Private Education Matters: February 2026

Private Education Matters

Contributors:

Grace Chan

Partner | San Francisco

Casey Williams

Partner | San Francisco

Jordan Carman

Associate | San Francisco

Hannah Dodge

Associate | San Francisco

Christopher Fallon

Partner | Los Angeles

Stephanie Lowe

Senior Counsel | San Diego

Madison Tanner

Associate | San Diego

Joshua Sarsfield

Associate | San Diego

students

Arbitration

New Jersey Court Bars Private School From Compelling Arbitration Of Sexual Assault Claims, Citing Federal Law.

J.H., a former boarding student at The Lawrenceville School, sued the school in New Jersey state court alleging that he was sexually assaulted by a school employee during his freshman year in 2019. The employee was later criminally charged and ultimately pleaded guilty to multiple counts of endangering the welfare of a child involving J.H. and other students. J.H. continued attending the school after the assault and, for each subsequent school year, his parent executed annual enrollment agreements provided by the School.

In May 2025, J.H. filed a civil complaint asserting claims under New Jersey’s Child Sexual Abuse Act (CSAA), as well as claims for negligence, gross negligence, negligent hiring and supervision, and vicarious liability. In response, the School moved to dismiss the lawsuit and compel arbitration, relying on an arbitration clause contained in the 2022-2023 enrollment agreement, which J.H.’s father had signed several years after the alleged assault. The School argued that the agreement’s broad arbitration provision and integration clause required all claims “arising out of or related to” J.H.’s enrollment to be resolved in arbitration, including claims based on events that occurred in earlier school years.

The trial court denied the motion to compel arbitration. It concluded that there was no mutual assent to arbitrate claims arising from the 2019 sexual assault when the parent signed an enrollment agreement limited by its terms to the 2022-2023 academic year. The trial court found that a reasonable person would not understand that signing an enrollment agreement years later would waive the right to a jury trial for claims based on a prior sexual assault. The School appealed.

The New Jersey Appellate Division reversed in part. The appellate court disagreed with the trial court’s contract interpretation and held that the arbitration provision

in the 2022-2023 enrollment agreement was broad, unambiguous, and not limited to disputes arising only during that academic year. Reading the agreement as a whole, the Court concluded that the arbitration clause encompassed all disputes related to J.H.’s enrollment, including tort and statutory claims, and that the integration clause superseded prior agreements. As a matter of contract law, the appellate court held that the arbitration agreement was valid and enforceable.

However, the appellate court went on to consider whether J.H.’s claims were nonetheless barred from arbitration under the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which amended the Federal Arbitration Act and which prohibits mandatory arbitration agreements for claims of sexual assault or sexual harassment. Although the trial court had not ruled on that issue, the appellate court addressed it due to the significant public interest involved. The Court held that the EFAA applied to J.H.’s case and rendered the arbitration agreement unenforceable.

The appellate court explained that the EFAA invalidates pre-dispute arbitration agreements with respect to an entire “case” that relates to sexual assault or sexual harassment, not merely individual claims within the case. Because J.H.’s lawsuit included claims relating to sexual assault, and because New Jersey’s CSAA provides expansive accrual and tolling rules for such claims, the Court concluded that all of J.H.’s claims, including negligence and statutory claims, were barred from arbitration. The Court emphasized that the timing of the arbitration agreement did not change this outcome, because the EFAA applies to cases filed after its enactment that relate to sexual assault.

Accordingly, although the appellate court disagreed with the trial court’s reasoning, it affirmed the ultimate result and held that J.H.’s claims could proceed in court and were not subject to arbitration.

J.H. v. Lawrenceville Sch. (Super.Ct.App.Div. Jan. 28, 2026, No. A-3846-24) 2026 LX 57246.

Note:

This decision underscores that, even where a school’s enrollment agreement contains a broad and otherwise enforceable arbitration provision, claims relating to sexual assault or sexual harassment may not be compelled to arbitration under federal law. While this case arose under New Jersey law, the federal EFAA applies nationwide, including in California.

ai

Court Rules That University Must Expunge Record For Student Accused Of AI Violation Due To Lack Of Fair Process.

O.N., a freshman enrolled in Adelphi University’s Bridges Program for students with autism spectrum and related disorders, filed an Article 78 proceeding seeking to annul an academic integrity violation issued against him. An Article 78 petition is a special proceeding under New York law that allows a court to review whether an institution or agency acted arbitrarily, capriciously, or contrary to its own rules.

During the Fall 2024 semester, O.N. submitted a “World Civilization” essay assignment for which he received tutoring support through the Bridges Program. Professor Micah Oelze later assigned the essay a grade of zero and accused O.N. of improperly using generative artificial intelligence, specifically Grammarly, after a Turnitin report indicated a 100% AI-generated score.

