 to 2022, the IRS set an affordability percentage above 9.5%, going as high as 9.86% in 2019. For 2023, the IRS dropped the affordability percentage below 9.5% for the first time by setting it at 9.12%, then dropped it even lower to 8.39% for 2024. The affordability percentage increased to 9.02% for 2025 and 9.96% for 2026. The new 2027 affordability percentage of 10.22% is a new high.
for 2027 are affordable using the 10.22% threshold. To determine whether an offer of health coverage is affordable, an employer must run an affordability calculation to determine whether an employee’s “Required Contribution” toward the premium for the lowest cost employee-only coverage exceeds or does not exceed 10.22% of the employee’s household income for the 2027 taxable year. Since employers typically do not know the total household income of each of their employees, the ACA provides three affordability safe harbor options an employer may adopt and apply on a reasonable and consistent basis:
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Takeaways
Under the Form W-2 Safe Harbor, coverage is affordable if the employee’s Required Contribution is less than or equal to 10.22% of the employee’s wages reported in Box 1 of Form W-2. Under the Rate of Pay Safe Harbor, coverage is affordable if the employee’s Required Contribution is less than or equal to 10.22% of the monthly wage amount for hourly employees (the hourly rate multiplied by 130 hours), or the monthly salary for salaried employees. Under the Federal Poverty Line Safe Harbor, coverage is affordable if an employee’s Required Contribution does not exceed 10.22% of the Federal Poverty Line for a single individual. Please note that there are additional factors, such as health flex contributions and cash in lieu, that can greatly impact the amount of an employee’s Required Contribution and the affordability calculation. For more information about how to run the affordability calculation and whether you need to revise the employer contribution to maintain affordable offers of health coverage, please reach out to us.
Applicable large employers are advised to check whether their offers of employer-sponsored health coverage
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lcw best timeline AUGUST • Conduct staff trainings, which may include: o Sexual Harassment Training: A school with five or more employees, including temporary or seasonal employees, must provide sexual harassment training to both supervisory and nonsupervisory employees every two years. Supervisory employees must receive at least two hours and nonsupervisory employees must receive at least one hour of sexual harassment training. (California Government Code section 12950.1.) o Mandated Reporter Training: Prior to commencing employment, all mandated reporters must sign a statement to the effect that they have knowledge of the provisions of the Mandated Reporter Law and will comply with those provisions. (California Penal Code section 11166.5.) o Maintaining Professional Boundaries o Risk Management Training such as Injury and Illness Prevention and CPR. • Conduct Board / Governance Training, which may include: o Mandated Reporter Training (now required for trustees under SB 848!) o Fiduciary Duties o Legal Compliance & Risk Management o Governance Best Practices • Distribute Parent/Student Handbooks and collect signed acknowledgement of receipt forms, signed photo release forms, signed student technology use policy forms, and updated emergency contact forms.
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practices Each Month, LCW presents a monthly timeline of best practices for private and independent schools. The timeline runs from the fall semester through the end of summer break. LCW encourages schools to use the timeline as a guideline throughout the school year.
OCTOBER 1ST THROUGH 15TH • File Verification of Private School Instruction o Every person, firm, association, partnership, or corporation offering or conducting private school instruction on the elementary or high school level shall between the first and 15th day of October of each year, file with the Superintendent of Public Instruction an affidavit or statement, under penalty of perjury, by the owner or other head setting forth the following information for the current year: o All names, whether real or fictitious, of the person, firm, association, partnership, or corporation under which it has done and is doing business. o The address, including city and street, of every place of doing business of the person, firm, association, partnership, or corporation within the State of California. o The address, including city and street, of the location of the records of the person, firm, association, partnership, or corporation, and the name and address, including city and street, of the custodian of such records. o The names and addresses, including city and street, of the directors, if any, and principal officers of the person, firm, association, partnership, or corporation. o The school enrollment, by grades, number of teachers, coeducational or enrollment limited to boys or girls and boarding facilities. o That the following records are maintained at the address stated, and are true and accurate: The attendance of the pupils in a register that indicates clearly every absence from school for a half day or more during each day that school is maintained during the year (Education Code section 48222.) The courses of study offered by the institution. The names and addresses, including city and street, of its faculty, together with a record of the educational qualifications of each. o Criminal record summary information of applicants that has been obtained pursuant to section 44237.