Oelze filed a formal Academic Integrity Violation Report asserting that the essay had been produced by AI. O.N. denied using AI and submitted evidence from two AIdetection programs that indicated the essay was humanwritten. On December 3, 2024, Adelphi’s Academic Integrity Officer issued a determination finding that O.N. was responsible and sanctioned him to attend a mandatory plagiarism workshop. When O.N. sought to appeal, arguing that he had not been given a fair opportunity to be heard or the assistance of an advisor as guaranteed under the University’s Code of Conduct, the same Academic Integrity Officer denied the appeal, stating that a faculty group had already concluded that Oelze’s evidence met university standards.

O.N. commenced the Article 78 petition asserting that the violation finding and appeal denial were arbitrary and capricious and that Adelphi failed to substantially comply with its own published procedures.

The Court emphasized that although private universities are afforded broad discretion in academic and disciplinary matters, judicial review remains available to determine whether a school acted arbitrarily and capriciously or failed to substantially comply with its own rules. In this regard, the Court found that Oelze’s subsequent email to O.N., which indicated that he believed the academic integrity office would independently evaluate the matter, undermined the strength of the initial AI-based accusation. The Court concluded that the violation and resulting appeal denial were “without valid basis and devoid of reason,” particularly where the student had submitted contrary AI-detection evidence that was not meaningfully addressed.

The Court also determined that Adelphi failed to follow its own Code of Conduct provisions. Although the University argued that the Code of Academic Integrity governed plagiarism allegations exclusively, the Court found that the broader Code of Conduct, including its Student Bill of Rights, applied. That Bill of Rights guaranteed students the opportunity to be accompanied by an advisor and to receive a meaningful opportunity to be heard. The Court found that O.N. was not afforded those protections. Additionally, the same administrator who issued the initial determination also handled the appeal, effectively nullifying the promised right to meaningful review.

Finding that Adelphi’s actions lacked a rational basis and did not substantially comply with its own procedures, the Court granted the petition, annulled the academic integrity violation and appeal denial, and ordered Adelphi to expunge O.N.’s record and rescind the sanction.

Matter of Newby v. Adelphi Univ. (Sup.Ct.) 2026 NY Slip Op 26021.

Note:

In California, private schools are similarly required to provide “fair procedure” when imposing discipline against students, which includes providing the accused student a notice of the charges and an opportunity to respond. In cases of serious misconduct, providing the accused an opportunity to appeal the decision is also recommended. This case highlights that the appeal should be meaningful and made by someone who was not involved in the underlying decision.

records Student

Court Limits Scope Of “Education Records” Under FERPA And Nevada Law To Exclude Ordinary Emails Mentioning Students.

Clark County School District (District) sought relief from the Nevada Supreme Court after a trial court ordered it to produce all emails stored on its Google Workspace system that mentioned a particular student, J.B.

The request arose after Angalia B., J.B.’s grandmother and court-appointed Educational Decision Maker (EDM), sought access to J.B.’s education records under FERPA and parallel Nevada statutes. Believing that the records initially produced by the District were incomplete, Angalia subsequently requested all emails identifying J.B. by name or initials that were stored on the District’s cloud-based email system.

The District refused the request, taking the position that emails stored in Google Workspace were not “education records” subject to disclosure unless the District had intentionally printed or stored them as part of J.B.’s official student file. Angalia moved to compel production in a separate case under the Individuals with Disabilities Education Act, arguing that any email referencing J.B. necessarily related to the student and therefore constituted an education record. The trial court agreed and ordered the District to produce all emails referring to J.B. that were stored on its email system.

The District petitioned the Nevada Supreme Court,

challenging the trial court’s decision.

The Nevada Supreme Court held that not every email that mentions a student and is stored on a school district’s email server constitutes an “education record” under FERPA or Nevada law. Relying heavily on the U.S. Supreme Court’s decision in Owasso Independent School District v. Falvo, which held that to qualify as an education record, a document must be intentionally maintained as an institutional record in a designated place, typically under the control of a central custodian such as a registrar. Ordinary emails exchanged in the routine course of business, even if stored indefinitely on a secure cloud server, lack the permanence and deliberate maintenance required to make them education records.

The Court emphasized that emails are often informal, easily deleted, and may only incidentally reference a student while primarily addressing other matters. It rejected the argument that storage on a searchable digital platform, standing alone, satisfies FERPA’s “maintained by” requirement. The Court also expressed concern that treating all emails mentioning a student as education records would create an unworkable administrative burden, potentially requiring districts to search millions of emails, track access logs, and allow parents to seek amendments or add explanations to every email referencing their child.

Because the trial court adopted an overbroad interpretation of “education records,” the Nevada Supreme Court concluded that it abused its discretion. The Court therefore granted the District’s petition and directed the trial court to vacate its order compelling production of all emails referencing J.B.

Clark Cnty. Sch. Dist. v. Eighth Jud. Dist. Ct. (Nev. 2025) 581 P.3d 407.

Note:

Although this case arises under Nevada law and FERPA, the latter of which only applies to schools receiving certain federal funds, the decision provides helpful guidance on how courts distinguish formal student records from informal communications when parents and guardians make student record requests.

EMPLOYEES

Arbitration

California Supreme Court Rules Illegible Arbitration Agreements Trigger Close Scrutiny Of The Terms.

In Fuentes v. Empire Nissan (Feb. 2, 2026), the California Supreme Court addressed whether an arbitration agreement presented in extremely small font and under time pressure was enforceable.

Evangelina Yanez Fuentes signed an “Applicant Statement and Agreement” when applying for employment with Nissan. The one-page document required that “any claim” between the employer and employee “shall be submitted to and determined exclusively by binding arbitration,” and provided that the agreement could only be modified if “signed by the President of the Company.” The arbitration paragraph contained approximately 900 words compressed into a few inches of text in very small, blurry font. Fuentes was given only five minutes to review the document and was told to hurry because the drug testing facility that she needed to visit to undergo a required pre-employment drug test was about to close. Later during her employment, she signed two confidentiality agreements allowing Nissan to seek injunctive relief and “any other remedies,” and only Fuentes signed those agreements.

After Nissan terminated Fuentes following an extended medical leave, she sued for discrimination and wrongful termination. Nissan moved to compel arbitration. Fuentes argued the agreement was unconscionable. Under California law, an arbitration agreement is unenforceable for unconscionability if it is both procedurally and substantively unconscionable. Procedural unconscionability focuses on unfairness in

the formation process (such as fine print, legal jargon, or time pressure), while substantive unconscionability examines whether the actual terms are overly onesided. The two operate on a sliding scale: the greater the procedural unfairness, the less substantive unfairness is required.

The trial court denied the motion to compel arbitration, finding a high degree of procedural unconscionability based on the tiny font, dense legal language, and rushed review. The court also found a low to moderate degree of substantive unconscionability, reasoning that the confidentiality agreements appeared to create a carveout allowing Nissan to pursue certain claims in court while requiring Fuentes to arbitrate all of hers. This carveout therefore meant that the arbitration agreement did not apply equally, or mutually, to Nissan and Fuentes.

The Court of Appeal reversed, concluding that illegibility alone does not make an agreement substantively unconscionable and determining that the confidentiality agreements did not alter the arbitration provision. It relied in part on the principle that the law favors arbitration.

The California Supreme Court reversed the Court of Appeal. The Court agreed that the arbitration agreement reflected a high degree of procedural unconscionability, emphasizing the near-illegible formatting, legal complexity, economic pressure at hiring, and minimal time for review. However, the Court clarified that font size and readability affect procedural unconscionability only; they do not themselves make contractual terms substantively unconscionable.

Importantly, the Court rejected the idea that the “policy favoring arbitration” permits courts to resolve

ambiguities in favor of enforcement. The policy means arbitration agreements are treated like other contracts, not that they receive preferential interpretation. Courts must apply ordinary contract principles when assessing mutuality and fairness.

Turning to the confidentiality agreements, the Supreme Court held that the Court of Appeal improperly resolved factual questions, such as whether the company president signed the agreements, without an adequate record. Because the confidentiality agreements could reasonably be interpreted as allowing Nissan to litigate certain claims in court while limiting the employee to arbitration, the matter required further analysis. The Court remanded the case for a closer examination of whether the agreement lacked mutuality and whether the formation circumstances affected mutual assent.

The Supreme Court did not hold that the arbitration agreement was substantively unconscionable. Instead, it directed the lower court to scrutinize the agreement more carefully in light of the significant procedural concerns and unresolved factual issues.

Fuentes v. Empire Nissan, Inc. (Feb. 2, 2026, No. S280256) ___Cal.5th___ [2026 Cal. LEXIS 481].

Note:

Based on the California Supreme Court’s decision, employers should consider two things. First, employers should make sure that their arbitration agreements and other contracts are legible, in a large enough font, understandable, and that the employee has sufficient time to review. Second, employers should be careful when having an employee sign multiple agreements throughout their employment. Any ancillary agreements and their terms should be carefully reviewed for potential conflicts with an arbitration agreement.

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FREESPEECH

Ninth Circuit Upholds Discipline Of School Administrator For Facebook Post About The Democratic National Convention.

Randey Thompson served as an assistant principal at Evergreen Middle School in the Central Valley School District in Washington. In August 2020, after watching the Democratic National Convention, Thompson posted a comment on his private Facebook account. He limited the post’s visibility to his Facebook “friends.” The post criticized the Democratic National Convention and included slurs, profanity, and language suggesting violence against politicians. District employees saw the post and forwarded it to District administrators, who brought it to the attention of the superintendent.