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did you know...? • An amendment to SB 848 has been introduced that would ease the new mandated reporter training requirements imposed on private schools. Under SB 848, private schools wishing to use an alternative to the state-provided mandated reporter training must currently obtain approval of that training from their insurance provider. The proposed amendment would instead allow a private school’s governing authority (e.g., Board of Trustees) to approve an alternative training module, while leaving the school responsible for ensuring that the training satisfies applicable state requirements. The amendment has not yet become law. SB 1083 would amend the requirements established by SB 848 and if signed by the Governor, the change would take effect January 1, 2027. • The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it has rescinded several longstanding guidance documents addressing voluntary workplace affirmative action plans, concluding that the guidance no longer reflects current interpretations of Title VII of the Civil Rights Act or Supreme Court precedent. According to the agency, these materials had become obsolete and were inconsistent with more recent Supreme Court decisions and developments in the lower courts. • The Federal Communications Commission (FCC) is seeking public comment on potential changes to the E-rate program, which provides schools and libraries with discounted internet connectivity services. Among other issues, the FCC is considering whether the program should be modified, limited, or eventually discontinued in light of widespread internet connectivity, and whether E-rate funding should be conditioned on schools providing parents an opportunity to opt their children out of screenbased instruction or screen use during the school day. • The U.S. Department of Education’s Office for Civil Rights (OCR) recently issued new guidance stating that Title VI (which applies to schools that accept federal funding) prohibits intentional discrimination in student discipline, but does not prohibit unintentional disparate impacts or require schools to reduce statistical racial disparities in disciplinary outcomes. OCR states that schools may adopt discipline standards so long as they are facially race-neutral, adopted without discriminatory intent, and applied evenhandedly without regard to race. OCR takes the position that while racial disparity data may serve as evidence of intentional discrimination in some circumstances, a school may violate Title VI if it changes disciplinary decisions or policies for the purpose of reducing racial disparities or evaluates racial outcomes and makes decisions because of those outcomes. According to OCR, such consideration of race is permissible only in extraordinarily rare circumstances satisfying strict scrutiny.
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cases we are watching • The National Labor Relations Board has upheld an administrative law judge’s conclusion that Whole Foods did not violate the National Labor Relations Act when it prohibited employees from displaying “Black Lives Matter” or “BLM” messaging during working time and disciplined employees who refused to comply with its dress code. The NLRB concluded that, although employees acted together in displaying the messaging, the General Counsel failed to establish that their objective was to address workplace racial discrimination, improve working conditions, or otherwise advance their interests as employees, which is the connection necessary for the activity to receive protection under section 7 of the NLRA. LCW covered this case previously. • Americans for Equal Opportunity (AEO), a nonprofit advocacy organization, has asked the Federal Trade Commission to investigate Sponsors for Educational Opportunity (SEO), a nonprofit that operates a fellowship program connecting incoming law students with paid summer positions at major law firms, along with the law firms participating in the program. Through the SEO Law Fellowship, SEO recruits, screens, trains, and places students with participating firms, and the program can serve as an early pathway to later summer associate and full-time employment. AEO alleges that this arrangement raises antitrust concerns because competing law firms use the same intermediary to recruit candidates, while SEO also establishes minimum compensation for fellows and shares certain demographic and hiring information with participating firms. AEO separately claims that SEO represented the Fellowship as a race-neutral program focused on “underserved” students while continuing to consider race and other protected characteristics in selecting candidates and tracking the racial demographics of participants. • The University of Minnesota has agreed to pay historian Raz Segal $250,000 to settle a dispute arising from its 2024 decision to withdraw an offer for him to lead the University’s Center for Holocaust and Genocide Studies. Segal had been selected following a faculty search process, but the University rescinded the offer five days later after receiving significant opposition from donors, legislators, and community members concerning Segal’s public criticism of Israel’s actions in Gaza, including an October 2023 article in which he characterized Israel’s conduct as genocide. Segal contended that the public university violated the First Amendment by withdrawing the offer in retaliation for his protected speech; records obtained from the University reportedly showed that administrators initially defended the selection but changed course as outside objections intensified. • www.lcwlegal.com •
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Consortium Call Of The Month LCW has four private education consortiums across the State! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone and email consultation with an LCW private education attorney on matters related to employment and education law questions (including business & facilities questions and student issues!) We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the Consortium Call of the Month.
Question: A Head of School contacted LCW with a question about their professional boundaries policy. The Head of School recalled that several years ago, LCW advised that the employee-student boundaries policy from the school’s employee handbook should be restated in the parent and family handbook. The Head of School asked if this was still LCW’s recommendation with the recent changes in the law around SB 848.
Answer: The LCW attorney advised that under AB 500 (effective January 1, 2018), private schools are required to make policies addressing employee interactions with students available on the school’s website. This requirement likely extends to more than the employee-student boundaries policy—it includes any policy that discusses interactions between employees and students that are and are not permissible, so it would likely include the school’s mandated reporter policy, social media policy if it refers to interactions with minors, and possibly the school’s acceptable use policy. AB 500 also requires private schools to provide parents with a written copy of those policies at the beginning of each school year. There are now additional requirements for schools with the passage of SB 848. The attorney advised that SB 848 does not change the AB 500 requirement; rather, it expands upon AB 500 requirements because now private schools are also required to have boundaries policies in place for both employees and students (AB 500 only required schools to give parents access to boundaries policies if a school had such policies). The attorney clarified that there is no requirement to put employee policies in the family handbook. Rather, the School has to give parents a written copy of those policies that address employee interactions with students, and also include them on the school’s website where parents can access them without a passcode. Finally, the attorney advised that, based on SB 848, LCW has updated model boundaries and mandated reporter policies that reflect the new requirements, including a new policy that is required for parent/student/family handbooks.
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