Two days later, District administrators contacted Thompson. He confirmed that he authored the post and stated that he made it on his own time, on his personal device, and intended it as political commentary shared only with friends and family. The District immediately placed Thompson on paid administrative leave, barred him from school property, and prohibited him from contacting students, parents, or staff. Thompson deleted the post shortly after the call.

The District retained outside counsel to investigate the post and its potential impact. During the investigation, employees expressed concern that the post used hateful and offensive language that could harm students, families, and the broader school community. Investigators also gathered information about prior comments Thompson allegedly made at school, including derogatory references

toward students with disabilities and students of color.

The District then conducted interviews with staff, administrators, and parents to assess the impact of Thompson’s conduct. Interviewees reported shock and concern and questioned Thompson’s ability to serve effectively in a leadership role, particularly as a disciplinarian and representative of the District’s commitment to an inclusive school environment.

The school board held multiple notice-and-opportunity hearings. During those proceedings, Thompson initially claimed that his Facebook account had been hacked, a claim the District investigated and rejected after a forensic review. The District concluded that Thompson had not been truthful during the investigation and that his conduct interfered with the investigative process.

Ultimately, the superintendent transferred Thompson from his assistant principal position to a classroom teaching position. The District cited concerns about disruption, loss of trust, interference with job performance, and inconsistency with the District’s mission of fostering a safe and inclusive educational environment. The school board upheld the transfer.

Thompson sued the District and several individual administrators in federal district court under 42 U.S.C. Section 1983. He alleged that the District retaliated against him in violation of the First Amendment by placing him on administrative leave and transferring him because of his Facebook post.

The parties filed cross-motions for summary judgment. The trial court concluded that Thompson established a

prima facie First Amendment retaliation claim but held that the District prevailed under the Pickering balancing test. It granted summary judgment to the District and held that the individual administrators were entitled to qualified immunity.

Thompson appealed to the Ninth Circuit.

The Ninth Circuit analyzed Thompson’s claim under the two-step Pickering framework governing First Amendment retaliation claims by public employees. Under that framework, the employee must first establish a prima facie claim by showing that he spoke on a matter of public concern, suffered an adverse employment action, and that the speech was a substantial or motivating factor in that action. If the employee meets that burden, the employer may still prevail by showing that its legitimate interests in workplace efficiency and avoiding disruption outweigh the employee’s speech interests, or that it would have taken the same action regardless of the speech.

At the first step of the analysis, the Ninth Circuit agreed that Thompson’s Facebook post addressed a matter of public concern. Although the post included offensive language, slurs, and violent rhetoric, it criticized a major political event and therefore constituted political speech. The Ninth Circuit also assumed, without deciding, that a reasonable jury could find that placing Thompson on paid administrative leave qualified as an adverse employment action and the Facebook post was a substantial or motivating factor in the District’s decision. Thompson therefore established a prima facie retaliation claim.

The Ninth Circuit then turned to the second step of Pickering balancing. It explained that not all speech on matters of public concern receives equal weight. Speech grounded in an employee’s professional expertise or directly related to workplace issues typically receives greater protection, while speech that is derogatory, inflammatory, or unrelated to the employee’s job may receive less weight.

The Ninth Circuit gave Thompson’s speech limited weight because it was not based on specialized knowledge or insight gained through his role as an educator and because it used disability-related slurs and violent language. The Ninth Circuit emphasized that such language diminished the value of the speech for purposes of the Pickering balancing test, even though it did not remove the speech entirely from First Amendment protection.

On the other side of the balance, the Ninth Circuit held that the District demonstrated a reasonable prediction of disruption. The Ninth Circuit pointed to evidence that Thompson’s language undermined confidence in his leadership, threatened his ability to discipline students and evaluate staff, impaired working relationships, and conflicted with the District’s stated commitment to equity and inclusion. The Ninth Circuit emphasized Thompson’s role as a public-facing administrator with disciplinary authority, noting that the government’s interest in avoiding disruption is heightened for employees in leadership and supervisory positions.

The Ninth Circuit concluded that the District’s interest in maintaining a safe and inclusive school environment outweighed Thompson’s reduced First Amendment interest in the Facebook post. Because the District prevailed under Pickering, Thompson’s retaliation claim failed. The Ninth Circuit further held that, because no First Amendment violation occurred, the individual administrators were entitled to qualified immunity.

The Ninth Circuit affirmed the trial court’s judgment.

Thompson v. Cent. Valley Sch. Dist. No. 365 (9th Cir. Dec. 29, 2025, No. 24-5263) 2025 LX 688930.

Note:

Unlike public school teachers, private school teachers do not have constitutional free speech rights at school. However, off-campus speech, especially on controversial topics, can still trigger community concern and reputational risk. This case illustrates the growing number of cases related to the discipline of teachers and school administrators for their off-duty conduct, political statements, and social media posts.

NRLA

NLRB Orders University To Produce Confidential Investigation Report To Police Union.

The President and Fellows of Harvard College (Harvard University) were found to have violated federal labor law by refusing to provide a police union with an internal investigative report concerning a bargaining unit employee.

The dispute arose after Harvard retained an outside consultant, the Edward Davis Company, to investigate aspects of a campus police detective’s handling of a student sexual assault investigation, including the interaction between the detective and her supervisors. The consultant prepared a written report (the “Davis Report”) summarizing its findings and provided it to Harvard.

All University-employed police officers were represented by the Harvard University Police Association. After the Davis Company interviewed the detective, the Union requested a copy of the Davis Report, explaining that it was necessary to protect the detective’s rights, to evaluate whether supervisors had improperly criticized her performance, and to determine whether the Union should pursue a grievance under the parties’ collective bargaining agreement. The Union offered to accept redactions of identifying student information and proposed entering into a confidentiality agreement to limit dissemination of the report.

Harvard did not respond to the initial request and later refused to produce the report, asserting that it was a confidential internal document not provided to employees. Harvard maintained that the report was not relevant to the Union’s representational duties and that confidentiality concerns outweighed any obligation to disclose it. Harvard did not offer an alternative accommodation or provide a redacted version of the report. At the time of the Union’s renewed requests, the detective had an internal sex discrimination complaint pending with the University’s Office of Dispute Resolution, and the Union sought to use the report in that process and in deciding whether to file a grievance.

After the Union filed an unfair labor practice charge, the NLRB’s General Counsel issued a complaint alleging that Harvard violated Sections 8(a)(5) and 8(a) (1) of the National Labor Relations Act by refusing to provide relevant information. Following a hearing, the Administrative Law Judge agreed with the General Counsel.

The ALJ held that the Davis Report was presumptively relevant because it concerned the performance and supervision of a bargaining unit employee. Even aside from presumptive relevance, the ALJ found the report demonstrably relevant to the Union’s duties, including evaluating a potential grievance and assisting the employee in an ongoing discrimination complaint. The ALJ rejected Harvard’s argument that the report was irrelevant because it was not part of the Office of Dispute Resolution’s file, noting that the Union sought the report precisely so it could be submitted and considered.

The ALJ also rejected Harvard’s confidentiality defense. The ALJ found that Harvard failed to establish any legitimate and substantial confidentiality interest, emphasizing that the University official who denied the request admitted he had never read the report and that Harvard did not present testimony from anyone who had reviewed it. Harvard also did not submit the report for in camera review. Even assuming the report contained confidential student information, the ALJ found that the Union’s proposed accommodations to redact identifying information and to sign a confidentiality agreement were reasonable and that Harvard forfeited its confidentiality defense by refusing to engage in accommodative bargaining.

The ALJ concluded that Harvard unlawfully refused to provide the Davis Report and ordered the University to furnish it to the Union and post a remedial notice. The remedy applied even though the detective had since resigned, because her internal complaint remained pending and the report could still affect her interests and those of other bargaining unit employees.

President and Fellows of Harvard College (Harvard University), JD–95–25 (NLRB ALJ Dec. 23, 2025).

Note:

This decision underscores that independent schools with unionized staff have a broad obligation to provide unions with information that is relevant to representational duties, even when the information is contained in confidential investigative reports.

negligent

supervision

Court Of Appeal Bars Negligent Supervision Claim Against School District In Abuse Case.

Kristopher Flowers attended a middle school within the Rancho Cucamonga Central School District from sixth through eighth grade between 1999 and 2002. During that time, he participated in a before-and-after-school childcare program located on the school campus. The West End YMCA operated the program. West End YMCA employed Christine Johnson as the program director. Johnson did not work for the District.

Flowers alleged that during the 2001 to 2002 school year, Johnson repeatedly sexually abused him. He alleged that some of the abuse occurred on the school campus during program hours and that other abuse occurred at Johnson’s home. Flowers did not report the alleged abuse to any District employees while he attended the school. No District employee witnessed the alleged abuse nor observed conduct by Johnson that appeared abusive or inappropriate.

In November 2022, Flowers filed a lawsuit against Johnson, West End YMCA, YMCA USA, and the District. He brought claims against the District for negligence, negligent hiring and retention, negligent supervision or failure to warn, and failure to perform mandatory duties.

The District moved for summary judgment or, in the alternative, summary adjudication. The trial court dismissed the negligent hiring and retention claim and the failure-to-perform-mandatory-duties claim. The trial court allowed Flowers to proceed with his

negligence claim based on the District’s supervision of students and supervision of Johnson.

The District petitioned the Court of Appeal for a writ of mandate. The Court of Appeal limited its review to the denial of summary adjudication on Flowers’s claim that the District was negligent in its supervision of Johnson. The Court of Appeal did not review the claim alleging negligent supervision of Flowers.

The Court of Appeal applied the California Supreme Court’s decision in C.A. v. William S. Hart Union High School District. Under C.A., a school district may be liable for negligent hiring, retention, or supervision of an employee if supervisory personnel knew or should have known of the employee’s dangerous propensities and nevertheless failed to act. Constructive knowledge may suffice, but it requires evidence that reasonably supports an inference that supervisory personnel should have suspected misconduct.

The Court of Appeal concluded that the undisputed facts did not show that the District had actual or constructive knowledge of Johnson’s alleged dangerous propensities. The undisputed facts showed that no District employee, let alone a supervisor, witnessed any of the alleged assaults or inappropriate behavior, and Flowers did not report them to anyone during his time at the middle school. There was also no evidence that any District employee observed anything that reasonably should have triggered suspicion of abuse to justify an inference of constructive knowledge.

The Court of Appeal contrasted the case with Roe v. Hesperia Unified School District, where school administrators observed a janitor engaging in policy-

violating physical contact with students and escorting them into empty rooms. Those facts supported an inference of constructive knowledge. No comparable evidence existed in Flowers’s case.

The Court of Appeal rejected Flowers’s attempt to rely on the standard governing negligent supervision of students. That standard concerns whether school personnel exercised ordinary prudence in supervising students and allows liability for inadequate or ineffective supervision. The Court of Appeal explained that this standard did not apply because the only claim at issue on appeal involved alleged negligent supervision of Johnson, not supervision of students.

Because no evidence showed that District employees knew or reasonably should have known of Johnson’s alleged conduct, the Court of Appeal concluded that the District was entitled to summary adjudication on the negligent supervision claim.

The Court of Appeal granted the District’s petition for writ of mandate. It directed the trial court to vacate its prior order denying summary adjudication and to enter a new order granting the District summary adjudication on Flowers’s negligent supervision cause of action. The Court of Appeal awarded the District its costs on appeal.

Rancho Cucamonga Central School Dist. v. Superior Court (2025) 116 Cal.App.5th 718.

Note:

Although this case turned on the District’s lack of actual or constructive knowledge of the alleged abuse, SB 848 significantly expands the proactive child-safety obligations of California schools going forward. While liability for negligent supervision still hinges on knowledge or reason to suspect misconduct, SB 848 reflects the Legislature’s expectation that schools take affirmative, documented steps to prevent and detect abuse. Schools should ensure that agreements with outside contractors address training practices and reporting structures that are aligned with these expanded statutory duties.

governance

Court Reverses Preliminary Injunction After Finding Corporate Board Lacked Required Votes To Approve Assignment.

This case arose from a dispute over who had the authority to control litigation involving LePort Educational Institute, Inc. (LEI), a company that formerly operated a nationwide network of private Montessori schools. Carl Barney, a major secured creditor and shareholder of LEI, claimed that LEI had formally transferred him the right to pursue certain legal claims on the company’s behalf. That transfer, referred to as an “assignment,” would have allowed Barney to sue other LEI shareholders and former officers in LEI’s name and to control LEI’s defense of any related counterclaims.

The assignment at issue purported to transfer to Barney all of LEI’s claims against several individuals, including Ramandeep (“Ray”) and Rebecca Girn, who were former shareholders and officers of LEI. It also purported to give

Barney authority to retain counsel for LEI and direct LEI’s litigation strategy in disputes arising out of those claims. In practical terms, if the assignment was valid, Barney, rather than LEI’s management, would control how LEI participated in the lawsuit.

Barney sought to pursue claims alleging that the Girns helped transfer LEI’s Montessori schools, employees, and business relationships to Higher Ground Education, a competing school operator, in violation of their duties to LEI. Thereafter, the Girns filed a cross-complaint that included indemnification claims against both Barney and LEI. At that point, a dispute emerged between Barney and LEI’s founder and CEO, Dr. Peter LePort, over who had the legal authority to act for LEI. Barney asserted that the assignment gave him exclusive control over LEI’s defense of the cross-claims, while Dr. LePort disputed the assignment’s validity and continued to act as LEI’s representative, retaining separate counsel to defend the company. Competing attorneys began filing and withdrawing pleadings on LEI’s behalf, creating confusion over who actually spoke for the company in court.

To resolve that dispute, Barney asked the trial court to issue a preliminary injunction barring Dr. LePort, the Girns, and their attorneys from interfering with LEI’s participation in the case “by and through” Barney as assignee. The Girns opposed the request, arguing that Barney lacked authority because the assignment had never been properly approved by LEI’s board of directors under California Corporations Code section 307, subdivision (a)(8).

The trial court granted the preliminary injunction. Although it acknowledged the late timing of the challenge, the court rejected the validity argument on the merits, concluding that the assignment had been properly approved because a quorum was present at the relevant board meeting and the two directors who voted constituted a majority of those voting. The injunction barred the Girns and others from interfering with Barney’s control of LEI’s defense. The Girns appealed.

The Court of Appeal reversed. Interpreting section 307, subdivision (a)(8) and LEI’s bylaws (which mirrored the language in section 307), the Court of Appeal held that board approval required a majority of the directors present at the meeting, or alternatively, a majority of the required quorum if directors withdrew. At the meeting approving the assignment, four directors were present, but only two voted in favor after two recused themselves. Under either statutory scenario, three

affirmative votes were required. Because only two directors voted to approve the assignment, the Court concluded it was not validly approved by the board.

The appellate court rejected the trial court’s reasoning that a majority of those voting was sufficient, explaining that neither the Corporations Code nor the bylaws permit courts to disregard the number of directors present when calculating a majority.

Because the assignment’s validity was central to Barney’s claimed right to control LEI’s defense, the Court of Appeal held that the preliminary injunction could not stand. The Court reversed the injunction and remanded the matter to the trial court.

Barney v. 01006531 Ramandeep Girn (Feb. 9, 2026, No. G064412) ___Cal.App.5th___ [2026 Cal. App. Unpub. LEXIS 915].

Note:

Although this case arises from a corporate dispute rather than a school operations issue, it offers an important reminder that Boards must strictly comply with Corporations Code and bylaw voting requirements when enacting decisions.

business & Facilities

FAA Governs Arbitration Agreements Based On Parties’ Express Consent.

In August 2017, Sinedou Tuufuli worked as a collector and customer service representative for West Coast Dental, an entity that manages the business operations of affiliated dental practices and provides those practices support and administrative services.

When Tuufuli was hired, she electronically signed an arbitration agreement, which required any disputes with West Coast Dental relating to her employment must be resolved by final and binding arbitration. The arbitration agreement stated that the parties agreed to arbitrate claims based on any federal, state, or local law, including the California Fair Employment and Housing Act (FEHA), the California Labor Code, the California Unfair Competition Law, and the California Wage Orders. It further stated that the arbitrator would not have the authority to preside over class, collective, or other representative proceedings. The arbitration agreement said it would be governed by the Federal Arbitration Act (FAA) and, “to the extent permitted by such Act, the laws of the State of California.”

In April 2023, Tuufuli filed a complaint against West Coast Dental, asserting eight individual and class claims for violations of the Labor Code and the Business and Professions Code. West Coast Dental moved to compel arbitration and dismiss her class claims. It also argued that the arbitration agreement was governed by the FAA.

In March 2024, the trial court granted West Coast Dental’s motion to compel arbitration and dismissed Tuufuli’s class claims. The trial court relied on the evidence West Coast Dental supplied showing it operated in multiple states and on provisions within the arbitration agreement that said it was governed by the FAA. The trial court dismissed the class claims because the arbitration agreement prohibited Tuufuli from litigating or arbitrating class claims against West Coast Dental. Tuufuli appealed.

The Court of Appeal explained that the FAA reflects a liberal federal policy favoring arbitration agreements. The FAA preempts state laws that “require a judicial forum to resolve claims which the contracting parties agreed to resolve by arbitration.” The FAA applies if the parties expressly agreed that it will. Arbitration under the FAA is a matter of consent and parties may voluntarily elect to have the FAA govern enforcement of their arbitration agreement.

The Court of Appeal agreed with the trial court that the FAA governed the arbitration agreement between Tuufuli and West Coast Dental because they expressly agreed that it would. The Court of Appeal therefore affirmed the order compelling arbitration and dismissing the class claims.

Tuufuli v. West Coast Dental Administrative Services, LLC (Jan. 13, 2026, No. B338584) ___Cal.App.5th___ .

Note:

This decision reinforces that arbitration agreements used by private schools may be governed by the Federal Arbitration Act based on the parties’ express agreement. Private school employers that wish to invoke FAA governance should ensure their arbitration agreements clearly state that the FAA applies.

cases we are watching

• An Indiana school district has reached a settlement with a former music teacher who alleged that requiring him to use transgender students’ preferred names violated his religious beliefs under Title VII. The case was revived last year by the Seventh Circuit, which held that factual disputes remained as to whether accommodating the teacher’s practice of using students’ last names imposed an undue hardship under the Supreme Court’s Groff v. DeJoy standard. LCW covered this case previously.

• The Eleventh Circuit Court of Appeals has stayed a federal trial court order that required the University of Florida to reinstate a law student expelled over a social media post stating, “Jews must be abolished by any means necessary.” Granting the University’s request for a stay pending the ongoing appeal, the Court of Appeals held that the University was likely to succeed on the merits because the post could reasonably be viewed as advocating violence and had caused substantial disruption and safety concerns within the law school community. Applying the traditional stay factors, the Court concluded that allowing the expulsion to remain in effect during the appeal better served the balance of harms and the public interest. LCW covered this case previously and will continue to monitor the appeal.

• Two Minnesota school districts and the state teachers’ union have filed suit against the U.S. Department of Homeland Security and related federal officials, challenging the rescission of a longstanding federal policy limiting immigration enforcement at or near schools and other “sensitive locations.” The complaint alleges that DHS’s January 2025 policy change, which removed prior guardrails that restricted enforcement near schools and school bus stops, violates the Administrative Procedure Act because it was arbitrary and capricious and adopted without notice-and-comment rulemaking. The plaintiffs seek relief to block immigration enforcement actions within 1,000 feet of school property or bus stops absent a judicial warrant or exigent circumstances.

lcw best timeline

JANUARY / FEBRUARY

Review and revise/update annual employment contracts.

Conduct audits of current and vacant positions to determine whether positions are correctly designated as exempt/non-exempt under federal and state laws.

Inform those who are newly deemed mandated reporters under SB 848 (Board members, certain volunteers) of their obligations and collect signed acknowledgement forms from them.

FEBRUARY / EARLY MARCH

Issue enrollment/tuition agreements for the following school year.

Review field trip forms and agreements for any spring/summer field trips.

Tax documents must be filed if School conducts raffles:

Schools must require winners of prizes to complete a Form W-9 for all prizes $600 and above. The School must also complete Form W-2G and provide it to the recipient at the event. The School should provide the recipient of the prize copies B, C, and 2 of Form W-2G; the School retains the rest of the copies. The School must then submit Copy A of Form W2-G and Form 1096 to the IRS by February 28th of the year after the raffle prize is awarded.

Planning for Spring Fundraising Event

Summer Program

• Consider whether summer program will be offered by the School and if so, identify the nature of the program and anticipated staffing and other requirements.

• Review, revise, and update summer program enrollment agreements based on changes to the law and best practice recommendations.

MARCH - END OF APRIL

The budget for the next school year should be approved by the Board.

Issue contracts to existing staff for the next school year.

Issue letters to current staff who the School is not inviting to come back the following year.

Assess vacancies in relation to enrollment.

Post job announcements and conduct recruiting.

• Resumes should be carefully screened to ensure that the applicant has necessary core skills and criminal, background and credit checks should be done, along with multiple reference checks.

Summer Program.

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.

• Advise staff of summer program and opportunity to apply to work in the summer, and that hiring decisions will be made after final enrollment numbers are determined at the end of May.

• Distribute information on summer program to parents and set deadline for registration by end of April.

• Enter into Facilities Use Agreement for Summer Program, if not operating summer program.

Transportation Agreements.

• Assess transportation needs for summer/next year.

• Update/renew relevant contracts.

did you know...?

• On January 22, 2026, the EEOC voted 2-1 to rescind its 2024 “Enforcement Guidance on Harassment in the Workplace,” citing concerns that portions of the guidance exceeded the agency’s statutory authority, particularly with respect to gender identity interpretations under Title VII. The rescission follows a 2025 federal court ruling that vacated portions of the guidance and reflects the Commission’s shift in enforcement posture. While the guidance has been withdrawn, federal antidiscrimination laws remain in effect, and the EEOC has reiterated that combating unlawful workplace harassment continues to be a priority.

• The U.S. Department of Education has withdrawn its appeal in a lawsuit challenging its February 2025 Dear Colleague letter that warned schools their federal funding could be at risk for maintaining certain race-based DEI initiatives. The letter relied on the Supreme Court’s Students for Fair Admissions decision to argue that some diversity and equity programs could violate federal civil rights law, but a federal district court had previously issued a preliminary injunction blocking its enforcement. By dismissing its appeal, the Department has effectively stepped back from pursuing enforcement of the policy at this time.

• The City of Fresno has adopted an ordinance creating a local framework for the criminal and civil prosecution of wage theft. The ordinance authorizes the City Attorney to pursue criminal misdemeanor charges and civil actions for unpaid wages, willful misclassification of independent contractors, and related Labor Code violations, with penalties that can include restitution, statutory damages, and civil fines.

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:

The Director of Human Resources for a private school reached out to LCW to ask a question about field trip waivers. The HR Director explained that the school has students who are 18 years old attending a field trip and wanted to know if the parents and the students should sign the waivers for an upcoming trip.

Answer:

The LCW attorney advised that, once a student turns 18 years old, they have reached the age of majority and are legally permitted to sign and be held liable for contracts. For that reason, once a student turns 18, they should be required to sign school waivers as well. LCW also recommends that the parents sign the waivers because many of the provisions apply specifically to the parents. As one example, in field trip waivers there is usually a provision that parents agree to pick up the student if the student breaks school rules and needs to be sent home. There is also usually an indemnification provision that requires the parents to indemnify (i.e., compensate) the school for losses the school suffers that are caused by the student. By having parents sign the agreement, they are also bound by those terms.